Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Gerber Childrenswear, Inc. 131 744K
2: EX-4.2 Credit Agreement 108 427K
3: EX-10.1 Stock Purchase Agreement 51 215K
11: EX-10.10 Subordination and Interceditor Agreement 17 68K
12: EX-10.11 Junior Subordinated Note 25 100K
13: EX-10.13 License Agreement 28 91K
14: EX-10.14 License Agreement 31 73K
15: EX-10.15 Trademark License Agreement 33 127K
16: EX-10.16 Lease Agreement 7 31K
17: EX-10.17 Lease Agreement 6 28K
18: EX-10.18 Lease Agreement 6 28K
19: EX-10.19 Lease Agreement 11 37K
4: EX-10.2 Form of Executive Stock Purchase Agreement 21 90K
20: EX-10.20 Lease Agreement 40 120K
21: EX-10.21 Severance Agreement 2 14K
5: EX-10.3 Form of Manager Securities Purchase Agreement 17 69K
6: EX-10.4 Securities Purchase Agreement 13 60K
7: EX-10.5 Form of Director Stock Purchase Agreement 12 44K
8: EX-10.7 Stock Purchase Agreement 54 224K
9: EX-10.8 Share Purchase Agreement 52 242K
10: EX-10.9 Amended and Restated Credit Agreement 54 238K
22: EX-21.1 Subsidiaries of the Registrant 1 8K
23: EX-23.1 Consent of Ernst & Young LLP 1 10K
24: EX-23.2 Consent of Jc Holland & Co Psc 1 8K
25: EX-23.3 Consent Price Waterhouse 1 8K
26: EX-27.1 Financial Data Schedule 1 10K
EXHIBIT 10.20
PELHAM ROAD LEASE AGREEMENT
STATE OF SOUTH CAROLINA ) FIRST AMENDMENT TO LEASE AGREEMENT
)
COUNTY OF GREENVILLE )
THIS FIRST AMENDMENT TO LEASE AGREEMENT (the "Amendment") is made and
entered into as of this 25th day of November, 1996, by and between Highland
Properties, LLC (the "Lessor") and Gerber Childrenswear, Inc. (the "Lessee"):
W I T N E S S E T H :
WHEREAS hereto, on September 13, 1996, Lessor and Lessee entered into that
certain Lease Agreement wherein the Lessor agreed to let and the Lessee agreed
to rent 33,600 square feet of property in a building to be constructed by Lessor
at 7005 Pelham Road, Greenville, South Carolina, the terms of which are
incorporated herein by reference (the "Lease").
WHEREAS, pursuant to the subsequent request of Lessee, Lessor has agreed
to provide additional space to the Lessee consisting of 4,800 square feet (the
"Additional Space"), which would thereby increase the Premises to 38,400 square
feet.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and in consideration of the additional rent to be provided
pursuant to the Amendment, the receipt and sufficiency of which are both hereby
acknowledged, Lessor and Lessee agree as follows:
1. The first paragraph of Article I, GRANT AND TERM, Paragraph 1.1, is
amended by deleting the first sentence thereof in its entirety and substituting
in lieu thereof the following:
1.1 Description of Premises. Lessor hereby leases to Lessee, and
Lessee hereby accepts and rents from Lessor, that certain office space
(known as Suite D) containing a total of approximately 33,600 square feet
(the "Initial Space") plus 4,800 square feet (the "Additional Space"),
(the
Initial Space and the Additional Space being collectively referred to as
the "Premises") located within the building known as Building No. III (the
"Building"), which Building contains a total of approximately 48,000
square feet and is located at 7005 Pelham Road, within Pelham at Hyland
Business Center (the "Project") as shown on the Site Plan marked Exhibit 1
attached hereto, situated in the County of Greenville, State of South
Carolina.
2. Article I, GRANT AND TERM, Paragraph 1.4 Occupancy; Lease Commencement
Date is hereby amended by adding at the end thereof the following:
The Lessor shall, with regard to the Additional Space, complete such space
as the Initial Space is to be completed as shown on Exhibits 2 and 3.
3. Article I, GRANT AND TERM, Paragraph 1.4 Occupancy; Lease Commencement
Date is hereby further amended by deleting from the nineteenth (19th) line the
date "March 17, 1997," and inserting in lieu thereof "March 31, 1997."
4. Article II, RENT, Paragraph 2.1a.(1) Initial Term, is amended by
deleting it in its entirety and substituting in lieu thereof the following:
2.1 Rent
a. Initial Term.
(1) The Minimum Annual Rent during Initial Term shall be Three
Hundred Twenty-Four Thousand Two Hundred Seventy and 00/100
Dollars ($324,270.00), payable in equal monthly installments
of Twenty Seven Thousand Twenty-two and 50/100 Dollars
($27,022.50) (the "Minimum Annual Rent").
5. Article II, RENT, Paragraph 2.2d is amended by deleting it in its
entirety and inserting in lieu thereof the following:
d. Additional Rent for Additional Parking Spaces.
Lessee agrees to pay during the Initial Term of this Lease
additional rent equal to Sixteen and 45/100 Cents (0.1645) per
square foot within only the Initial Space of the Premises to
reimburse Lessor for the cost of 33 additional parking spaces.
Said rent shall be due and
2
payable in the manner and in the same terms and conditions as
the Minimum Annual Rent reserved hereunder.
6. Exhibit 4 is amended by deleting it in its present form and
substituting the Exhibit attached.
7. Except as expressly set forth in the Amendment, all other terms and
conditions of the Lease shall remain in full force and effect and are hereby
ratified and reconfirmed by Lessor and Lessee.
3
IN WITNESS WHEREOF, we have hereunto set our hands and affixed our seals
the date and year first above-written.
LESSOR:
HIGHLAND PROPERTIES, LLC, a South
Carolina limited liability company
/s/ Marshall Bentley [sic] By: /s/ Mark A. Cothran [sic]
--------------------------------- ---------------------------------
Witness Member
/s/ Dee Parris Date of Execution: 11/25/96
--------------------------------- -------------------
Witness
LESSEE:
GERBER CHILDRENSWEAR, INC., a Delaware
corporation
/s/ Jay R. Cope By: /s/ David E. Uren
--------------------------------- ---------------------------------
Witness Its: Vice President, Finance
/s/ Dee Parris Date of Execution: 11/25/96
--------------------------------- -------------------
Witness
4
EXHIBIT 4
TOTAL ESTIMATED PAYMENTS
Summary for Year 1
[Download Table]
Annual Monthly
------ -------
A. Rent $324,270.00 $ 27,022.50
B. Additional Rent:
1) Operating Expenses (includes real estate $ 26,880.00 $ 2,240.00
taxes, insurance and common area
maintenance charges
2) Additional Rent/Parker 5,525.00 460.42
TOTAL $356,675.00 $ 29,722.92
5
LEASE AGREEMENT
PELHAM AT HYLAND BUSINESS CENTER
PELHAM ROAD
GREENVILLE, SOUTH CAROLINA
THIS LEASE AGREEMENT (this "Lease") is made and entered into as of the
13th day of September 1996, by and between Highland Properties, LLC, hereafter
called the "LESSOR" and Gerber Childrenswear, Inc., hereafter called the
"LESSEE".
WITNESSETH:
For and in consideration of the rent provided herein and the mutual
covenants and agreements hereinafter set forth, the parties hereto agree for
themselves, their successors and assigns, as follows:
ARTICLE I
GRANT AND TERM
1.1 Description of Premises. Lessor hereby leases to Lessee, and Lessee hereby
accepts and rents from Lessor, that certain office space (known as Suite D)
containing a total of approximately Thirty-three Thousand Six Hundred (33,600)
square feet (the "Premises") located with the building known as Building III
(the "Building") which Building contains a total of approximately 48,000 square
feet and is located at 7005 Pelham Road, within Pelham at Hyland Business Center
(the "Project") as shown on the site plan marked Exhibit 1 attached hereto,
situated in the County of Greenville, South Carolina. The Premises is leased to
Lessee, together with the non-exclusive, irrevocable right to use and occupy, in
common with Lessor and other tenants of the Building and the Project, all
parking areas, driveways, sidewalks and other common facilities designated by
Lessor from time to time in the Project.
It is expressly agreed that the Demised Premises do not include the land
beneath the unit, nor any space above the interior ceiling of such unit;
provided that the Lessee shall have the non-exclusive right to use a portion of
such space for the location of the Lessee's construction and equipment serving
the Demised Premises, subject to the approval of the Lessor as to location and
installation, such right to be in common with the Lessor and all others to whom
the Lessor has or may hereafter grant such rights. The exterior face of exterior
walls, the roof, together with the right to install, maintain, use, repair and
replace such pipes, duct work, conduits, utility lines, tunneling, wires and the
like through ceiling plenum areas, column space, partitions, in or beneath floor
slabs or above or below the Demised Premises as may be reasonably necessary or
advisable for the servicing of the Demised Premises or other portions of the
Building of which the Demised Premises are a part is expressly reserved unto
Lessor.
1.2 Term. The term of this Lease shall commence on the Occupancy Date (the
"Lease Commencement Date") and end on the seventh (7th) anniversary date of the
Lease Commencement Date (the "Initial Term"). Every twelve (12) calendar month
period following the Lease Commencement date shall constitute a lease year. An
Addendum shall be executed by Lessor and Lessee confirming the Lease
Commencement Date and the Initial Term hereof, and shall be attached hereto and
incorporated herein by reference.
1.3 Extension Option. Providing Lessee has not defaulted in the performance of
any condition of this lease, Lessee shall have option to extend the term of this
lease for two (2) additional and consecutive periods of five (5) years each
following the Initial Term, provided however that written notice is given Lessor
by Lessee that it elects to exercise its option to extend the Lease one hundred
eighty (180) days prior to the expiration date of the then-current lease period,
and further provided that all conditions of the Lease, except the rental rate,
which shall be adjusted as provided herein, shall continue in full force and
effect for each such extension. There shall be no privilege to extend the terms
of this lease for any period of time beyond the expiration of the agreed upon
extended terms.
In the event Lessee does not exercise its first (1st) five (5) year
renewal option to extend the Lease as specified above, then Lessee shall pay
Lessor $100,000.00 on or before the ending date of the Initial Term.
1.4 Occupancy; Lease Commencement Date. The Occupancy Date shall be the date
upon which the Building and other improvements erected and to be erected upon
the Premises shall have been substantially completed in accordance with the
Floor Plan and Specifications attached hereto as Exhibits 2 and 3, respectively,
prepared by Marsh/Bell Construction Co., Inc., dated September 12, 1996,
entitled "Hyland at Pelham Business Park Upfit (Gerber)" and prepared by
Marsh/Bell Construction Co., Inc., dated September 13, 1996, entitled "Office
Warehouse Project (48,000 SF), Pelham Road, Greenville, S.C." and incorporated
herein by reference. The scheduled Occupancy Date is March 17, 1997. Lessee may
with the approval of Lessor choose to occupy the premises before March 17, 1997.
Lessor shall notify Lessee in writing as soon as Lessor deems said buildings and
other improvements are completed and ready for occupancy as aforesaid. In the
event that said buildings and other improvements have not in fact been so
completed, Lessee shall notify Lessor in writing of its objections. Lessor shall
have a reasonable time after delivery of such notice within which to take such
corrective action as may be necessary, and shall notify Lessee in writing as
soon as it deems such corrective action has been completed. In the event of any
dispute as to substantial completion of work performed or required to be
performed by Lessor, Earl Gaulden, AIA, shall be mutually engaged to inspect the
work performed versus the standards set forth in Exhibits 2 and 3 and his
certification (the "Certificate of Substantial Completion") shall be conclusive
as to such facts. If the Leased Premises are not ready for occupancy by March
17, 1997, Lessor shall pay a penalty until the date of the Certificate of
Substantial Completion to Lessee which is equal to two (2) times Lessee's
current daily rental rate at its location at Falls Place, South Main Street,
Greenville, South Carolina. If Lessor fails to cause the Leased Premises or any
portion thereof to be ready for occupancy at the time of the scheduled Occupancy
Date, (i) neither Lessor nor Lessor's agent, officers, employees, or contractors
shall be liable for any damage, loss, Liability or expense
2
caused thereby other than described above, (ii) nor shall this Lease become void
or voidable unless such failure continues for more than sixty (60) days, in
which case Lessee may, upon twenty (20) days written notice to Lessor, terminate
this Lease. Prior to occupying the Premises, Lessee shall execute and deliver to
Lessor a letter acknowledging the Occupancy Date and certifying that the
Improvements have been completed and that Lessee has examined and accepted the
Premises.
Provided Lessee does not interfere with the construction of improvements,
Lessee has the right of early possession of the Premises for the installation of
phones, computer equipment and furniture systems.
1.5 Construction of Premises.
a. Construction of Premises.
Immediately upon the execution hereof, Lessor, at Lessor's sole expense,
shall commence construction of improvements to the Premises substantially in
accordance with the mutually approved plans and specifications set forth in
Exhibits 2 and 3. Lessee shall bear any expense in excess of improvements
specified in the within referenced plans and specifications, together with an
additional charge of twenty percent (20%) of such excess, to cover Lessor's
overhead, and pay the same to Lessor prior to commencement of such additional
work. ALL improvements made to the Premises shall be the property of the Lessor
during the term of this Lease and shall remain the property of Lessor upon
termination of this Lease.
Lessor shall construct the Premises in accordance with the Floor Plan and
Specifications attached hereto as E5chibits 2 and 3 respectively. To the best of
Lessor's knowledge, the design and construction of the Premises shall be in
compliance with Title 111 of the Americans With Disabilities Act, Public Law
101-336 on the date Lessor delivers the Premises to Lessee for occupancy.
b. Change Orders by Lessee.
Lessee shall bear any expenses in excess of improvements specified in the
within referenced Plans and Specifications together with an additional charge of
twenty percent (20%) of such excess to cover Lessor's overhead, and pay the same
to Lessor prior to commencement of such additional work. Any change in the
construction or upfitting of the mutually approved Plans and Specifications,
shall be in the form of a written change order. The Change Order shall include
the work to be performed, the additional cost and the additional time extension
of the scheduled Occupancy Date as set forth in 1.4 herein above, if any. Each
change order shall be mutually agreed upon and signed by authorized
representative of the parties prior to commencement. There shall be no delay in
the commencement of the Term of this Lease and/or payment of the rent where
Lessee fails to occupy the Premises when same are ready for occupancy or fails
to make other decisions necessary for preparation of the Premises for occupancy.
For purposes of this article, the Premises shall be deemed substantially
completed and ready for occupancy by Lessee as set forth in Article 1.4 above.
3
ARTICLE II
RENT
2.1 Rent. Beginning on the Rental Commencement Date and continuing throughout
the full term of the Lease, Lessee shall pay to Lessor, without notice, demand,
reduction, abatement, set off or any defense, minimum base rent (the "Minimum
Annual Rent") in equal monthly installments, in advance, on or before the first
day of each month. Lessee's obligation to begin the payment of Minimum Annual
Rent shall be the sixty-first (61st) day following the Occupancy Date (the
"Rental Commencement Date.). If the Rental Commencement Date is a date other
than the first day of calendar month, the Base Rate shall be prorated daily from
such date to the first day of the next calendar month and paid on the Rental
Commencement Date. The rent payable hereunder is as follows:
a. Initial Term.
(1) The Minimum Annual Rent during the Initial Term shall be Two
Hundred Eighty Three Thousand Four Hundred Seventy and no/100 Dollars
($283,470.00) payable in equal monthly installments of Twenty Three Thousand Six
Hundred Twenty-Two and 50/100 Dollars ($23,622.50) (the "Minimum Annual Rent.).
b. Rent During Extension Terms. The Minimum Annual Rent for each Extension
Term shall be adjusted and multiplied by a percentage which shall be the lesser
of:
(1) Fourteen percent (14%) for the first Extension Term and Ten
percent (10%) for the second Extension Term; or
(2) The amount by which there has been a change, if any, in the
Consumer Price Index using the "Consumer Price Index All
Items, All Urban Consumers (1982-84 = 100)" (hereinafter
called the Index), published by the Bureau of Labor Statistics
of the United States Department of Labor between the Rent
Commencement Date and the first day of the first Extension
Term and the second Extension Term.
(i) For the first Extension Term, the Index for the month
during which the Occupancy Date occurs shall be "Base
Index Number" and the corresponding Index for the first
month of the first Extension Term shall be the "Current
Index Number." For the second Extension Term, the Base
Index Number shall be the Index for the first month of
the first Extension Term and the Index for the first
month of the second Extension Term shall be the Current
Index Number.
(ii) For the appropriate Extension Term, the Current Index
Number shall be divided by the Base Index Number. From
the quotient thereof, there shall be subtracted the
integer 1, and any resulting positive
4
number shall be deemed to be the percentage of increase
by which the Minimum Annual Rent is to be adjusted.
(iii) If publication of the Consumer Price Index shall be
discontinued, the parties hereto shall thereafter accept
comparable statistics on the cost of living for the City
of Greenville, South Carolina, as they shall be computed
and published by an agency of the United States or by a
responsible financial periodical of recognized authority
then to be selected by the parties hereto. In the event
of (i) use of comparable statistics in place of the
Consumer Price Index as above mentioned, or (ii)
publication of the Index figure at other than monthly
intervals, there shall be made in the method of
computation herein provided for such revisions as the
circumstances may require to carry out the intent of
this Article.
(iv) The percentage of increase determined as provided above
shall be multiplied by the Minimum Annual debt payable
during the last preceding term shall be due and payable
to the Lessor in the same manner as the rent was payable
for the Initial Term and the First Extension Term, as
appropriate.
2.2 Additional Rent.
a. Operating Expenses. Lessee agrees to pay as Additional Rent its
proportionate share of the amount paid by Lessor during the Term for operation
and maintenance of the Building (collectively "Operating Expenses"). Operating
Expenses shall include, but not be limited to, the following: (i) all expenses
for operation, repair, replacement and maintenance as necessary to keep the
Building and common area of the Project and the grounds, and parking areas
associated therewith in good order, condition and repair, including but not
limited to, utilities for the common areas of and relating to the Project
expenses associated with the driveways and parking areas (including repair of
the asphalt surface and snow, trash and ice removal), lighting facilities,
landscaped areas, walkways, directional sign age, curbs, drainage strips, sewer
lines, all charges assessed against the Project pursuant to any applicable
easements, covenants or development standards, administrative fees (including
property management fees) and (ii) all insurance premiums paid by Lessor with
respect to the Project, including public liability insurance. The cost for all
capital improvements that would be capitalized or depreciated under generally
accepted accounting principles shall not be included in calculating Operating
Expenses; provided, however, notwithstanding the foregoing, that Operating
Expenses shall include amortization of all costs of capital improvements which
are for the purpose of reducing Operating Expenses and which ultimately result
in a reduction in Lessee's proportionate share of Operating Expenses. Operating
Expenses shall not include expenses for the costs of any maintenance and repair
required to be performed by Lessor at its own expense under Paragraph 6.01 of
this Lease. The proportionate share of Operating Expenses to be paid by Lessee
shall be a percentage of the Operating Expenses based upon the proportion that
the square footage of the Premises bears to the total square footage of the
5
Project (such figure referred to as "Lessee's Operating Expense Percentage).
Lessor shall estimate the total amount of Operating Expenses to be paid by
Lessee during each calendar year and promptly after the beginning of each
calendar year or partial calendar year during the term and Lessee shall pay to
Lessor one-twelfth (1/12) of such sum on the first day of each calendar month
during each such calendar year, or part thereof, during the Tenn. Lessor shall
submit to Lessee a statement of the actual amount of Operating Expenses for such
calendar year, and within thirty (30) days after receipt of such statement;
Lessee shall pay any deficiency between the actual amount owed and the estimates
paid during such calendar year, or in the event of overpayment, Lessor shall, at
Lessor's option, credit the amount of such overpayment toward the next
installment of Operating Expenses, or refund the amount of such overpayment to
Lessee. If the Rental Commencement Date of the Base Tenn shall fall on other
than the first day of the calendar year, or if the Expiration Date shall fall on
other than the last day of the calendar year, Lessee's share of the Operating
Expenses for such calendar year hall be apportioned pro rata.
b. Real Estate Taxes. As additional Rent, Lessee shall pay its
proportionate part of any ad valorem taxes assessed and allocable to the real
estate and improvements of which the Demised Premises form a part. The Lessee's
proportionate part of the ad valorem taxes shall be a fraction, the numerator of
which is the number of square feet of floor area in the Premises herein
described and the denominator of which is the total number of square feet in the
Buildings which are existing on the tax parcel of which the Premises is a part.
Lessor shall provide evidence of such ad valorem taxes to the Lessee and the
additional rent shall be paid upon thirty (30) days written notice to Lessee of
the amount due or at Lessor's option the additional rent due hereunder shall be
estimated and paid in advance in equal monthly installments on the first day of
each calendar month and adjusted within sixty (60) days after the close of each
calendar year. If the Rental Commencement Date of this Lease sh 11 begin on
and/or terminate at a time other than the beginning (or ending as the case may
be) of a tax year, a proper apportionment of said real estate taxes for the year
shall be made to cover the fraction of a year included within the term of this
Lease. In addition, should the Lessee conduct any manufacturing activities in or
from the Leased Premises which will cause the Leased Premises to be classified
and taxed by the South Carolina Tax Commission for property tax purposes at a
ten and one half percent assessment ratio, the Lessee will pay the amount of
such increase in tax on the entire building in which the demised premises is
located.
c. Total Estimated Operating Expenses. The total estimated Operating
Expenses (including taxes, insurance, and common area maintenance charges) for
the Premises for the first year are Seventy Cents ($0.70) per square foot within
the Premises.
d. Additional Rent for Additional Parking Spaces. Lessee agrees to pay
during the Initial Term of this Lease additional rent equal to Sixteen and 3/4
Cents ($0.1645) per square foot within the Premises to reimburse Lessor for the
cost of thirty three (33) additional parking spaces. Said rent shall be due and
payable in the same manner and upon the same terms and conditions as the Minimum
Annual Rent reserved hereunder.
e. Other Additional Rent Provisions. Any amounts required to be paid by
lessee under this Paragraph 2.02 and any charges or expenses incurred by Lessor
on behalf of Lessee
6
(including any construction costs incurred by Lessor beyond the Lessee
Improvement Allowance and amortized over the Lease Term) shall be considered
"Additional Rent" payable in the same manner and upon the same terms and
conditions as the Base Rent reserved hereunder. Any failure on the part of
Lessee to pay such Additional Rent when and as the same shall become due shall
entitled Lessor to the remedies available to it for nonpayment of Minimum Annual
Rent. Lessee's obligations for payment of Additional Rent shall begin to accrue
on the Rental Commencement Date. As used in this Lease, the term "Rent" shall
include Base Rent and Additional rent, except as otherwise expressly provided to
the contrary.
Lessor reserves the right at any time to separate the Project, consisting
of several buildings, into separate tax parcels. Upon separation into parcels,
Additional Rent for the Project to date shall be allocated to each parcel
according to the respective square footage of improvements for each building as
a percentage of the total building square footage in the Project. Subsequently,
the total square footage of only Building m shall be used to calculate Lessee's
pro rate share of Additional Rent.
2.3 Summary of Total Estimated Payments for Year 1. As summary of the first
year's total annual payments as shown on Exhibit 4, attached hereto.
2.4 Late Payments. If Lessee shall not have paid Rent and Additional Rent within
fifteen (15) days of the due date, Lessee shall pay a late penalty equal to
eight percent (8%) per annum of the late payment. Acceptance by Lessor of any
payment from Lessee hereunder in an amount less than that which is currently due
shall in no way affect Lessor's rights under this Lease and shall not constitute
an accord and satisfaction.
ARTICLE III
PERSONAL PROPERTY TAXES
Lessee shall pay any taxes, documentary stamps or assessments of any
nature imposed or assessed upon Lessee's occupancy of the premises or upon
Lessee's furniture, furnishings, trade fixtures, equipment, machinery,
inventory, merchandise or other personal property located on the Premises and
owned by or in the custody of Lessee promptly as all such taxes or assessments
may become due and payable without any delinquency. If applicable in the
jurisdiction where the Premises are located, Lessee shall pay and be liable for
all rental tax (only to the extent such rental tax is levied in lieu of ad
valorem property taxes against the Premises), sales, use and inventory taxes or
other similar taxes, if any, levied or imposed by any city, state, county or
other governmental body having authority, such payments to be in addition to all
other payments required to be paid by Lessor by Lessee under the terms of this
Lease. Such payment shall be made by Lessee directly to such governmental body
if billed to Lessee, or if billed to Lessor, such payment shall be paid
concurrently with the payment of the Base Rent, Additional rent, or such other
charge upon which the tax is based, all as set forth herein. Notwithstanding the
foregoing, Lessee shall have the right, at its sole cost and expense, to contest
such taxes, and upon contesting the amount of such taxes, Lessee shall deposit
the amount of such taxes into an escrow account reasonably acceptable to Lessor.
7
ARTICLE IV
INSURANCE
4.1 Lessee's Required Insurance Coverage. Lessee covenants and agrees that from
and after the date of occupancy by the Lessee, Lessee will carry and maintain,
at its sole cost and expense, the insurance required under Paragraph 4.01(a) and
4.01(b) below. All such policies of the insurance shall be issued inform
acceptable to Lessor by insurance companies with a rating of not less than "A",
if available, in the most current available "Best's Insurance Reports" 7 and
licensed to do business in the state in which the Building is located. The
insurance which Lessee is required to maintain is as follows:
a. Liability insurance in the Commercial General Liability form (or
reasonable equivalent thereto) covering the Premises and Lessee's use thereof
against claims for personal injury or death, property damage and product
liability occurring upon, in or about the Premises, such insurance to be written
on an occurrence basis (not a claims made basis), to be in combined single
limits amounts not less than $1,000,000.00 and to have general aggregate limits
of not less than $1,000,000.00 for each policy year. The insurance coverage
required under this Paragraph 4.01(a) shall, in addition, extend to any
liability of Lessee arising out of the indemnities provided for in Article 5
and, if necessary, the policy shall contain a contractual endorsement to that
effect. The general aggregate limits under the Commercial General Liability
insurance policy or policies must apply separately to the Premises and to
Lessee's use thereof (and not to any other location or use of Lessee) and such
policy shall contain an endorsement to that effect. Notwithstanding the
foregoing, Lessee shall have the right to carry the liability insurance provided
above in the form of a blanket insurance policy, covering additional items or
locations or insureds, provided, however, that: (i) Lessor, and any other
parties in interest designated by Lessor to Lessee, from time to time, shall be
named as additional insureds thereunder as its interests may appear, 0li) the
coverage afforded Lessor and such o&er parties designated by Lessor will not be
reduced or diminished by reason of use of such blanket policy of insurance; and
(iii) any such policy shall provide, at a minimum, for the minimum liability
limitations hereinabove provided in this Article 4 with respect to Lessee's
interests in and to the Premises and the Project.
b. Insurance covering all of Lessee's leasehold improvements, heating,
trade fixtures, merchandise and personal property from time to time in, on or
upon &e Premises, in an amount not less than one hundred percent (100%) of their
full replacement value from time to time during the Term, providing protection
against perils included within the standard form of "all risks" fire and
casualty insurance policy, together with insurance against sprinkler form of
"all risks" fire and casualty insurance policy, together with insurance against
sprinkler damage, vandalism and malicious mischief.
4.2 Policy Requirements. Each of Lessee's insurance policies required above
shall: (i) name Lessor, as well as any mortgagee or ground lessor of Lessor, as
an additional named insured; (ii) provide that a certificate evidencing such
insurance shall be delivered to Lessor prior to possession of the Premises by
Lessee and thereafter within thirty (30) days prior to the expiration of each
such policy, and, as often as any such policy shall expire or terminate; (iii)
contain a provision that the
8
insurer will give to Lessor and such other parties in interest at least thirty
(30) days notice in writing in advance of any material change, cancellation,
termination or lapse, or the effective date of any reduction in the amounts of
insurance; and (iv) be written as a primary policy which does not contribute to
and is not in excess of coverage which Lessor may carry. Notwithstanding the
provisions of subparagraph (iii) of the preceding sentence, Lessee shall be
responsible for providing Lessor with at least twenty five (25) days notice in
advance of any material change, cancellation, termination or lapse, or the
effective date of any reduction in the amount of insurance.
4.3 Waiver of Subrogation. Lessor and Lessee hereby mutually waive the rights
each may have against the other of recovery for or arising out of any loss or
damage occasioned to the Premises, its contents or to its portions of the
Building, arising from any risk covered by all insurance coverage required to be
maintained hereunder, and to the extent of recovery under valid and collectible
policies of such insurance, provided that such waiver does not invalidate such
policies or prohibit recovery thereunder. The waiver as herein provided shall be
clearly reflected in all policies required hereunder or by endorsement, rider or
amendment, as appropriate.
4.4 Lessor's Required Insurance Coverage. Lessor shall maintain and pay for fire
insurance with extended coverage, covering the Building and improvements,
including the Premises, in an amount not less than the amount equal to the full
replacement cost thereof; provided, however, such coverage shall not include any
furniture, furnishings, trade fixtures, equipment, machinery, inventory,
merchandise or any other personal property of Lessee in the Premises. Lessor
shall also maintain commercial general liability insurance covering the Building
having general aggregate limits of not less than $1,000,000.00.
ARTICLE V
INDEMNIFICATION
Lessee shall defend, indemnify and hold harmless the Lessor from and
against any and all claims, losses, liabilities, causes of action, damages, or
expenses, whether due to damage to the Premises, claims for injuries to persons
or property, or administration or criminal action by a governmental authority,
where such claims arise out of or from or related to the use or occupancy of the
Premises by Lessee, its agents, employees, invitee, visitors, customers, or
licensees, including costs and attorney fees incurred by Lessor to defend itself
against any such claims, damages or expenses.
Lessor shall not be liable to Lessee for any damages, losses or injuries
to the persons or property of Lessee which may be caused by the acts, neglect,
omissions or faults of any persons, firms or corporations, except when such
injury, loss or damage results from the sole negligence or willful misconduct of
Lessor, his agents or employees. All personal property placed or moved into the
Premises or Building shall be at the risk of Lessee or the owner thereof, and
lessor shall not be liable to lessee for any damage to said personal property.
Lessee shall maintain at all times during the Term of this Lease or and
extensions an insurance policy or policies in any amount or amounts sufficient
to indemnify Lessor or pay Lessor's damages, if any, resulting rom any matters
set forth hereinbefore.
9
In case Lessor shall be made a party to any litigation commenced against
Lessee, then Lessee shall protect and hold Lessor harmless and shall promptly
pay all costs, expenses and reasonable attorney's fees incurred or paid by
Lessor in connection with such litigation.
ARTICLE VI
MAINTENANCE AND REPAIRS
6.1 Repairs by Lessor. During the Term of the Lease, Lessor shall be responsible
for repairs, replacement and maintenance to the roof, exterior walls, structural
portions, approved sign age and foundation of the Premises. If the cause of such
repair or replacements is the result of the negligence, misconduct or
intentional acts or omissions of Lessee, its employees or agents, and the
expense of such repairs or replacements are not fully covered and paid by
Lessor's insurance, then Lessee shall pay Lessor the full amount of expenses not
covered. Lessor's duty to maintain, repair and replace as prescribed in this
Paragraph 6.01 shall be Lessee's sole remedy and shall be in lieu of all other
warranties or guaranties of Lessor, express or implied, except to the extent any
damage to Lessee's property is a result of Lessor's negligent failure to repair,
replace or maintain as expressly required under this Paragraph 6.01.
6.2 Repairs by Lessee. Lessee shall be responsible for the repair, replacement
and maintenance in good order and con&lion of all parts and components of the
Premises other than those specified for maintenance by Lessor above, including,
without limitation, the plumbing, wiring, electrical systems, heating systems,
air conditioning systems, glass and plate glass, equipment and machinery
constituting fixtures, unless such repairs or replacements are required solely
as a result of the negligence or willful misconduct of Lessor, its employees,
invitees or licensees or by fire, storm or any other casualty covered by the
insurance policies Lessor is required to maintain and such repairs or
replacements are not fully covered and paid by Lessee's insurance, then Lessee
shall pay the Lessor the full amount of expenses not covered. Lessee's duty to
maintain the heating and air conditioning systems shall specifically include the
duty to enter into and maintain at Lessee's sole expense during the entire Term
of this Lease a contract for the routine and periodic maintenance and regular
inspection of such heating and air conditioning systems, the replacement of
filters as recommended and the performance of other recommended periodic
servicing in accordance with applicable manufacturer's standards and
recommendations. Lessee shall provide Lessor a copy of said HVAC maintenance
contract within thirty (30) days of occupancy and upon each renewal of said
maintenance agreement. Such contract shall (i) be with a reputable contractor
reasonably satisfactory to Lessor, (ii) satisfy the requirements for routine and
periodic maintenance, if any, necessary to keep all applicable manufacturer's
warranties in full force and effect; and (iii) provide that in the event this
Lease expires or is earlier terminated for any reason whatsoever that said
contract shall be immediately terminable by Lessor or Lessee without any cost,
expense or other liability on part of Lessor. In the event Lessee fails to
perform its obligations under this paragraph in a prompt manner, Lessor shall
give Lessee ten (10) days' prior written notice to perform such obligations, and
thereafter, if Lessee fails to perform such obligations within said ten (10) day
period, or if the performance of such obligations will take more than ten (10)
days to complete, and Lessee fails to commence performance of such obligations
within ten (10) days of Lessor's written notice or if Lessee fails to promptly
and diligently pursue the performance of such obligation until
10
completion, Lessor shall have the right to perform such obligations on behalf of
Lessee, in which event the cost of such performance, together with a service
charge equal to fifteen percent (15%) of such cost, shall be due and payable by
Lessee to Lessor immediately upon demand as Additional Rent hereunder.
ARTICLE VII
UTILITIES AND SERVICES
As of the Rental Commencement Date, the Premises will be separately
metered for utilities. Except as expressly set forth in this Lease, Lessee shall
pay for all utilities or services related to its use of the Premises including,
but not limited to, electricity, gas, heat, water, sewer, telephone and
janitorial services, together with all deposits and fees in connection
therewith. If Lessee fails to pay any utility bills or charges, Lessor may, at
its option, upon reasonable notice to Lessee pay the same and in such event, the
amount of such payment, together with interest thereon at eighteen percent (18%)
from the date of such payment by Lessor, will be added to Lessee's next due
rental payment. Lessor shall not be responsible for the stoppage of interruption
of utilities services nor shall Lessor be liable to Lessee or any other person
for any damage occasioned by failure in any utility system or by the bursting or
leaking of any vessel or pipe in or about the Premises (except to the extent of
liability or casualty insurance proceeds actually recovered by Lessor on account
of Lessor), or for any damage occasioned by water coming into the Premises
arising from the acts or neglects of occupants of adjacent property to the
Premises, unless the same is caused by the negligence or willful misconduct of
Lessor.
ARTICLE VIII
USE OF PREMISES
Lessee shall use the Premises only for the operation of corporate offices
including office space, showroom, warehousing and distribution purposes and all
use of the Premises shall comply with all laws, ordinances, orders, rules and
regulations (including without limitation, the zoning classifications existing
as of the Rental Commencement Date) of any lawful governmental authority, agency
or other public or private regulatory authority having jurisdiction over the
Premises. Without limiting the generality of the above provision, the Premises
shall not be used for the treatment, storage, use or disposal of toxic or
hazardous waste or substances, or any other substance, that is prohibited,
limited or regulated by any governmental or quasigovernmental authority.
Notwithstanding the foregoing, Lessee shall have the right to use ordinary
cleaning supplies and solvents in the ordinary course of business. Lessee shall
save Lessor harmless from any penalties, fines, costs expenses or damages
resulting from failure so to comply. Lessee or Lessor shall not do any act or
follow any practice relating to the Premises which shall constitute a nuisance
or detract in any way from the reputation of the Project as a first class
office/warehouse development. Lessee's duties in this regard shall include
making arrangements at Lessee's expense for the proper storage and timely
disposition of garbage and refuse, and allowing no noxious of offensive odors,
fumes, gases, smoke, dust, steam or vapors, or any loud or disturbing noise or
vibrations to originate in or emit from the Premises. Lessee shall save Lessor
harmless from any claims, liabilities, penalties,
11
fines, costs, expenses or damages resulting from the failure of Lessee to comply
with the provisions of this Article 8.
ARTICLE IX
ALTERATIONS AND IMPROVEMENTS
9.1 Lessor's Alterations. It is further agreed that this Lease is made by the
Lessor and accepted by the Lessee with the distinct understanding and agreement
that the Lessor shall have the right and privilege to make and build additions
to the Building of which the Premises are a part, and make such alterations and
repairs to said Buildings it may deem wise and advisable and construct new
buildings on the Premises without any liability to the Lessee therefor.
9.2 Lessor's Consent Required. Lessee shall not make or permit structural
changes, alterations, additions or improvements to the Premises, ("Lessee
Alteration") without first obtaining the prior written consent of Lessor, which
consent shall not be unreasonably withheld or delayed. Lessee shall not make any
structural changes. If Lessor fails to reject any requested Lessee Alteration
within twenty (20) days after Lessor's receipt of written detailed and final
plans, specifications or drawings depicting the desired Lessee alteration, such
requested Lessee Alteration shall be deemed approved in accordance with the
plans, specifications or drawings submitted by Lessee. Further, Lessor shall
have the right to approve the general contractor to be used by Lessee in
connection with such work, which approval shall not be unreasonably withheld or
delayed. Lessee shall deliver to Lessor a copy of all plans for nonstructural
work and shall comply with the requirements of Paragraphs 9.03 and 9.05.
9.3 Requirements. In the event Lessee desires to make any Lessee Alteration,
Lessee shall prior to the commencement thereof, furnish Lessor with an original
Builder's Risk policy of insurance in form and amount of coverage reasonably
acceptable to Lessor, showing Lessee as named insured and Lessor as loss payee
and additional Insured. All Lessee Alteration in accordance with all legal
requirements applicable thereto and in a good and workmanlike manner with first
class materials.
9.4 Lessor's Property on Expiration. All Lessee Alterations, including, but not
limited to, all walls, railings, carpeting, floor and wall coverings and other
permanent real estate fixtures (excluding, however, Lessee's trade fixtures and
equipment) made by, for, or at the direction of Lessee, shall when made, become
the property of Lessor and shall remain upon the Premises at the expiration or
earlier termination of this Lease; provided, however, that if Lessor at the time
of giving its approval to any Lessee Alteration notifies Lessee that approval is
conditioned upon restoration, then prior to the expiration of the Term of this
Lease, Lessee shall, at its sole cost and expenses, remove such Lessee
Alterations and restore the Premises to its condition prior to the making of
such Lessee Alteration.
9.5 Protection Against Liens. In the event Lessee shall undertake any
improvements following the Occupancy Date, Lessee shall post a large and
conspicuous notice that the Lessor is not responsible for the materials and
labor so furnished to the Lessee and shall otherwise comply with the provisions
of Section 29-5-80, Code of Laws of South Carolina, 1976, as amended to protect
the
12
Lessor from liability for any mechanic liens which may result from the Lessee's
work. In the event that a lien is filed against the Premises or the Lessor's
property as a result of labor or material supplied to the Premises, the Lessee
agrees to within thirty (30) days either obtain the release of such mechanic
lien or to discharge same by posting a bond with the Greenville County Clerk of
Court in accordance with applicable provisions of the South Carolina Code of
Laws. In the event that the Lessee shall fail to discharge such lien within such
period of time, the Lessor shall have the right to either discharge or bond such
lien and Lessee shall immediately reimburse Lessor for all costs and expenses
relating thereto. In all events, the Lessee shall be responsible for a11
expenses incurred by the Lessor as a result of the filing of a mechanic's lien
against the Premises, including reasonable attorney fees and expenses.
ARTICLE X
TRADE FIXTURES AND EQUIPMENT
Any trade fixtures or equipment installed by Lessee in the Premises at
Lessee's expense shall remain Lessee's personal property and Lessee shall have
the right at any time during the Term of this Lease to remove such fixtures or
equipment. Upon removal of any fixtures or equipment, Lessee shall immediately
restore the Premises to substantially the same condition as they were then
received by Lessee, ordinary wear and tear and acts of God alone excepted. Upon
termination of this Lease, provided that Lessee is not then in default
hereunder, Lessee shall prior to such termination remove any of Lessee's trade
fixtures and equipment from the Premises and repair all damage to the premises
caused by such removal. If Lessee fails to remove such fixtures or equipment
after the expiration or effective termination date of this Lease and if Lessor
shall have provided Lessee with access to the Premises for purposes of such
removal, Lessor may complete the removal of such items and all reasonable sums
thereby incurred by Lessor shall be the responsibility of Lessee.
ARTICLE XI
LESSOR'S RESERVATION OF RIGHTS
11.1 Name, Signs, Keys and Common Areas. Lessor reserves the right to change the
name or address of the Project; to install and maintain a sign or signs on the
exterior of the Project, but not in such a manner as to obscure any
identification sign which Lessee may have installed, to hold passkeys to the
Premises that are to be maintained and held in a secure capacity for use only by
Lessor's property manager, any offices of Lessor, or any other party authorized
by Lessor of whom Lessee has received prior notice and to whom Lessee has not
objected; to grant to other tenants of the Project a nonexclusive, revocable
license to use and occupy, in common with Lessor and Lessee, the common areas of
the Project, parking facilities, paved areas and drives, landscaping and such
other common facilities as may be designated from time to time by Lessor; and to
designate certain portions of such common areas of the Project adjacent to
Premises leased to individual tenants as being for the exclusive use of that
tenant.
13
ARTICLE XII
DAMAGE OR DESTRUCTION OF PREMISES
In the event of total or partial destruction of the Premises by fire or
other casualty insured by Lessor, Lessor agrees to promptly restore and repair
the Premises at Lessor's expense to the extent Lessor receives insurance
proceeds therefor, provided however, that in the event the Premises are (i) so
destroyed that they cannot be repaired or rebuilt within one hundred eighty
(180) days after the commencement of such repair or rebuilding; or (ii)
destroyed by a casualty which is not covered by Lessor's insurance, or if such
casualty is covered by Lessor's insurance but a mortgagee of Lessor or other
party entitled to insurance proceeds fails to make such proceeds available to
Lessor in an amount sufficient for restoration of the Premises (provided,
however, that Lessor agrees to make a good faith effort to have such mortgagee
make such proceeds available for full restoration or rebuilding), then, either
Lessor or Lessee may terminate and cancel this Lease effective as of the
sixtieth (60th) day after such casualty by giving written notice to the other
party within sixty (60) days of the date of such casualty. Upon the effective
date of such termination, all further obligations hereunder shall thereupon
cease. If no such notice is given, Lessor shall make such repair or restoration
of the Premises promptly and in such manner as not to unreasonably interfere
with Lessee's use and occupancy of the Premises. Any proceeds from the fire and
extended coverage insurance policies not utilized by Lessor in restoring or
repairing the Premises shall become the sole property of Lessor. Rent shall
proportionately abate during the time that the Premises or any part thereof are
unusable by reason of such damage thereto. Except as provided herein, damage to
or destruction of all or any portion of the Premises by fire or by any other
cause shall not terminate this Lease, nor entitle Lessee to surrender the
Premises nor in any way affect Lessee's obligation to pay the Rent and other
sums payable hereunder.
ARTICLE XIII
CONDEMNATION
If all of the Premises or the Project is taken or condemned for a public
or quasi-public use, or if a material portion of the Premises is taken or
condemned for a public or quasi-public use and the remaining portion thereof is
not usable by Lessee, in the sole judgment of Lessee, this Lease shall terminate
as of the earlier of the date title to the condemned real estate vests in the
condemnor or the date on which Lessee is deprived of possession of the Premises.
In such event, the Base Rent herein reserved and all Additional Rent and other
sums payable hereunder shall be apportioned and paid in full by Lessee to Lessor
to that date, all Rent and other sums payable hereunder prepaid for periods
beyond that date shall forthwith be repaid by Lessor to Lessee, and neither
party shall thereafter have any liability hereunder, except that any obligation
or liability of either party, actual or contingent, under this Lease which has
accrued on or prior to such termination date shall survive. If only part of the
Premises is taken or condemned for a public or quasi-public use, including the
Designated Parking Spaces and this Lease does not terminate as provided above,
Lessor to the extent of the award it receives, shall restore the Premises to a
condition and to a size as nearly comparable as reasonably possible to the
condition and size thereof immediately prior to the taking, and there shall be
an equitable abatement of the Rent according to the value of the Premises before
and after the taking. Pending such determination, if Lessee is entitled to a
refund because of an overpayment
14
of Rent, Lessor shall make the same promptly, or in lieu thereof credit the
amount thereof to future installments of Rent as they become due at Lessee's
option. Lessor shall be entitled to receive the entire award in any proceeding
with respect to any taking, without deduction therefrom for any estate vested in
Lessee by this Lease, and Lessee shall receive no part of such award. Nothing
herein contained shall be deemed to prohibit Lessee from making a separate
claim, against the condemnor, to the extent permitted by law, for the value of
Lessee's leasehold interests, moveable trade fixtures, machinery and moving
expenses.
ARTICLE XIV
GOVERNMENTAL ORDERS
14.1 Lessor's Compliance with Laws. Except to the extent affected by Lessee's
particular use of the Premises, Lessor shall be responsible for compliance, at
Lessor's sole cost and expense with all statutes, rules, ordinances, orders,
codes and regulations, and legal requirements and standards issued thereunder,
as the same may be enacted and amended from time to time and as apply to the
Building and common areas.
Except to the extent affected by Lessee's particular use of the Premises
(as opposed to mere use of the Premises for general office purposes) Lessor
shall be responsible for the compliance of the common area facilities with
applicable Laws relating to architectural barriers to the disabled, specifically
including but not limited to the Americans with Disabilities Act (ADA). Lessor
hereby agrees to indemnify, defend and hold Lessee harmless from any and all
loss, costs, liability or expense, including without limitation reasonable
attorney fees, resulting from Lessor's failure to comply with all Laws relating
to the Premises, the Building, the Land and condition of the common area
facilities.
14.2 Lessee's Compliance with Laws. Lessee shall be responsible for compliance
with all the Laws which are applicable to Lessee's particular use and manner of
use of the Premises and the Common Area Facilities.
In the event that Lessee's particular use of the Premises and the common
area facilities violates any provision of the Laws, including but not limited to
the ADA, Lessee shall bear all expense, cost and liability for compliance with
such Laws. Lessee hereby agrees to indemnify, defend and hold Lessor harmless
from any and all loss, cost, liability or expense, including without limitation
reasonable attorney fees, resulting from Lessee's failure to comply with all the
Laws relating to its particular use and manner of use of the Premises and the
common area facilities.
ARTICLE XV
LESSOR'S ACCESS TO PREMISES
Lessor's property manager and Lessor's officers and authorized employees,
or any other party authorized by Lessor of whom Lessee has received prior notice
shall have the right to enter the Premises at all reasonable times and upon
reasonable notice for the purpose of making repairs, making connections, making
inspections, installing utilities, providing services to the Premises or
15
for any other tenant, making connections, installing utilities, providing
services to the Premises or for any other tenant. In the event Lessee shall not
have given Lessor notice that it elects to extend the term of this lease, Lessor
shall have the right, during the last ninety (90) days of the then-current lease
term, to enter the Premises, following reasonable notice, for the purpose of
showing the same to prospective tenants. Provided that it shall not interfere
with Lessee's use of the Premises, Lessor shall have the right to enter the
Premises at reasonable time(s) to access, inspect and maintain pipes, conduits
and/or duct work which pass through walls of the Premises, below the floor of
the Premises and above the ceiling of the Premises and which are for the benefit
of other tenants of the Building.
ARTICLE XVI
ASSIGNMENT AND SUBLETTING
Lessee shall not assign, sublet, mortgage, pledge or encumber this Lease,
the Premises, or any interest in the whole or in any portion thereof, without
the prior written consent of Lessor, in its sole discretion. If Lessee makes any
assignment, mortgage, sublease or pledge of this Lease or the Premises, Lessee u
ill still remain liable for the performance of all terms of this Lease and any
rental or any fees or charges received by Lessee in excess of the Rent payable
to Lessor hereunder shall be also paid to Lessor as Additional Rent under this
Lease.
ARTICLE XVII
HOLDING OVER
Lessee agrees to surrender to Lessor, at the end of the Term of this Lease
and/or upon any cancellation of the Lease, said Premises in as good condition as
said Premises was at the beginning of the Term of this Lease, ordinary wear and
tear, and damage by fire or other casualty not caused by Lessee's negligence,
excepted. Lessee agrees that if Lessee does not surrender said Premises to
Lessor at the end of the Term of this Lease, Lessee's occupancy shall be from
month-to-month and Lessee will pay to Lessor 150% the amount of the then-current
rental for each month or portion thereof that Lessee holds over plus all damages
the Lessor may suffer on account of Lessee's failure to so surrender to Lessor
possession of said Premises, and will indemnify and save Lessor harmless from
and against all claims made by any succeeding Lessee of said Premises against
Lessor on account of delay of Lessor in delivering possession of said Premises
to said succeeding Lessee so far as such delay i occasioned by failure of Lessee
to so surrender said Premises in accordance herewith or otherwise.
No receipt of money by Lessor from Lessee after termination of this Lease
or the service of any notice of commencement of any suit or final judgment for
possession shall reinstate, continue or extend the Term of this Lease or affect
any such notice, demand, suit or judgment.
No agreement to accept a surrender of the Premises shall be valid unless
made in writing and subscribed by a duly authorized officer of agent of Lessor.
16
ARTICLE XVIII
COVENANT OF QUIET ENJOYMENT
Lessor represents that it has full right and authority to lease the
Premises and that Lessee shall peacefully and quietly hold and enjoy the
Premises for the full term hereof so long as it does not default in the
performance of any of the terms hereof.
ARTICLE XIX
ENVIRONMENTAL MATTERS
Lessee shall not use, store, release, dispose of or generate any Hazardous
Materials in, or about the property or the premises. Furthermore, Lessee shall
indemnify and hold Lessor harmless from and against any and all claims,
liabilities, and costs, (including reasonable attorney's fees) arising from the
use of the property by the Lessee which is caused by the use, storage, release,
disposal, or generation by Lessee or its agents, employees, contractors, or
invitees of any Hazardous Materials (as hereinafter defined) in, on, or about
the Property or the Premises.
Lessor shall indemnity and hold Lessee harmless for any loss, claim,
injury or damage, whether direct or consequential, arising out of, or in any way
related to, any adverse environmental condition now existing or hereafter
created or, discovered on or about the Premises or the Building, which condition
was created or contributed to by Lessor, its predecessors, agents, employees or
invitees. "Adverse environmental condition" shall mean any use, storage,
release, disposal or generation of any Hazardous Material.
If the Lessee shall become aware of, or have reasonable cause to believe,
that any Hazardous Materials have come to be located on or beneath the Premises
or Property, the Lessee shall give written notice of such condition to the
Lessor. In addition, the Lessee shall immediately notify the Lessor in writing
of: (i) any governmental or regulatory action instituted or threatened relating
to any Hazardous Materials on or about the Premises; (ii) any claim made or
threatened by any person relating to any Hazardous Materials that have come to
be located on or about the Premises or the Property; (iii) any reports made to
any local, state or federal environmental agency arising out of or in connection
with any Hazardous Materials on or about the Premises or the Property, including
any complaints, notices, warnings, or asserted violations in connection
therewith, of which the party becomes aware; and (iv) any presence, use or
disposal of any Hazardous Materials on or about the Premises, even if such
activities are in full compliance of applicable regulations and laws.
As used in this Agreement, the term "Hazardous Materials. means any
substance, material, or waste now or hereafter determined by any federal, state
or local governmental authority to be capable of posing a risk of injury to
health, safety, or property.
17
ARTICLE XX
PARKING
The Lessee, its employees, visitors and guests are authorized to make
reasonable use of the parking facilities which form part of the Project, subject
to posted rules and regulations 'end at the sole risk of each driver and user of
said facility. Lessee shall cooperate with the Lessor in limiting the use of
said parking facility by Lessee, its employees, guests and visitors to the
approximate proportionate share in relationship to the Demised premises. The
parking facility shall not be used for the storage of abandoned or defective
vehicles or for any other purpose except transient parking. Lessor may designate
parking spaces to be used by Lessee and other tenants of the Project and their
employees, guests, invitees and Lessor may designate certain areas for parking
of certain vehicles and for parking of vehicles overnight. Lessor shall
designate two hundred seven (207) parking spaces as shown on Exhibit _ for the
sole use of Lessee, its employees, guests, agents and invitees (the "Designated
Parking Spaces") and shall indicate, by appropriate markings, each individual
space which is to be a Designate a Parking Space.
ARTICLE XXI
SUBORDINATION AND ATTORNMENT
This Lease is subject and subordinate to any and all deeds to secure debt,
mortgages, deeds of trust or other security instruments (.Security Instruments.)
now or hereafter placed on the property of which the Premises are a part, and
this clause shall be self operative without any further instrument necessary to
effect such subordination; however, if requested by Lessor, Lessee shall
promptly execute and deliver within ten (10) days to Lessor any such certificate
or certificates requested by holders of security instrument evidencing
subordination of this Lease to or the assignment of this Lease as additional
security for such mortgages or deeds of trust. Provided, however, in each case
the holder of any Security Instrument shall agree that this Lease shall not be
divested by foreclosure or other default proceedings thereunder go long as no
Event of Default by Lessee shall then be subsisting under the terms of this
Lease beyond the applicable cure period specified in this Lease and that such
holder or acquirer shall be bound hereby and responsible to perform all
obligations of Lessor under this Lease. Provided such holder or acquirer shall
so agree as provided in the preceding sentence, Lessee shall continue its
obligations under this Lease in full force and effect notwithstanding any such
default proceedings under a Security Instrument and shall attorn to the
mortgagee, trustee or beneficiary of such Security Instrument, and their
successors or assigns, and to the transferee under any foreclosure or default
proceedings. Lessee will, upon request by Lessor, execute and deliver to Lessor
or to any other person designated by Lessor, any instrument or instruments in
form and content reasonably acceptable to Lessee evidencing its agreement to so
attorn and perform under this Lease.
18
ARTICLE XXII
LIABILITY FOR DAMAGE
The Lessor shall not be liable for any damage done or occasioned b or from
the electrical system, the heating or cooling system, the plumbing and sewer
Systems; nor for damage occasioned by water, snow or ice being upon or coming
through the roof, trap door, walls, windows, doors or otherwise, in, upon or
about the Premises or the business Center of which the Premises are a part, nor
for any damage arising from acts of negligence of co-lessees or other occupants
of the Business Center. The Lessor shall not be liable for any damage occasioned
by reason of the constructions of the Premises or for failure to keep the
Premises in repair, unless the Lessor is obligated to make such repairs under
the terms hereof and unless, notice of the need for repairs has been given the
Lessor, a reasonable time has elapsed and the Lessor has failed 'to make such
repairs, in any event the Lessor shall not be liable for any damage to the
Lessee's stock-in-trade, trade fixtures, furniture, furnishings, floor and wall
coverings, ceiling-hung chandeliers and other adornments, special equipment and
all other items of personal property of the Lessee resulting from fire or other
hazards, unless occasioned by action or inaction of the Lessor, and the Lessee
hereby releases the Lessor from' all liability for such damage. The Lessee
agrees to procure a waiver of subrogation endorsement' from its insurer, so long
as the same shall not' void any insurance policy of the Lessee, and to furnish
evidence of such waiver to the Lessor upon request.
ARTICLE XXIII
ESTOPPEL CERTIFICATE
Within ten (10) days after a request by Lessor or any mortgagee or ground
lessor of Lessor, Lessee shall deliver a written estoppel certificate, in form
supplied by or acceptable to Lessor, certifying any facts that are then true
with respect to this Lease, including, but not limited to, that this Lease is in
full force and effect, that no default exists on the part of Lessor or Lessee,
that Lessee is in possession, that Lessee has commenced the payment of Rent, and
that there are no defenses or offsets claimed by Lessee with respect to payment
of Rent under this Lease or, if such defense or offsets exist, setting forth the
same. Likewise, within ten (10) business days after a request by Lessee, Lessor
shall deliver to Lessee a similar estoppel certificate covering such matters as
are reasonably required by Lessee.
ARTICLE XXIV
FORCE MAJEURE
In the event Lessor or Lessee shall be delayed, hindered or prevented from
the performance of any act required hereunder, by reason of governmental
restrictions, scarcity of labor or materials, strikes, fire, or any other
reasons beyond their control, the performance of such act shall be excused for
the period of delay, and the period for performance of any such act shall be
extended as necessary to complete performance after the delay period. However,
the provisions of this Article 26 shall in no way be applicable to the
obligations of Lessee or Lessor to pay, repay or reimburse any sums, monies,
costs, charges or expenses owing from one to the other under this Lease,
including without limitation, Lessee's obligations to pay Rent hereunder.
19
ARTICLE XXV
LESSEE DEFAULT
25.1 Events of Default. The occurrence of any of the following events shall
constitute a default under this Lease:
a. Lessee fails to pay any installment of rent when such installment is
due, and fails to cure such delinquency within fifteen (15) days after receipt
of written notice thereof from Lessor; or
b. Lessee fails to pay any additional item or any other charge or sum
required to be paid by Lessee hereunder within thirty (30) days after actual
receipt of written notice thereof by Lessee from Lessor; or
c. Lessee fails to perform or commence in good faith and proceed with
reasonable diligence to perform any of its covenants under this Lease within
thirty (30) days after actual receipt of written notice thereof by Lessee from
Lessor.
d. Lessee shall become bankrupt or insolvent or file any debtor
proceedings, or file pursuant to any statute or petition in bankruptcy or
insolvency or for reorganization, or file a petition for the appointment of a
receiver or trustee for all or substantially all of its assets, and such
petition or appointment shall not have been set aside within sixty (60) days
from the date of such petition or appointment, or if such party makes an
assignment for the benefit of creditors, or petitions for or enters into such an
arrangement.
e. Lessee vacates the Premises at any time or fails to occupy within
thirty (30) days of the date for occupying as set forth herein.
25.2 Lessor's Remedies. In the event Lessee is in default pursuant to the
conditions set forth in Paragraph 26.1 above, Lessor, during the continuation of
such default, shall have the option of pursuing either of the following
remedies:
a. Lessor may terminate this Lease, in which event Lessee immediately
shall surrender possession of the demised premises. All obligations of Lessee
under the Lease, including Lessee's obligation to pay rent under the Lease,
shall cease upon the date of termination except for Lessee's obligation to pay
rent due and outstanding as of the date of termination.
b. Lessor, without terminating the Lease, may require Lessee to remove all
property from the demised premises within thirty (30) days so that the Lessor
may re-enter and relet the premises to minimize Lessor's damages. In the event
Lessee shall fail to remove all property within thirty (30) days after said
demand, Lessor shall be entitled to remove Lessee's property to a storage
facility, and all reasonable costs of such removal and storage shall be deemed
additional rent under the Lease for which Lessee is responsible for payment.
Lessor may enforce all of its rights and remedies under this Lease, including
the right to recover the rent as it becomes due hereunder,
20
provided that Lessor shall have an affirmative obligation to use Lessor's best
efforts to re-let the demised premises and to mitigate its damages under the
Lease.
c. Lessor may accelerate and declare the entire remaining unpaid rent for
the balance of this Lease to be immediately due and payable forthwith and may,
at once, take legal action to recover and collect the same, such amount being
discounted to present value using the prime rate published by a national bank
acceptable to lessee and Lessor and such amount reduced by the amount of rent
Lessor will receive by reletting the premises for the remainder of the term of
portion thereof.
d. If this Lease is terminated as set forth, Lessor may relet the Leases
Premises (or any portion thereof) for such rent and upon such terms as Lessor is
able to obtain (which may be for lower or higher rent, and for a shorter or
longer term), and Lessee shall be liable for all damages sustained by Lessor,
including but not limited to any deficiency in Rent for the duration of the
Lease Term (or for the period of time which would have remained in the Lease
Term in the absence of any termination, leasing fees, attorneys' fees, other
marketing and collection costs and all expenses of placing the Leased Premises
in first class rentable condition).
e. Nothing contained herein diminishes any right Lessor may have under
South Carolina law to sue Lessee for damages in the event of any default by
Lessee under this Lease, or from pursuing any other remedy available to Lessor
at law or in equity.
ARTICLE XXVI
LESSOR DEFAULT
In the event that the Lessor shall breach its obligations under this
Lease, the Lessee shall give the Lessor written notice and thirty (30) days to
cure such default. In the event the Lessor shall fail to cure such default
within the thirty (30) day period, the Lessee shall have the right to exercise
any rights or remedies available in this Lease, at law or in equity unless such
matter would take loner than thirty (30) days to cure and Lessor is reasonably
proceeding to cure the breach.
ARTICLE XXVII
REMEDIES CUMULATIVE -- NON-WAIVER
Unless otherwise specified in this Lease, no remedy of Lessor or Lessee
shall be considered exclusive of any other remedy, but each shall be distinct,
separate and cumulative with other available remedies. Each remedy available
under this Lease or at law or in equity may be exercised by Lessor or Lessee
from time to time as often as the need may arise. No course of dealing between
Lessor and Lessee, or any delay or omission of Lessor or Lessee in exercising
any right arising from the other party's default, shall impair such right or be
construed to be a waiver of default.
21
ARTICLE XXVIII
NOTICES
Any notice allowed or required by this Lease shall be in writing, and
shall be deemed effective upon receipt by the addressee thereof when sent by
either (i) United States mail! via certified mail or registered mail, return
receipt requested, with proper postage prepaid, or (ii) nationally recognized
overnight courier (for example, Federal Express). Notices shall be addressed as
follows:
AS TO LESSOR: AS TO LESSEE:
Highland Properties, L.L.C. Gerber Childrenswear, Inc.
207 Parkside Dr. Pelham at Hyland Bus Ctr.
Simpsonville, SC 29681 7005 Pelham Rd., Ste ___
Attn: Mark Cothran Greenville, SC 29607
Attn: Dave Uren
The addresses of Lessor and Lessee and the party, if any, to whose
attention a notice or copy of same shall be directed may be changed or added
from time to time by either party giving notice to the other in the prescribed
manner. Upon request, Lessee shall also send a copy of all notices from Lessee
to any mortgagee or ground Lessor; provided, however, that in no event shall
Lessee be required to send more than two (2) additional notices to any
mortgagees or ground lessors.
ARTICLE XXIX
SURRENDER OF PREMISES
At the expiration of earlier termination of the Term of this Lease, Lessee
shall surrender the Premises and, subject to the terms of this Lease, all
improvements, alterations and additions thereto, and keys therefore to Lessor,
clean and neat, and in the same condition as at the Rental Commencement Date,
normal wear and tear only excepted.
ARTICLE XXX
NO REPRESENTATIONS
Neither Lessor nor Lessor's agent has made any representations or
promises, except such as are contained herein or endorsed hereon, to the Lessee
respecting the condition of the Demised Premises or any other matter or thing
relating to the Demised Premises or the Lease. The taking possession of the
Demised Premises by the Lessee shall be conclusive evidence against the Lessee
or anyone holding under this Lease that the Demised Premises were in good and
satisfactory condition when possession of the Demised Premises was so taken.
22
ARTICLE XXXI
LEASING COMMISSION
Lessor and Lessee represent and warrant each to the other that they have
not dealt with any broker or other person claiming any entitlement to any
commission in connection with this transaction except Furman Co., Commercial LLC
(Brokers) and that Lessor is responsible for its broker fee. The Lessor and the
Lessee each respectively represents and warrants to the other that no other real
estate broker or other person is entitled to a fee, commission, or any other
enumeration in respect of the execution or performance of this Agreement of the
Lease created hereby; and each of the Lessor and the Lessee hereby covenants and
agrees to hold the other harmless from any fee, commission, cost or damage
incurred as a result of any breach of the foregoing warranties.
Lessor agrees to pay to The Furman Co., Commercial LLC, Greenville, South
Carolina Agent, as compensation for its service rendered in procuring this lease
a fee equal to six percent (6%) of all rentals scheduled to be paid by Lessee
under this lease. Said fee shall be due and payable as follows: Fifty percent
(50%) upon lease execution and fifty percent (50%) upon occupancy by Lessee.
Lessor agrees that if this lease is extended, or if any new lease is entered
into between Lessor and Lessee covering leased Premises, or any part thereof,
then in either of said events, Lessor in consideration of The Furman Co.,
Commercial LLC having procured Lessee, agrees to pay to The Furman Co.,
Commercial LLC a fee equal to three percent (3 %) of all rentals paid to Lessor
by Lessee under extension of new lease or modification at the time of such
extension, if any.
In the event Lessor sells the leased Premises that upon Lessor's
furnishing the Furman Co., Commercial LLC with an agreement signed by purchaser,
assuming Lessor's obligations to the Furman Co., Commercial LLC under this
lease, the Furman Co., Inc. provided new Lessor has agreed to pay The Furman
Co., Commercial LLC as set forth herein.
In the event the Lessee or a purchaser in privily with the Lessee should
during the term of this lease or tenancy, or within six months after its
expiration date, purchase from the Lessor, the premises herein leased, the
Lessor will at the time of consummating a sale pay to The Furman Co., Commercial
LLC a commission of five percent (5%) of the selling price of the property less
the amortized remaining portion of the lease fee, if any.
The Furman Co., Commercial LLC is named as a party to this contract solely
for the purpose of enforcing its rights under this paragraph and it is
understood by all parties that The Furman Co., Commercial LLC is acting solely
in the capacity as Agent for Lessor to whom Lessee must look in regard to all
covenants, agreements and warranties contained in this lease and that The Furman
Co., Commercial LLC shall not be liable to Lessee in regard to any matter which
may arise by virtue of this lease. Lessee shall not be responsible for Broker's
or Agent's fees.
23
ARTICLE XXXII
MISCELLANEOUS
32.1 Evidence of Authority. If requested by either party, the other party shall
furnish appropriate legal documentation evidencing the valid existence and good
standing of such other party and the authority of any parties signing this Lease
to act for such other party.
32.2 Nature and Extent of Agreement. This Lease, together with all exhibits
hereto, contains the complete agreement of the parties concerning the subject
matter, and there are no oral or written understandings, representations, or
agreement pertaining thereto which have not been incorporated herein. This Lease
creates only the relationship of landlord and tenant between the parties, and
nothing herein shall impose upon either party any powers, obligations or
restrictions not expressed herein. This Lease shall be construed and governed by
the laws of the state in which the Project is located.
32.3 Binding Effect. This Lease shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors and
assigns. This Lease may be executed in multiple counterparts, each of which
shall constitute an original, but all of which taken together shall constitute
one and the same agreement. This Lease shall not be binding on Lessor until
executed by Lessor and delivered to Lessee.
32.4 Captions and Headings. The captions and headings in this Lease are for
convenience and reference only, and they shall in no way be held to explain,
modify, or construe the meaning of the terms of this Lease.
32.5 Rules and Regulations. The rules and regulations attached as Exhibit 5
(.Rules and Regulations.) are Lessor's Rules and Regulations for the Project and
Buildings. Lessee shall faithfully observe and comply with such Rules and
Regulations and such changes therein (whether by modification, elimination,
addition or waiver) as Lessor may hereafter make and communicate in writing to
Lessee, which shall be necessary or desirable for the reputation, safety, care
or appearance of the Project and Buildings or the preservation of good order
therein or the operation or maintenance of the Project and Buildings or the
equipment thereof or the comfort of tenants or others in the Project and
Buildings.
32.6 Severability. If any term, covenant, condition or provision of this Lease,
or the application whereof to any person or circumstance, shall ever be held to
be invalid or unenforceable, then in each such event the remainder of this Lease
or the application of such term, covenant, condition or provision to any other
person or any other circumstance (other than those as to which it shall be
invalid or unenforceable) shall remain valid and enforceable to the fullest
permitted by law.
32.7 Governing Law. This Lease shall be construed according to, and be governed
by, the laws of the State of South Carolina.
24
32.8 Time of Essence. Time shall be of the essence in the performance of the
terms and conditions of this Lease.
32.9 Recording. It is not intended that this Lease be recorded, but at the
request of either party the other party shall execute a Memorandum or Short Form
Lease and the Lease shall be recorded with the requesting party paying the
recording costs.
25
IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed
and sealed pursuant to authority duly given, as of the day and year first above
written.
LESSOR:
HIGHLAND PROPERTIES, LLC, a South
Carolina limited liability company
/s/ Marshall Bentley [sic] By: /s/ Mark A. Cothran [sic]
--------------------------------- ---------------------------------
Witness Member
/s/ William C. Spear [sic] Date of Execution: 9/13/96
--------------------------------- -------------------
Witness
LESSEE:
GERBER CHILDRENSWEAR, INC., a Delaware
corporation
/s/ Marshall Bentley [sic] By: /s/ David E. Uren
--------------------------------- ---------------------------------
Witness Its: Vice President, Finance
/s/ William C. Spear [sic] Date of Execution: 9/13/96
--------------------------------- -------------------
Witness
STATE OF SOUTH CAROLINA ) FIRST AMENDMENT TO LEASE AGREEMENT
)
COUNTY OF GREENVILLE )
THIS FIRST AMENDMENT TO LEASE AGREEMENT (the "Amendment") is made and
entered into as of this 25th day of November, 1996, by and between Highland
Properties, LLC (the "Lessor") and Gerber Childrenswear, Inc. (the "Lessee"):
W I T N E S S E T H :
WHEREAS hereto, on September 13, 1996, Lessor and Lessee entered into that
certain Lease Agreement wherein the Lessor agreed to let and the Lessee agreed
to rent 33,600 square feet of property in a building to be constructed by Lessor
at 7005 Pelham Road, Greenville, South Carolina, the terms of which are
incorporated herein by reference (the "Lease").
WHEREAS, pursuant to the subsequent request of Lessee, Lessor has agreed
to provide additional space to the Lessee consisting of 4,800 square feet (the
"Additional Space"), which would thereby increase the Premises to 38,400 square
feet.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and in consideration of the additional rent to be provided
pursuant to the Amendment, the receipt and sufficiency of which are both hereby
acknowledged, Lessor and Lessee agree as follows:
1. The first paragraph of Article I, GRANT AND TERM, Paragraph 1.1, is
amended by deleting the first sentence thereof in its entirety and substituting
in lieu thereof the following:
1.1 Description of Premises. Lessor hereby leases to Lessee,
and Lessee hereby accepts and rents from Lessor, that certain office
space (known as Suite D) containing a total of approximately 33,600
square feet (the "Initial Space") plus 4,800 square feet (the
"Additional Space"), (the
Initial Space and the Additional Space being collectively referred
to as the "Premises") located within the building known as Building
No. III (the "Building"), which Building contains a total of
approximately 48,000 square feet and is located at 7005 Pelham Road,
within Pelham at Hyland Business Center (the "Project") as shown on
the Site Plan marked Exhibit 1 attached hereto, situated in the
County of Greenville, State of South Carolina.
2. Article I, GRANT AND TERM, Paragraph 1.4 Occupancy; Lease Commencement
Date is hereby amended by adding at the end thereof the following:
The Lessor shall, with regard to the Additional Space, complete such
space as the Initial Space is to be completed as shown on Exhibits 2
and 3.
3. Article I, GRANT AND TERM, Paragraph 1.4 Occupancy; Lease Commencement
Date is hereby further amended by deleting from the nineteenth (19th) line the
date "March 17, 1997," and inserting in lieu thereof "March 31, 1997."
4. Article II, RENT, Paragraph 2.1a.(1) Initial Term, is amended by
deleting it in its entirety and substituting in lieu thereof the following:
2.1 Rent
a. Initial Term.
(1) The Minimum Annual Rent during Initial Term shall be Three
Hundred Twenty-Four Thousand Two Hundred Seventy and 00/100
Dollars ($324,270.00), payable in equal monthly installments
of Twenty Seven Thousand Twenty-two and 50/100 Dollars
($27,022.50) (the "Minimum Annual Rent").
5. Article II, RENT, Paragraph 2.2d is amended by deleting it in its
entirety and inserting in lieu thereof the following:
d. Additional Rent for Additional Parking Spaces.
Lessee agrees to pay during the Initial Term of this Lease
additional rent equal to Sixteen and 45/100 Cents (0.1645) per
square foot within only the Initial Space of the Premises to
2
reimburse Lessor for the cost of 33 additional parking spaces.
Said rent shall be due and payable in the manner and in the
same terms and conditions as the Minimum Annual Rent reserved
hereunder.
6. Exhibit 4 is amended by deleting it in its present form and
substituting the Exhibit attached.
7. Except as expressly set forth in the Amendment, all other terms and
conditions of the Lease shall remain in full force and effect and are hereby
ratified and reconfirmed by Lessor and Lessee.
3
IN WITNESS WHEREOF, we have hereunto set our hands and affixed our seals
the date and year first above-written.
LESSOR:
HIGHLAND PROPERTIES, LLC, a South
Carolina limited liability company
/s/ Marshall Bentley [sic] By: /s/ Mark A. Cothran [sic]
--------------------------------- ---------------------------------
Witness Member
/s/ Dee Parris Date of Execution: 11/25/96
--------------------------------- -------------------
Witness
LESSEE:
GERBER CHILDRENSWEAR, INC., a Delaware
corporation
/s/ Jay R. Cope By: /s/ David E. Uren
--------------------------------- ---------------------------------
Witness Its: Vice President, Finance
/s/ Dee Parris Date of Execution: 11/25/96
--------------------------------- -------------------
Witness
STATE OF SOUTH CAROLINA )
: SECOND AMENDMENT TO LEASE AGREEMENT
COUNTY OF GREENVILLE )
THIS AMENDMENT TO LEASE AGREEMENT (the "Amendment") is made and entered
into as of this 16th day of May, 1997 by and between Highland Properties, LLC
(the "Lessor") and Gerber Childrenswear, Inc. (the "Lessee"):
W I T N E S S E T H :
WHEREAS, on September 13, 1996, Lessor and Lessee entered into that
certain Lease Agreement, as amended by First Amendment thereto, dated November
25, 1996, wherein the Lessor agreed to let and the Lessee agreed to rent 38,400
square feet of property in a building to be constructed by Lessor at 7005 Pelham
Road, Greenville, South Carolina, the terms of which are incorporated herein by
reference (collectively, the "Lease"); and
WHEREAS, pursuant to the subsequent request of Lessee, Lessor has agreed
to provide additional unimproved space to the Lessee consisting of 9,600 square
feet (the "Unimproved Space"), upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and in consideration of the additional rent to be provided
pursuant to the Amendment, the receipt and sufficiency of which are both hereby
acknowledged, Lessor and Lessee agree as follows:
1. Lease of Unimproved Space: Lessor hereby leases to Lessee, and Lessee
hereby accepts and rents from Lessor, that certain unimproved space containing a
total of approximately 9,600 square feet (the "Unimproved Space") located within
the building known as Building No. III (the "Building"), which Building contains
a total of approximately 48,000 square feet and is located in 7005 Pelham Road,
within Pelham at Hyland Business Center (the "Project") as shown on the Site
Plan marked Exhibit 1 and attached to the Lease, situated in the County of
Greenville, State of South Carolina.
2. Term: The Term for the Unimproved Space shall commence on June 1, 1997.
The term for the Unimproved Space shall expire when the term or any extension or
renewal thereof for the Premises under the Lease expires, or when the Unimproved
Space becomes part of the Additional Space In accordance with Section 5 hereof.
3. Rent: The annual Rent for the Unimproved Space during the Initial Term
shall be Forty Seven Thousand Five Hundred Twenty and OOJ100 Dollars
($47,520.00), payable in equal monthly Installments of Three Thousand Nine
Hundred Sixty and 00/100 Dollars ($3,960.00) (the "Rent").
4. Right to Sublet: Lessee shall have the right to sublet the Unimproved
Space at its sole discretion, without permission from the Lessor. It is
contemplated by the parties that the Unimproved Space will be sublet by Lessee
during the Term.
5. At any time during this Lease or any extension thereof, Lessee may
request Lessor to Improve the Unimproved Space. Lessor shall grant Lessee an
allowance equal to 421.20 per square foot of finished office space for said
improvements, which was the same allowance granted on the original space. Lessor
shall complete said Improvements within sixty (60) days of the full execution of
a Lease Amendment including approved floor plan. Upon completion of the
improvements, the Unimproved Space shall become a part of the Additional Space,
and shall be treated as a part of the Additional Space for all purposes
hereafter including that the rent for the Unimproved Space shall be the same per
square foot as the Additional Space.
This Agreement is binding on the Lessor only if there shall be a minimum
of five {5) years remaining on the Lease Term at the completion of the
Improvements.
6. Except as expressly set forth in the Amendment, all other terms and
conditions of the Lease shall remain in full force and effect and are hereby
ratified and reconfirmed by Lessor and Lessee.
7. The capitalized terms "Premises", "Initial Space", "Initial Term" and
"additional Space" shall have the meanings given to them in the Lease dated
September 13, 1996 and the First Amendment to Lease dated November 25, 1996.
2
IN WITNESS WHEREOF, we have hereunto set our hands and affixed our seals
the date and year first above-written.
LESSOR:
HIGHLAND PROPERTIES, LLC, a South
Carolina limited liability company
/s/ Sylvia M. McVaugh [sic] By: /s/ Mark A. Cothran [sic]
--------------------------------- ---------------------------------
Witness Member
/s/ Suzy L. Broadert [sic] Date of Execution: 5/16/97
--------------------------------- -------------------
Witness
LESSEE:
GERBER CHILDRENSWEAR, INC., a Delaware
corporation
/s/ Rebecca A. Graff [sic] By: /s/ David E. Uren
--------------------------------- ---------------------------------
Witness Its: Vice President, Finance
/s/ Vicky Farragut [sic] Date of Execution: 5/18/97
--------------------------------- -------------------
Witness
ESTIMATED RENT FOR UNIMPROVED SPACE
PELHAM AT HYLAND BUSINESS CENTER
GERBER CHILDRENSWEAR, INC.
ATTACHMENT TO SECOND AMENDMENT TO LEASE AGREEMENT
[Download Table]
Annual Monthly
------ -------
A. Rent $47,520.00 $ 3,960.00
B. Additional Rent:
1) Operating Expenses (includes real estate $ 6,720.00 $ 560.00
taxes, insurance and common area
maintenance charges
TOTAL $54,240.00 $ 4,520.00
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 3/4/98 | | | | | | | None on these Dates |
| | 6/1/97 | | 37 |
| | 3/31/97 | | 3 | | 34 |
| | 3/17/97 | | 3 | | 34 |
| | 11/25/96 | | 37 | | 38 |
| | 9/13/96 | | 2 | | 38 |
| | 9/12/96 | | 8 |
| List all Filings |
↑Top
Filing Submission 0000950123-98-002286 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Fri., Apr. 26, 3:06:39.1am ET 