HVT 8-K
Haverty Furniture Companies Inc (HVT)
8-K
2020-05-20
For: 2020-05-20
View Original
Added on
April 06, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d)
of the Securities Exchange Act of 1934
Date of Report: May 20, 2020
(Date of earliest event reported: May 15, 2020)
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HAVERTY FURNITURE COMPANIES, INC.
(Exact name of registrant as specified in its charter)
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Maryland
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1-14445
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58-0281900
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(I.R.S. Employer
Identification No.)
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780 Johnson Ferry Road, Suite 800,
Atlanta, Georgia 30342
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(Address of principal executive offices) ( Zip Code)
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Registrant’s telephone number, including area code: (404)
443-2900
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of
the following provisions (see General Instruction A.2. below):
□ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
□ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
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(17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common Stock
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HVT
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NYSE
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Class A Common Stock
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HVTA
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NYSE
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule
12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging Growth Company □
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. □
Item 1.01 Entry
into a Material Definitive Agreement.
Amendment to Credit Agreement
On May 15, 2020, the Company and its subsidiary, entered into the Third Amendment to the Amended and Restated Credit Agreement by and among Haverty Furniture
Companies, Inc. and Havertys Credit Services, Inc. as the Borrowers, and Truist Bank (successor by merger to SunTrust Bank) as the Issuing Bank and Administrative Agent (the “Third Amendment”) to permit the sale-leaseback transactions discussed
below.
The foregoing description of the Third Amendment does not purport to be complete, and is qualified in its entirety by reference to the Third Amendment filed as
Exhibit 10.1 to this Current Report on Form 8-K, which is incorporated herein by reference.
Sale-Leaseback Transaction
On May 18, 2020, Haverty Furniture Companies, Inc. (“Havertys” or the “Company”) completed the sale of three properties in Texas, Florida, and Virginia pursuant to
a Purchase Agreement, dated as of May 18, 2020 (the “Purchase Agreement”) between the Company, as seller, and HF Coppell TX Landlord, LLC, HF Lakeland FL Landlord, LLC, and HF Colonial Heights VA Landlord, LLC, as buyers. The Coppell, Texas location
has approximately 394,000 distribution square feet used to serve our western stores, 44,000 retail square feet, and 20,000 square feet of office space for call center and general management purposes. The Lakeland, Florida facility has approximately
335,000 distribution square feet, and the Colonial Heights, Virginia facility has approximately 129,000 distribution square feet.
The total purchase price for all three properties, excluding costs and taxes, is $70.0 million. Net proceeds from the sales will be used to strengthen the Company’s
liquidity and support corporate initiatives.
The foregoing description of the Purchase Agreement does not comport to be complete, and is qualified in its entirety by reference to the Purchase Agreement, filed
as Exhibit 10.2 to this Current Report on Form 8-K, which is incorporated herein by reference.
The three properties were leased back to Havertys via 15-year operating lease agreements with four renewal options of five years each. The total annual rent for all
three properties will start at $4,470,705 and will increase by 2% per year. The Company is responsible for the operating costs for the properties including maintenance, insurance, and taxes.
The foregoing description of the lease agreements does not purport to be complete, and is qualified in its entirety to the Lease Agreements for each property,
filed as Exhibit 10.3, Exhibit 10.4, and Exhibit 10.5 to this Current Report on Form 8-K , which is incorporated herein by reference.
Item 2.01 Completion
of Acquisition or Disposition of Assets.
The information in Item 1.01 above is incorporated by reference into this Item 2.01.
Item 2.02 Results
of Operations and Financial Condition
On May 20, 2020, Havertys issued a press release regarding its results of operations for the quarter ended March 31, 2020, declaration of second quarter dividend,
and the completion of the $70.0 million sale-leaseback transaction. A copy of the press release is furnished as Exhibit 99.1. The attached Exhibit 99.1 is not filed but is furnished to comply with Regulation FD. The information disclosed in this Item
2.02 Current Report on Form 8-K is not considered to be filed” for purposes of Section 18 of the Securities and Exchange Act of 1934 and is not subject to the liabilities of that section.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under
an Off-Balance Sheet Arrangement of a Registrant.
The information in Item 1.01 above is incorporated by reference into this Item 2.03.
Item 5.07 Submission of
Matters to a Vote of Security Holders.
(a) On May 15, 2020, Havertys held its annual meeting of
stockholders. In the election of directors, the holders of shares of Class A common stock and common stock vote as separate classes in accordance with the Company's Charter.
For all other matters, the holders of shares of common stock and Class A common stock vote together as a single class and holders of common stock are entitled to one vote for each share of stock and holders of Class A common stock are entitled to
ten votes for each share of stock. At the meeting of stockholders, a plurality of votes is required in the election of each class of directors and for all other matters’ approval requires an affirmative vote of a combined majority of the votes
cast.
(b) Represented at the meeting in person or by proxy were 1,189,795
shares of Class A common stock, or approximately 77.68% of eligible Class A common stock, and 16,241,375 shares of common stock, or approximately 94.49% of eligible common stock shares.
The final voting results for each proposal, each of which is described in greater detail in Havertys' definitive proxy statement filed with the
Securities and Exchange Commission on April 1, 2020, follow below:
Proposal 1: Election of Class A common stock directors.
The holders of Class A common stock elected all six director nominees at the annual meeting to serve a one-year term. The voting results were as
follows:
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Nominee
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For
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Withheld
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Broker
Non-Vote
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John T. Glover
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461,852
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1,260
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726,683
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Rawson Haverty, Jr.
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463,052
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60
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726,683
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Mylle H. Mangum
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461,852
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1,260
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726,683
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Vicki R. Palmer
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463,052
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60
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726,683
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Clarence H. Smith
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461,852
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1,260
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726,683
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Al Trujillo
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463,052
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60
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726,683
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Proposal 1: Election of
common stock directors.
The holders of common stock elected both director nominees at the annual meeting to serve a one-year term. The voting results were as follows:
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Nominee
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For
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Withheld
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Broker
Non-Vote
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L. Allison Dukes
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14,747,775
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265,457
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1,228,143
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G. Thomas Hough
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14,993,715
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19,517
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1,228,143
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Ratification of Grant Thornton LLP as our independent auditor:
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The stockholders ratified the selection of Grant Thornton LLP as our independent auditors for the fiscal year ending December 31, 2020. The
voting results were as follows:
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For
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Against
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Abstain
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Broker
Non-Vote
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Ratification of Grant Thornton LLP
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28,129,845
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7,539
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1,941
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0
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Item 9.01 Financial Statements and Exhibits
(d) Exhibits. The following exhibits are furnished as part of this Report:
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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HAVERTY FURNITURE COMPANIES, INC.
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May 20, 2020
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By:
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Jenny Hill Parker
Senior Vice President, Finance and
Corporate Secretary
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EXHIBIT 10.1
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT (this “Amendment”), is made and entered into as of May 15, 2020, by and among HAVERTY FURNITURE
COMPANIES, INC., a Maryland corporation (“HFC”), HAVERTYS CREDIT SERVICES, INC., a Tennessee corporation (“HCS” and, together with HFC, each, a “Borrower”
and, collectively, the “Borrowers”), the financial institutions party hereto as lenders (the “Lend-ers”), and TRUIST BANK (successor by merger to SunTrust
Bank), in its capacity as administrative agent for the Lenders (the “Administrative Agent”) and as issuing bank (the “Issuing Bank”).
W I T N E S S E T H:
WHEREAS, the Borrowers, the Guarantors, the Lenders and the Administrative Agent are parties to a certain Amended and
Restated Credit Agreement, dated as of September 1, 2011 (as amended by that certain First Amendment to Amended and Restated Credit Agreement, dated as of March 31, 2016, that certain Second Amendment to Amended and Restated Credit Agreement, dated
as of September 27, 2019, and as further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”;
capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Credit Agreement), pursuant to which the Lenders have made certain financial accommodations available to the Borrowers;
WHEREAS, the Borrowers have requested that the Lenders and the Administrative Agent amend certain provisions of the
Credit Agreement and waive certain Events of Default, and subject to the terms and conditions hereof, the Lenders are willing to do so;
NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of all of which are acknowledged, the
Borrowers, the Lenders and the Administrative Agent agree as follows:
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1.
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Amendments.
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a. Section 1.1 of the Credit Agreement is amended by deleting the definition of “Excluded Net Cash Proceeds” in its entirety and inserting the following definition in lieu thereof:
“‘Excluded
Net Cash Proceeds’ shall mean (i) any Net Cash Proceeds from the sale of Inventory in the ordinary course of business, (ii) all condemnation and casualty proceeds and proceeds from business interruption insurance policies payable to
any Borrower with respect to any of its assets, other than Collateral, to the extent such Borrower is required to turn over such proceeds to its landlord or lender under the Havertacq Lease or any documents relating to any Permitted Real Estate
Financing or Sale-Leaseback Transaction permitted under Section 8.10, (iii) Net Cash Proceeds from the sale of assets, other than Collateral, to the extent such
Net Cash Proceeds are required to be repaid pursuant to a Permitted Real Estate Financing, (iv) the Net Cash Proceeds from the 2020 Sale-Leaseback Transaction and (v) the Net Cash Proceeds from the sale of that certain real property consisting of
approximately 16.41 acres located on the northeast corner of Exchange Circle, Coppell, Texas 75019, and related rights, privileges, appurtenances and licenses in any way related to such real property, for an aggregate purchase price that is expected
to be approximately $5,200,000.”
b. Section 1.1 of the Credit Agreement is amended by adding the following definition in appropriate alphabetical order:
“‘2020
Sale-Leaseback Transaction’ shall mean the Sale-Leaseback Transaction with respect to the Borrowers’ properties located at 770 Gateway Blvd, Coppell, TX 75019, 7100 Havertys Way, Lakeland, FL 33805 and 1720 Port Walthall, Colonial Hts,
VA 23834, for an aggregate sale price of approximately $70,000,000.”
c. Section 7.1 of the Credit Agreement is amended by replacing subsection (b) thereof in its entirety with the following:
“(b) Within forty-five (45) days (or, solely in the case of the fiscal quarters ended June 30, 2020, September
30, 2020 and December 31, 2020, such later date as the Borrowers are permitted to report their quarterly financial statements to the Securities and Exchange Commission, giving effect to the Releases issued by the Securities and Exchange Commission
in response to the potential effects of the coronavirus disease 2019, not to exceed ninety (90) days) after the last day of each fiscal quarter in each fiscal year of the Borrowers, the balance sheet of the Borrowers and their Subsidiaries as at
the end of such fiscal quarter, and the related statement of income and related statement of cash flows for such fiscal quarter, which financial statements shall set forth in comparative form (i) such figures as at the end of such fiscal quarter
during the previous fiscal year and for such fiscal quarter during the previous fiscal year and (ii) as contained in the Borrowers’ and their Subsidiaries’ projections and forecast delivered to the Administrative Agent pursuant to Section 7.5(d) for such periods, all of which shall be on a consolidated basis with the other Credit Parties and shall be certified by an Authorized Signatory of the
Administrative Borrower to be, in his or her opinion, complete and correct in all material respects and to present fairly in accordance with GAAP the financial position of the Credit Parties, as at the end of such period and the results of
operations for such period, subject only to normal year-end adjustments and lack of footnotes.”
d. Section 8.1 of the Credit Agreement is amended by replacing subsection (f) thereof in its entirety with the following:
“(f) Permitted Real Estate Financing and Indebtedness arising under Sale-Leaseback Transactions permitted under
Section 8.10; provided that the sum of (1) the aggregate purchase price
of all properties sold and leased back after the Second Amendment Date in Sale-Leaseback Transactions permitted under Section 8.10 (excluding the 2020
Sale-Leaseback Transaction), plus (2) the aggregate outstanding principal amount of Permitted Real Estate Financing incurred after the Second Amendment Date, plus (3) the Net Real Estate Exchange Value incurred after the Second Amendment Date does not exceed $100,000,000 in the aggregate;”
e. Section 8.7(j) of the Credit Agreement is amended by adding the following proviso at the end thereof:
“; provided that
any store temporarily closed by the Borrowers for up to one hundred twenty (120) days during the period from March 15, 2020 through December 31, 2020 shall be deemed to have been open for purposes of the foregoing covenant.”
f. Section 8.10 of the Credit Agreement is amended by replacing such Section in its entirety with the following:
“Section 8.10 Sales and Leasebacks.
No Credit Party shall, or shall permit any Subsidiary of a Credit Party to, enter into any arrangement, directly or indirectly, with any third party whereby such Credit Party or such Subsidiary, as applicable, shall sell or transfer any property,
real or personal, whether now owned or hereafter acquired, and whereby such Credit Party or such Subsidiary, as applicable, shall then or thereafter rent or lease as lessee such property or any part thereof or other property which such Credit Party
or such Subsidiary intends to use for substantially the same purpose or purposes as the property sold or transferred (each such transaction, a “Sale-Leaseback Transaction”);
provided that the Borrowers may engage in (x) Sale-Leaseback Transactions so long as the sum of (1) the aggregate purchase price of all properties sold and
leased back after the Second Amendment Date in such Sale-Leaseback Transactions (excluding the 2020 Sale-Leaseback Transaction), plus (2) the aggregate
outstanding principal amount of Permitted Real Estate Financing incurred after the Second Amendment Date, plus (3) the Net Real Estate Exchange Value incurred
after the Second Amendment Date does not exceed $100,000,000 in the aggregate and (y) the 2020 Sale-Leaseback Transaction.”
g. All references to “Second Amendment Date” contained in the following Sections of the Credit Agreement are hereby amended by replacing such references with “Third Amendment Date”:
Section 5.1(u) (Solvency), Section 5.1(dd) (OFAC) and Section 6.23 (Intellectual Property Pledge).
2. Waiver of Events of Default. The Administrative Agent
and the Lenders hereby waive any Default or Event of Default that may have occurred under Sections 9.1(c) of the Credit Agreement as a result of any temporary store closures prior to the date of this Amendment to the extent such stores would be
deemed open under Section 8.7(j) of the Credit Agreement after giving effect to this Amendment (including, without limitation, any Default or Event of Default that otherwise would have resulted from a breach of any representation or warranty given
or deemed given as if no such store closures had occurred).
3. Conditions to Effectiveness of this Amendment. Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and
agreed that this Amendment shall not become effective, and the Borrowers shall have no rights under this Amendment, until the Administrative Agent shall have received (i) reimbursement or payment of costs and expenses incurred in connection with
this Amendment or the Credit Agreement to the extent required under Section 11.2 of the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent to the extent invoiced)
and (ii) executed counterparts to this Amendment from the Borrowers, each of the Guarantors (if any) and the Lenders.
4. Representations and Warranties. To induce the Lenders
and the Administrative Agent to enter into this Amendment, each Credit Party hereby represents and warrants to the Lenders and the Administrative Agent:
(a) Each of the Borrowers and each of its Subsidiaries (i) is duly orga-nized, validly existing and in good standing as a corporation,
partnership or limited liability company under the laws of the jurisdiction of its organization, (ii) -has all requisite power and authority to carry on its business as now conducted, and (iii) is duly qualified to do business, and is in good
standing, in each jurisdiction where such qualification is required, except where a failure to be so qualified would not reasonably be expected to result in a Material Adverse Effect;
(b) The execution, delivery and performance by each Credit Party of this Amendment, the Credit
Agreement, as amended hereby, and the other Loan Documents to which it is a party are within such Credit Party’s organizational powers and have been duly authorized by all necessary organizational, and if required, shareholder, partner or member
action;
(c) The execution, delivery and performance by the Borrowers of this Amendment, and by each Credit Party of the other Loan Documents to which
it is a party (i) do not require any consent or approval of, registration or filing with, or any action by, any Governmental Authority, except those as have been obtained or made and are in full force and effect, (ii) will not violate any
Requirements of Law applicable to either of the Borrowers or any of such Borrower’s Subsidiaries or any judgment, order or ruling of any Governmental Authority and (iii) will not result in or require the creation or imposition of any Lien upon or
with any Credit Party except Permitted Liens;
(d) This Amendment has been duly executed and delivered for the benefit of or on behalf of each Credit Party and constitutes a legal, valid
and binding obligation of each Credit Party, enforceable against such Credit Party in accordance with its terms except as the enforceability hereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws affecting
creditors’ rights and remedies in general;
(e) After giving effect to this Amendment, the representations and warranties contained in the Credit Agreement and the other Loan Documents
are true and correct in all material respects, and no Default or Event of Default has occurred and is continuing as of the date hereof. Without limiting the foregoing, the Credit Parties have complied with the requirements of (i) Section 7.6(a) of
the Credit Agreement, (ii) Section 6.06 of the Security Agreement and (iii) Section 6.09(f) of the Security Agreement;
(f) Since the Second Amendment Date, no Credit Party or any Subsidiary of any Credit Party has (i) formed or acquired any direct or indirect
Subsidiary or (ii) opened or acquired any deposit account, disbursement account or security account other than any Excluded Account; and
(g) There is no litigation, legal or administrative proceeding, investigation, or other action of any nature pending or, to the knowledge of
the Credit Parties, threatened against or affecting any Credit Party, any Subsidiary of any Credit Party or any of their respective properties that could reasonably be expected to have a Material Adverse Effect, except as disclosed in the 10K filed
by the Borrowers with the Securities and Exchange Commission on March 5, 2020.
5. Effect of Amendment. Except as set forth expressly
herein, all terms of the Credit Agreement, as amended hereby, and the other Loan Documents shall be and remain in full force and effect and shall constitute the legal, valid, binding and enforceable obligations of the Borrowers to the Lenders and
the Administrative Agent. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders under the Credit Agreement, nor constitute a
waiver of any provision of the Credit Agreement. This Amendment shall constitute a Loan Document for all purposes of the Credit Agreement.
6. Governing Law. This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of Georgia and all applicable federal laws of the United States of
America.
7. No Novation. This Amendment is not intended by the
parties to be, and shall not be construed to be, a novation of the Credit Agreement or an accord and satisfaction in regard thereto.
8. Costs and Expenses. The Borrowers agree to pay on
demand all reasonable, out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment, including, without limitation, the reasonable fees and out-of-pocket expenses of
outside counsel for the Administrative Agent with respect thereto.
9. Counterparts. This Amendment may be executed by one or
more of the parties hereto in any number of separate counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of this
Amendment by facsimile transmission or by electronic mail in pdf form shall be as effective as delivery of a manually executed counterpart hereof.
10. Binding Nature. This Amendment shall be binding
upon and inure to the benefit of the parties hereto, their respective successors, successors-in-titles, and assigns.
11. Entire Understanding. This Amendment sets forth
the entire understanding of the parties with respect to the matters set forth herein, and shall supersede any prior negotia-tions or agreements, whether written or oral, with respect thereto.
12. Reaffirmations and Acknowledgments.
(a) Reaffirmation. Each Borrower ratifies and confirms the terms of the Credit Agreement as
amended hereby and all promissory notes issued thereunder. Each Borrower acknowledges that, notwithstanding anything to the contrary contained herein or in any other document evidencing any indebtedness of the Borrowers to the Lenders or any other
obligation of the Borrowers, or any actions now or hereafter taken by the Lenders with respect to any obligation of the Borrowers, the Credit Agreement (i) is and shall continue to be a primary obligation of the Borrowers, and (ii) is and shall
continue to be in full force and effect in accordance with its terms.
(b) Acknowledgment of Perfection of Security Interest. Each Borrower hereby acknowledges that, as
of the date hereof, the security interests and liens granted to the Administrative Agent and the Lenders under the Credit Agreement and the other Loan Documents are in full force and effect, are properly perfected and are enforceable in accordance
with the terms of the Credit Agreement and the other Loan Documents.
[Signature Pages To Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed, under seal in the case of the Borrowers, by their
respective authorized officers as of the day and year first above written.
BORROWERS:
HAVERTY FURNITURE COMPANIES, INC.
By: /s/ Richard B. Hare
Name:
Richard Hare
Title: Executive Vice President and
Chief Financial Officer
HAVERTYS CREDIT SERVICES, INC.
By: /s/ Richard B. Hare
Name: Richard Hare
Title: President
Title: President
TRUIST BANK (successor by merger to
SunTrust Bank), as Administrative Agent, as Issuing Bank and as Lender
By: /s/ Stephen D. Metts
Name: Stephen D. Metts
Title: Director
EXHIBIT 10.2
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, dated as of May 18, 2020 (as amended from time to time, this “Agreement”), is between HAVERTY FURNITURE COMPANIES, INC., a
Maryland corporation (“Seller”), and each of the Delaware limited liability companies listed under “Buyers” on the signature page hereto (each a “Buyer” and collectively, the “Buyers”).
Background
Seller owns certain warehouse and distribution center properties listed on Schedule I hereto, and desires to sell and leaseback, and the Buyers
desire to purchase and lease to Seller, such properties.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. Definitions. The
following terms shall have the following meanings for purposes of this Agreement:
“Appraisal” with respect to any Property means an appraisal of such Property from an appraiser acceptable to STEF and in form and
substance reasonably acceptable to STEF.
“Business Day” means any day other than a Saturday or a Sunday or other day on which commercial banks in the State of Georgia are
required or are authorized to be closed.
“Cap Rate” means 6.25% with respect to the Properties located in Coppel, Texas and Lakeland, Florida and 6.35% with respect to the
Property located in Colonial Heights, Virginia.
“Closing Date” means May 18, 2020.
“Environmental Audit” with respect to any Property means a Phase I environmental audit performed by a firm reasonably acceptable
to STEF.
“Land” with respect to each property listed on Schedule I hereto, the land related thereto.
“Improvements” means all buildings, structures and other improvements located or to be located on the Land, together with all
fixtures (including but not limited to all heating, air conditioning, plumbing, lighting, communications and elevator fixtures, but not including any racking or other Personal Property (as defined below)) located or to be located on, or used or to
be used in connection with, such buildings, structures and other improvements.
“Permitted Encumbrances” with respect to each Property shall mean the encumbrances listed on Schedule B to the Title Policy for
such Property.
“Property” shall mean each of the properties listed on Schedule I, and shall include the fee simple interest in the
related Land and all Improvements on such Land at the time of the sale thereof to the related Buyer pursuant to this Agreement and the Seller’s interest in all easements, rights-of-way, strips and gores of land, streets, ways, alleys, passages,
sewer rights, water, water courses, water rights and powers, air rights and development rights, and all estates, rights, titles, interests, privileges, liberties, tenements, hereditaments and appurtenances of any nature whatsoever, in any way
belonging, relating or pertaining to such Land and Improvements.
Notwithstanding anything to the contrary contained herein, the following shall not be transferred, assigned or conveyed to Buyers, and
shall be excluded from the Property:
“Excluded Assets,” being all right, title and interest of Seller, if any, in any proprietary or confidential
materials (including any materials relating to the background or financial condition of a present or prior direct or indirect partner or member of Seller), the internal books and records of Seller relating, for example, to contributions and
distributions prior to the Closing, any software, all trademarks, trade names, brand marks, brand names, trade dress or logos used by Seller or any of its affiliates in the ownership and/or operation of any furniture distribution centers or
furniture stores, and any other intangible property that is not used exclusively in connection with the Property;
“Excluded Materials,” being all right, title and interest of Seller, if any, in and to all: (1) information
contained in financial analyses or projections; (2) material that is subject to attorney-client privilege or that is attorney work product; (3) appraisal reports or letters; (4) organizational, financial and other documents relating to Seller or
its affiliates (other than any evidence of due authorization and organization required under this Agreement); (5) material that is subject to a confidentiality agreement or non-disclosure agreement; (6) preliminary or draft reports or studies that
have been superseded by final reports or studies; or (7) letters of intent, purchase agreements, loan documents or other documents, instruments or agreements evidencing or relating to Seller’s acquisition of the Properties or any prior financing or
attempted sale of such Properties or any portion thereof, provided that Excluded Materials shall not include (i) any documents, instruments, agreements or information that is a matter of public record or that is otherwise publicly available
or that is included in any Report or (ii) any financial statements of Seller delivered to STEF in connection with the transactions contemplated by this Agreement or that are delivered to the Buyers under the Lease at any time; and
“Personal Property,” being all right, title and interest of Seller, if any, in and to all tangible personal
property located in or on the Land or Improvements and used or owned (by any person or entity, including tenants at, and occupants of, the Property) in the operation, maintenance, or use of the Property, including (1) all trade fixtures, lighting
fixtures, furniture, signs and related personal property with respect to the Property and the operations thereof; (2) all equipment used in connection with the use and or maintenance of the Property and improvements thereon; and (3) any equipment
or other personal property leased by Seller from any third parties.
“Reports” with respect to any Property means, collectively, the Environmental Audit, the Appraisal, a zoning report, the Survey,
the Title Policy and a property condition report, in each case for such Property.
“Seller Responsible Encumbrances” with respect to any Property means (i) any and all mortgages, deeds of trust, assignments of
lease, financing statements or other agreements evidencing or related to indebtedness obtained by Seller and secured by such Property or any part thereof, (ii) any liens or encumbrances arising as a result of Seller’s or any of its affiliate’s
failure to pay any income, real property or other taxes or any common area charges, maintenance costs or fees or utility fees and (iii) any judgment, mechanics’ or similar liens against the such Property or Seller or any of its affiliates that
encumber such Property.
“STEF” means SunTrust Equity Funding, LLC, a Delaware limited liability company.
“Survey” with respect to any Property means an as-built survey for such Property, which survey shall contain the minimum detail
for land surveys as most recently adapted by ALTA/ACSM, shall contain a standard form certification to the Title Company and the related Buyer, shall show a “metes and bounds” and/or “block and lot” legal description and the completion of all
foundations of the Improvements and shall otherwise be reasonably satisfactory to STEF.
“Title Company” means First American Title Insurance Company.
“Title Policy” with respect to any Property means an owner’s policy of title insurance for such Property from the Title Company,
with such endorsements thereto as shall be reasonably requested by the related Buyer and as are available in the applicable state.
Section 2. Closing. The
closing (the “Closing”) of the sale of the Properties shall be accomplished by mail and wire transfer and shall consummate at the offices of the Title Company on the Closing Date.
Section 3. Purchase Price. At
the Closing, each Buyer shall pay an amount equal to the purchase price for the Property to be purchased by such Buyer as set forth on Schedule I hereto (such amount, the “Purchase Price”). On or before the Closing Date, Seller
shall remove and discharge of record all Seller Responsible Encumbrances; in the event that Seller does not so remove and discharge any Seller Responsible Encumbrance with respect to any Property, the Purchase Price for such Property shall be
reduced by the amount required to so remove and discharge Seller Responsible Encumbrance and Seller shall take such action as STEF reasonably requests to discharge Seller Responsible Encumbrance of record promptly after the Closing, including,
without limitation, obtaining any necessary releases thereof in recordable form. The Buyers shall pay the Purchase Prices for the Properties by federal wire transfer of immediately available funds to the Title Company on the Closing Date.
Section 4. Conditions Precedent to
Closing. Each Buyer’s obligation to acquire any Property hereunder is conditioned on all of the following, any or all of which may be expressly waived by STEF, in writing, at its sole option: (i) all representations and warranties made by
Seller in this Agreement shall be true and correct in all material respects on and as of the Closing Date, as if made on and as of such date, except to the extent that they expressly relate to an earlier date, in which case, they shall have been
true and correct in all material respects as of such earlier date, (ii) Seller shall have delivered all of the documents and other items required pursuant to Section 5 and shall have performed all other covenants, undertakings and obligations to
be performed by Seller with respect to such Property at or prior to the Closing, (iii) the related Buyer shall have received all of the Reports for such Property from such firms as shall have been selected by such Buyer or be otherwise
satisfactory to such Buyer and which shall be satisfactory to Buyer in form and substance and (iv) the Closing occurs on or prior to May 31, 2020.
Section 5. Deliveries by Seller.
On the Business Day prior to the Closing Date, Seller shall have delivered all of following (the “Seller Closing Documents”) to the Title Company with respect to each Property:
|
(a)
|
a special warranty deed for such Property, in substantially the form of Exhibit A hereto (with such changes thereto as may be reasonably
necessary to make such deed in recordable form in the applicable jurisdiction), duly executed by Seller, transferring such Property to the related Buyer free of all liens other than Permitted Encumbrances;
|
|
(b)
|
a bill of sale for such Property in the form attached hereto as Exhibit B duly executed by Seller;
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(c)
|
an original Certification of Non-Foreign Status, duly executed by Seller;
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(d)
|
a lease for such Property in the form attached hereto as Exhibit C (a “Lease”) and a memorandum of lease (a “MOL”) substantially
in the form attached hereto as Exhibit D, each duly executed by Seller and each with the blanks therein appropriately filled out, including, without limitation, in the case of the Lease, the Basic Rent (as defined in the Lease)
for such Property, which initial annual Basic Rent shall be equal to the (i) the Purchase Price for such Property, times (ii) the Cap Rate;
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(e)
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an opinion of counsel in the form attached hereto as Exhibit E;
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(f)
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a secretary’s or assistant secretary’s certificate for Seller with Seller’s certificate of incorporation, by-laws and resolutions authorizing the
transactions contemplated by this Agreement attached, and including a certification of the incumbency and genuine signature of the officer(s) executing documents on behalf of Seller
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(g)
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good standing certificates for Seller from Maryland and from the respective states where the Properties are located;
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(h)
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a completed W-9 for Seller;
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(i)
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evidence of the insurance coverage required to be carried under the related Lease;
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(j)
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any transfer tax forms that are required to be signed by a seller of real property in the jurisdiction in which the Property is located duly executed by
Seller;
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(k)
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An executed counterpart of the joint closing settlement statement prepared by the Title Company and approved by the parties (the “Settlement Statement”);
and
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(l)
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such other affidavits, documents and certificates as may be customarily and reasonably required by the Title Company in order to effectuate the
transaction contemplated hereby, including, without limitation, a gap indemnity, if required by the Title Company.
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Section 6. Deliveries by Buyers.
On the Business Day prior to the Closing Date, the related Buyer shall deliver the following (the “Buyer Closing Documents”, and collectively with the Seller Closing Document, the “Closing Documents”) to the Title Company with
respect to such Property:
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(a)
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the Lease and the MOL for such Property duly executed by such Buyer; and
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(b)
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An executed counterpart of the Settlement Statement;
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(c)
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An executed counterpart of the Landlord’s Waiver and Consent in the form attached as Exhibit E to the Lease; and
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(d)
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such other affidavits, documents and certificates as may be customarily and reasonably required by the Title Company in order to effectuate the
transaction contemplated hereby, including, without limitation, a gap indemnity, if required by the Title Company.
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Section 7. Seller Representations.
Seller hereby represents and warrants to STEF and to the Buyers, as of the Closing Date, as follows:
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(a)
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Seller is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland and has all requisite power and
authority to enter into, and perform its obligations under, this Agreement, the Leases, and any other documents contemplated by this Agreement, including, without limitation, conveying and leasing back the Properties. The execution and
delivery of this Agreement and the Leases, and the consummation of the transactions contemplated hereby and thereby (i) have been duly authorized by all necessary corporate action on the part of Seller, (ii) do not require any
governmental or other consent, exemption or authorization, or any notice to, or filing with, any governmental authority or any other person and (iii) do not and will not result in the contravention of Seller’s organizational documents or
a breach of any material agreement, indenture, judgment, order or other instrument to which Seller is a party or is otherwise bound. This Agreement and the Leases constitute the legal, valid and binding obligations of Seller, enforceable
against it in accordance with its terms.
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(b)
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Seller has not assigned, pledged or transferred any Property, and no other person or other entity has any right or option to acquire any Property.
Seller is in possession of each Property, Seller has not leased or subleased all or any part of any Property to any person or entity and no other person or entity has any right of possession in or to any Property.
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(c)
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Seller has not received written notice of any actual, pending or threatened suits, actions, arbitrations, claims or proceedings, at law or in equity,
affecting any Property. Seller has not received written notice alleging the existence of any violation of any rule, regulation, ordinance, law or similar matter that applies to any Property, or to the use or operation of any Property,
and Seller has no actual knowledge that any such violation exists.
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(d)
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Seller has received no written notice, and does not otherwise have any actual knowledge, of any threatened condemnation or taking with respect to any
Property or any part thereof. Seller has no actual knowledge of any casualty with respect to any Property that has not been repaired. Each Property has been unconditionally accepted by Seller and a certificate of occupancy or other
required documentation for the operation of the Property has been obtained and is in full force and effect.
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(e)
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Seller has not dealt with or engaged any broker in connection with the transactions contemplated by this Agreement.
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(f)
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Neither Seller, nor, to Seller’s knowledge, any previous owner or operator of any Property, has made, released, treated, generated, stored or disposed of
any Hazardous Substances at such Property, except in Seller’s ordinary course of business of operating a furniture distribution center and in accordance with all applicable Environmental Laws. Seller has no actual knowledge of any
violation or alleged violation of any applicable Environmental Laws with respect to any Property. “Hazardous Substances” shall mean any hazardous or toxic chemical, waste, byproduct, pollutant, contaminant, compound, product or
substance, including, without limitation, asbestos, polychlorinated biphenyls, petroleum (including crude oil or any fraction or by-product thereof), underground storage tanks, and any material the exposure to, or manufacture, possession,
presence, use, generation, storage, transportation, treatment, release, disposal, abatement, cleanup, removal, remediation or handling of which is prohibited, controlled or regulated by any applicable Environmental Law. “Environmental
Law” shall mean any federal, state, regional, county or local governmental statute, law, regulation, ordinance, order or code or any consent decree, judgment, permit, license, code, covenant, deed restriction, common law, or other
requirement presently in effect or hereafter created, issued or adopted, pertaining to protection of the environment, health or safety of persons, natural resources, conservation, wildlife, waste management, and pollution (including,
without limitation, regulation of releases and disposals to air, land, water and ground water), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 U.S.C. 9601 et seq., Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Solid and Hazardous Waste Amendments of 1984, 42 U.S.C. 6901 et seq.,
Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C. 1251 et seq., Clean Air Act of 1966, as amended, 42 U.S.C. 7401 et seq., Toxic Substances Control Act of 1976, 15 U.S.C. 2601 et seq., Occupational
Safety and Health Act of 1970, as amended, 29 U.S.C. 651 et seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. 11001 et seq., National Environmental Policy Act of 1975, 42 U.S.C. 300(f) et seq., and all amendments
as well as any similar state or local statute or code and replacements of any of the same and rules, regulations, guidance documents and publications promulgated thereunder.
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|
(g)
|
Seller has not received any written notice or claim, and does not otherwise have any actual knowledge of, any violation of any Permitted Encumbrance
applicable to any Property or any encroachment of any part of any Property onto any adjacent property or roadway or any applicable easement.
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(h)
|
All financial statements delivered to STEF with respect to Seller were prepared in accordance with generally accepted accounting principles consistently
applied through the periods covered thereby and fairly present the financial condition of Seller as of the dates thereof and its results of operations for the periods covered thereby, subject to normal year end audit adjustments in the
case of any interim unaudited financial statements.
|
Section 8. Representations of
Buyers. Each Buyer represents and warrants to Seller, as of the Closing Date, with respect to the Property purchased by such Buyer, as follows:
|
(a)
|
Such Buyer is duly organized and in good standing under the laws of the State of Delaware and has the legal capacity to enter into, and perform its
obligations under, this Agreement and any other documents contemplated by this Agreement, including, without limitation, acquiring and leasing the Property to be acquired by such Buyer.
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|
(b)
|
The execution and delivery of this Agreement and the related Lease by such Buyer and the consummation of the transactions contemplated hereby by it (i)
have been duly authorized by all necessary action on the part of such Buyer, (ii) do not require any governmental or other consent and (iii) will not result in the breach of any agreement, indenture or other instrument to which such Buyer
is a party or is otherwise bound. This Agreement and the Lease to which such Buyer is a party constitute the legal, valid and binding obligations of such Buyer, enforceable against it in accordance with its terms.
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Section 9. As-Is Buyer. BUYERS
ARE EXPERIENCED COMMERCIAL REAL ESTATE OWNERS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY OF THE SELLER CLOSING DOCUMENTS, SELLER HAS NOT MADE, NOR DOES SELLER HEREBY MAKE, ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR OTHER
STATEMENTS AS TO THE CONDITION OF THE PROPERTIES, AND BUYERS ACKNOWLEDGE THAT AT CLOSING BUYERS ARE PURCHASING THE PROPERTIES ON AN “AS IS, WHERE IS” BASIS AND “WITH ALL FAULTS,” WITHOUT RECOURSE AND WITHOUT RELYING ON ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER OR ITS AGENTS AS TO ANY MATTERS CONCERNING THE PROPERTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY OF THE SELLER CLOSING DOCUMENTS, NO REPRESENTATIONS OR
WARRANTIES HAVE BEEN MADE OR ARE MADE AND NO RESPONSIBILITY HAS BEEN OR IS ASSUMED BY SELLER OR BY ANY MEMBER, OFFICER, PERSON, FIRM, AGENT OR REPRESENTATIVE ACTING OR PURPORTING TO ACT ON BEHALF OF SELLER AS TO THE CONDITION OR REPAIR OF THE
PROPERTIES OR THE VALUE, EXPENSE OF OPERATION, OR INCOME POTENTIAL THEREOF OR AS TO ANY OTHER FACT OR CONDITION THAT HAS OR MIGHT AFFECT THE PROPERTIES OR THE CONDITION, REPAIR, VALUE, EXPENSE OF OPERATION OR INCOME POTENTIAL OF THE PROPERTIES OR
ANY PORTION THEREOF. THE PARTIES AGREE THAT ALL UNDERSTANDINGS AND AGREEMENTS HERETOFORE MADE BETWEEN THEM OR THEIR RESPECTIVE AGENTS OR REPRESENTATIVES ARE MERGED IN THIS AGREEMENT, THE CLOSING DOCUMENTS, AND THE SCHEDULES AND EXHIBITS ANNEXED
HERETO, WHICH ALONE FULLY AND COMPLETELY EXPRESS THEIR AGREEMENT, AND THAT THIS AGREEMENT HAS BEEN ENTERED INTO AFTER FULL INVESTIGATION, WITH THE PARTIES SATISFIED WITH THE OPPORTUNITY AFFORDED FOR INVESTIGATION, NEITHER PARTY RELYING UPON ANY
STATEMENT, COVENANT OR REPRESENTATION BY THE OTHER UNLESS SUCH STATEMENT, COVENANT OR REPRESENTATION IS SPECIFICALLY EMBODIED IN THIS AGREEMENT, THE EXHIBITS ANNEXED HERETO OR THE CLOSING DOCUMENTS. UPON THE CLOSING, BUYERS WILL ASSUME THE RISK
THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYERS’ INSPECTIONS AND INVESTIGATIONS. BUYERS, WITH BUYERS’ COUNSEL, HAVE FULLY REVIEWED THE DISCLAIMERS AND
WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTAND THE SIGNIFICANCE OF EACH AND AGREE THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTIES
TO BUYERS FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT.
BUYERS FURTHER COVENANT AND AGREE NOT TO SUE SELLER AND RELEASE SELLER OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING
WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT BUYERS MAY HAVE AGAINST SELLER UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN,
ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE REAL PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED BY THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986,
42 U.S.C. 9601 ET SEQ, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO PROTECTION OF THE ENVIRONMENT OR HEALTH AND SAFETY OR TO POLLUTION, ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR
MIGRATING FROM OR ONTO THE PROPERTY; PROVIDED, HOWEVER, NOTHING IN THIS PARAGRAPH SHALL LIMIT BUYERS’ RIGHT TO SUE SELLER FOR, AND THE FOREGOING RELEASE AND WAIVER SHALL NOT APPLY TO, A BREACH OF SELLER’S REPRESENTATIONS EXPRESSLY
SET FORTH IN THIS AGREEMENT OR IN ANY OF THE SELLER CLOSING DOCUMENTS OR ANY CLAIM AGAINST SELLER AS TENANT UNDER THE LEASES. THE PROVISIONS OF THIS SECTION 9 SHALL SURVIVE THE CLOSING AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING
DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED FOR EACH PROPERTY AS FULLY AS IF SET FORTH AT LENGTH THEREIN.
NOTHING SET FORTH IN THIS SECTION 9 OR OTHERWISE IN THIS AGREEMENT IS INTENDED TO, OR SHALL, LIMIT OR WAIVE ANY RIGHT, CLAIM,
INTEREST OR CAUSE OF ACTION THAT ANY BUYER NOW OR HEREAFTER MAY HAVE AGAINST SELLER AS TENANT UNDER THE LEASES.
Section 10. Notices. All
notices required or permitted hereunder shall be in writing and shall be given (a) by registered or certified mail, postage prepaid, or (b) by a nationally recognized overnight delivery service which provides receipted delivery, (i) if to Seller,
to Haverty Furniture Companies, Inc., 780 Johnson Ferry Road, Suite 800, Atlanta, Georgia 30342, Attn: Janet Taylor, Esq., or such other address as Seller shall have last designated by written notice given as aforesaid to STEF, with a copy to
Jones Day, 77 W. Wacker Drive, Suite 3500, Chicago, Illinois 60601, Attn: Brian L, Sedlak, Esq. and (ii) if to STEF or any Buyer, to SunTrust Equity Funding, LLC, 3333 Peachtree Road, NE, 10th Floor, Atlanta, Georgia 30326, Attn:
Patrick Zepeda (email: [email protected]), or such other address as STEF shall have last designated by written notice given as aforesaid to Seller, with a copy to Julia R. Sarron, Sarron Law Group, LLC, 1424 W. Ohio St., Chicago,
Illinois 60642-6118 (E-mail: [email protected]). Notices shall be deemed given upon receipt at the applicable address.
Section 11. Payment
of Fees and Expenses. Seller shall be solely responsible for payment of (a) all of Seller’s and STEF’s legal fees and expenses with respect to the transactions contemplated hereby, (b) all transfer taxes and intangible taxes payable in
connection with the sale of the Properties to the Buyers, (c) the premium for the Title Policies for the Properties, including all endorsements thereto requested by a Buyer and available in the applicable state, (d) all costs related to the
Reports, (e) all of the Title Company’s search and escrow fees and all other closing costs and expenses, (f) all the costs of formation of the Buyers and the qualification of each Buyer in the state where the Property to be purchased by such
Buyer is located, and (g) all the costs and expenses incurred in connection with recording the MOLs (collectively, the “Transaction Expenses”). The Transaction Expenses shall be paid by Seller on the Closing Date.
Section 12. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia, without giving effect to any conflict of laws thereof that would result in the law of another state governing this Agreement.
Section 13. Assignment. Seller
shall not assign this Agreement. Any Buyer may assign its rights, claims and obligations under this Agreement to (i) any other limited liability company with respect to which STEF or any of its affiliates is the sole member, (ii) to any person
to which such Buyer sells its Property and (iii) to any lender providing funding for the related Buyer’s ownership of its Property.
Section 14. Seller’s Logo. STEF and its affiliates may use Seller’s name or logo or a general description of the transactions contemplated hereby in marketing and promotional materials prepared or used by STEF, in
electronic or other format.
Section 15. Miscellaneous.
This Agreement may be executed in multiple counterparts or with multiple signature pages which, when assembled as a single document or, if not so assembled, when taken together shall be deemed to be fully effective and operative as an original
document. Any signature page executed in a “DocuSign”, “esign” or similar format, and/or distributed by pdf or similar manner, shall be deemed to be an original thereof for all purposes. The section headings appearing in this Agreement are for
convenience and reference only and are not intended, to any extent and for any purpose, to limit or define the text of any section or any subsection hereof. Without limiting the effect of the representations and warranties of either party, each
party to this Agreement has obtained its own legal, accounting and tax advice, and has not relied upon the other party or other party’s advisors with respect to legal, accounting and/or tax matters related to the transactions contemplated by this
Agreement. This Agreement, the Leases and the other documents delivered pursuant to this Agreement constitutes the entire and complete contract between the parties hereto. This Agreement may be modified or amended only by an amendment in
writing and signed by the parties hereto.
Section 16. Waiver of Jury Trial.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO HEREBY AGREE TO WAIVE TRIAL BY JURY IN CONNECTION WITH ANY PROCEEDINGS RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 17. Attorneys’ Fees.
If Seller, on the one hand, or STEF or any Buyer, on the other hand, brings any action or suit against the other for any matter relating to or arising out of this Agreement, then the prevailing party in such action or dispute, whether by final
judgment or out of court settlement, shall be entitled to recover from the other party all costs and expenses of suit, including reasonable attorneys' fees. Any judgment or order entered in any final judgment shall contain a specific provision
providing for the recovery of all costs and expenses of suit, including reasonable attorneys' fees incurred in enforcing, perfecting and executing such judgment.
Section 18. Integration. This
Agreement, the Seller Closing Documents and the Buyer Closing Documents embody the entire agreement and understanding between Seller, Buyers and STEF with respect to the transactions contemplated hereby and supersede all other agreements and
understandings between Seller and STEF with respect to the subject matter thereof. This Agreement, the Seller Closing Documents and the Buyer Closing Documents represent the final agreement between the parties and may not be contradicted by
evidence of prior, contemporaneous or subsequent oral agreements of Seller, Buyers and STEF or any course of prior dealings. There are no unwritten oral agreements between the parties.
Section 19. Brokerage: Each
party to this Agreement represents to the other that neither party has dealt with any broker or other intermediary with regard to the transaction contemplated by this Agreement. Each party to this Agreement shall hereby indemnify and hold the
other harmless against any claims for brokerage commissions or compensation from, or other claims of any kind (including reasonable attorneys’ fees and costs) arising out of a claim from, a broker, advisor or other similar person engaged by such
party.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the
date written above.
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SELLER:
HAVERTY FURNITURE COMPANIES, INC.
By: /s/ Richard B. Hare
Name: Richard B. Hare
Title: Executive Vice President & Chief Financial Officer
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BUYERS:
HF COPPEL TX LANDLORD, LLC
HF LAKELAND FL LANDLORD, LLC
HF COLONIAL HEIGHTS VA LANDLORD, LLC
By: STEF NLIP, LLC, its manager
By: SunTrust Equity Funding, LLC, its manager
By: /s/ Allison McLeod
Name: Allison McLeod
Title: Manager
SCHEDULE I
Properties
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Address
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City
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State
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Purchase Price
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|||
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770 Gateway Blvd.
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Coppell
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TX
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$
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37,437,182.00
|
||
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7100 Havertys Way
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Lakeland
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FL
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$
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24,518,627.00
|
||
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1720 Port Walthall Drive
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Colonial Heights
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VA
|
$
|
8,044,191.00
|
||
* Certain exhibits or schedules and annexes to this exhibit have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted exhibits,
schedule and/or annex will be furnished to the U.S. Securities and Exchange Commission or its staff upon request.
EXHIBIT 10.3
LEASE AGREEMENT
Dated as of May 18, 2020
between
HAVERTY FURNITURE COMPANIES, INC.,
as the Tenant
as the Tenant
and
HF COPPEL TX LANDLORD, LLC,
as the Landlord
as the Landlord
_________________________________________________________________________
TABLE OF CONTENTS
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1.
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Certain Definitions
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1
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2.
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Demise of Leased Premises
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1
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3.
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Title and Condition
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1
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4.
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Use of Leased Properties; Quiet Enjoyment
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3
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5.
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Term
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3
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|
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6.
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Rent
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4
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7.
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Net Lease; Non-Terminability
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5
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8.
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Payment of Impositions; Compliance with Legal Requirements and Insurance Requirements
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6
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|
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9.
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Liens; Recording and Title
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7
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|
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10.
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Indemnification
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8
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|
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11.
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Maintenance and Repair
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10
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12.
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Alterations
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11
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|
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13.
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Condemnation
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12
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|
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14.
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Insurance
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13
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|
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15.
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Restoration
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16
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|
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16.
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Subordination to Financing
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18
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17.
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Assignment, Subleasing
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19
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|
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18.
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Permitted Contests
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20
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19.
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Conditional Limitations; Default Provisions
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21
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20.
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Additional Rights of Landlord and Tenant
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23
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21.
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Notices
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24
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|
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22.
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Estoppel Certificates
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25
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|
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23.
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Surrender and Holding Over
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25
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24.
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No Merger of Title
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26
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25.
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Definition of Landlord
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26
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26.
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Hazardous Materials
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27
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27.
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Entry by Landlord
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27
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28.
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No Usury
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27
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29.
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Financial Statements
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28
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30.
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Separability
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28
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31.
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Right of First Refusal
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28
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32.
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Miscellaneous
|
29
|
EXHIBIT B Basic Rent
EXHIBIT C Form of Subordination, Non-Disturbance and
Attornment Agreement*
EXHIBIT D Form of Estoppel Certificate*
EXHIBIT E Form of Landlord’s Waiver and Consent*
APPENDIX A Definitions
* Certain exhibits or schedules and annexes to this exhibit have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted exhibits, schedule and/or annex will be furnished to the U.S. Securities and Exchange Commission or its staff upon request.
LEASE AGREEMENT
THIS LEASE AGREEMENT (as amended, supplemented or otherwise modified from time to time, this “Lease”) made as
of May 18, 2020, by and between HF COPPEL TX LANDLORD, LLC, a Delaware limited liability company, as landlord, and HAVERTY FURNITURE COMPANIES, INC., a Maryland corporation, as tenant.
In consideration of the rents and provisions herein stipulated to be paid and performed, Landlord and Tenant,
intending to be legally bound, hereby covenant and agree as follows:
1. Certain Definitions. All capitalized terms, unless otherwise defined herein, shall have the respective meanings ascribed to such terms in Appendix A annexed hereto and by this reference
incorporated herein.
2. Demise of Leased Premises.
Landlord hereby demises and lets to Tenant and Tenant hereby takes and leases from Landlord, for the term and upon the provisions hereinafter specified, the Leased Premises.
3. Title and Condition.
(a) The Leased Premises are demised and let subject to (i) the Permitted Encumbrances and (ii) the condition of the Leased
Premises as of the Closing Date, without representation or warranty by Landlord; it being understood and agreed, however, that the recital of the Permitted Encumbrances herein shall not be construed as a revival of any thereof which for any reason
may have expired or which may hereafter expire.
(b) LANDLORD LEASES AND WILL LEASE, AND TENANT TAKES AND WILL TAKE, THE LEASED PREMISES “AS IS”, AND TENANT ACKNOWLEDGES THAT
LANDLORD (WHETHER ACTING AS LANDLORD HEREUNDER OR IN ANY OTHER CAPACITY) HAS NOT MADE AND WILL NOT MAKE, NOR SHALL LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PREMISES, INCLUDING
ANY WARRANTY OR REPRESENTATION AS TO ITS FITNESS FOR ANY PARTICULAR USE OR PURPOSE, AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, LATENT OR PATENT, AS TO LANDLORD’S TITLE THERETO, OR AS TO VALUE, COMPLIANCE WITH SPECIFICATIONS, DESIGN,
LOCATION, USE, OPERATION, CONDITION, MERCHANTABILITY, QUALITY, DESCRIPTION, DURABILITY, ENVIRONMENTAL OR SOIL CONDITION OR AVAILABILITY OF UTILITIES, IT BEING AGREED THAT ALL RISKS INCIDENT TO ANY OF THE FOREGOING ARE TO BE BORNE BY TENANT. Tenant
acknowledges and agrees that (i) the Leased Premises are of its selection and to its specifications, (ii) the Leased Premises have been inspected by Tenant and are satisfactory to it and (iii) Tenant has examined the title to the Leased Premises
prior to the execution and delivery of this Lease and has found such title to be satisfactory for the purposes contemplated by this Lease. In the event of any defect or deficiency in the Leased Premises of any nature, whether patent or latent,
Landlord shall not have any responsibility or liability with respect thereto (including strict liability in tort). The provisions of this Section 3(b) have been negotiated, and the foregoing provisions are intended to be a complete exclusion and
negation of any warranties by Landlord, express or implied, with respect to the Leased Premises, arising pursuant to the Uniform Commercial Code or any other law now or hereafter in effect or otherwise.
(c) Subject to Section 27 and so long as no Event of Default has occurred and is continuing, Landlord agrees that
during the Term, Tenant shall have sole and exclusive possession of the Leased Premises, and Landlord agrees that during the Term of this Lease, without Tenant’s prior written consent (i) no other improvements may be constructed by Landlord within
or on the Leased Premises, and (ii) Landlord shall not grant to any Person the right to lease, enter upon or use or occupy any portion of the Leased Premises during the Term other than Tenant and its contractors, employees, customers and invitees.
(d) If as of the Closing Date there are any contracts, escrow agreements, declarations, easements, or other agreements,
arrangements or documents of any kind relating to the Leased Premises or binding upon or inuring to the benefit of the owner of the Leased Premises providing for any obligations, payments, receipts, rights, credits or benefits that would have been
binding upon or would have inured to the benefit of Tenant or any Affiliate thereof but for the sale of the Leased Premises to Landlord, then Tenant shall timely perform and pay such obligations and Tenant shall be entitled to the receipts, rights,
and benefits in connection therewith to the extent that such performance is required or the benefits are receivable during the Term, it being understood that the foregoing provision shall not apply to any tax benefits,
including any depreciation, to which the owner of the Leased Premises is entitled.
(e) Landlord hereby assigns, without recourse or warranty whatsoever, to Tenant, all Warranties, if any. Such assignment
shall remain in effect until the termination of this Lease, provided that Landlord shall retain the right to enforce the Warranties in the name of Tenant during the continuance of an Event of Default. Any monies collected by Tenant (net of
reasonable out-of-pocket collection expenses) under any of the Warranties during the continuation of an Event of Default shall be held in trust by Tenant and promptly paid over to Landlord. Landlord hereby agrees to execute and deliver, at
Tenant’s expense, such further documents, including powers of attorney, as Tenant may reasonably request in order that Tenant may have the full benefit of the assignment effected by this Section 3(c). Upon the termination of this Lease, the
Warranties shall automatically revert to Landlord. The foregoing provision of reversion shall be self-operative and no further instrument of reassignment shall be required, provided that, in confirmation of such reassignment, Tenant shall
promptly execute and deliver any commercially reasonable instrument which Landlord may request.
(f) Landlord agrees to enter into, at Tenant’s expense, such Record Agreements as reasonably requested by Tenant, subject to
Landlord’s approval of the form thereof, not to be unreasonably withheld; provided, however, that no such Record Agreement shall (i) result in any material diminution in the value or utility of the Leased Premises for use as a distribution center
(a “Facility”) or (ii) render the use of the Leased Premises dependent upon any other property or condition or materially affect Tenant’s obligations under this Lease.
4. Use of Leased Premises; Quiet Enjoyment.
(a) Tenant may use the Leased Premises as a Facility or for any other lawful purpose, so long as such other lawful purpose
would not (i) in Landlord’s reasonable determination, have a material adverse effect on the value of the Leased Premises, (ii) materially increase (when compared to use as a Facility) the likelihood that Tenant or Landlord would incur material
liability under any provisions of any Environmental Laws, or (iii) subject Landlord to any burdensome regulation. Tenant shall, at its expense, timely observe, perform, comply with, make any payments required under, and carry out the provisions
of, each Record Agreement required therein to be observed and performed by the owner, operator or occupant of the Leased Premises during the Term, including, without limitation, paying any and all assessments for common area maintenance costs.
(b) Tenant, either itself or through one or more subtenants, shall continue to operate and occupy the Leased Premises during
the Term, except during any restoration of the Leased Premises after a casualty or Condemnation or during any remodeling or construction of Alterations permitted under this Lease, and subject to Force Majeure.
(c) Tenant shall not permit any unlawful occupation, business or trade to be conducted on the Leased Premises or any use to be
made thereof contrary to any applicable Legal Requirements or Insurance Requirements or the provisions of any Record Agreement. Tenant shall not use, occupy or permit the Leased Premises to be used or occupied, nor do or permit anything to be done
in or on the Leased Premises, in a manner that would (i) make void or voidable any insurance that Tenant is required hereunder to maintain in force, (ii) affect the ability of Tenant to obtain any insurance which Tenant is required to furnish
hereunder, or (iii) cause any material injury or damage to any of the Improvements, except in connection with Alterations permitted under Section 12.
(d) So long as no Event of Default exists hereunder and remains uncured and subject to the provisions of Section 27,
Landlord covenants that neither Landlord, nor any Person claiming by, through or under Landlord, shall do any act to disturb the peaceful and quiet occupation and enjoyment of the Leased Premises by Tenant.
5. Term
(a) Subject to the provisions hereof, Tenant shall have and hold the Leased Premises for an initial term commencing on the
date hereof and ending on the Expiration Date.
(b) Provided (i) this Lease shall not have been terminated pursuant to the provisions of Section 13(b) or 19
and (ii) no Event of Default has occurred and remains uncured, in each case on the date of its Renewal Option Notice or on the Expiration Date (or the expiration date of the then expiring Renewal Term, as applicable), Tenant shall have four (4)
consecutive options to extend the term of this Lease for a Renewal Term, commencing upon the day after the Expiration Date (or the expiration date of the then expiring Renewal Term, as applicable). If Tenant elects to exercise any one or more of
said renewal options, it shall do so by giving a Renewal Option Notice to Landlord at any time during the Term (or the then Renewal Term, as applicable) but, in any event, on or before that date which is twelve (12) months prior to the commencement
of the Renewal Term for which such election is exercised (each, a “Renewal Term Exercise Deadline”); provided, however, if Tenant has not elected to exercise the then-applicable renewal option on or before the Renewal Term
Exercise Deadline, such Renewal Term Exercise Deadline shall be extended to the date that is thirty (30) days after that date Landlord gives Tenant written notice of such failure and of Tenant’s right to extend the Term of this Lease, which notice
shall state conspicuously in all caps and bold font at the top of the page that “FAILURE TO RESPOND MAY RESULT IN TENANT’S FORFEITURE OF ITS LEASE RENEWAL OPTION.” If Tenant has not provided the notice for
the exercise of a Renewal Term within thirty (30) days following delivery of notice to Tenant as set forth in the previous sentence, then Tenant shall forever waive its right to exercise such renewal option and any subsequent renewal option. If
Tenant shall elect to exercise any such renewal option, the term of this Lease shall be automatically extended for five (5) years without the execution of an extension or renewal lease. Any Renewal Term shall be subject to all of the provisions of
this Lease, including, but not limited to, the Basic Rent provisions for such Renewal Term set forth on Exhibit B attached hereto, and all such provisions shall continue in full force and effect. Within ten (10) days after request by
either Landlord or Tenant, Landlord and Tenant shall execute, acknowledge and deliver to each other an instrument confirming that such option has been effectively exercised and confirming the extended expiration date of this Lease and the then
applicable Basic Rent.
6. Rent.
(a) Tenant shall pay to Landlord, as rent for the Leased Premises during the Term, on the Closing Date (if the Closing Date
occurs after the tenth (10th) day of the calendar month in which the Closing Date occurs) and on each Basic Rent Payment Date occurring after the Closing Date, the Basic Rent for the calendar month in which such Basic Rent Payment Date
occurs, and shall pay the same by ACH or wire transfer in immediately available federal funds, by 1:00 p.m., New York time on the date due, to such account in such bank as Landlord shall designate from time to time in writing. In the event that
the Closing Date is a date other than the first day of a calendar month, the Basic Rent due on the Closing Date (or on the tenth (10th) day of such calendar month if the Closing Date occurs prior to such tenth (10th) day)
shall be an amount equal to the amount of Basic Rent set forth on Exhibit B hereto for the first Basic Rent Payment Date, times 1/30, times the number of days from and including the Closing Date to and excluding the first
day of the following calendar month, and the Basic Rent due on the first Business Day of the month following the month in which the Closing Date occurs shall be the amount set forth on Exhibit B for the first Basic Rent Payment Date.
(b) Tenant shall pay and discharge, as Additional Rent, all other amounts and obligations which Tenant assumes or agrees to
pay or discharge pursuant to this Lease, together with every fine, penalty, interest and cost which may be added by the party to whom such payment is due for nonpayment or late payment thereof. Notwithstanding the foregoing, Tenant shall not be
required to pay any obligations Landlord may voluntarily elect to incur unless this Lease expressly requires or permits the incurring of such obligation or expressly requires Tenant to pay the same. All payments of Additional Rent that are payable
to Landlord shall be paid by Tenant by ACH or wire transfer in immediately available federal funds in the same manner as payments of Basic Rent in Section 6(a) (unless otherwise specified by Landlord to Tenant in writing).
(c) If any installment of Basic Rent or Additional Rent is not paid when the same is due, Tenant shall pay to Landlord, on
demand, as Additional Rent, interest on such installment from the date such installment was due to the date such installment is paid at the Default Rate, provided that the first such late installment in any calendar year shall not commence
to accrue such interest at the Default Rate until the date that is five (5) days after delivery to Tenant of written notice from Landlord that such installment has not been paid on time. In addition to the interest payable pursuant to the
foregoing sentence, to the extent Tenant fails to make a payment of Basic Rent or Additional Rent by the applicable due date more than two (2) times in any calendar year, any payment not received by the applicable due date after the second instance
of late payment in such calendar year shall incur a late charge in the amount of one percent (1%) of such late payment amount (except to the extent such late charge is prohibited by applicable law). Tenant and Landlord agree that this late charge
represents a reasonable sum (considering all of the circumstances existing on the date of the execution of this Lease) and a fair and reasonable estimate of the costs that Landlord will incur by reason of Tenant’s failure to pay such amounts on
time. Tenant and Landlord further agree that proof of actual damages would be costly and inconvenient. Acceptance of any late charge shall not constitute a waiver of the default with respect to the overdue Basic Rent or Additional Rent payment
and shall not prevent Landlord from exercising any of the other rights available under this Lease, except to the extent Tenant has cured such default by paying the overdue Basic Rent or Additional Rent in full.
(d) Landlord and Tenant agree that this Lease is a true lease and does not represent a financing arrangement. Each party
shall reflect the transactions represented by this Lease in all applicable books, records and reports (including, without limitation, income tax filings) in a manner consistent with “true lease” treatment rather than “financing” treatment.
7. Net Lease; Non-Terminability.
(a) Except as otherwise expressly provided in this Lease, this Lease shall not terminate and Tenant shall not have, and hereby
waives, any right to terminate this Lease during the Term. This is a net lease and, except as otherwise expressly provided in this Lease, Tenant shall not be entitled to, and hereby waives any right to, any setoff, counterclaim, recoupment,
abatement, suspension, deferment, diminution, deduction, reduction or defense of or to Basic Rent or Additional Rent, and the obligations of Tenant under this Lease shall not be affected by any circumstance or event, or for any reason, including
but not limited to the following: (i) any damage to or destruction of the Leased Premises by any cause whatsoever, (ii) any Condemnation, (iii) the prohibition, limitation or restriction of, or interference with, Tenant’s use of the Leased
Premises, (iv) any eviction by paramount title, constructive eviction or otherwise, (v) any default on the part of Landlord under this Lease or under any other agreement between Landlord and Tenant, (vii) any latent or other defect in, or any theft
or loss of, the Leased Premises, or (viii) any other cause, whether similar or dissimilar to the foregoing, any present or future Applicable Law to the contrary notwithstanding. This Lease is an absolute and unconditional obligation of Tenant, and
it is the intention of the parties hereto that the obligations of Tenant under this Lease shall be separate and independent covenants and agreements, and that Basic Rent and Additional Rent shall continue to be payable in all events (or, in lieu
thereof, Tenant shall pay amounts equal thereto), and that the obligations of Tenant under this Lease shall continue unaffected, unless expressly provided in this Lease to the contrary or unless this Lease shall have been terminated pursuant to an
express provision of this Lease. Notwithstanding the foregoing, Tenant shall have the right to pursue a cause of action against Landlord for actual damages resulting from Landlord’s default under this Lease or from the gross negligence or willful
misconduct of Landlord or its agents or employees, it being understood that Tenant shall have no right to set off any such damages against the Basic Rent or Additional Rent payable under this Lease.
(b) Tenant agrees that it shall remain obligated under this Lease in accordance with its provisions and that, except as
otherwise expressly provided herein, it shall not take any action to terminate, rescind or avoid this Lease, notwithstanding (i) the bankruptcy, insolvency, reorganization, composition, readjustment, liquidation, dissolution, winding-up or other
proceeding affecting Landlord, (ii) the exercise of any remedy, including foreclosure, under any Mortgage, or (iii) any action with respect to this Lease (including the disaffirmance hereof) which may be taken by Landlord under the Federal
Bankruptcy Code or by any trustee, receiver or liquidator of Landlord or by any court under the Federal Bankruptcy Code or otherwise, provided that if no Event of Default has occurred and is continuing, this Lease is terminated by Landlord,
or by any trustee, receiver, liquidator or court, under the Federal Bankruptcy Code and Tenant is dispossessed of the Leased Premises, Tenant shall have no obligation to pay Basic Rent or any other obligation under this Lease that accrues after
such termination and dispossession so long as Tenant has returned the Leased Premises in accordance with the terms of this Lease.
8. Payment of Impositions; Compliance with Legal Requirements and Insurance Requirements.
(a) (i) During the Term and subject to Tenant’s right to contest as set forth in Section 18, Tenant shall, before interest
or penalties are due thereon, pay directly to the applicable third party and discharge all Impositions. If received by Landlord, Landlord shall, within thirty (30) days of Landlord’s receipt thereof, but in any event at least five (5) Business
Days prior to the due date for the related Imposition (provided that Landlord has received such bill or invoice prior to seven (7) Business Days preceding such due date) deliver to Tenant any bill or invoice with respect to any Imposition. If
Landlord fails to timely deliver a bill or invoice for Impositions hereunder, Landlord shall be responsible for any penalties, late charges or other expenses incurred by Tenant if Tenant is unable to timely pay such Impositions as a result of such
delay. Tenant (and Landlord, if required) shall notify the applicable taxing authority that all invoices for property taxes and similar taxes should be sent directly to Tenant, to the extent permitted by Applicable Laws. Any payments required to
be made by Tenant pursuant to this Section 8 that are not allowed to be paid directly to the appropriate Governmental Authority or such other Person to whom such payment is due shall be made directly to Landlord and Landlord shall make such
payment to the appropriate Governmental Authority or other Person.
(ii) In the event that any assessment against the Leased Premises may be paid in installments, Tenant
shall have the option to pay such assessment in installments; and in such event, Tenant shall be liable only for those installments which become due and payable during the Term. Tenant shall prepare and file all tax reports required by
Governmental Authorities which relate to the Impositions. Tenant shall deliver to Landlord, (1) within ten (10) days after Landlord’s written request therefor, receipts for the payments of all property taxes related to the Leased Premises and (2)
within twenty (20) days after Landlord’s written request therefor, copies of all settlements and notices pertaining to the Impositions which may be issued by any Governmental Authority and receipts for payments of all other Impositions made during
each calendar year of the Term.
(b) Tenant shall promptly comply with and conform to all of the Legal Requirements and Insurance Requirements.
(c) If any report, return or statement (a “Filing”) is required to be filed with respect to any Imposition payable by
Tenant hereunder, Tenant shall, if permitted by Applicable Laws to do so, timely file or cause to be filed such Filing with respect to such Imposition and shall promptly, upon Landlord’s written request therefor, provide notice of such Filing to
Landlord (except for any such Filing that Landlord has notified Tenant in writing that Landlord intends to file) and will (if ownership of the Leased Premises or any part thereof or interest therein is required to be shown on such Filing) show the
ownership of the Leased Premises in the name of Landlord and send a copy of such Filing to Landlord. If Tenant is not permitted by Applicable Laws to file any such Filing, Tenant will promptly notify Landlord of such requirement and prepare and
deliver to Landlord a proposed form of such Filing and such information as is within Tenant’s reasonable control or access with respect to such Filing within a reasonable time, and in all events at least twenty (20) days, prior to the time such
Filing is required to be filed. Tenant shall hold Landlord harmless from and against any liabilities, including, but not limited to penalties, additions to tax, fines and interest, arising out of any insufficiency or inaccuracy in any such Filing,
if such insufficiency or inaccuracy is attributable to Tenant, it being understood that Tenant shall have no liability hereunder with respect to any failure of Landlord to timely file any Filing that Tenant has provided to
Landlord pursuant to the second sentence of this subsection (c) or for any insufficiency or inaccuracy in any Filing if such insufficiency or inaccuracy is attributable to Landlord.
(d) Notwithstanding anything herein to the contrary, any obligations of Tenant under the provisions of this Section 8
that accrue prior to the expiration or earlier termination of this Lease shall survive such expiration or earlier the termination of this Lease for a period of two (2) years.
9. Liens; Recording and Title.
(a) Subject to the Tenant’s right to contest as set forth in Section 18, Tenant shall not, directly or
indirectly, create or permit to be created or to remain, and shall promptly discharge, any Lien on the Leased Premises, the Basic Rent or any Additional Rent, other than the Permitted Encumbrances and any mortgage, Lien or other charge created by
or resulting from any act of Landlord or those claiming by, through or under Landlord (except Tenant). Notice is hereby given that Landlord shall not be liable for any labor, services or materials furnished or to
be furnished to Tenant, or to anyone holding the Leased Premises through or under Tenant, and that no mechanic’s or other Liens for any such labor, services or materials shall attach to or affect the interest of Landlord in and to the Leased
Premises.
(b) Each of Landlord and Tenant shall execute, acknowledge and deliver to the other a written Memorandum of this Lease to be
recorded in the appropriate land records of the jurisdiction in which the Leased Premises is located, in order to give public notice and protect the validity of this Lease. In the event of any discrepancy between the provisions of such recorded
Memorandum of this Lease and the provisions of this Lease, the provisions of this Lease shall prevail.
(c) Nothing in this Lease and no action or inaction by Landlord shall be deemed or construed to mean that Landlord has granted
to Tenant any right, power or permission to do any act or to make any agreement which may create, give rise to, or be the foundation for, any right, title, interest or Lien in or upon the estate of Landlord in the Leased Premises, other than an
assignment or a sublease, in either case, as permitted under the provisions of Section 17.
10. Indemnification.
(a) Subject to Section 10(e) below, Tenant agrees to assume liability for, and to indemnify, protect, defend, save and
keep harmless each Indemnitee from and against any and all Claims, whether asserted prior to, during or after the Term, that may be suffered, imposed on or asserted against any Indemnitee (including any Claims resulting from any Indemnitee’s
ordinary negligence) arising, directly or indirectly, out of (i) the operation, possession, use, leasing, sub-leasing, non‑use, maintenance, modification, alteration, construction, reconstruction, restoration, condition, design or replacement of
the Leased Premises (or any portion thereof), (ii) any Record Agreement, (iii) patent, trademark or copyright infringement and latent or other defects, whether or not discoverable, (iv) the non-compliance of the Leased Premises with Applicable Laws
and any other liability under Applicable Laws related to the Leased Premises or this Lease (including, without limitation, any Claims arising directly or indirectly out of any actual or alleged violation, now or hereafter existing, of any
Environmental Laws), (v) this Lease or any modification, amendment or supplement hereto, (vi) any default by Tenant under this Lease, (vii) the business and activities of Tenant or of any other Person on or about the Leased Premises (whether as an
invitee, subtenant, licensee, contractor, employee or otherwise), and (viii) the actual or alleged presence, use, storage, generation or Release of any Hazardous Materials on, under, from, to or at the Leased Premises or any portion thereof (or
any surrounding areas for which Tenant or Landlord has any legal liability or obligation), in each case whether prior to or during the Term, including the cost of assessment, containment and/or removal of any such Hazardous Materials, the cost of
any actions taken in response to a Release of any such Hazardous Materials so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and costs incurred to comply with
Environmental Laws in connection with all or any portion of the Leased Premises, or the operation thereof (or any surrounding areas for which Tenant or Landlord has any legal liability or obligation). Notwithstanding the foregoing, nothing herein
shall be construed to obligate Tenant to indemnify, defend and hold harmless any Indemnitee from and against any Claims imposed on or incurred by such Indemnitee to the extent such Claims arise by reason of (i) any Indemnitee’s willful misconduct
or gross negligence, (ii) any Liens and liabilities created by Landlord on the Leased Premises or that arise from Landlord’s failure to pay any Taxes, in each case for which Tenant is not responsible under this Lease, or (iii) events or
circumstances that occur after the expiration or termination of this Lease and the return of the Leased Premises in accordance with this Lease.
(b) In case any Claim shall be made or brought against any Indemnitee, such Indemnitee shall give prompt written notice
thereof to Tenant; provided that failure to so notify Tenant shall not reduce Tenant’s obligations to indemnify any Indemnitee hereunder except to the extent such failure adversely affects Tenant’s rights to defend such Claim. Tenant shall
be entitled, at its expense, acting through counsel selected by Tenant (and reasonably satisfactory to such Indemnitee), to assume and control the negotiation, litigation and/or settlement of any such Claim; if Tenant does not assume the
negotiation, litigation and settlement of such Claim, then Indemnitee may so assume such negotiation, litigation and settlement, at Tenant’s expense. Such Indemnitee may (but shall not be obligated to) participate at its own expense and with its
own counsel in any proceeding conducted by Tenant in accordance with the foregoing, in which case Tenant shall keep such Indemnitee and its counsel fully informed of all proceedings and filings. Notwithstanding the foregoing, Tenant shall not be
entitled to assume and control the defense of any Claim if (i) an Event of Default has occurred and is continuing, (ii) the proceeding involves possible imposition of any criminal liability or penalty or unindemnified civil penalty on such
Indemnitee, (iii) the proceeding involves the granting of injunctive relief against the Indemnitee not related to this Lease, (iv) a significant counterclaim is available to the Indemnitee that would not be available to and cannot be asserted by
Tenant or (v) Tenant has not acknowledged to such Indemnitee in writing that such Claim is fully covered by Tenant’s indemnity set forth herein.
(c) Upon payment in full of any Claim by Tenant pursuant to this Section 10 to or on behalf of an Indemnitee, Tenant,
without any further action, shall be subrogated to any and all Claims that such Indemnitee may have relating thereto (other than claims in respect of insurance policies maintained by such Indemnitee at its own expense or claims against another
Indemnitee for which Tenant would have indemnity obligations hereunder) to the extent of such payment, and such Indemnitee shall execute such instruments of assignment and conveyance and other documents as may be necessary to preserve any such
Claims and otherwise reasonably cooperate with Tenant to enable Tenant to pursue such Claims. In no event shall Tenant settle or compromise any Claim against any Indemnitee if such settlement or compromise does not contain a full release of such
Indemnitee or admits culpability on the part of such Indemnitee, unless such Indemnitee otherwise consents in writing.
(d) Subject to Section 10(e) below, Landlord agrees to assume liability for, and to indemnify, protect, defend, save
and keep harmless Tenant from and against all Claims, occurring during the Term, that may be suffered, imposed on or asserted against Tenant as a result of any failure on the part of Landlord to perform or comply with any of the terms of this Lease
after expiration of all applicable notice and cure periods hereunder, except to the extent any such Claims arise from, or are caused by, the gross negligence or willful misconduct of, or breach of this Lease by, Tenant.
(e) Notwithstanding anything to the contrary set forth in this Lease, to the fullest extent permitted by Law, neither Landlord
nor Tenant shall be liable (by way of subrogation or otherwise) to the other party (or to any insurance company insuring the other party) for any loss or damage to the property of the releasing party to the extent the loss or damage is paid by
insurance carried by the releasing party even though such loss might have been occasioned by the negligence or willful acts or omissions of the Landlord or Tenant or their respective employees, agents, contractors or invitees. Landlord and Tenant
shall give each insurance company which issues policies of insurance, with respect to the items covered by this waiver, written notice of the terms of this mutual waiver, and shall have such insurance policies properly endorsed, if necessary, to
prevent the invalidation of any of the coverage provided by such insurance policies by reason of such mutual waiver. Each party shall pay any additional expense, if any, for obtaining such waiver.
(f) The obligations of Tenant and Landlord under this Section 10 shall survive any termination or expiration of this
Lease.
11. Maintenance and Repair.
(a) Tenant shall at all times from and after the Closing Date, put, keep and maintain the Leased Premises (including, without
limitation, the roof, landscaping, walls, footings, foundations, parking areas, driveways and structural components of the Leased Premises) in the same (or better) condition and order of repair as exists as of the Closing Date, except for ordinary
wear and tear, and shall promptly make all repairs and replacements of every kind and nature, whether foreseen or unforeseen, which may be required to be made upon or in connection with the Leased Premises in order to keep and maintain the Leased
Premises in the order and condition required by this Section 11(a). Tenant shall do, or cause others to do, all shoring of the Leased Premises or of foundations and walls of the Improvements and every other act necessary or appropriate for
preservation and safety thereof, by reason of or in connection with any excavation or other building operation upon the Leased Premises, whether or not Landlord shall, by reason of any Legal Requirements or Insurance Requirements, be required to
take such action or be liable for failure to do so. LANDLORD SHALL NOT BE REQUIRED TO MAKE ANY REPAIR, WHETHER FORESEEN OR UNFORESEEN, OR TO MAINTAIN THE LEASED PREMISES OR ADJOINING PROPERTY IN ANY WAY, AND TENANT HEREBY EXPRESSLY WAIVES THE
RIGHT TO MAKE REPAIRS AT THE EXPENSE OF THE LANDLORD, WHICH RIGHT MAY BE PROVIDED FOR IN ANY LAW NOW OR HEREAFTER IN EFFECT. Nothing in the preceding sentence shall be deemed to preclude Tenant from being entitled to insurance proceeds or
condemnation awards for Restoration pursuant to Sections 13(c) and 14(g). Tenant shall, in all events, make all repairs for which it is responsible hereunder promptly (but in any event shall commence such repairs within thirty (30)
days of the date Tenant becomes aware that such repairs are necessary, or, in the event of a Restoration pursuant to Section 13(c) or 14(g), within thirty (30) days of the date insurance proceeds or a condemnation award has been
paid to the Trustee (it being understood that Tenant shall take such steps as are reasonably necessary to protect and preserve the integrity and safety of the Leased Premises pending such payment) and shall diligently pursue
such repairs to completion), and all repairs shall be made in a good, proper and workmanlike manner.
(b) In the event that any Improvement shall violate any Legal Requirements or Insurance Requirements, then Tenant, at the
written request of Landlord, shall either (i) obtain valid and effective variances, waivers or settlements of all claims, liabilities and damages resulting from each such violation, whether the same shall affect Landlord, Tenant or both (or in the
case of a violation of Insurance Requirements, obtain new coverage where there is no violation of any Insurance Requirements), or (ii) take such action as shall be necessary to remove such violation, including, if necessary, the making of an
Alteration. Any such repair or Alteration shall be made in conformity with the provisions of Section 12.
(c) If Tenant shall be in default under any of the provisions of this Section 11, Landlord may, thirty (30) days after
Tenant’s receipt of written notice of default and failure of Tenant to commence to cure during such period or to diligently pursue such cure to completion, but without notice in the event of an emergency, do whatever is necessary to cure such
default as may be appropriate under the circumstances for the account of, and at the expense of, Tenant. In the event of an emergency Landlord shall notify Tenant of the situation by phone or other available communication and shall give Tenant as
much time as is reasonably practicable (not to exceed thirty (30) days) before acting independently to cure such default. All reasonable sums so paid by Landlord and all reasonable out-of-pocket costs and expenses (including, without limitation,
attorneys’ fees and expenses) so incurred, together with interest thereon at the Default Rate from the date of payment or incurring the expense, shall constitute Additional Rent payable by Tenant under this Lease.
(d) Tenant shall from time to time replace with Replacement Equipment any of the Equipment that shall have become, in Tenant’s
commercially reasonable judgment , worn out or unusable for the purpose for which it is intended, been taken by a Condemnation as provided in Section 13, or been lost, stolen, damaged or destroyed as provided in Section 14. Tenant
shall repair at its sole cost and expense all damage to the Leased Premises caused by the removal of Equipment or other personal property of Tenant or the installation of Replacement Equipment. All Replacement Equipment (except for Trade Fixtures)
shall become the property of Landlord, shall be free and clear of all Liens and rights of others and shall become a part of the Equipment as if originally demised herein.
12. Alterations.
(a) Tenant shall have the right, without obtaining the consent of Landlord, to (i) make any Alteration(s) to the Leased
Premises that are not Structural Alterations and the cost of which does not exceed the Threshold Amount, in the aggregate, in any calendar year, and (ii) install additional and/or relocate existing racking and inline sprinkler systems in the Leased
Premises, the cost of which shall not be included when calculating the Threshold Amount for purposes of Tenant’s right to make any other Alterations; provided, in each case, that, Tenant complies with clause (c) of this Section
12. Promptly after written request by Landlord, given not more than once in any calendar year, Tenant shall provide to Landlord a list, in reasonable detail, of all of the material Alterations that Tenant has made since the date of the most
recent such list provided by Tenant to Landlord (or since the Closing Date in the case of the first such request).
(b) Upon at least 30 days’ prior written notice to Landlord, Tenant shall have the right to (i) make any Alteration(s) to the
Leased Premises that are Structural Alterations and/or the cost of which exceeds the Threshold Amount, in the aggregate, in any calendar year and (ii) to install solar panels on the roof of the Premises, the cost of which shall not be included when
calculating the Threshold Amount for purposes of Tenant’s right to make any other Alterations; provided, in each case that (A) no Event of Default has occurred and is then continuing, (B) Tenant complies with clause (c) of this Section
12, and (C) prior to making any such Alteration(s), Tenant shall provide Landlord with the plans and specifications, estimated budget and proposed schedule of construction with respect thereto and Landlord shall have consented to such
Alterations, which consent shall not be unreasonably withheld.
(c) In connection with any Alteration: (i) the structural integrity of the Leased Premises shall not be impaired, and the
fair market value of the Leased Premises shall not be materially lessened, after the completion of any such Alteration; (ii) all such Alterations shall be performed in a good and workmanlike manner, and shall be expeditiously completed in
compliance with all Legal Requirements and Insurance Requirements; (iii) no such Alteration shall cause the Leased Premises to fail to comply with Section 4, (iv) Tenant shall promptly pay all costs and expenses of any such Alteration and
shall discharge all Liens filed against the Leased Premises arising out of the same; (v) Tenant shall procure and pay for all permits and licenses required in connection with any such Alteration; (vi) Tenant shall not, without obtaining Landlord’s
prior consent (which consent may be granted or withheld in Landlord’s sole discretion), incur any debt with respect to such Alteration that results in any mortgage or other encumbrance on the Leased Premises or any part thereof, and (vii) in the
case of any Alteration the estimated cost of which in any one instance exceeds the Threshold Amount, such Alterations shall be made under the supervision of an architect or engineer and in accordance with plans and specifications which shall be
submitted to Landlord prior to the commencement of the Alterations. In particular, in the case of the installation of any solar panels on the roof, such installation shall not void or impair any then applicable roof warranty, unless Tenant
purchases or otherwise obtains an overburden or extended warranty in connection with such installation. In the event of any Structural Alterations which alter the footprint of the Improvements, promptly after Landlord’s request, upon completion of
such Alterations which alter the footprint of the Improvements, Tenant, at Tenant’s expense, shall deliver to Landlord an updated as-built ALTA survey of the Leased Premises certified to Landlord.
(d) All Alterations shall, upon the expiration or earlier termination of this Lease become the property of Landlord, without
any further act. To the extent permitted by the Code and by any applicable state tax laws and regulations, Tenant shall be entitled to the tax benefits, if any, with respect to any Alterations made by Tenant at Tenant’s expense until such time as
such Alterations become the property of Landlord pursuant to the foregoing sentence.
13. Condemnation.
(a) Each of Landlord and Tenant, promptly upon obtaining knowledge of the institution of any proceeding for Condemnation,
shall notify the other party thereof and each of Landlord and Tenant shall be entitled, at its sole cost and expense, to participate in any Condemnation proceeding. Subject to the provisions of this Section 13 and Section 15,
Tenant hereby irrevocably assigns to Landlord any award or payment in respect of any Condemnation of the Leased Premises or any part thereof, except that (except as hereinafter provided) nothing in this Lease shall be deemed to assign to Landlord
any Tenant’s Award to the extent Tenant shall have a right to make a separate claim therefor against the condemnor, it being agreed, however, that Tenant shall in no event be entitled to any payment that reduces the award to
which Landlord is or would be entitled for the condemnation of Landlord’s interest in the Leased Premises.
(b) If (I) the entire Leased Premises, (II) a material portion of the Land or the Improvements or any means of ingress, egress
or access to the Leased Premises, the loss of which even after restoration would, in Tenant’s reasonable business judgment, be substantially and materially adverse to the business operations of Tenant at the Leased Premises, or (III) any means of
ingress, egress or access to the Leased Premises which does not result in at least one method of ingress and egress to and from the Leased Premises remaining that is sufficient for Tenant’s use thereof and that meets all existing Legal
Requirements, as determined by Tenant in its reasonable discretion, shall be the subject of a Taking by a duly constituted authority or agency having jurisdiction, then Tenant may, not later than ninety (90) days after such Taking has occurred,
serve a Tenant’s Termination Notice upon Landlord, in which case this Lease shall terminate on the applicable Termination Date and Landlord shall be entitled to receive and retain the entire Net Award.
(c) (i) In the event of a Condemnation of any part of the Leased Premises which does not result in a termination of this Lease,
promptly after the Net Award with respect to such Condemnation has been paid by the related authority to the Trustee, Tenant, to the extent Restoration of the Leased Premises is practicable and subject to Section 13(c)(ii)and Section 15,
shall commence and diligently continue to completion such Restoration.
(ii) Upon the payment to the Trustee of the Net Award of a Taking which falls within the provisions of
this Section 13(c), the Trustee shall, to the extent received, make the Net Award available to Tenant for Restoration in accordance with the provisions of Section 15. The proceeds remaining after the completion of, and payment for,
the Restoration, if any, shall be retained by Landlord. In the event of any such partial Condemnation, all Basic Rent and Additional Rent shall continue unabated and unreduced.
(iii) In the event of a Requisition of the Leased Premises Landlord shall apply the Net Award of such
Requisition received by Landlord to the installments of Basic Rent or Additional Rent thereafter payable and Tenant shall pay any balance remaining thereafter. Upon the expiration of the Term, any portion of such Net Award which shall not have
been previously credited to Tenant on account of the Basic Rent and Additional Rent shall be retained by Landlord.
(d) No agreement with any condemnor in settlement of or under threat of any Condemnation shall be made by either Landlord or
Tenant without the written consent of the other, and of the Lenders, if the Leased Premises are then subject to a Mortgage, which consent shall not be unreasonably withheld, provided that if an Event of Default has occurred and is then
continuing or Tenant has served a Tenant’s Termination Notice, then Tenant’s consent shall not be required.
14. Insurance.
(a) Tenant shall maintain, during the Term at its sole cost and expense, the following insurance on the Leased Premises:
(i) Insurance against loss of or damage to the Improvements and the Equipment under an ISO special
form or broader coverage insurance policy, which shall include coverage against all risks of direct physical loss or damage (which shall include windstorm and earthquake insurance and flood insurance if the Leased Premises is located within either
a Special Flood Hazard Area or a Non-Special Flood Hazard Area as determined by FEMA flood zone ratings of A or V). Such insurance shall also include (A) ordinance and law coverage (hazards A, B and C, with limits for A of not less than
replacement cost and limits for B and C not less than $1,000,000 in the aggregate) and (B) a condition that permits the insured to elect to rebuild on another site (it being understood that Tenant may not rebuild at another
site without Landlord’s prior written approval, which approval shall not be unreasonably withheld, but which may be conditioned, among other things, on the fulfillment of certain reasonable conditions precedent). Such insurance shall be in amounts
sufficient to prevent Landlord or Tenant from becoming a co-insurer under the applicable policies, and in any event in amounts not less than the actual replacement cost of the Improvements and Equipment (excluding footings and foundations and other
parts of the Improvements that are not insurable). Such insurance policies may contain reasonable exclusions and deductible amounts, all in accordance with industry standards.
(ii) Commercial general liability insurance against claims for bodily injury, death or property damage
occurring on, in or about the Leased Premises, which insurance shall (A) be written on an “Occurrence Basis”, and shall provide minimum protection with a combined single limit in an amount not less than the greater of (x) $5,000,000 or (y) the
aggregate amount of such insurance carried by prudent owners or operators of similar commercial properties, for bodily injury, death and property damage in any one occurrence and (B) include premises and operations liability coverage, products and
completed operations liability coverage, and blanket contractual liability coverage. In addition, Tenant shall maintain auto liability insurance in an amount not less than $1,000,000.
(iii) Workers’ compensation insurance covering all persons employed by Tenant on the Leased Premises in
connection with any work done on or about the Leased Premises for which claims for death or bodily injury could be asserted against Landlord, Tenant or the Leased Premises.
(iv) Boiler and machinery coverage on a comprehensive form in an amount not less than the actual
replacement cost of the Improvements and Equipment (excluding footings and foundations and other parts of the Improvements which are not insurable).
(v) Business interruption insurance (A) covering all risks required to be covered by the insurance
provided for in subsection (i) above for a period commencing at the time of loss for such length of time as it takes to repair or replace with the exercise of due diligence, (B) containing an indemnity coverage extension which provides that
after the physical loss to the Leased Premises has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss or the expiration of twelve months, whichever occurs
first, and (C) in an amount not less than the amount carried by prudent owners or operators of similar properties.
(vi) Whenever Tenant shall be engaged in making any Alteration, repairs or construction work of any
kind (collectively, “Work”) for which the estimated cost exceeds the Threshold Amount, completed value builder’s risk insurance and worker’s compensation insurance or other adequate insurance coverage covering all persons employed in
connection with the Work, whether by Tenant, its contractors or subcontractors and with respect to whom death or bodily injury claims could be asserted against Landlord.
(vii) Such additional and/or other insurance with respect to the Leased Premises and in such amounts as
are reasonably requested by Landlord or a Lender.
(b) The insurance required by Section 14(a) shall be written by companies having an A.M. Best Insurance Reports rating
of not less than “A-” and a financial size category of at least “VIII”, and all such companies shall be authorized to do an insurance business in the State, or otherwise agreed to by Landlord. The insurance policies shall be in amounts sufficient
at all times to satisfy any coinsurance requirements thereof. The general liability insurance shall name Landlord, Tenant, and, if a Mortgage is then in effect, the Trustee and each Lender as additional insured parties, as their respective
interests may appear; the casualty insurance shall name Landlord (or, if directed by Landlord to Tenant, the Trustee) as loss payee. If said insurance or any part thereof shall expire, be withdrawn, become void by breach of any condition thereof
by Tenant or become void or unsafe by reason of the failure or impairment of the capital of any insurer, Tenant shall immediately obtain new or additional insurance reasonably satisfactory to Landlord and, if a Mortgage is then in place, the
Lenders.
(c) Each insurance policy referred to in clauses (i), (iv) and (vi) of Section 14(a), shall
contain standard non-contributory mortgagee clauses in favor of each Lender and the Trustee. Each of the policies required by Section 14(a) shall state that if at any time the policies are to be cancelled, or their coverage is to be
reduced (by any party including the insured), the insurer will endeavor to mail thirty (30) days’ (10 days’ in the event of non-payment of the premium) written notice to the additional insureds and/or loss payee named in such policies. Each policy
shall also provide that any losses otherwise payable thereunder shall be payable notwithstanding (i) any act, omission or neglect of Landlord, Tenant or any other Person which might, absent such provision, result in a forfeiture of all or a part of
such insurance payment, or (ii) the occupation or use of the Leased Premises for purposes more hazardous than permitted by the provisions of such policy. Tenant hereby waives any and every claim for recovery from the Lenders and Landlord, and
Landlord hereby waives any and every claim for recovery from Tenant, for any and all loss or damage covered by any of the insurance policies to be maintained under this Lease to the extent that such loss or damage is recovered by Tenant, Lenders or
Landlord, respectively, under any such policy. If the foregoing waiver will preclude the assignment of any such claim to the extent of such recovery, by subrogation (or otherwise), to an insurance company (or other person), Tenant (or other
appropriate party) shall give written notice of the terms of such waiver to each insurance company which has issued, or which may issue in the future, any such policy of insurance (if such notice is required by the insurance policy) and shall cause
each such insurance policy to be properly endorsed by the issuer thereof to, or to otherwise contain one or more provisions that, prevent the invalidation of the insurance coverage provided thereby by reason of such waiver.
(d) Tenant shall pay as they become due all premiums for the insurance required by this Section 14, shall renew or
replace each policy, and shall deliver to Landlord a certificate or other evidence (on an ACORD 28 (2003/10) form, in the case of property insurance, and on ACORD 25 (2001/08), in the case of liability insurance, and otherwise reasonably
satisfactory to Landlord) of the existing policy and such renewal or replacement policy at least two Business Days prior to the Insurance Expiration Date of each policy. In the event of Tenant’s failure to comply with any of the foregoing
requirements of this Section 14 within three (3) Business Days of the giving of written notice by Landlord to Tenant (or on the date any required insurance coverage will lapse, if sooner), Landlord shall be entitled to procure such
insurance. Any sums expended by Landlord in procuring such insurance shall be Additional Rent and shall be repaid by Tenant promptly upon written demand therefor by Landlord.
(e) Anything in this Section 14 to the contrary notwithstanding, any insurance which Tenant is required to obtain
pursuant to Section 14(a) may be carried under a “blanket” policy or policies covering other properties or liabilities of Tenant, provided that such “blanket” policy or policies otherwise comply with the provisions of this Section
14. In the event any such insurance is carried under a blanket policy, Tenant shall deliver to Landlord evidence of the issuance and effectiveness of the policy, the amount and character of the coverage with respect to the Leased Premises
and the presence in the policy of provisions of the character required in the above sections of this Section 14.
(f) In the event of any property loss (excluding, for the avoidance of doubt, Trade Fixtures) exceeding the Threshold Amount,
Tenant shall give Landlord prompt notice thereof. Tenant shall adjust, collect and compromise any and all claims, provided that Tenant will consult with and involve Landlord in the process of adjusting any insurance claims under this Section
14 and Landlord’s consent shall be required for any claim that exceeds the Threshold Amount, which consent will not be unreasonably withheld or delayed. If the estimated cost of Restoration or repair shall be an amount equal to the Threshold
Amount or less, all proceeds of any insurance required under clauses (i), (iv) and (v) of Section 14(a) shall be payable to Tenant. Except as expressly set forth below, in the event of any casualty (whether or not
insured against) resulting in damage to the Leased Premises or any part thereof, the Term shall nevertheless continue and there shall be no abatement or reduction of Basic Rent or Additional Rent. The Net Proceeds of all insurance payments for
property losses exceeding the Threshold Amount shall be paid to the Trustee, and the Trustee shall make the Net Proceeds available to Tenant for restoration in accordance with the provisions of Section 15. Subject to Section 14(g),
Tenant shall, whether or not the Net Proceeds are sufficient for the purpose, but provided that the Trustee makes such Net Proceeds available to Tenant, promptly and diligently repair or replace the Improvements and Equipment in accordance with the
provisions of Section 15. In the event that any damage or destruction shall occur at such time as Tenant shall not have maintained third-party insurance in accordance with Section 14(a)(i), (iv) and (vi), Tenant
shall pay to the Trustee Tenant’s Insurance Payment. Notwithstanding anything herein to the contrary, all proceeds of any business interruption insurance maintained by Tenant shall be payable directly to Tenant.
(g) If a casualty occurs during the last two (2) years of the Initial Term or during any Renewal Term and the cost of
Restoration with respect thereto exceeds sixty percent (60%) or more of the replacement cost of the Leased Premises, then Tenant may, at Tenant’s option, not later than ninety (90) days after such casualty has occurred, serve a Tenant’s Termination
Notice upon Landlord, in which case this Lease and the Term hereof shall terminate on the Termination Date specified in the Termination Notice; and in such event Tenant shall have no obligation to commence or complete the Restoration and all of the
insurance proceeds payable in connection with the casualty (other than Tenant’s business interruption insurance proceeds) shall be paid to, and Tenant shall pay the amount of any applicable deductible with respect to such casualty insurance to, the
Trustee.
15. Restoration. The Restoration Fund shall be disbursed by the Trustee in accordance with the following conditions:
(a) If the cost of Restoration will exceed the Threshold Amount, prior to commencement of the Restoration the architects,
general contractor(s), and plans and specifications for the Restoration shall be approved by Landlord, which approval shall not be unreasonably withheld, and which approval shall be granted to the extent that the plans and specifications depict a
Restoration which is substantially similar to the Improvements and Equipment which existed prior to the occurrence of the casualty or Taking, whichever is applicable. Landlord will not withhold its consent for variations to the Improvements
required as a result of then-current zoning and building code requirements.
(b) At the time of any disbursement, no Event of Default shall exist and no mechanics’ or materialmen’s Liens shall have been
filed and remain undischarged or unbonded or for which Tenant shall fail to provide affirmative title insurance coverage.
(c) Disbursements shall be made from time to time in an amount not exceeding the hard and soft cost of the work and costs
incurred since the last disbursement upon receipt of (1) reasonably satisfactory evidence, including architects’ certificates of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and
workmanlike manner in accordance with the contracts and the plans and specifications, (2) partial releases of Liens or conditional Lien waivers, and (3) other reasonable evidence of cost and payment so that Landlord can verify that the amounts
disbursed from time to time are represented by work that is completed in place or delivered to the site and free and clear of mechanics’ Lien claims.
(d) Each request for disbursement shall be sent by Tenant to Landlord and to the Trustee, accompanied by a certificate of
Tenant describing the work, materials or other costs or expenses for which payment is requested and stating (i) the cost incurred in connection therewith, (ii) that no Event of Default exists and no mechanics’ or materialmen’s Liens shall have been
filed and remain undischarged or unbonded, and (iii) that Tenant has not previously received payment for such work or expense; the certificate to be delivered by Tenant upon completion of the work shall, in addition, state that the work that is the
subject of the request for disbursement has been substantially completed and complies with the applicable requirements of this Lease. The Trustee shall not release funds from the Restoration Fund unless and until it has received a written
authorization from Landlord approving such release, which Landlord agrees to promptly give if Tenant has satisfied all of the requirements set forth in this Section 15 in connection with such release. If such proceeds are not made available
to Tenant despite Tenant’s compliance with such procedures, Tenant shall have no obligation to restore the Leased Premises until such time as such proceeds are made available to Tenant.
(e) The Trustee shall retain a commercially reasonable retainage amount (but in no event less than 5% of the expected repair
cost, other than general conditions) until the Restoration is 50% complete.
(f) The Restoration Fund shall be held by the Trustee and shall be invested in Permitted Investments as directed by Tenant.
All interest shall become a part of the Restoration Fund.
(g) At all times the undisbursed balance of the Restoration Fund held by the Trustee, plus any funds contributed thereto by
Tenant, at its option, shall be not less than the cost of completing the Restoration (as reasonably estimated by Tenant, provided that Tenant shall provide to Landlord the basis for such estimate, in reasonable detail, promptly after
Landlord’s written request therefor), free and clear of all Liens. Prior to commencement of Restoration and at any time during Restoration, if the estimated cost of Restoration, as reasonably determined by a contractor or architect mutually
selected by Landlord and Tenant, exceeds the amount of the Net Proceeds or the Net Award, as applicable, and Tenant’s Insurance Payment available for such Restoration, either, at Tenant’s option and determination, the amount of such excess shall be
paid by Tenant to the Trustee to be added to the Restoration Fund or Tenant shall fund at its own expense the costs of such Restoration until the remaining Restoration Fund is sufficient for the completion of the Restoration. Any sum in the
Restoration Fund which remains in the Restoration Fund upon the completion of Restoration with respect to a casualty shall be paid to Tenant; any portion of a Net Award remaining after completion of Restoration with respect to a Taking shall be
paid to Landlord.
16. Subordination to Financing.
(a) (i) Subject to the provisions of Section 16(a)(ii), Tenant agrees that this Lease shall at all times be subject and
subordinate to the Lien of the Mortgage, if any.
(ii) Except as expressly provided in this Lease by reason of the occurrence of an Event of Default, and
as a condition to the subordination described in Section 16(a)(i) above, Tenant’s tenancy and Tenant’s rights under this Lease shall not be disturbed, terminated or otherwise adversely affected, nor shall this Lease be affected, by the
existence of, or any default under, a Mortgage, and in the event of a foreclosure or other enforcement of a Mortgage, or sale in lieu thereof, the purchaser at such foreclosure sale shall be bound to Tenant for the Term of this Lease, the rights of
Tenant under this Lease shall expressly survive and this Lease shall in all respects continue in full force and effect so long as no Event of Default has occurred and is continuing. Tenant shall not be named as a party defendant in any such
foreclosure suit, except as may be required by law. Any Mortgage to which this Lease is now or hereafter subordinate shall provide, in effect, that during the time this Lease is in force and no Event of Default has occurred and is then continuing
hereunder, insurance proceeds and any condemnation award shall be disbursed pursuant to the provisions of this Lease.
(b) Notwithstanding the provisions of Section 16(a), the holder of the Mortgage to which this Lease is subject and
subordinate shall have the right, at its sole option, at any time, to subordinate and subject the Mortgage, in whole or in part, to this Lease by recording a unilateral declaration to such effect.
(c) At any time prior to the expiration of the Term, Tenant agrees, at the election and upon written demand of any owner of
the Leased Premises, or of a Lender who has granted non-disturbance to Tenant pursuant to Section 16(a) above, to attorn, from time to time, to any such owner or Lender, upon the terms and conditions of this Lease, for the remainder of the
Term. The provisions of this Section 16(c) shall inure to the benefit of any such owner or Lender, shall apply notwithstanding that, as a matter of law, this Lease may terminate upon the foreclosure of the Mortgage, shall be self-operative
upon any such demand, and no further instrument shall be required to give effect to said provisions.
(d) Each of Tenant and Landlord agrees that, if requested by the other or by any Lender, each shall (and Landlord shall cause
each Lender), without charge, enter into a Subordination, Non-Disturbance and Attornment Agreement, in substantially the form attached hereto as Exhibit C or such other commercially reasonable form reasonably requested by a Lender and
reasonably acceptable to Landlord and Tenant, provided such agreement contains provisions relating to non-disturbance in accordance with the provisions of Section 16(a); the party requested to enter into a Subordination,
Non-Disturbance and Attornment Agreement shall respond promptly, but in any event within ten (10) Business Days after receipt of the requested form of such agreement, with any comments thereto and, provided that such Subordination, Non-Disturbance
and Attornment Agreement is in substantially the form attached hereto as Exhibit C or is otherwise reasonably acceptable to such party, thereafter shall promptly execute and deliver such agreement.
17. Assignment, Subleasing.
(a) Tenant may assign its interest in this Lease and may sublet the Leased Premises in whole or in part, from time to time, to
any Affiliate of Tenant without the consent of Landlord and to any other Person with the prior written consent of Landlord, which consent shall not be unreasonably withheld. Tenant shall have no rights to mortgage or otherwise hypothecate its
leasehold interest under this Lease.
(b) Each sublease of the Leased Premises or any part thereof shall be subject and subordinate to the provisions of this
Lease. No assignment or sublease shall affect or reduce any of the obligations of Tenant hereunder, which shall remain the primary obligations of Tenant, and all such obligations shall continue in full force and effect as obligations of a
principal and not as obligations of a guarantor, as if no assignment or sublease had been made. No assignment or sublease shall impose any obligations on Landlord under this Lease except as otherwise provided in this Lease. Tenant agrees that in
the case of an assignment of this Lease, Tenant shall, within fifteen (15) days after the execution and delivery of any such assignment, deliver to Landlord (i) a copy of such assignment in form reasonably acceptable to Landlord and (ii) an
agreement executed and acknowledged by the assignee in form reasonably acceptable to Landlord wherein the assignee shall agree to assume and to observe and perform all of the terms and provisions of this Lease on the part of the Tenant to be
observed and performed from and after the date of such assignment. In the case of a sublease, Tenant shall, within fifteen (15) days after the execution and delivery of such sublease, deliver to Landlord a copy of such sublease.
(c) Upon the occurrence of an Event of Default under this Lease, Landlord shall have the right to collect and enjoy all rents
and other sums of money payable under any sublease of the Leased Premises, which rents and other sums shall be applied to Tenant’s outstanding obligations under this Lease (and any excess shall be paid to Tenant unless and until this Lease is
terminated) and Tenant hereby unconditionally assigns such rents and money to Landlord, which assignment may be exercised upon and after (but not before) the occurrence of an Event of Default. At such time, if any, as the Event of Default is
cured, Landlord’s right to collect such rents and other sums pursuant to the foregoing sentence shall terminate until such time, if any, as another Event of Default occurs.
18. Permitted Contests.
(a) So long as no Event of Default has occurred and is continuing Tenant shall not be required to (i) pay any Imposition, (ii)
comply with any Legal Requirement, (iii) discharge or remove any Lien referred to in Section 9 or 12, or (iv) take any action with respect to any violation referred to in Section 11(b) so long as Tenant shall contest, in
good faith and at its expense, the existence, the amount or the validity thereof, the amount of the damages caused thereby, or the extent of its or Landlord’s liability therefor, by appropriate proceedings which shall operate during the pendency
thereof to prevent (A) the collection of, or other realization upon, the Imposition or Lien so contested, (B) the sale, forfeiture or loss of the Leased Premises, any Basic Rent or any Additional Rent to satisfy the same or to pay any damages
caused by the violation of any such Legal Requirement or by any such violation, (C) any interference with the use or occupancy of the Leased Premises, (D) any interference with the payment of any Basic Rent or any Additional Rent, and (E) the
cancellation of any insurance policy required to be maintained under this Lease. Landlord shall fully cooperate with Tenant in connection with any such contest at Tenant’s sole cost and expense. During any contest meeting the standards set forth
in this Section 18, Landlord shall not, during the pendency of such legal or other proceeding or contest, pay or discharge any Impositions on the Leased Premises, or tax lien or tax title pertaining thereto, provided Landlord may do so in
order to stay a sale, loss or forfeiture of the Leased Premises or any Basic Rent. Any refund obtained by Tenant shall be paid first to Tenant to the extent of its costs and expenses of such contest and on account of any portion of the Impositions
so refunded which were previously paid by Tenant.
(b) In no event shall Tenant pursue any contest with respect to any Imposition, Legal Requirement, Lien, or violation,
referred to above in such manner that exposes Landlord or any Lender to (i) criminal liability, penalty or sanction, (ii) any civil liability, penalty or sanction for which Tenant has not made provisions reasonably acceptable to Landlord and
Lenders (which may include the requirement to post a bond therefor) or (iii) defeasance of its interest (including the subordination of the Lien of the Mortgage to a Lien to which such Mortgage is not otherwise subordinate prior to such contest) in
the Leased Premises.
(c) Tenant agrees that each such contest shall be promptly and diligently prosecuted to a final conclusion, except that Tenant
shall have the right to attempt to settle or compromise such contest through negotiations. If requested by Landlord, Tenant shall deliver a bond, cash collateral or other surety in an amount sufficient to discharge any Lien of record related to
such contest during the pendency thereof. Tenant shall pay and save each Indemnitee harmless against any and all actual, out-of-pocket losses, judgments, decrees and costs (including all reasonable attorneys’ fees and expenses) in connection with
any such contest and shall, promptly after the final determination of such contest, fully pay and discharge the amounts which shall be levied, assessed, charged or imposed or be determined to be payable therein or in connection therewith, together
with all penalties, fines, interest, costs and expenses thereof or in connection therewith, and perform all acts the performance of which shall be ordered or decreed as a result thereof.
19. Conditional Limitations; Default Provisions.
(a) If any Event of Default shall have occurred, Landlord shall have the right at its option, then or at any time thereafter,
to do any one or more of the following without demand upon or notice to Tenant:
(i) Landlord may give Tenant written notice of Landlord’s intention to terminate this Lease on a date
specified in such notice (which date shall be no sooner than fifteen (15) Business Days after the date of the notice); provided that Tenant has not cured all Events of Default prior to the date specified in Landlord’s notice, the Term and the
estate hereby granted and all rights of Tenant hereunder shall expire and terminate as if such date were the date hereinabove fixed for the expiration of the Term, but Tenant shall remain liable for all its obligations hereunder through the date
hereinabove fixed for the expiration of the Term, including its liability for Basic Rent and Additional Rent as hereinafter provided in Sections 19(b) and (c).
(ii) Landlord may, whether or not the Term of this Lease shall have been terminated pursuant to clause
(i) above, give Tenant written notice to surrender the Leased Premises to Landlord on a date specified in such notice (which date shall be no sooner than fifteen (15) Business Days after the date of the notice), at which time Tenant shall
surrender and deliver possession of the Leased Premises to Landlord and shall remove the Trade Fixtures and personal property which is owned by Tenant or third parties other than Landlord in accordance with Section 23(a). Upon or at any
time after taking possession of the Leased Premises, Landlord may remove any persons or property therefrom. Landlord shall be under no liability for or by reason of any such entry, repossession or removal. No such entry or repossession shall be
construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such intention to Tenant pursuant to clause (i) above.
(iii) After repossession of the Leased Premises pursuant to clause (ii) above, whether or not
this Lease shall have been terminated pursuant to clause (i) above, Landlord may, and shall use commercially reasonable efforts to, relet the Leased Premises or any part thereof to such tenant or tenants for such term or terms (which may be
greater or less than the period which would otherwise have constituted the balance of the Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its reasonable discretion, may
determine; and Landlord shall collect and receive any rents payable by reason of such reletting. The rents received on such reletting shall be applied (A) first to the reasonable and actual expenses of such reletting and collection, including
without limitation reasonable attorneys’ fees and any reasonable real estate commissions paid, and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be
realized, then Tenant shall pay Landlord any such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord shall not, in any event, be required to pay Tenant any sums received by Landlord on a
reletting of the Leased Premises in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or future obligations of Tenant hereunder. Landlord’s re-entry and reletting of the Leased Premises without termination
of this Lease shall not preclude Landlord from subsequently terminating this Lease as set forth above. Landlord may make such Alterations as Landlord in its reasonable discretion may deem advisable. Tenant agrees to pay Landlord, as Additional
Rent, immediately upon demand, all reasonable expenses incurred by Landlord in obtaining possession and in reletting the Leased Premises, including fees and commissions of attorneys, architects, agents and brokers.
(iv) Landlord may exercise any other right or remedy now or hereafter existing by law or in equity.
(b) In the event of any expiration or termination of this Lease or repossession of the Leased Premises by reason of the
occurrence of an Event of Default, Tenant shall pay to Landlord Basic Rent and all Additional Rent required to be paid by Tenant to and including the date of such expiration, termination or repossession and, thereafter, Tenant shall, until the end
of what would have been the Term in the absence of such expiration, termination or repossession, and whether or not the Leased Premises shall have been relet, be liable to Landlord for, and shall pay to Landlord as, liquidated and agreed current
damages:
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(i)
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Basic Rent and Additional Rent which would be payable under this Lease by Tenant in the absence of such expiration, termination or repossession from time to time as such
Basic Rent and Additional Rent become due, less
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(ii)
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the net proceeds, if any, of any reletting pursuant to Section 19(a)(iii), after deducting from such proceeds all of Landlord’s reasonable expenses in connection
with such reletting (including all reasonable repossession costs, brokerage commissions, legal expenses, attorneys’ fees, and expenses of preparation for reletting (the “Net Reletting Proceeds”), plus
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(iii)
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all Additional Payments paid or payable by Landlord at the time of, or in connection with, such termination or repossession.
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Tenant hereby agrees to be and remain liable for all sums aforesaid and Landlord may recover such damages from Tenant and institute and
maintain successive actions or legal proceedings against Tenant for the recovery of such damages. Nothing herein contained shall be deemed to require Landlord to wait to begin such action or other legal proceedings until the date when the Term would
have expired by limitation had there been no such Event of Default.
(c) Landlord shall be in default under this Lease if Landlord has breached or failed to perform any covenant, agreement or
undertaking of Landlord under this Lease and has not commenced to cure such failure within thirty (30) days of Landlord’s receipt of Tenant’s written notice thereof and diligently and in good faith continue to cure the default until completion, or
if such default is of such a nature that it cannot reasonably be cured within such period of thirty (30) days, such period shall be extended for such longer time as is reasonably necessary (not to exceed 180 days), provided that Landlord
has commenced to cure such default within said period of thirty (30) days and is actively, diligently and in good faith proceeding with continuity to remedy such default. In the event of a Landlord default and failure by Landlord to cure such
default in the time period required pursuant to the foregoing sentence, Tenant may: (i) (A) perform the obligations of Landlord, in which event Landlord shall reimburse Tenant upon written demand for any reasonable and necessary costs and
expenses which Tenant incurred in performing Landlord’s obligations, and, if Landlord fails to so reimburse Tenant within thirty (30) days of written demand, Tenant may (B) bring suit for damages against Landlord for any and all expenses (including
reasonable attorneys’ fees) incurred by Tenant under this Section 19 and/or (ii) seek injunctive or other equitable relief against Landlord. In no event shall Tenant have the right to terminate this Lease as a result of any default by
Landlord hereunder. No waiver by Tenant of any violation or breach of any of the terms, provisions and covenants herein contained shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions
and covenants herein contained.
20. Additional Rights of Landlord and Tenant.
(a) Except as may be specifically provided herein, no right or remedy conferred upon or reserved to Landlord in this Lease is
intended to be exclusive of any other right or remedy; and each and every right and remedy shall be cumulative and in addition to any other right or remedy contained in this Lease. No delay or failure by Landlord to enforce its rights under this
Lease shall be construed as a waiver, modification or relinquishment thereof. In addition to the other remedies provided in this Lease, Landlord shall be entitled, to the extent permitted by applicable law, to injunctive relief in case of the
violation or attempted or threatened violation of any of the provisions of this Lease, or to specific performance of any of the provisions of this Lease.
(b) Tenant hereby waives and surrenders for itself and all those claiming under it, including creditors of all kinds, any
right and privilege which it or any of them may have under any present or future law to redeem the Leased Premises or to have a continuance of this Lease after termination of this Lease or of Tenant’s right of occupancy or possession pursuant to
any court order or any provision hereof.
(c) Landlord hereby waives any right to distrain or levy upon Trade Fixtures or any property of Tenant (including, without
limitation, Tenant’s inventory) and any Landlord’s Lien or similar Lien upon Trade Fixtures and any other property of Tenant (including, without limitation, Tenant’s inventory). Landlord agrees, at the request and expense of Tenant, to execute a
waiver, in the form attached hereto as Exhibit E or in such other form reasonably acceptable to Landlord, of any Landlord’s or similar Lien for the benefit of any present or future holder of a security interest in or lessor of any of Trade
Fixtures or any other personal property of Tenant (a “Landlord Waiver”). Landlord agrees to review any requested form of Landlord Waiver provided by Tenant within ten (10) Business Days of receipt thereof.
(d) (i) Tenant agrees to pay to Landlord any and all reasonable out-of-pocket costs and expenses incurred by Landlord in
connection with any litigation or other action instituted by Landlord to enforce the obligations of Tenant under this Lease, to the extent that Landlord has prevailed in any such litigation or other action. Any amount payable by Tenant to Landlord
pursuant to this Section 20(d)(i) shall be due and payable by Tenant to Landlord as Additional Rent within thirty (30) days after a final, non-appealable judgment or decision is rendered in favor of Landlord in such litigation or other
action.
(ii) Landlord agrees to pay to Tenant any and all reasonable out-of-pocket costs and expenses incurred
by Tenant in connection with any litigation or other action instituted by Tenant to enforce the obligations of Landlord under this Lease, to the extent that Tenant has prevailed in any such litigation or other action. Any amount payable by
Landlord to Tenant pursuant to this Section 20(d)(ii) shall be due and payable within thirty (30) days after a final, non-appealable judgment or decision is rendered in favor of Tenant in such litigation or other action.
21. Notices. All notices, demands, requests and approvals pursuant to this Lease shall be in writing and shall be deemed to have been given for all purposes (i) three (3)
Business Days after having been sent by United States mail, by registered or certified mail, return receipt requested, postage prepaid, addressed to the other party at its address as stated below, (ii) one (1) Business Day after having been sent
for overnight delivery by a nationally recognized air courier service, (iii) on the day delivered, if personally delivered on a Business Day during business hours or (iv) for purposes of Section 6(c) only, on the day sent by electronic
mail, if sent during business hours on a Business Day (or if not sent during such time, on the next Business Day) so long as receipt thereof is confirmed electronically and the same written notice is also sent by nationally recognized air courier
service or messenger.
To the Addresses stated below:
If to Landlord:
HF Coppel TX Landlord, LLC
c/o SunTrust Equity Funding, LLC
If to Landlord:
HF Coppel TX Landlord, LLC
c/o SunTrust Equity Funding, LLC
3333 Peachtree Road, NE, 10th Floor
Atlanta, Georgia 30326
Attention: Patrick Zepeda
Email: [email protected]
If to Tenant:
Haverty Furniture Companies, Inc.
780 Johnson Ferry Road, Suite 800
Atlanta, Georgia 30342
Attention: Wendy Moza
Email: [email protected]
With a copy to:
Haverty Furniture Companies, Inc.
780 Johnson Ferry Road, Suite 800
Atlanta, Georgia 30342
Attention: Janet E. Taylor, Esq.
Email: [email protected]
and a copy to:
Jones Day
77 W Wacker Drive, Suite 3500
Chicago, IL 60601
Attention: Brian L. Sedlak, Esq.
If any Lender shall have advised Tenant by notice in the manner aforesaid that it is the holder of a Mortgage and states in said notice
its address for the receipt of notices, then simultaneously with the giving of any notice by Tenant to Landlord, Tenant shall make commercially reasonable efforts to send a copy of such Notice to Lender in the manner aforesaid. For the purposes of
this Section 21, any party may substitute its address by giving fifteen (15) days’ notice to the other party in the manner provided above. Any notice, demand and request may be given on behalf of any party by its counsel.
22. Estoppel Certificates. Tenant shall at any time and from time to time, upon not less than ten (10) Business Days’ prior written request by Landlord, execute and deliver an
estoppel certificate in substantially the form attached hereto as Exhibit D or such other form as may be reasonably requested by Landlord. It is intended that any such statements may be relied upon by Lenders or potential Lenders, by the
recipient of such statements or their assignees and/or by any prospective purchaser or assignee of the Leased Premises or of the membership interests in Landlord.
23. Surrender and Holding Over.
(a) Upon the expiration or earlier termination of this Lease, Tenant shall peaceably leave and surrender the Leased Premises
to Landlord. Tenant shall remove from the Leased Premises on or prior to such expiration or earlier termination the Trade Fixtures and personal property which is owned by Tenant or third parties other than Landlord, and Tenant at its expense
shall, on or prior to such expiration or earlier termination, repair any damage caused by such removal, provided that (i) Tenant shall not be required to remove any sprinkler systems or solar panels installed in the Leased Premises during
the Term and (ii) Tenant shall only be obligated to remove the racking installed in the Leased Premises if required by Landlord pursuant to a written demand delivered to Tenant on or before the forty-fifth (45th) day prior to such
expiration or earlier termination. Trade Fixtures and personal property not so removed within thirty (30) days after the expiration or earlier termination of the Term for any reason whatsoever shall become the property of Landlord, and Landlord
may thereafter cause such property to be removed from the Leased Premises. The cost of removing and disposing of such property (other than sprinkler systems or solar panels installed in the Leased Premises during the Term or racking installed in
the Leased Premises unless required to be removed by Landlord pursuant to the second sentence of this Section 23(a)) and repairing any damage to the Leased Premises caused by such removal shall be borne by Tenant. Landlord shall not in any
manner or to any extent be obligated to reimburse Tenant for any property which becomes the property of Landlord as a result of such expiration or earlier termination. Notwithstanding anything to the contrary contained in this Lease, at no time
either during or after the Term shall Landlord have any rights in or with respect to Tenant’s inventory (other than the right to remove it from the Leased Premises at Tenant’s expense if Tenant has not done so within thirty (30) days after the
expiration or termination of the Term, provided that such removal complies with the requirements of any Landlord Waiver, to the extent executed pursuant to Section 20(c)).
(b) Any holding over by Tenant of the Leased Premises after the expiration or earlier termination of the term of this Lease or
any extensions thereof, with the consent of Landlord, shall operate and be construed as tenancy from month to month only, at one hundred twenty-five percent (125%) of the Basic Rent in effect immediately prior to such expiration or termination for
the first three (3) months and at one hundred fifty percent (150%) of the Basic Rent in effect immediately prior to such expiration or termination thereafter and upon the same terms and conditions as contained in this Lease, provided that
there shall be no such increase during any period which Landlord and Tenant are engaged in negotiations with one another regarding an amendment or extension of this Lease, or for a new lease for some or all of the Leased Premises. Notwithstanding
the foregoing, (i) any holding over without Landlord’s consent beyond the first three (3) months shall entitle Landlord, in addition to collecting Basic Rent at the rate set forth in the previous sentence, to exercise all rights and remedies
provided by law or in equity, including the remedies of Section 19(b) and (ii) in the event that Landlord has notified Tenant in writing that Landlord has relet the Leased Premises or any part thereof at least thirty (30) days prior to the
commencement of such new lease and Tenant has not vacated the Leased Premises in accordance with the terms of this Lease on or before such commencement date, Tenant shall be liable to Landlord for any and all damages, including any consequential
damages, suffered by Landlord as a result of Tenant’s holding over.
24. No Merger of Title. There shall be no merger of this Lease nor of the leasehold estate created by this Lease with
the fee estate in or ownership of the Leased Premises by reason of the fact that the same person, corporation, firm or other entity may acquire or hold or own, directly or indirectly, (a) this Lease or the leasehold estate created by this Lease or
any interest in this Lease or in such leasehold estate and (b) the fee estate or ownership of the Leased Premises or any interest in such fee estate or ownership. No such merger shall occur unless and until all persons, corporations, firms and
other entities having any interest in (i) this Lease or the leasehold estate created by this Lease and (ii) the fee estate in or ownership of the Leased Premises or any part thereof sought to be merged shall join in a written instrument effecting
such merger and shall duly record the same.
25. Definition of Landlord.
(a) Anything contained herein to the contrary notwithstanding, any claim based on or in respect of any liability of Landlord
under this Lease shall be enforced only against the Landlord’s interest in the Leased Premises or condemnation, property insurance or sale proceeds related thereto, and shall not be enforced against the Landlord individually or personally, or
against any member or other Affiliate of Landlord. In no event shall Landlord have any liability for punitive, special, incidental or consequential damages with respect to the Leased Premises or this Lease.
(b) The term “Landlord” as used in this Lease so far as covenants or obligations on the part of Landlord are concerned, shall
be limited to mean and include only the owner or owners of the Leased Premises or holder of the Mortgage in possession at the time in question of the Leased Premises and in the event of any transfer or transfers of the title of the Leased Premises,
the Landlord herein named (and in case of any subsequent transfers or conveyances, the then grantor) shall be automatically freed and relieved from and after the date of such transfer and conveyance of all liability as respects the performance of
any covenants or obligations on the part of Landlord contained in this Lease thereafter to be performed (but shall remain liable with respect to all such liability arising from events or circumstances existing prior to the date of such transfer).
26. Hazardous Materials.
(a) Tenant agrees that it will not on, about, from or under the Leased Premises, Release any Hazardous Materials except in
accordance with all Environmental Laws.
(b) To the extent required by any Environmental Laws, Tenant shall remediate any Hazardous Materials that it, or any of its
Affiliates, subtenants, assignees, employees, invitees, contractors, licensees or subcontractors Releases on, about, from or under the Leased Premises (whether before or after the date of this Lease).
(c) The Tenant agrees that it will not install any underground storage tank at the Leased Premises requiring a permit under
Environmental Law without specific, prior written approval from Landlord.
27. Entry by Landlord. Subject to Tenant’s reasonable security requirements, Landlord and its authorized
representatives shall have the right upon reasonable written notice (which shall be not less than two (2) Business Days except in the case of emergency) to enter the Leased Premises at all reasonable business hours (and at all other times in the
event of an emergency): (a) for the purpose of inspecting the same or for the purpose of doing any work under Section 11(c), and may take all such action thereon as may be necessary or appropriate for any such purpose (but nothing
contained in this Lease or otherwise shall create or imply any duty upon the part of Landlord to make any such inspection or do any such work), and (b) for the purpose of showing the Leased Premises to prospective purchasers, lenders and mortgagees
and, at any time within twelve (12) months prior to the expiration of the Term of this Lease, for the purpose of showing the same to prospective tenants. No such entry shall constitute an eviction of Tenant, but any such entry shall be done by
Landlord in such reasonable manner as to minimize any disruption of Tenant’s business operation and Tenant may elect to have a representative accompany Landlord or Landlord’s authorized agents in connection with any such entry or inspection.
28. No Usury. The intention of the parties being to conform strictly to the applicable usury laws, whenever any provision herein provides for payment by Tenant to Landlord of
interest at a rate in excess of the legal rate permitted to be charged, such rate herein provided to be paid shall be deemed reduced to such legal rate.
29. Financial Statements.. Tenant hereby agrees to deliver to Landlord either in print or in electronic form, all of
the following financial statements, which shall be prepared in accordance with GAAP: (i) quarterly financial statements for Tenant, within forty-five (45) days after the end of each fiscal quarter of Tenant, and (ii) annual financial statements
for Tenant, audited by an independent certified public accountant, within one hundred twenty (120) days after the end of each fiscal year. For as long as Tenant shall be a publicly listed company and is required to file quarterly and annual
statements with the SEC, then Tenant shall submit to Landlord (in satisfaction of the requirements set forth in the preceding sentence), when filed with the SEC, copies of Tenant’s forms 10Q and 10K, provided that to the extent such forms
are available through EDGAR or a similar internet site, no such submission shall be required. Landlord acknowledges that the financial information provided by Tenant pursuant to this Section 29 is for Landlord’s informational purposes
only. Subject to the terms and conditions contained herein, Landlord shall hold as confidential all financial information that is not publicly available and shall not release any such financial information to third parties without Tenant’s prior
written consent, except (1) to Landlord’s Affiliates, and Landlord’s and such Affiliates’, directors, officers, employees, attorneys, accountants, auditors, financial or legal consultants or advisors, others providing professional services,
lenders, prospective lenders, investors or prospective purchasers of Landlord or the Leased Premises, (2) to comply with regulatory requirements (e.g., filings with the SEC), or pursuant to a court order
requiring such release or as otherwise may be required by law or legal process, (3) to banking and securities regulators in connection with the examination of the books and records of Landlord and its Affiliates by such regulators in the ordinary
course and (4) in connection with the enforcement of this Lease.
30. Separability. Each and every covenant and agreement contained in this Lease is, and shall be construed to be, a
separate and independent covenant and agreement, and the breach of any such covenant or agreement by Landlord shall not discharge or relieve Tenant from its obligation to perform the same. If any term or provision of this Lease or the application
thereof to any provision of this Lease or the application thereof to any person or circumstances shall to any extent be invalid and unenforceable, the remainder of this Lease, or the application of such term or provision to person or circumstances
other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and shall be enforced to the extent permitted by law.
31. Right of First Refusal. As further consideration for this Lease, Landlord hereby grants Tenant during the Term,
while the initial Tenant, or an Affiliate of the initial Tenant to whom Tenant has transferred its interest in this Lease in accordance with Section 17(a) hereof, is in possession and occupancy of the Leased Premise, and providing no Event
of Default remains uncured at the time of Tenant’s exercise of the Right (as defined below), a right of first refusal (the “Right”) to purchase the Leased Premises, or any portion thereof, in the event Landlord receives a bona fide offer to
purchase the Leased Premises, or any portion thereof, which it desires to accept. Landlord shall promptly notify Tenant of any such offer, and enclose a copy of the offer, and Tenant shall have ten (10) Business Days after receipt of such notice
to elect to purchase the Leased Premises, or the applicable portion thereof, for the same consideration and upon the same terms and conditions contained in the offer. If Tenant fails to respond to Landlord's notice during the ten (10) Business Day
period, Tenant's Right shall expire at the end of such ten (10) Business Day period and Landlord shall be free to sell in accordance with the specific terms specified in the offer. If requested by Landlord, Tenant promptly shall confirm in writing
that its Right has expired. If any of the terms and conditions of the offer are changed in any material respect that is favorable to the buyer, beyond reducing the consideration by less than five percent (5%), Landlord shall notify Tenant in the
same manner specified above as if a new bona fide offer had been received by Landlord. Tenant's Right shall expire on the last day of the Term of this Lease, or upon any earlier termination thereof. The Right shall constitute a covenant running
with the land and shall be binding upon Landlord and its successors and assigns.
32. Miscellaneous.
(a) The Section headings in this Lease are used only for convenience in finding the subject matters and are not part of this
Lease or to be used in determining the intent of the parties or otherwise interpreting this Lease.
(b) As used in this Lease the singular shall include the plural as the context requires and the following words and phrases
shall have the following meanings: (i) “including” shall mean “including but not limited to”; (ii) “provisions” shall mean “provisions, terms, agreements, covenants and/or conditions”; and (iii) “obligation” shall mean “obligation, duty, agreement,
liability, covenant or condition”.
(c) Any act which Landlord is permitted to perform under this Lease may be performed at any time and from time to time by
Landlord or any person or entity designated by Landlord. Any act which Tenant is required to perform under this Lease shall be performed at Tenant’s sole cost and expense.
(d) This Lease may be modified, amended, discharged or waived only by an agreement in writing signed by the party against whom
enforcement of any such modification, amendment, discharge or waiver is sought. This Lease embodies the entire agreement and understanding between Tenant and Landlord with respect to the transactions contemplated hereby and supersedes all other
agreements and understandings between Tenant and Landlord with respect to the subject matter thereof. This Lease represents the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements of Tenant and Landlord or any course of prior dealings. There are no unwritten oral agreements between the parties.
(e) The covenants of this Lease shall run with the Land and bind Tenant, the successors and assigns of Tenant and all present
and subsequent encumbrances and subtenants of the Leased Premises, and shall inure to the benefit of and bind Landlord, its successors and assigns.
(f) This Lease will be simultaneously executed in several counterparts, each of which when so executed and delivered shall
constitute an original, fully enforceable counterpart for all purposes. Executed copies of this Lease distributed in a pdf or similar format and/or executed by “DocuSign”, “esign” or similar manner shall constitute originals thereof.
(g) This Lease shall be governed by and construed according to the laws of the State in which the Leased Premises is located.
(h) TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAWS, LANDLORD AND TENANT IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS LEASE AND ANY COUNTERCLAIM THEREUNDER.
(i) Tenant hereby represents and warrants that neither Tenant nor any of its Affiliates is in violation of (i) any of the
foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, (ii) Executive Order No. 13,224, 66 Fed Reg 49,079 (2001),
issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism) or (iii) the anti-money laundering provisions of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “USA Patriot Act”) amending the Bank Secrecy Act, 31 U.S.C. Section 5311 et seq and any other laws relating to terrorism or money laundering.
(j) Whenever this Lease calls for performance of an act or obligation within a specified time period, such time period shall
be extended to the extent performance is impaired due to acts of God, riots, insurrection, terrorist acts, war, pandemic (including COVID-19), acts of the public enemy, strikes, lockouts, labor troubles, inability to procure materials, failure of
power, restrictive laws (except as otherwise specifically provided herein) or acts of governmental authority (provided, however, that such party substantially complies with Applicable Laws and cooperates with the requirements of such
governmental authority regarding approvals, permitting, registration, licensing, or similar legal requirements for the conduct of Tenant or Landlord’s business or the construction on, repair of or operation of all or any portion of the Leased
Premises), government delays in obtaining discretionary permits or building permits that are not attributable to such party's failure to timely apply for and diligently pursue such permits, or any other circumstances which are not within the
respective party’s control (collectively, “Force Majeure”); provided, that this provision shall not apply to failures by either party to pay their respective monetary obligations under this Lease or applicable to delays resulting
from the inability of a party to obtain financing or to proceed with its obligations under this Lease because of a lack of funds.
[signatures appear on following page]
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed by their respective duly authorized
officers as of the day and year first above written.
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LANDLORD:
HF COPPEL TX LANDLORD, LLC, a Delaware limited liability company By: STEF NLIP, LLC, its sole member
By: SunTrust Equity Funding, LLC, its sole member
By: /s/ Allison McLeod
Name: Allison McLeod Title: Manager
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TENANT:
HAVERTY FURNITURE COMPANIES, INC., a Maryland corporation By: /s/ Richard B. Hare : : Name: Richard B. Hare Title: Executive Vice President & Chief Financial Officer |
EXHIBIT A
Legal Description
TRACT 1: (FEE SIMPLE)
Being Lot 1R-2, Block 2, of GATEWAY BUSINESS PARK, an Addition to the City of Coppell, Dallas County, Texas, according to the plat thereof recorded in cc# 201700235650, Real Property Records, Dallas County, Texas.
TRACT 2: (EASEMENT ESTATE)
Non-exclusive easement rights created under Grant of Access and Utility Easement by and between Catellus Development Corporation, a Delaware corporation and Haverty Furniture Companies, Inc., a Maryland corporation, dated 04/30/2001, filed 05/01/2001, recorded in Volume 2001085, Page 08057, Real Property Records of Dallas County, Texas.
Being Lot 1R-2, Block 2, of GATEWAY BUSINESS PARK, an Addition to the City of Coppell, Dallas County, Texas, according to the plat thereof recorded in cc# 201700235650, Real Property Records, Dallas County, Texas.
TRACT 2: (EASEMENT ESTATE)
Non-exclusive easement rights created under Grant of Access and Utility Easement by and between Catellus Development Corporation, a Delaware corporation and Haverty Furniture Companies, Inc., a Maryland corporation, dated 04/30/2001, filed 05/01/2001, recorded in Volume 2001085, Page 08057, Real Property Records of Dallas County, Texas.
EXHIBIT B
BASIC RENT
Basic Rent is due commencing on the Closing Date on each Basic Rent Payment Date during the Term (including any Renewal Term
exercised by Tenant) in an amount equal to the amount for such Basic Rent Payment Date set forth on Schedule I attached hereto.
SCHEDULE I
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Month
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Date
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Rent Payment
(in US Dollars)
|
|
1
|
6/10/2020
|
$194,985.32
|
|
2
|
7/10/2020
|
$194,985.32
|
|
3
|
8/10/2020
|
$194,985.32
|
|
4
|
9/10/2020
|
$194,985.32
|
|
5
|
10/10/2020
|
$194,985.32
|
|
6
|
11/10/2020
|
$194,985.32
|
|
7
|
12/10/2020
|
$194,985.32
|
|
8
|
1/10/2021
|
$194,985.32
|
|
9
|
2/10/2021
|
$194,985.32
|
|
10
|
3/10/2021
|
$194,985.32
|
|
11
|
4/10/2021
|
$194,985.32
|
|
12
|
5/10/2021
|
$194,985.32
|
|
13
|
6/10/2021
|
$198,885.03
|
|
14
|
7/10/2021
|
$198,885.03
|
|
15
|
8/10/2021
|
$198,885.03
|
|
16
|
9/10/2021
|
$198,885.03
|
|
17
|
10/10/2021
|
$198,885.03
|
|
18
|
11/10/2021
|
$198,885.03
|
|
19
|
12/10/2021
|
$198,885.03
|
|
20
|
1/10/2022
|
$198,885.03
|
|
21
|
2/10/2022
|
$198,885.03
|
|
22
|
3/10/2022
|
$198,885.03
|
|
23
|
4/10/2022
|
$198,885.03
|
|
24
|
5/10/2022
|
$198,885.03
|
|
25
|
6/10/2022
|
$202,862.73
|
|
26
|
7/10/2022
|
$202,862.73
|
|
27
|
8/10/2022
|
$202,862.73
|
|
28
|
9/10/2022
|
$202,862.73
|
|
29
|
10/10/2022
|
$202,862.73
|
|
30
|
11/10/2022
|
$202,862.73
|
|
31
|
12/10/2022
|
$202,862.73
|
|
32
|
1/10/2023
|
$202,862.73
|
|
33
|
2/10/2023
|
$202,862.73
|
|
34
|
3/10/2023
|
$202,862.73
|
|
35
|
4/10/2023
|
$202,862.73
|
|
36
|
5/10/2023
|
$202,862.73
|
|
37
|
6/10/2023
|
$206,919.98
|
|
38
|
7/10/2023
|
$206,919.98
|
|
39
|
8/10/2023
|
$206,919.98
|
|
40
|
9/10/2023
|
$206,919.98
|
|
41
|
10/10/2023
|
$206,919.98
|
|
42
|
11/10/2023
|
$206,919.98
|
|
43
|
12/10/2023
|
$206,919.98
|
|
44
|
1/10/2024
|
$206,919.98
|
|
45
|
2/10/2024
|
$206,919.98
|
|
46
|
3/10/2024
|
$206,919.98
|
|
47
|
4/10/2024
|
$206,919.98
|
|
48
|
5/10/2024
|
$206,919.98
|
|
49
|
6/10/2024
|
$211,058.38
|
|
50
|
7/10/2024
|
$211,058.38
|
|
51
|
8/10/2024
|
$211,058.38
|
|
52
|
9/10/2024
|
$211,058.38
|
|
53
|
10/10/2024
|
$211,058.38
|
|
54
|
11/10/2024
|
$211,058.38
|
|
55
|
12/10/2024
|
$211,058.38
|
|
56
|
1/10/2025
|
$211,058.38
|
|
57
|
2/10/2025
|
$211,058.38
|
|
58
|
3/10/2025
|
$211,058.38
|
|
59
|
4/10/2025
|
$211,058.38
|
|
60
|
5/10/2025
|
$211,058.38
|
|
61
|
6/10/2025
|
$215,279.55
|
|
62
|
7/10/2025
|
$215,279.55
|
|
63
|
8/10/2025
|
$215,279.55
|
|
64
|
9/10/2025
|
$215,279.55
|
|
65
|
10/10/2025
|
$215,279.55
|
|
66
|
11/10/2025
|
$215,279.55
|
|
67
|
12/10/2025
|
$215,279.55
|
|
68
|
1/10/2026
|
$215,279.55
|
|
69
|
2/10/2026
|
$215,279.55
|
|
70
|
3/10/2026
|
$215,279.55
|
|
71
|
4/10/2026
|
$215,279.55
|
|
72
|
5/10/2026
|
$215,279.55
|
|
73
|
6/10/2026
|
$219,585.14
|
|
74
|
7/10/2026
|
$219,585.14
|
|
75
|
8/10/2026
|
$219,585.14
|
|
76
|
9/10/2026
|
$219,585.14
|
|
77
|
10/10/2026
|
$219,585.14
|
|
78
|
11/10/2026
|
$219,585.14
|
|
79
|
12/10/2026
|
$219,585.14
|
|
80
|
1/10/2027
|
$219,585.14
|
|
81
|
2/10/2027
|
$219,585.14
|
|
82
|
3/10/2027
|
$219,585.14
|
|
83
|
4/10/2027
|
$219,585.14
|
|
84
|
5/10/2027
|
$219,585.14
|
|
85
|
6/10/2027
|
$223,976.85
|
|
86
|
7/10/2027
|
$223,976.85
|
|
87
|
8/10/2027
|
$223,976.85
|
|
88
|
9/10/2027
|
$223,976.85
|
|
89
|
10/10/2027
|
$223,976.85
|
|
90
|
11/10/2027
|
$223,976.85
|
|
91
|
12/10/2027
|
$223,976.85
|
|
92
|
1/10/2028
|
$223,976.85
|
|
93
|
2/10/2028
|
$223,976.85
|
|
94
|
3/10/2028
|
$223,976.85
|
|
95
|
4/10/2028
|
$223,976.85
|
|
96
|
5/10/2028
|
$223,976.85
|
|
97
|
6/10/2028
|
$228,456.38
|
|
98
|
7/10/2028
|
$228,456.38
|
|
99
|
8/10/2028
|
$228,456.38
|
|
100
|
9/10/2028
|
$228,456.38
|
|
101
|
10/10/2028
|
$228,456.38
|
|
102
|
11/10/2028
|
$228,456.38
|
|
103
|
12/10/2028
|
$228,456.38
|
|
104
|
1/10/2029
|
$228,456.38
|
|
105
|
2/10/2029
|
$228,456.38
|
|
106
|
3/10/2029
|
$228,456.38
|
|
107
|
4/10/2029
|
$228,456.38
|
|
108
|
5/10/2029
|
$228,456.38
|
|
109
|
6/10/2029
|
$233,025.51
|
|
110
|
7/10/2029
|
$233,025.51
|
|
111
|
8/10/2029
|
$233,025.51
|
|
112
|
9/10/2029
|
$233,025.51
|
|
113
|
10/10/2029
|
$233,025.51
|
|
114
|
11/10/2029
|
$233,025.51
|
|
115
|
12/10/2029
|
$233,025.51
|
|
116
|
1/10/2030
|
$233,025.51
|
|
117
|
2/10/2030
|
$233,025.51
|
|
118
|
3/10/2030
|
$233,025.51
|
|
119
|
4/10/2030
|
$233,025.51
|
|
120
|
5/10/2030
|
$233,025.51
|
|
121
|
6/10/2030
|
$237,686.02
|
|
122
|
7/10/2030
|
$237,686.02
|
|
123
|
8/10/2030
|
$237,686.02
|
|
124
|
9/10/2030
|
$237,686.02
|
|
125
|
10/10/2030
|
$237,686.02
|
|
126
|
11/10/2030
|
$237,686.02
|
|
127
|
12/10/2030
|
$237,686.02
|
|
128
|
1/10/2031
|
$237,686.02
|
|
129
|
2/10/2031
|
$237,686.02
|
|
130
|
3/10/2031
|
$237,686.02
|
|
131
|
4/10/2031
|
$237,686.02
|
|
132
|
5/10/2031
|
$237,686.02
|
|
133
|
6/10/2031
|
$242,439.74
|
|
134
|
7/10/2031
|
$242,439.74
|
|
135
|
8/10/2031
|
$242,439.74
|
|
136
|
9/10/2031
|
$242,439.74
|
|
137
|
10/10/2031
|
$242,439.74
|
|
138
|
11/10/2031
|
$242,439.74
|
|
139
|
12/10/2031
|
$242,439.74
|
|
140
|
1/10/2032
|
$242,439.74
|
|
141
|
2/10/2032
|
$242,439.74
|
|
142
|
3/10/2032
|
$242,439.74
|
|
143
|
4/10/2032
|
$242,439.74
|
|
144
|
5/10/2032
|
$242,439.74
|
|
145
|
6/10/2032
|
$247,288.54
|
|
146
|
7/10/2032
|
$247,288.54
|
|
147
|
8/10/2032
|
$247,288.54
|
|
148
|
9/10/2032
|
$247,288.54
|
|
149
|
10/10/2032
|
$247,288.54
|
|
150
|
11/10/2032
|
$247,288.54
|
|
151
|
12/10/2032
|
$247,288.54
|
|
152
|
1/10/2033
|
$247,288.54
|
|
153
|
2/10/2033
|
$247,288.54
|
|
154
|
3/10/2033
|
$247,288.54
|
|
155
|
4/10/2033
|
$247,288.54
|
|
156
|
5/10/2033
|
$247,288.54
|
|
157
|
6/10/2033
|
$252,234.31
|
|
158
|
7/10/2033
|
$252,234.31
|
|
159
|
8/10/2033
|
$252,234.31
|
|
160
|
9/10/2033
|
$252,234.31
|
|
161
|
10/10/2033
|
$252,234.31
|
|
162
|
11/10/2033
|
$252,234.31
|
|
163
|
12/10/2033
|
$252,234.31
|
|
164
|
1/10/2034
|
$252,234.31
|
|
165
|
2/10/2034
|
$252,234.31
|
|
166
|
3/10/2034
|
$252,234.31
|
|
167
|
4/10/2034
|
$252,234.31
|
|
168
|
5/10/2034
|
$252,234.31
|
|
169
|
6/10/2034
|
$257,278.99
|
|
170
|
7/10/2034
|
$257,278.99
|
|
171
|
8/10/2034
|
$257,278.99
|
|
172
|
9/10/2034
|
$257,278.99
|
|
173
|
10/10/2034
|
$257,278.99
|
|
174
|
11/10/2034
|
$257,278.99
|
|
175
|
12/10/2034
|
$257,278.99
|
|
176
|
1/10/2035
|
$257,278.99
|
|
177
|
2/10/2035
|
$257,278.99
|
|
178
|
3/10/2035
|
$257,278.99
|
|
179
|
4/10/2035
|
$257,278.99
|
|
180
|
5/10/2035
|
$257,278.99
|
|
First Renewal Term
|
||
|
181
|
6/10/2035
|
$262,424.57
|
|
182
|
7/10/2035
|
$262,424.57
|
|
183
|
8/10/2035
|
$262,424.57
|
|
184
|
9/10/2035
|
$262,424.57
|
|
185
|
10/10/2035
|
$262,424.57
|
|
186
|
11/10/2035
|
$262,424.57
|
|
187
|
12/10/2035
|
$262,424.57
|
|
188
|
1/10/2036
|
$262,424.57
|
|
189
|
2/10/2036
|
$262,424.57
|
|
190
|
3/10/2036
|
$262,424.57
|
|
191
|
4/10/2036
|
$262,424.57
|
|
192
|
5/10/2036
|
$262,424.57
|
|
193
|
6/10/2036
|
$267,673.06
|
|
194
|
7/10/2036
|
$267,673.06
|
|
195
|
8/10/2036
|
$267,673.06
|
|
196
|
9/10/2036
|
$267,673.06
|
|
197
|
10/10/2036
|
$267,673.06
|
|
198
|
11/10/2036
|
$267,673.06
|
|
199
|
12/10/2036
|
$267,673.06
|
|
200
|
1/10/2037
|
$267,673.06
|
|
201
|
2/10/2037
|
$267,673.06
|
|
202
|
3/10/2037
|
$267,673.06
|
|
203
|
4/10/2037
|
$267,673.06
|
|
204
|
5/10/2037
|
$267,673.06
|
|
205
|
6/10/2037
|
$273,026.53
|
|
206
|
7/10/2037
|
$273,026.53
|
|
207
|
8/10/2037
|
$273,026.53
|
|
208
|
9/10/2037
|
$273,026.53
|
|
209
|
10/10/2037
|
$273,026.53
|
|
210
|
11/10/2037
|
$273,026.53
|
|
211
|
12/10/2037
|
$273,026.53
|
|
212
|
1/10/2038
|
$273,026.53
|
|
213
|
2/10/2038
|
$273,026.53
|
|
214
|
3/10/2038
|
$273,026.53
|
|
215
|
4/10/2038
|
$273,026.53
|
|
216
|
5/10/2038
|
$273,026.53
|
|
217
|
6/10/2038
|
$278,487.06
|
|
218
|
7/10/2038
|
$278,487.06
|
|
219
|
8/10/2038
|
$278,487.06
|
|
220
|
9/10/2038
|
$278,487.06
|
|
221
|
10/10/2038
|
$278,487.06
|
|
222
|
11/10/2038
|
$278,487.06
|
|
223
|
12/10/2038
|
$278,487.06
|
|
224
|
1/10/2039
|
$278,487.06
|
|
225
|
2/10/2039
|
$278,487.06
|
|
226
|
3/10/2039
|
$278,487.06
|
|
227
|
4/10/2039
|
$278,487.06
|
|
228
|
5/10/2039
|
$278,487.06
|
|
229
|
6/10/2039
|
$284,056.80
|
|
230
|
7/10/2039
|
$284,056.80
|
|
231
|
8/10/2039
|
$284,056.80
|
|
232
|
9/10/2039
|
$284,056.80
|
|
233
|
10/10/2039
|
$284,056.80
|
|
234
|
11/10/2039
|
$284,056.80
|
|
235
|
12/10/2039
|
$284,056.80
|
|
236
|
1/10/2040
|
$284,056.80
|
|
237
|
2/10/2040
|
$284,056.80
|
|
238
|
3/10/2040
|
$284,056.80
|
|
239
|
4/10/2040
|
$284,056.80
|
|
240
|
5/10/2040
|
$284,056.80
|
|
Second Renewal Term
|
||
|
241
|
6/10/2040
|
$289,737.93
|
|
242
|
7/10/2040
|
$289,737.93
|
|
243
|
8/10/2040
|
$289,737.93
|
|
244
|
9/10/2040
|
$289,737.93
|
|
245
|
10/10/2040
|
$289,737.93
|
|
246
|
11/10/2040
|
$289,737.93
|
|
247
|
12/10/2040
|
$289,737.93
|
|
248
|
1/10/2041
|
$289,737.93
|
|
249
|
2/10/2041
|
$289,737.93
|
|
250
|
3/10/2041
|
$289,737.93
|
|
251
|
4/10/2041
|
$289,737.93
|
|
252
|
5/10/2041
|
$289,737.93
|
|
253
|
6/10/2041
|
$295,532.69
|
|
254
|
7/10/2041
|
$295,532.69
|
|
255
|
8/10/2041
|
$295,532.69
|
|
256
|
9/10/2041
|
$295,532.69
|
|
257
|
10/10/2041
|
$295,532.69
|
|
258
|
11/10/2041
|
$295,532.69
|
|
259
|
12/10/2041
|
$295,532.69
|
|
260
|
1/10/2042
|
$295,532.69
|
|
261
|
2/10/2042
|
$295,532.69
|
|
262
|
3/10/2042
|
$295,532.69
|
|
263
|
4/10/2042
|
$295,532.69
|
|
264
|
5/10/2042
|
$295,532.69
|
|
265
|
6/10/2042
|
$301,443.35
|
|
266
|
7/10/2042
|
$301,443.35
|
|
267
|
8/10/2042
|
$301,443.35
|
|
268
|
9/10/2042
|
$301,443.35
|
|
269
|
10/10/2042
|
$301,443.35
|
|
270
|
11/10/2042
|
$301,443.35
|
|
271
|
12/10/2042
|
$301,443.35
|
|
272
|
1/10/2043
|
$301,443.35
|
|
273
|
2/10/2043
|
$301,443.35
|
|
274
|
3/10/2043
|
$301,443.35
|
|
275
|
4/10/2043
|
$301,443.35
|
|
276
|
5/10/2043
|
$301,443.35
|
|
277
|
6/10/2043
|
$307,472.21
|
|
278
|
7/10/2043
|
$307,472.21
|
|
279
|
8/10/2043
|
$307,472.21
|
|
280
|
9/10/2043
|
$307,472.21
|
|
281
|
10/10/2043
|
$307,472.21
|
|
282
|
11/10/2043
|
$307,472.21
|
|
283
|
12/10/2043
|
$307,472.21
|
|
284
|
1/10/2044
|
$307,472.21
|
|
285
|
2/10/2044
|
$307,472.21
|
|
286
|
3/10/2044
|
$307,472.21
|
|
287
|
4/10/2044
|
$307,472.21
|
|
288
|
5/10/2044
|
$307,472.21
|
|
289
|
6/10/2044
|
$313,621.66
|
|
290
|
7/10/2044
|
$313,621.66
|
|
291
|
8/10/2044
|
$313,621.66
|
|
292
|
9/10/2044
|
$313,621.66
|
|
293
|
10/10/2044
|
$313,621.66
|
|
294
|
11/10/2044
|
$313,621.66
|
|
295
|
12/10/2044
|
$313,621.66
|
|
296
|
1/10/2045
|
$313,621.66
|
|
297
|
2/10/2045
|
$313,621.66
|
|
298
|
3/10/2045
|
$313,621.66
|
|
299
|
4/10/2045
|
$313,621.66
|
|
300
|
5/10/2045
|
$313,621.66
|
|
Third Renewal Term
|
||
|
301
|
6/10/2045
|
$319,894.09
|
|
302
|
7/10/2045
|
$319,894.09
|
|
303
|
8/10/2045
|
$319,894.09
|
|
304
|
9/10/2045
|
$319,894.09
|
|
305
|
10/10/2045
|
$319,894.09
|
|
306
|
11/10/2045
|
$319,894.09
|
|
307
|
12/10/2045
|
$319,894.09
|
|
308
|
1/10/2046
|
$319,894.09
|
|
309
|
2/10/2046
|
$319,894.09
|
|
310
|
3/10/2046
|
$319,894.09
|
|
311
|
4/10/2046
|
$319,894.09
|
|
312
|
5/10/2046
|
$319,894.09
|
|
313
|
6/10/2046
|
$326,291.97
|
|
314
|
7/10/2046
|
$326,291.97
|
|
315
|
8/10/2046
|
$326,291.97
|
|
316
|
9/10/2046
|
$326,291.97
|
|
317
|
10/10/2046
|
$326,291.97
|
|
318
|
11/10/2046
|
$326,291.97
|
|
319
|
12/10/2046
|
$326,291.97
|
|
320
|
1/10/2047
|
$326,291.97
|
|
321
|
2/10/2047
|
$326,291.97
|
|
322
|
3/10/2047
|
$326,291.97
|
|
323
|
4/10/2047
|
$326,291.97
|
|
324
|
5/10/2047
|
$326,291.97
|
|
325
|
6/10/2047
|
$332,817.81
|
|
326
|
7/10/2047
|
$332,817.81
|
|
327
|
8/10/2047
|
$332,817.81
|
|
328
|
9/10/2047
|
$332,817.81
|
|
329
|
10/10/2047
|
$332,817.81
|
|
330
|
11/10/2047
|
$332,817.81
|
|
331
|
12/10/2047
|
$332,817.81
|
|
332
|
1/10/2048
|
$332,817.81
|
|
333
|
2/10/2048
|
$332,817.81
|
|
334
|
3/10/2048
|
$332,817.81
|
|
335
|
4/10/2048
|
$332,817.81
|
|
336
|
5/10/2048
|
$332,817.81
|
|
337
|
6/10/2048
|
$339,474.17
|
|
338
|
7/10/2048
|
$339,474.17
|
|
339
|
8/10/2048
|
$339,474.17
|
|
340
|
9/10/2048
|
$339,474.17
|
|
341
|
10/10/2048
|
$339,474.17
|
|
342
|
11/10/2048
|
$339,474.17
|
|
343
|
12/10/2048
|
$339,474.17
|
|
344
|
1/10/2049
|
$339,474.17
|
|
345
|
2/10/2049
|
$339,474.17
|
|
346
|
3/10/2049
|
$339,474.17
|
|
347
|
4/10/2049
|
$339,474.17
|
|
348
|
5/10/2049
|
$339,474.17
|
|
349
|
6/10/2049
|
$346,263.65
|
|
350
|
7/10/2049
|
$346,263.65
|
|
351
|
8/10/2049
|
$346,263.65
|
|
352
|
9/10/2049
|
$346,263.65
|
|
353
|
10/10/2049
|
$346,263.65
|
|
354
|
11/10/2049
|
$346,263.65
|
|
355
|
12/10/2049
|
$346,263.65
|
|
356
|
1/10/2050
|
$346,263.65
|
|
357
|
2/10/2050
|
$346,263.65
|
|
358
|
3/10/2050
|
$346,263.65
|
|
359
|
4/10/2050
|
$346,263.65
|
|
360
|
5/10/2050
|
$346,263.65
|
|
Fourth Renewal Term
|
||
|
361
|
6/10/2050
|
$353,188.92
|
|
362
|
7/10/2050
|
$353,188.92
|
|
363
|
8/10/2050
|
$353,188.92
|
|
364
|
9/10/2050
|
$353,188.92
|
|
365
|
10/10/2050
|
$353,188.92
|
|
366
|
11/10/2050
|
$353,188.92
|
|
367
|
12/10/2050
|
$353,188.92
|
|
368
|
1/10/2051
|
$353,188.92
|
|
369
|
2/10/2051
|
$353,188.92
|
|
370
|
3/10/2051
|
$353,188.92
|
|
371
|
4/10/2051
|
$353,188.92
|
|
372
|
5/10/2051
|
$353,188.92
|
|
373
|
6/10/2051
|
$360,252.70
|
|
374
|
7/10/2051
|
$360,252.70
|
|
375
|
8/10/2051
|
$360,252.70
|
|
376
|
9/10/2051
|
$360,252.70
|
|
377
|
10/10/2051
|
$360,252.70
|
|
378
|
11/10/2051
|
$360,252.70
|
|
379
|
12/10/2051
|
$360,252.70
|
|
380
|
1/10/2052
|
$360,252.70
|
|
381
|
2/10/2052
|
$360,252.70
|
|
382
|
3/10/2052
|
$360,252.70
|
|
383
|
4/10/2052
|
$360,252.70
|
|
384
|
5/10/2052
|
$360,252.70
|
|
385
|
6/10/2052
|
$367,457.76
|
|
386
|
7/10/2052
|
$367,457.76
|
|
387
|
8/10/2052
|
$367,457.76
|
|
388
|
9/10/2052
|
$367,457.76
|
|
389
|
10/10/2052
|
$367,457.76
|
|
390
|
11/10/2052
|
$367,457.76
|
|
391
|
12/10/2052
|
$367,457.76
|
|
392
|
1/10/2053
|
$367,457.76
|
|
393
|
2/10/2053
|
$367,457.76
|
|
394
|
3/10/2053
|
$367,457.76
|
|
395
|
4/10/2053
|
$367,457.76
|
|
396
|
5/10/2053
|
$367,457.76
|
|
397
|
6/10/2053
|
$374,806.91
|
|
398
|
7/10/2053
|
$374,806.91
|
|
399
|
8/10/2053
|
$374,806.91
|
|
400
|
9/10/2053
|
$374,806.91
|
|
401
|
10/10/2053
|
$374,806.91
|
|
402
|
11/10/2053
|
$374,806.91
|
|
403
|
12/10/2053
|
$374,806.91
|
|
404
|
1/10/2054
|
$374,806.91
|
|
405
|
2/10/2054
|
$374,806.91
|
|
406
|
3/10/2054
|
$374,806.91
|
|
407
|
4/10/2054
|
$374,806.91
|
|
408
|
5/10/2054
|
$374,806.91
|
|
409
|
6/10/2054
|
$382,303.05
|
|
410
|
7/10/2054
|
$382,303.05
|
|
411
|
8/10/2054
|
$382,303.05
|
|
412
|
9/10/2054
|
$382,303.05
|
|
413
|
10/10/2054
|
$382,303.05
|
|
414
|
11/10/2054
|
$382,303.05
|
|
415
|
12/10/2054
|
$382,303.05
|
|
416
|
1/10/2055
|
$382,303.05
|
|
417
|
2/10/2055
|
$382,303.05
|
|
418
|
3/10/2055
|
$382,303.05
|
|
419
|
4/10/2055
|
$382,303.05
|
|
420
|
5/10/2055
|
$382,303.05
|
APPENDIX A
“Additional Payments” shall mean all amounts (i) that are out-of-pocket costs incurred or payable by Landlord
in connection with the transfer of the Leased Premises to Tenant, and (ii) that are out-of-pocket costs, expenses, charges or penalties (including the Make-Whole Premium), if any, incurred by Landlord as a result of the prepayment or defeasance of a
Note(s) as the result of the occurrence of an Event of Default. Notwithstanding anything to the contrary set forth in this Lease, in no event shall Tenant be responsible for the payment of any Additional Payments that are payable by Landlord to a
Lender as a result of a default by Landlord pursuant to the Note or Mortgage, which default is not the result of a default by Tenant hereunder.
“Additional Rent” shall mean all amounts, costs, expenses, liabilities, indemnities and obligations (including
Tenant’s obligation to pay any Default Rate interest hereunder) which Tenant is required to pay pursuant to the terms of this Lease, other than Basic Rent.
“Affiliate” of any Person shall mean any other Person directly or indirectly controlling, controlled by or
under common control with, such Person and shall include, if such Person is an individual, members of the immediate family of such Person, and trusts for the benefit of such individual. For the purposes of this definition, the term “control”
(including the correlative meanings of the terms “controlling”, “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of
the management policies of such Person, whether through the ownership of voting securities or by contract or otherwise.
“Alteration” or “Alterations” shall mean any or all changes, additions (whether or not adjacent to or
abutting any then existing buildings), expansions (whether or not adjacent to or abutting any then existing buildings), improvements, reconstructions, removals or replacements of any of the Improvements or Equipment, both interior or exterior, and
ordinary and extraordinary, it being understood that Alterations shall not include repairs or ordinary maintenance.
“Applicable Laws” shall mean all existing and future applicable laws (including common laws), rules,
regulations, statutes, treaties, codes, ordinances, permits, certificates, orders and licenses of any Governmental Authorities, and applicable judgments, decrees, injunctions, writs, orders or like action of any court, arbitrator or other
administrative, judicial or quasi-judicial tribunal or agency of competent jurisdiction (including those pertaining to the environment and those pertaining to the construction, use or occupancy of the Leased Premises). Applicable Laws shall include
Environmental Laws.
“Basic Rent” shall mean the amounts set forth on Exhibit B annexed to this Lease.
“Basic Rent Payment Dates” shall mean the Closing Date and the tenth (10th) day of each month (or,
if such day is not a Business Day, the following Business Day) thereafter during the Term.
“Business Day” means any day other than a Saturday or a Sunday or other day on which commercial banks in the
State in which the Leased Premises are located are required or are authorized to be closed.
“CERCLA” shall mean the Comprehensive Environmental Response, Compensation and Liability Act, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601-9657.
“Claims” shall mean Liens (including, without limitation, Lien removal and bonding costs), liabilities,
obligations, damages, losses, demands, penalties, assessments, payments, fines, claims, actions, suits, judgments, settlements, costs, expenses and disbursements (including, without limitation, reasonable legal fees and expenses and costs of
investigation and enforcement) of any kind and nature whatsoever.
“Closing Date” shall mean May 18, 2020.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
“Condemnation” shall mean a Taking and/or a Requisition.
“Default Rate” shall mean the greater of (i) 9.25% per annum and (ii) the then current Prime Rate plus 3.00%
per annum.
“Environmental Laws” shall mean and include, all to the extent applicable to the Leased Premises or to
Tenant’s (or its subtenant’s or assignee’s) operations at, or use of, the Leased Premises, the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §§ 6901-6987, as amended by the Hazardous and Solid Waste Amendments of 1984, CERCLA, the
Hazardous Materials Transportation Act of 1975, 49 U.S.C. §§ 1801-1812, the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2671, the Clean Air Act, 42 U.S.C. §§ 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 et
seq and all other federal, state and local laws, rules, orders, statutes, codes and regulations applicable to the Leased Premises or the operations thereon or use thereof and (i) relating to the environment, human health or natural resources, (ii)
regulating, controlling or imposing liability or standards of conduct concerning Hazardous Materials, or (iii) regulating the clean-up or other remediation of the Leased Premises or any portion thereof, as any of the foregoing may have been amended,
supplemented or supplanted from time to time.
“Equipment” shall mean, collectively, the machinery and equipment which is attached to the Improvements in
such a manner as to become fixtures under Applicable Law, together with all additions and accessions thereto, substitutions therefor and replacements thereof, excepting therefrom the Trade Fixtures.
“Event of Default” shall mean the occurrence of any one or more of the following events under this Lease: (i)
a failure by Tenant to make (regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant
from complying with the provisions of this Lease): (x) any payment of Basic Rent when due and payable and the continuance of such failure for three (3) Business Days after written notice thereof to Tenant or (y) any payment of any other sum herein
required to be paid by Tenant which continues unremedied for a period of ten (10) days after written notice thereof to Tenant; (ii) failure by Tenant to perform and observe, or a violation or breach of, any other provision in this Lease and, in any
such case, such default shall continue for a period of thirty (30) days after written notice thereof is given by Landlord, or if such default is of such a nature that it cannot reasonably be cured within such period of thirty (30) days, such period
shall be extended for such longer time as is reasonably necessary (not to exceed 180 days), provided that Tenant has commenced to cure such default within said period of thirty (30) days and is actively, diligently and in good faith
proceeding with continuity to remedy such default; (iii) Tenant shall (A) voluntarily be adjudicated a bankrupt or insolvent, (B) voluntarily consent to the appointment of a receiver or trustee for itself or for the Leased Premises, (C) voluntarily
file a petition seeking relief under the bankruptcy or other similar laws of the United States, any state or any jurisdiction, (D) voluntarily file a general assignment for the benefit of creditors, (E) be the subject of an involuntary case or
proceeding against Tenant of the nature referred to in the foregoing subclauses of this clause (iii) which remains undismissed for more than ninety (90) days or (F) generally not pay its debts as they become due or declare that it will
generally be unable to pay its debts as they become due; (iv) a court shall enter an order, judgment or decree appointing a receiver or trustee for Tenant or for the Leased Premises or approving a petition filed against Tenant which seeks relief
under the bankruptcy or other similar laws of the United States or any State or otherwise entering an order for relief in any such proceeding, and such order, judgment or decree shall remain in force, undischarged or unstayed, sixty (60) days after
it is entered; (v) Tenant shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; or (vi) the estate or interest of Tenant in the Leased Premises shall be levied
upon or attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall not be vacated or discharged within sixty (60) days after such levy or attachment.
“Expiration Date” shall mean the last day of the month in which the fifteenth (15th) anniversary of
the Closing Date occurs, unless the Closing Date is the first day of a calendar month, in which case the Expiration Date shall mean the last day of the calendar month immediately preceding the month in which the fifteenth (15th)
anniversary of the Closing Date occurs.
“Fair Rental Value” shall mean, at any time of determination, the then prevailing market rate for new leases
for buildings of comparable size, age, use, location and quality as the Leased Premises in its condition at such time of determination for a term equal to the then remaining scheduled Term.
“GAAP” shall mean generally accepted accounting principles, uniformly applied, as in effect from time to time
in the United States of America.
“Governmental Authority” shall mean any federal, state, county, municipal, foreign or other governmental or
regulatory authority, agency, board, body, instrumentality, court or quasi governmental authority (or private entity in lieu thereof).
“Hazardous Materials” shall mean all chemicals, petroleum, crude oil or any fraction thereof, hydrocarbons,
polychlorinated biphenyls (PCBs), asbestos, asbestos-containing materials and/or products, urea formaldehyde, or any substances which are classified as “hazardous” or “toxic” under CERCLA; hazardous waste as defined under the Solid Waste Disposal
Act, as amended 42 U.S.C. § 6901; air pollutants regulated under the Clean Air Act, as amended, 42 U.S.C. § 7401, et seq.; pollutants as defined under the Clean Water Act, as amended, 33 U.S.C. § 1251, et seq., any pesticide as defined by Federal
Insecticide, Fungicide, and Rodenticide Act, as amended, 7 U.S.C. § 136, et seq., any hazardous chemical substance or mixture or imminently hazardous substance or mixture regulated by the Toxic Substances Control Act, as amended, 15 U.S.C. § 2601, et
seq., any substance listed in the United States Department of Transportation Table at 45 CFR 172.101; any chemicals included in regulations promulgated under the above listed statutes or any similar federal or state statutes relating to the
environment, human health or natural resources; any explosives, radioactive material, and any chemical regulated by state statutes similar to the federal statutes listed above and regulations promulgated under such state statutes.
“Imposition” or “Impositions” shall mean, collectively, all Taxes of every kind and nature on or with
respect to the Leased Premises or the Basic Rent or Additional Rent, or the use, lease, ownership or operation thereof; all charges, fees, expenses and/or taxes for or under any Record Agreement or other agreement maintained for the benefit of the
Leased Premises; all general and special assessments, levies, permits, inspection and license fees on or with respect to the Leased Premises; all water and sewer rents and other utility charges on or with respect to the Leased Premises; all ground
rents on or with respect to the Leased Premises, if any; all common area maintenance fees, if any, applicable to the Leased Premises, and all other public charges and/or taxes whether of a like or different nature, even if unforeseen or
extraordinary, imposed or assessed upon or with respect to the Leased Premises, prior to or during the Term, against Landlord, Tenant or the Leased Premises as a result of or arising in respect of the occupancy, leasing, use, maintenance, operation,
management, repair or possession thereof, or any activity conducted on the Leased Premises, or the Basic Rent or Additional Rent, including without limitation, any sales tax, occupancy tax, rent tax or excise tax levied by any governmental body on or
with respect to such Basic Rent or Additional Rent; all payments required to be made to a governmental or quasi-governmental authority (or private entity in lieu thereof) that are in lieu of any of the foregoing, whether or not expressly so
designated; and any penalties, fines, additions or interest thereon or additions thereto, provided that the term “Impositions” shall exclude any federal, state or local (A) transfer taxes as the result of a conveyance by (or suffered by)
Landlord to any Person other than (1) Tenant or a person designated by Tenant or (2) as a result of an Event of Default, (B) franchise, capital stock, gross income taxes that are in the nature of franchise or capital stock taxes or similar taxes, if
any, of Landlord, except to the extent such franchise, capital stock or similar taxes would not have been payable by Landlord but for the ownership by Landlord of the Leased Premises, (C) income, excess profits or other taxes, if any, of Landlord,
determined on the basis of or measured by its net income, (D) estate, inheritance, succession, gift, capital levy or similar taxes of Landlord, or (E) Tax that would not have been imposed but for the failure of an Indemnitee to comply with
certification, information, documentation or other reporting requirements applicable to such Indemnitee and for which Tenant is not responsible under this Lease, if compliance with such requirements is required by statute or regulation of the
relevant taxing authority as a precondition to relief or exemption from such Tax.
“Improvements” shall mean, collectively, the buildings, structures and other improvements on the Land.
“Indemnitee” shall mean Landlord, each Lender, the Trustee, any trustee under a Mortgage which is a deed of
trust, each of their assignees or other transferees and each of their Affiliates and their respective officers, directors, employees, shareholders, members or other equity owners.
“Initial Term” shall mean the period of time commencing on the Closing Date and terminating on the Expiration
Date.
“Insurance Expiration Date” shall mean, with respect to an insurance policy, the date that such insurance
policy will expire.
“Insurance Requirements” shall mean, as the case may be, any one or more of the terms of each insurance policy
required to be carried by Tenant under this Lease and the requirements of the issuer of such policy.
“Land” shall mean the lot(s) or parcel(s) of land described in Exhibit A attached to this Lease and
made a part hereof, together with the easements, rights and appurtenances thereunto belonging or appertaining.
“Landlord” shall mean HF Coppel TX Landlord, LLC, a Delaware limited liability company.
“Leased Premises” shall mean, collectively, the Land, the Improvements and the Equipment, together with any
and all other property and interest in property conveyed to Landlord pursuant to the deeds, bills of sale or other documents executed in connection with the purchase of the Land, the Improvements and the Equipment by Landlord.
“Legal Requirement” or “Legal Requirements” shall mean, as the case may be, any one or more of all
present and future laws, codes, ordinances, orders, judgments, decrees, injunctions, rules, regulations and requirements, even if unforeseen or extraordinary, of every duly constituted governmental authority or agency and all covenants, restrictions
and conditions now of record which may be applicable to Tenant, Landlord (with respect to the Leased Premises) or to all or any part of or interest in the Leased Premises, or to the use, manner of use, occupancy, possession, operation, maintenance,
alteration, repair or reconstruction of the Leased Premises, even if compliance therewith (i) necessitates structural changes or improvements (including changes required to comply with the Americans with Disabilities Act) or results in interference
with the use or enjoyment of the Leased Premises or (ii) requires Tenant to carry insurance other than as specifically required by the provisions of this Lease.
“Lender” or “Lenders” shall mean, collectively, the Trustee and each financial institution or other
Person that makes a Loan to Landlord, secured, directly or indirectly, by a Mortgage and evidenced by a Note or which is the holder of the Mortgage and a Note, or an interest therein, as a result of an assignment thereof or otherwise.
“Lien” or “Liens” shall mean any lien, mortgage, pledge, charge, security interest or encumbrance of
any kind, or any type of preferential arrangement that has the practical effect of creating a security interest, including, without limitation, any thereof arising under any conditional sale agreement, capital lease or other title retention
agreement.
“Loan” shall mean a loan made by a Lender to Landlord secured by a Mortgage and evidenced by a Note.
“Make-Whole Premium” means any make-whole premium, prepayment amount, termination fee or similar amount or
charge payable by Landlord in connection with the early payment, in whole or in part, of any Note.
“Mortgage” shall mean a mortgage, deed of trust or similar security instrument hereafter executed covering the
Leased Premises from Landlord to secure the repayment of a Loan.
“Net Award” shall mean the entire award payable to Landlord or the Trustee by reason of a Condemnation, less
any reasonable expenses incurred by Landlord or the Trustee in collecting such award.
“Net Proceeds” shall mean the entire proceeds of any insurance required under clause (i), (iv),
or (vi) of Section 14(a) of this Lease, less any actual and reasonable expenses incurred by Tenant, Landlord or Trustee in collecting such proceeds.
“Note” or “Notes” shall mean a promissory note or notes executed from Landlord to a Lender, which note
or notes is secured by a Mortgage.
“Permitted Encumbrances” shall mean: (A) those covenants, restrictions, reservations, Liens, conditions,
encroachments, easements and other matters of title that affect the Leased Premises: (i) as of the Closing Date; or (ii) arising after the Closing Date that: (a) individually or in the aggregate, do not materially detract from the value or
marketability, or impair in any material manner the use, of the Leased Premises; or (b) arise or are created by municipal and zoning ordinances; and (B) current taxes and assessments not yet due and payable or being contested in accordance with the
provisions of Section 18.
“Permitted Investments” means (i) marketable direct obligations issued or unconditionally guaranteed by the
United States of America or issued by any agency thereof and backed by the full faith and credit of the United States of America, in each case maturing within six (6) months from the date of acquisition thereof, and (ii) marketable general
obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within six (6) months from the date of acquisition thereof and, at the time of acquisition,
having one of the two highest ratings generally obtainable from either Standard & Poor's Corporation or Moody's Investors Service, Inc.
“Person” shall mean an individual, corporation, partnership, joint venture, association, joint-stock company,
trust, limited liability company, non-incorporated organization or government or any agency or political subdivision thereof.
“Prime Rate” shall mean the prime rate of interest published in The Wall Street Journal
or its successor, from time to time.
“Record Agreement” shall mean an easement agreement, restrictive covenant, declaration, right-of-way or any
other agreement or document of record now or hereafter affecting the Leased Premises, including each Permitted Encumbrance for as long as it is in effect.
“Release” shall mean the release of any Hazardous Materials into or upon any land or water or air, or
otherwise into the environment, including, without limitation, by means of burial, disposal, discharge, emission, injection, spillage, leakage, seepage, leaching, dumping, pumping, escaping, emptying, placement and the like.
“Renewal Option Notice” shall mean a written notice from Tenant to Landlord of its election to extend the Term
(or any then Renewal Term) of this Lease pursuant to Section 5 of this Lease.
“Renewal Term” shall mean an additional Lease term of five (5) years.
“Replaced Equipment” shall mean Equipment that has been replaced by Tenant with Replacement Equipment.
“Replacement Equipment” shall mean operational equipment or other parts used by Tenant to replace any of the
Equipment.
“Requisition” shall mean any temporary condemnation or confiscation of the use or occupancy of the Leased
Premises by any Governmental Authority, civil or military, whether pursuant to an agreement with such Governmental Authority in settlement of or under threat of any such requisition or confiscation, or otherwise.
“Restoration” shall mean, following a casualty or Condemnation, the restoration of the Leased Premises to as
nearly as possible its value, condition and character immediately prior to such casualty or Condemnation (assuming that the Leased Premises has been maintained to no lesser standard than that required under this Lease), in accordance with the
provisions of this Lease, including but not limited to the provisions of Sections 11(a), 12 and 15.
“Restoration Award” shall mean that portion of the Net Award equal to the cost of Restoration.
“Restoration Fund” shall mean, collectively, the Net Proceeds, Restoration Award and Tenant’s Insurance
Payment.
“SEC” means the Securities and Exchange Commission.
“State” shall mean the State or Commonwealth in which the Leased Premises is situated.
“Structural Alteration” shall mean an Alteration that (i) will result in a change in the footprint of the
Improvements, (ii) involves the addition of one or more floors to the Improvements, (iii) materially adversely affects the structural elements or any exterior walls of the Improvements, or involves the removal or relocation of any exterior walls of
the Improvements, (iv) decreases the rentable square footage of the Leased Premises other than to a de minimis extent or (v) materially adversely affects the proper functioning and/or capacity of the building systems in the Improvements.
“Taking” shall mean any taking of the Leased Premises, or any portion thereof, in or by condemnation or other
eminent domain proceedings pursuant to any law, general or special, or by reason of any agreement with any condemnor in settlement of or under threat of any such condemnation or other eminent domain proceedings or by any other means, or any de facto
condemnation.
“Tax” or “Taxes” shall mean the following present and future taxes, including income (gross or net),
gross or net receipts, sales, use, leasing, value added, franchise, doing business, transfer, capital, property (tangible or intangible), ad valorem, municipal assessments, rent, excise and stamp taxes, levies, imposts, duties, charges, assessments
or withholding, together with any penalties, fines, additions or interest thereon or additions thereto (any of the forgoing being referred to herein individually as a “Tax”), imposed by any Governmental Authority. Taxes shall include the
costs of any contest or appeal pursued which reduces the Taxes (or attempts to do so), including reasonable attorneys’ fees and costs incident thereto. Without limiting the foregoing, if at any time during the term of this Lease the methods of
taxation prevailing at the execution hereof shall be changed or altered so that in lieu of or as a supplement or addition to or a substitute for the whole or any part of the real estate taxes or assessments now or from time to time thereafter levied,
assessed or imposed by applicable taxing authorities for the funding of governmental services, there shall be imposed (i) a tax, assessment, levy, imposition or charge, wholly or partially as a capital levy or otherwise, on the gross rents received
or otherwise attributable to the Leased Premises, or (ii) a tax, assessment, levy (including but not limited to any municipal, state or federal levy), imposition or charge measured by or based in whole or in part upon the Leased Premises or this
Lease, and imposed on the Landlord under this Lease or any portion thereof, or (iii) a license fee or other fee or tax measured by the gross rent payable under this Lease, or (iv) any other tax, assessment, levy, charge, fee or the like payable with
respect to the Leased Premises, the rents, issues and profits thereof, then all such taxes, assessments, levies, impositions and/or charges, or the part thereof so measured or based, shall be deemed to be Taxes.
“Tenant” shall mean Haverty Furniture Companies, Inc., a Maryland corporation.
“Tenant’s Award” shall mean, to the extent Tenant shall have a right to make a separate claim therefor against
the condemnor, any award or payment (in connection with a Condemnation) for Tenant’s leasehold interest hereunder, relocation assistance available to Tenant under federal or state law including, but not limited to, on account of Trade Fixtures,
Tenant’s moving expenses and Tenant’s out-of-pocket expenses incidental to the move, if available.
“Tenant’s Insurance Payment” shall mean, in the event of damage or destruction, the amount of the proceeds
that would have been payable under the third-party insurance required to be maintained pursuant to Section 14(a)(i), (iv) or (vi) had such insurance program been in effect.
“Tenant’s Termination Notice” shall mean a written notice from Tenant to Landlord of Tenant’s intention to
terminate this Lease in accordance with Section 13 or 14 of this Lease, which notice shall set forth the Termination Date.
“Term” shall mean the Initial Term, together with any Renewal Term.
“Termination Date” shall mean the date for the termination of this Lease pursuant to Tenant’s Termination
Notice, which date shall be on a Basic Rent Payment Date occurring no sooner than thirty (30) days after the date of such Tenant’s Termination Notice.
“Threshold Amount” shall mean $750,000.
“Trade Fixtures” shall mean all furniture, fixtures, equipment and other items of personal property (whether
or not attached to the Improvements) that are owned by Tenant and used in connection with the operation of the business conducted on the Leased Premises, that are not necessary for the operation of the Leased Premises and that have not been financed
or funded by Landlord.
“Trustee” shall mean any trustee for the benefit of lenders providing financing to Landlord in connection with
the Leased Premises, and any successor thereto. If no Notes are outstanding as of any date of determination, each reference to the Trustee in this Lease shall be inapplicable, and any payments to be made, or notices or consents to be given, to or by
the Trustee shall be paid or given, as the case may be, to or by Landlord, acting singly.
“Warranties” shall mean all warranties, guaranties and indemnities, express or implied, and similar rights
which Landlord may have against any manufacturer, seller, engineer, contractor or builder in respect of the Leased Premises, including, but not limited to, any rights and remedies existing under contract or pursuant to the Uniform Commercial Code.
EXHIBIT 10.4
LEASE AGREEMENT
Dated as of May 18, 2020
between
HAVERTY FURNITURE COMPANIES, INC.,
as the Tenant
as the Tenant
and
HF LAKELAND FL LANDLORD, LLC,
as the Landlord
as the Landlord
_________________________________________________________________________
TABLE OF CONTENTS
|
1.
|
Certain Definitions
|
1
|
|
|
2.
|
Demise of Leased Premises
|
1
|
|
|
3.
|
Title and Condition
|
1
|
|
|
4.
|
Use of Leased Properties; Quiet Enjoyment
|
3
|
|
|
5.
|
Term
|
3
|
|
|
6.
|
Rent
|
4
|
|
|
7.
|
Net Lease; Non-Terminability
|
5
|
|
|
8.
|
Payment of Impositions; Compliance with Legal Requirements and Insurance Requirements
|
6
|
|
|
9.
|
Liens; Recording and Title
|
7
|
|
|
10.
|
Indemnification
|
8
|
|
|
11.
|
Maintenance and Repair
|
10
|
|
|
12.
|
Alterations
|
11
|
|
|
13.
|
Condemnation
|
12
|
|
|
14.
|
Insurance
|
13
|
|
|
15.
|
Restoration
|
16
|
|
|
16.
|
Subordination to Financing
|
18
|
|
|
17.
|
Assignment, Subleasing
|
19
|
|
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18.
|
Permitted Contests
|
20
|
|
|
19.
|
Conditional Limitations; Default Provisions
|
21
|
|
|
20.
|
Additional Rights of Landlord and Tenant
|
23
|
|
|
21.
|
Notices
|
24
|
|
|
22.
|
Estoppel Certificates
|
25
|
|
|
23.
|
Surrender and Holding Over
|
25
|
|
|
24.
|
No Merger of Title
|
26
|
|
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25.
|
Definition of Landlord
|
26
|
|
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26.
|
Hazardous Materials
|
27
|
|
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27.
|
Entry by Landlord
|
27
|
|
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28.
|
No Usury
|
27
|
|
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29.
|
Financial Statements
|
28
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|
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30.
|
Separability
|
28
|
|
|
31.
|
Right of First Refusal
|
28
|
|
|
32.
|
Miscellaneous
|
29
|
EXHIBIT A Legal Description
EXHIBIT B Basic Rent
EXHIBIT C Form of Subordination, Non-Disturbance and Attornment
Agreement*
EXHIBIT D Form of Estoppel Certificate*
EXHIBIT E Form of Landlord’s Waiver and Consent*
APPENDIX A Definitions
* Certain exhibits or schedules and annexes to this exhibit have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted exhibits, schedule and/or annex will be furnished to the U.S. Securities and Exchange Commission or its staff upon request.
LEASE AGREEMENT
THIS LEASE AGREEMENT (as amended, supplemented or otherwise modified from time to time, this “Lease”) made as
of May 18, 2020, by and between HF LAKELAND FL LANDLORD, LLC, a Delaware limited liability company, as landlord, and HAVERTY FURNITURE COMPANIES, INC., a Maryland corporation, as tenant.
In consideration of the rents and provisions herein stipulated to be paid and performed, Landlord and Tenant,
intending to be legally bound, hereby covenant and agree as follows:
1. Certain Definitions. All capitalized terms, unless otherwise defined herein, shall have the respective meanings ascribed to such terms in Appendix A annexed hereto and by this reference
incorporated herein.
2. Demise of Leased Premises.
Landlord hereby demises and lets to Tenant and Tenant hereby takes and leases from Landlord, for the term and upon the provisions hereinafter specified, the Leased Premises.
3. Title and Condition.
(a) The Leased Premises are demised and let subject to (i) the Permitted Encumbrances and (ii) the condition of the Leased
Premises as of the Closing Date, without representation or warranty by Landlord; it being understood and agreed, however, that the recital of the Permitted Encumbrances herein shall not be construed as a revival of any thereof which for any reason
may have expired or which may hereafter expire.
(b) LANDLORD LEASES AND WILL LEASE, AND TENANT TAKES AND WILL TAKE, THE LEASED PREMISES “AS IS”, AND TENANT ACKNOWLEDGES THAT
LANDLORD (WHETHER ACTING AS LANDLORD HEREUNDER OR IN ANY OTHER CAPACITY) HAS NOT MADE AND WILL NOT MAKE, NOR SHALL LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PREMISES, INCLUDING
ANY WARRANTY OR REPRESENTATION AS TO ITS FITNESS FOR ANY PARTICULAR USE OR PURPOSE, AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, LATENT OR PATENT, AS TO LANDLORD’S TITLE THERETO, OR AS TO VALUE, COMPLIANCE WITH SPECIFICATIONS, DESIGN,
LOCATION, USE, OPERATION, CONDITION, MERCHANTABILITY, QUALITY, DESCRIPTION, DURABILITY, ENVIRONMENTAL OR SOIL CONDITION OR AVAILABILITY OF UTILITIES, IT BEING AGREED THAT ALL RISKS INCIDENT TO ANY OF THE FOREGOING ARE TO BE BORNE BY TENANT. Tenant
acknowledges and agrees that (i) the Leased Premises are of its selection and to its specifications, (ii) the Leased Premises have been inspected by Tenant and are satisfactory to it and (iii) Tenant has examined the title to the Leased Premises
prior to the execution and delivery of this Lease and has found such title to be satisfactory for the purposes contemplated by this Lease. In the event of any defect or deficiency in the Leased Premises of any nature, whether patent or latent,
Landlord shall not have any responsibility or liability with respect thereto (including strict liability in tort). The provisions of this Section 3(b) have been negotiated, and the foregoing provisions are intended to be a complete exclusion and
negation of any warranties by Landlord, express or implied, with respect to the Leased Premises, arising pursuant to the Uniform Commercial Code or any other law now or hereafter in effect or otherwise.
(c) Subject to Section 27 and so long as no Event of Default has occurred and is continuing, Landlord agrees that
during the Term, Tenant shall have sole and exclusive possession of the Leased Premises, and Landlord agrees that during the Term of this Lease, without Tenant’s prior written consent (i) no other improvements may be constructed by Landlord within
or on the Leased Premises, and (ii) Landlord shall not grant to any Person the right to lease, enter upon or use or occupy any portion of the Leased Premises during the Term other than Tenant and its contractors, employees, customers and invitees.
(d) If as of the Closing Date there are any contracts, escrow agreements, declarations, easements, or other agreements,
arrangements or documents of any kind relating to the Leased Premises or binding upon or inuring to the benefit of the owner of the Leased Premises providing for any obligations, payments, receipts, rights, credits or benefits that would have been
binding upon or would have inured to the benefit of Tenant or any Affiliate thereof but for the sale of the Leased Premises to Landlord, then Tenant shall timely perform and pay such obligations and Tenant shall be entitled to the receipts, rights,
and benefits in connection therewith to the extent that such performance is required or the benefits are receivable during the Term, it being understood that the foregoing provision shall not apply to any tax benefits,
including any depreciation, to which the owner of the Leased Premises is entitled.
(e) Landlord hereby assigns, without recourse or warranty whatsoever, to Tenant, all Warranties, if any. Such assignment
shall remain in effect until the termination of this Lease, provided that Landlord shall retain the right to enforce the Warranties in the name of Tenant during the continuance of an Event of Default. Any monies collected by Tenant (net of
reasonable out-of-pocket collection expenses) under any of the Warranties during the continuation of an Event of Default shall be held in trust by Tenant and promptly paid over to Landlord. Landlord hereby agrees to execute and deliver, at
Tenant’s expense, such further documents, including powers of attorney, as Tenant may reasonably request in order that Tenant may have the full benefit of the assignment effected by this Section 3(c). Upon the termination of this Lease, the
Warranties shall automatically revert to Landlord. The foregoing provision of reversion shall be self-operative and no further instrument of reassignment shall be required, provided that, in confirmation of such reassignment, Tenant shall
promptly execute and deliver any commercially reasonable instrument which Landlord may request.
(f) Landlord agrees to enter into, at Tenant’s expense, such Record Agreements as reasonably requested by Tenant, subject to
Landlord’s approval of the form thereof, not to be unreasonably withheld; provided, however, that no such Record Agreement shall (i) result in any material diminution in the value or utility of the Leased Premises for use as a distribution center
(a “Facility”) or (ii) render the use of the Leased Premises dependent upon any other property or condition or materially affect Tenant’s obligations under this Lease.
4. Use of Leased Premises; Quiet Enjoyment.
(a) Tenant may use the Leased Premises as a Facility or for any other lawful purpose, so long as such other lawful purpose
would not (i) in Landlord’s reasonable determination, have a material adverse effect on the value of the Leased Premises, (ii) materially increase (when compared to use as a Facility) the likelihood that Tenant or Landlord would incur material
liability under any provisions of any Environmental Laws, or (iii) subject Landlord to any burdensome regulation. Tenant shall, at its expense, timely observe, perform, comply with, make any payments required under, and carry out the provisions
of, each Record Agreement required therein to be observed and performed by the owner, operator or occupant of the Leased Premises during the Term, including, without limitation, paying any and all assessments for common area maintenance costs.
(b) Tenant, either itself or through one or more subtenants, shall continue to operate and occupy the Leased Premises during
the Term, except during any restoration of the Leased Premises after a casualty or Condemnation or during any remodeling or construction of Alterations permitted under this Lease, and subject to Force Majeure.
(c) Tenant shall not permit any unlawful occupation, business or trade to be conducted on the Leased Premises or any use to be
made thereof contrary to any applicable Legal Requirements or Insurance Requirements or the provisions of any Record Agreement. Tenant shall not use, occupy or permit the Leased Premises to be used or occupied, nor do or permit anything to be done
in or on the Leased Premises, in a manner that would (i) make void or voidable any insurance that Tenant is required hereunder to maintain in force, (ii) affect the ability of Tenant to obtain any insurance which Tenant is required to furnish
hereunder, or (iii) cause any material injury or damage to any of the Improvements, except in connection with Alterations permitted under Section 12.
(d) So long as no Event of Default exists hereunder and remains uncured and subject to the provisions of Section 27,
Landlord covenants that neither Landlord, nor any Person claiming by, through or under Landlord, shall do any act to disturb the peaceful and quiet occupation and enjoyment of the Leased Premises by Tenant.
5. Term
(a) Subject to the provisions hereof, Tenant shall have and hold the Leased Premises for an initial term commencing on the
date hereof and ending on the Expiration Date.
(b) Provided (i) this Lease shall not have been terminated pursuant to the provisions of Section 13(b) or 19
and (ii) no Event of Default has occurred and remains uncured, in each case on the date of its Renewal Option Notice or on the Expiration Date (or the expiration date of the then expiring Renewal Term, as applicable), Tenant shall have four (4)
consecutive options to extend the term of this Lease for a Renewal Term, commencing upon the day after the Expiration Date (or the expiration date of the then expiring Renewal Term, as applicable). If Tenant elects to exercise any one or more of
said renewal options, it shall do so by giving a Renewal Option Notice to Landlord at any time during the Term (or the then Renewal Term, as applicable) but, in any event, on or before that date which is twelve (12) months prior to the commencement
of the Renewal Term for which such election is exercised (each, a “Renewal Term Exercise Deadline”); provided, however, if Tenant has not elected to exercise the then-applicable renewal option on or before the Renewal Term
Exercise Deadline, such Renewal Term Exercise Deadline shall be extended to the date that is thirty (30) days after that date Landlord gives Tenant written notice of such failure and of Tenant’s right to extend the Term of this Lease, which notice
shall state conspicuously in all caps and bold font at the top of the page that “FAILURE TO RESPOND MAY RESULT IN TENANT’S FORFEITURE OF ITS LEASE RENEWAL OPTION.” If Tenant has not provided the notice for
the exercise of a Renewal Term within thirty (30) days following delivery of notice to Tenant as set forth in the previous sentence, then Tenant shall forever waive its right to exercise such renewal option and any subsequent renewal option. If
Tenant shall elect to exercise any such renewal option, the term of this Lease shall be automatically extended for five (5) years without the execution of an extension or renewal lease. Any Renewal Term shall be subject to all of the provisions of
this Lease, including, but not limited to, the Basic Rent provisions for such Renewal Term set forth on Exhibit B attached hereto, and all such provisions shall continue in full force and effect. Within ten (10) days after request by
either Landlord or Tenant, Landlord and Tenant shall execute, acknowledge and deliver to each other an instrument confirming that such option has been effectively exercised and confirming the extended expiration date of this Lease and the then
applicable Basic Rent.
6. Rent.
(a) Tenant shall pay to Landlord, as rent for the Leased Premises during the Term, on the Closing Date (if the Closing Date
occurs after the tenth (10th) day of the calendar month in which the Closing Date occurs) and on each Basic Rent Payment Date occurring after the Closing Date, the Basic Rent for the calendar month in which such Basic Rent Payment Date
occurs, and shall pay the same by ACH or wire transfer in immediately available federal funds, by 1:00 p.m., New York time on the date due, to such account in such bank as Landlord shall designate from time to time in writing. In the event that
the Closing Date is a date other than the first day of a calendar month, the Basic Rent due on the Closing Date (or on the tenth (10th) day of such calendar month if the Closing Date occurs prior to such tenth (10th) day)
shall be an amount equal to the amount of Basic Rent set forth on Exhibit B hereto for the first Basic Rent Payment Date, times 1/30, times the number of days from and including the Closing Date to and excluding the first
day of the following calendar month, and the Basic Rent due on the first Business Day of the month following the month in which the Closing Date occurs shall be the amount set forth on Exhibit B for the first Basic Rent Payment Date.
(b) Tenant shall pay and discharge, as Additional Rent, all other amounts and obligations which Tenant assumes or agrees to
pay or discharge pursuant to this Lease, together with every fine, penalty, interest and cost which may be added by the party to whom such payment is due for nonpayment or late payment thereof. Notwithstanding the foregoing, Tenant shall not be
required to pay any obligations Landlord may voluntarily elect to incur unless this Lease expressly requires or permits the incurring of such obligation or expressly requires Tenant to pay the same. All payments of Additional Rent that are payable
to Landlord shall be paid by Tenant by ACH or wire transfer in immediately available federal funds in the same manner as payments of Basic Rent in Section 6(a) (unless otherwise specified by Landlord to Tenant in writing).
(c) If any installment of Basic Rent or Additional Rent is not paid when the same is due, Tenant shall pay to Landlord, on
demand, as Additional Rent, interest on such installment from the date such installment was due to the date such installment is paid at the Default Rate, provided that the first such late installment in any calendar year shall not commence
to accrue such interest at the Default Rate until the date that is five (5) days after delivery to Tenant of written notice from Landlord that such installment has not been paid on time. In addition to the interest payable pursuant to the
foregoing sentence, to the extent Tenant fails to make a payment of Basic Rent or Additional Rent by the applicable due date more than two (2) times in any calendar year, any payment not received by the applicable due date after the second instance
of late payment in such calendar year shall incur a late charge in the amount of one percent (1%) of such late payment amount (except to the extent such late charge is prohibited by applicable law). Tenant and Landlord agree that this late charge
represents a reasonable sum (considering all of the circumstances existing on the date of the execution of this Lease) and a fair and reasonable estimate of the costs that Landlord will incur by reason of Tenant’s failure to pay such amounts on
time. Tenant and Landlord further agree that proof of actual damages would be costly and inconvenient. Acceptance of any late charge shall not constitute a waiver of the default with respect to the overdue Basic Rent or Additional Rent payment
and shall not prevent Landlord from exercising any of the other rights available under this Lease, except to the extent Tenant has cured such default by paying the overdue Basic Rent or Additional Rent in full.
(d) Landlord and Tenant agree that this Lease is a true lease and does not represent a financing arrangement. Each party
shall reflect the transactions represented by this Lease in all applicable books, records and reports (including, without limitation, income tax filings) in a manner consistent with “true lease” treatment rather than “financing” treatment.
7. Net Lease; Non-Terminability.
(a) Except as otherwise expressly provided in this Lease, this Lease shall not terminate and Tenant shall not have, and hereby
waives, any right to terminate this Lease during the Term. This is a net lease and, except as otherwise expressly provided in this Lease, Tenant shall not be entitled to, and hereby waives any right to, any setoff, counterclaim, recoupment,
abatement, suspension, deferment, diminution, deduction, reduction or defense of or to Basic Rent or Additional Rent, and the obligations of Tenant under this Lease shall not be affected by any circumstance or event, or for any reason, including
but not limited to the following: (i) any damage to or destruction of the Leased Premises by any cause whatsoever, (ii) any Condemnation, (iii) the prohibition, limitation or restriction of, or interference with, Tenant’s use of the Leased
Premises, (iv) any eviction by paramount title, constructive eviction or otherwise, (v) any default on the part of Landlord under this Lease or under any other agreement between Landlord and Tenant, (vii) any latent or other defect in, or any theft
or loss of, the Leased Premises, or (viii) any other cause, whether similar or dissimilar to the foregoing, any present or future Applicable Law to the contrary notwithstanding. This Lease is an absolute and unconditional obligation of Tenant, and
it is the intention of the parties hereto that the obligations of Tenant under this Lease shall be separate and independent covenants and agreements, and that Basic Rent and Additional Rent shall continue to be payable in all events (or, in lieu
thereof, Tenant shall pay amounts equal thereto), and that the obligations of Tenant under this Lease shall continue unaffected, unless expressly provided in this Lease to the contrary or unless this Lease shall have been terminated pursuant to an
express provision of this Lease. Notwithstanding the foregoing, Tenant shall have the right to pursue a cause of action against Landlord for actual damages resulting from Landlord’s default under this Lease or from the gross negligence or willful
misconduct of Landlord or its agents or employees, it being understood that Tenant shall have no right to set off any such damages against the Basic Rent or Additional Rent payable under this Lease.
(b) Tenant agrees that it shall remain obligated under this Lease in accordance with its provisions and that, except as
otherwise expressly provided herein, it shall not take any action to terminate, rescind or avoid this Lease, notwithstanding (i) the bankruptcy, insolvency, reorganization, composition, readjustment, liquidation, dissolution, winding-up or other
proceeding affecting Landlord, (ii) the exercise of any remedy, including foreclosure, under any Mortgage, or (iii) any action with respect to this Lease (including the disaffirmance hereof) which may be taken by Landlord under the Federal
Bankruptcy Code or by any trustee, receiver or liquidator of Landlord or by any court under the Federal Bankruptcy Code or otherwise, provided that if no Event of Default has occurred and is continuing, this Lease is terminated by Landlord,
or by any trustee, receiver, liquidator or court, under the Federal Bankruptcy Code and Tenant is dispossessed of the Leased Premises, Tenant shall have no obligation to pay Basic Rent or any other obligation under this Lease that accrues after
such termination and dispossession so long as Tenant has returned the Leased Premises in accordance with the terms of this Lease.
8. Payment of Impositions; Compliance with Legal Requirements and Insurance Requirements.
(a) (i) During the Term and subject to Tenant’s right to contest as set forth in Section 18, Tenant shall, before interest
or penalties are due thereon, pay directly to the applicable third party and discharge all Impositions. If received by Landlord, Landlord shall, within thirty (30) days of Landlord’s receipt thereof, but in any event at least five (5) Business
Days prior to the due date for the related Imposition (provided that Landlord has received such bill or invoice prior to seven (7) Business Days preceding such due date) deliver to Tenant any bill or invoice with respect to any Imposition. If
Landlord fails to timely deliver a bill or invoice for Impositions hereunder, Landlord shall be responsible for any penalties, late charges or other expenses incurred by Tenant if Tenant is unable to timely pay such Impositions as a result of such
delay. Tenant (and Landlord, if required) shall notify the applicable taxing authority that all invoices for property taxes and similar taxes should be sent directly to Tenant, to the extent permitted by Applicable Laws. Any payments required to
be made by Tenant pursuant to this Section 8 that are not allowed to be paid directly to the appropriate Governmental Authority or such other Person to whom such payment is due shall be made directly to Landlord and Landlord shall make such
payment to the appropriate Governmental Authority or other Person.
(ii) In the event that any assessment against the Leased Premises may be paid in installments, Tenant
shall have the option to pay such assessment in installments; and in such event, Tenant shall be liable only for those installments which become due and payable during the Term. Tenant shall prepare and file all tax reports required by
Governmental Authorities which relate to the Impositions. Tenant shall deliver to Landlord, (1) within ten (10) days after Landlord’s written request therefor, receipts for the payments of all property taxes related to the Leased Premises and (2)
within twenty (20) days after Landlord’s written request therefor, copies of all settlements and notices pertaining to the Impositions which may be issued by any Governmental Authority and receipts for payments of all other Impositions made during
each calendar year of the Term.
(b) Tenant shall promptly comply with and conform to all of the Legal Requirements and Insurance Requirements.
(c) If any report, return or statement (a “Filing”) is required to be filed with respect to any Imposition payable by
Tenant hereunder, Tenant shall, if permitted by Applicable Laws to do so, timely file or cause to be filed such Filing with respect to such Imposition and shall promptly, upon Landlord’s written request therefor, provide notice of such Filing to
Landlord (except for any such Filing that Landlord has notified Tenant in writing that Landlord intends to file) and will (if ownership of the Leased Premises or any part thereof or interest therein is required to be shown on such Filing) show the
ownership of the Leased Premises in the name of Landlord and send a copy of such Filing to Landlord. If Tenant is not permitted by Applicable Laws to file any such Filing, Tenant will promptly notify Landlord of such requirement and prepare and
deliver to Landlord a proposed form of such Filing and such information as is within Tenant’s reasonable control or access with respect to such Filing within a reasonable time, and in all events at least twenty (20) days, prior to the time such
Filing is required to be filed. Tenant shall hold Landlord harmless from and against any liabilities, including, but not limited to penalties, additions to tax, fines and interest, arising out of any insufficiency or inaccuracy in any such Filing,
if such insufficiency or inaccuracy is attributable to Tenant, it being understood that Tenant shall have no liability hereunder with respect to any failure of Landlord to timely file any Filing that Tenant has provided to
Landlord pursuant to the second sentence of this subsection (c) or for any insufficiency or inaccuracy in any Filing if such insufficiency or inaccuracy is attributable to Landlord.
(d) Notwithstanding anything herein to the contrary, any obligations of Tenant under the provisions of this Section 8
that accrue prior to the expiration or earlier termination of this Lease shall survive such expiration or earlier the termination of this Lease for a period of two (2) years.
9. Liens; Recording and Title.
(a) Subject to the Tenant’s right to contest as set forth in Section 18, Tenant shall not, directly or
indirectly, create or permit to be created or to remain, and shall promptly discharge, any Lien on the Leased Premises, the Basic Rent or any Additional Rent, other than the Permitted Encumbrances and any mortgage, Lien or other charge created by
or resulting from any act of Landlord or those claiming by, through or under Landlord (except Tenant). Notice is hereby given that Landlord shall not be liable for any labor, services or materials furnished or to
be furnished to Tenant, or to anyone holding the Leased Premises through or under Tenant, and that no mechanic’s or other Liens for any such labor, services or materials shall attach to or affect the interest of Landlord in and to the Leased
Premises.
(b) Each of Landlord and Tenant shall execute, acknowledge and deliver to the other a written Memorandum of this Lease to be
recorded in the appropriate land records of the jurisdiction in which the Leased Premises is located, in order to give public notice and protect the validity of this Lease. In the event of any discrepancy between the provisions of such recorded
Memorandum of this Lease and the provisions of this Lease, the provisions of this Lease shall prevail.
(c) Nothing in this Lease and no action or inaction by Landlord shall be deemed or construed to mean that Landlord has granted
to Tenant any right, power or permission to do any act or to make any agreement which may create, give rise to, or be the foundation for, any right, title, interest or Lien in or upon the estate of Landlord in the Leased Premises, other than an
assignment or a sublease, in either case, as permitted under the provisions of Section 17.
10. Indemnification.
(a) Subject to Section 10(e) below, Tenant agrees to assume liability for, and to indemnify, protect, defend, save and
keep harmless each Indemnitee from and against any and all Claims, whether asserted prior to, during or after the Term, that may be suffered, imposed on or asserted against any Indemnitee (including any Claims resulting from any Indemnitee’s
ordinary negligence) arising, directly or indirectly, out of (i) the operation, possession, use, leasing, sub-leasing, non‑use, maintenance, modification, alteration, construction, reconstruction, restoration, condition, design or replacement of
the Leased Premises (or any portion thereof), (ii) any Record Agreement, (iii) patent, trademark or copyright infringement and latent or other defects, whether or not discoverable, (iv) the non-compliance of the Leased Premises with Applicable Laws
and any other liability under Applicable Laws related to the Leased Premises or this Lease (including, without limitation, any Claims arising directly or indirectly out of any actual or alleged violation, now or hereafter existing, of any
Environmental Laws), (v) this Lease or any modification, amendment or supplement hereto, (vi) any default by Tenant under this Lease, (vii) the business and activities of Tenant or of any other Person on or about the Leased Premises (whether as an
invitee, subtenant, licensee, contractor, employee or otherwise), and (viii) the actual or alleged presence, use, storage, generation or Release of any Hazardous Materials on, under, from, to or at the Leased Premises or any portion thereof (or
any surrounding areas for which Tenant or Landlord has any legal liability or obligation), in each case whether prior to or during the Term, including the cost of assessment, containment and/or removal of any such Hazardous Materials, the cost of
any actions taken in response to a Release of any such Hazardous Materials so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and costs incurred to comply with
Environmental Laws in connection with all or any portion of the Leased Premises, or the operation thereof (or any surrounding areas for which Tenant or Landlord has any legal liability or obligation). Notwithstanding the foregoing, nothing herein
shall be construed to obligate Tenant to indemnify, defend and hold harmless any Indemnitee from and against any Claims imposed on or incurred by such Indemnitee to the extent such Claims arise by reason of (i) any Indemnitee’s willful misconduct
or gross negligence, (ii) any Liens and liabilities created by Landlord on the Leased Premises or that arise from Landlord’s failure to pay any Taxes, in each case for which Tenant is not responsible under this Lease, or (iii) events or
circumstances that occur after the expiration or termination of this Lease and the return of the Leased Premises in accordance with this Lease.
(b) In case any Claim shall be made or brought against any Indemnitee, such Indemnitee shall give prompt written notice
thereof to Tenant; provided that failure to so notify Tenant shall not reduce Tenant’s obligations to indemnify any Indemnitee hereunder except to the extent such failure adversely affects Tenant’s rights to defend such Claim. Tenant shall
be entitled, at its expense, acting through counsel selected by Tenant (and reasonably satisfactory to such Indemnitee), to assume and control the negotiation, litigation and/or settlement of any such Claim; if Tenant does not assume the
negotiation, litigation and settlement of such Claim, then Indemnitee may so assume such negotiation, litigation and settlement, at Tenant’s expense. Such Indemnitee may (but shall not be obligated to) participate at its own expense and with its
own counsel in any proceeding conducted by Tenant in accordance with the foregoing, in which case Tenant shall keep such Indemnitee and its counsel fully informed of all proceedings and filings. Notwithstanding the foregoing, Tenant shall not be
entitled to assume and control the defense of any Claim if (i) an Event of Default has occurred and is continuing, (ii) the proceeding involves possible imposition of any criminal liability or penalty or unindemnified civil penalty on such
Indemnitee, (iii) the proceeding involves the granting of injunctive relief against the Indemnitee not related to this Lease, (iv) a significant counterclaim is available to the Indemnitee that would not be available to and cannot be asserted by
Tenant or (v) Tenant has not acknowledged to such Indemnitee in writing that such Claim is fully covered by Tenant’s indemnity set forth herein.
(c) Upon payment in full of any Claim by Tenant pursuant to this Section 10 to or on behalf of an Indemnitee, Tenant,
without any further action, shall be subrogated to any and all Claims that such Indemnitee may have relating thereto (other than claims in respect of insurance policies maintained by such Indemnitee at its own expense or claims against another
Indemnitee for which Tenant would have indemnity obligations hereunder) to the extent of such payment, and such Indemnitee shall execute such instruments of assignment and conveyance and other documents as may be necessary to preserve any such
Claims and otherwise reasonably cooperate with Tenant to enable Tenant to pursue such Claims. In no event shall Tenant settle or compromise any Claim against any Indemnitee if such settlement or compromise does not contain a full release of such
Indemnitee or admits culpability on the part of such Indemnitee, unless such Indemnitee otherwise consents in writing.
(d) Subject to Section 10(e) below, Landlord agrees to assume liability for, and to indemnify, protect, defend, save
and keep harmless Tenant from and against all Claims, occurring during the Term, that may be suffered, imposed on or asserted against Tenant as a result of any failure on the part of Landlord to perform or comply with any of the terms of this Lease
after expiration of all applicable notice and cure periods hereunder, except to the extent any such Claims arise from, or are caused by, the gross negligence or willful misconduct of, or breach of this Lease by, Tenant.
(e) Notwithstanding anything to the contrary set forth in this Lease, to the fullest extent permitted by Law, neither Landlord
nor Tenant shall be liable (by way of subrogation or otherwise) to the other party (or to any insurance company insuring the other party) for any loss or damage to the property of the releasing party to the extent the loss or damage is paid by
insurance carried by the releasing party even though such loss might have been occasioned by the negligence or willful acts or omissions of the Landlord or Tenant or their respective employees, agents, contractors or invitees. Landlord and Tenant
shall give each insurance company which issues policies of insurance, with respect to the items covered by this waiver, written notice of the terms of this mutual waiver, and shall have such insurance policies properly endorsed, if necessary, to
prevent the invalidation of any of the coverage provided by such insurance policies by reason of such mutual waiver. Each party shall pay any additional expense, if any, for obtaining such waiver.
(f) The obligations of Tenant and Landlord under this Section 10 shall survive any termination or expiration of this
Lease.
11. Maintenance and Repair.
(a) Tenant shall at all times from and after the Closing Date, put, keep and maintain the Leased Premises (including, without
limitation, the roof, landscaping, walls, footings, foundations, parking areas, driveways and structural components of the Leased Premises) in the same (or better) condition and order of repair as exists as of the Closing Date, except for ordinary
wear and tear, and shall promptly make all repairs and replacements of every kind and nature, whether foreseen or unforeseen, which may be required to be made upon or in connection with the Leased Premises in order to keep and maintain the Leased
Premises in the order and condition required by this Section 11(a). Tenant shall do, or cause others to do, all shoring of the Leased Premises or of foundations and walls of the Improvements and every other act necessary or appropriate for
preservation and safety thereof, by reason of or in connection with any excavation or other building operation upon the Leased Premises, whether or not Landlord shall, by reason of any Legal Requirements or Insurance Requirements, be required to
take such action or be liable for failure to do so. LANDLORD SHALL NOT BE REQUIRED TO MAKE ANY REPAIR, WHETHER FORESEEN OR UNFORESEEN, OR TO MAINTAIN THE LEASED PREMISES OR ADJOINING PROPERTY IN ANY WAY, AND TENANT HEREBY EXPRESSLY WAIVES THE
RIGHT TO MAKE REPAIRS AT THE EXPENSE OF THE LANDLORD, WHICH RIGHT MAY BE PROVIDED FOR IN ANY LAW NOW OR HEREAFTER IN EFFECT. Nothing in the preceding sentence shall be deemed to preclude Tenant from being entitled to insurance proceeds or
condemnation awards for Restoration pursuant to Sections 13(c) and 14(g). Tenant shall, in all events, make all repairs for which it is responsible hereunder promptly (but in any event shall commence such repairs within thirty (30)
days of the date Tenant becomes aware that such repairs are necessary, or, in the event of a Restoration pursuant to Section 13(c) or 14(g), within thirty (30) days of the date insurance proceeds or a condemnation award has been
paid to the Trustee (it being understood that Tenant shall take such steps as are reasonably necessary to protect and preserve the integrity and safety of the Leased Premises pending such payment) and shall diligently pursue
such repairs to completion), and all repairs shall be made in a good, proper and workmanlike manner.
(b) In the event that any Improvement shall violate any Legal Requirements or Insurance Requirements, then Tenant, at the
written request of Landlord, shall either (i) obtain valid and effective variances, waivers or settlements of all claims, liabilities and damages resulting from each such violation, whether the same shall affect Landlord, Tenant or both (or in the
case of a violation of Insurance Requirements, obtain new coverage where there is no violation of any Insurance Requirements), or (ii) take such action as shall be necessary to remove such violation, including, if necessary, the making of an
Alteration. Any such repair or Alteration shall be made in conformity with the provisions of Section 12.
(c) If Tenant shall be in default under any of the provisions of this Section 11, Landlord may, thirty (30) days after
Tenant’s receipt of written notice of default and failure of Tenant to commence to cure during such period or to diligently pursue such cure to completion, but without notice in the event of an emergency, do whatever is necessary to cure such
default as may be appropriate under the circumstances for the account of, and at the expense of, Tenant. In the event of an emergency Landlord shall notify Tenant of the situation by phone or other available communication and shall give Tenant as
much time as is reasonably practicable (not to exceed thirty (30) days) before acting independently to cure such default. All reasonable sums so paid by Landlord and all reasonable out-of-pocket costs and expenses (including, without limitation,
attorneys’ fees and expenses) so incurred, together with interest thereon at the Default Rate from the date of payment or incurring the expense, shall constitute Additional Rent payable by Tenant under this Lease.
(d) Tenant shall from time to time replace with Replacement Equipment any of the Equipment that shall have become, in Tenant’s
commercially reasonable judgment , worn out or unusable for the purpose for which it is intended, been taken by a Condemnation as provided in Section 13, or been lost, stolen, damaged or destroyed as provided in Section 14. Tenant
shall repair at its sole cost and expense all damage to the Leased Premises caused by the removal of Equipment or other personal property of Tenant or the installation of Replacement Equipment. All Replacement Equipment (except for Trade Fixtures)
shall become the property of Landlord, shall be free and clear of all Liens and rights of others and shall become a part of the Equipment as if originally demised herein.
12. Alterations.
(a) Tenant shall have the right, without obtaining the consent of Landlord, to (i) make any Alteration(s) to the Leased
Premises that are not Structural Alterations and the cost of which does not exceed the Threshold Amount, in the aggregate, in any calendar year, and (ii) install additional and/or relocate existing racking and inline sprinkler systems in the Leased
Premises, the cost of which shall not be included when calculating the Threshold Amount for purposes of Tenant’s right to make any other Alterations; provided, in each case, that, Tenant complies with clause (c) of this Section
12. Promptly after written request by Landlord, given not more than once in any calendar year, Tenant shall provide to Landlord a list, in reasonable detail, of all of the material Alterations that Tenant has made since the date of the most
recent such list provided by Tenant to Landlord (or since the Closing Date in the case of the first such request).
(b) Upon at least 30 days’ prior written notice to Landlord, Tenant shall have the right to (i) make any Alteration(s) to the
Leased Premises that are Structural Alterations and/or the cost of which exceeds the Threshold Amount, in the aggregate, in any calendar year and (ii) to install solar panels on the roof of the Premises, the cost of which shall not be included when
calculating the Threshold Amount for purposes of Tenant’s right to make any other Alterations; provided, in each case that (A) no Event of Default has occurred and is then continuing, (B) Tenant complies with clause (c) of this Section
12, and (C) prior to making any such Alteration(s), Tenant shall provide Landlord with the plans and specifications, estimated budget and proposed schedule of construction with respect thereto and Landlord shall have consented to such
Alterations, which consent shall not be unreasonably withheld.
(c) In connection with any Alteration: (i) the structural integrity of the Leased Premises shall not be impaired, and the
fair market value of the Leased Premises shall not be materially lessened, after the completion of any such Alteration; (ii) all such Alterations shall be performed in a good and workmanlike manner, and shall be expeditiously completed in
compliance with all Legal Requirements and Insurance Requirements; (iii) no such Alteration shall cause the Leased Premises to fail to comply with Section 4, (iv) Tenant shall promptly pay all costs and expenses of any such Alteration and
shall discharge all Liens filed against the Leased Premises arising out of the same; (v) Tenant shall procure and pay for all permits and licenses required in connection with any such Alteration; (vi) Tenant shall not, without obtaining Landlord’s
prior consent (which consent may be granted or withheld in Landlord’s sole discretion), incur any debt with respect to such Alteration that results in any mortgage or other encumbrance on the Leased Premises or any part thereof, and (vii) in the
case of any Alteration the estimated cost of which in any one instance exceeds the Threshold Amount, such Alterations shall be made under the supervision of an architect or engineer and in accordance with plans and specifications which shall be
submitted to Landlord prior to the commencement of the Alterations. In particular, in the case of the installation of any solar panels on the roof, such installation shall not void or impair any then applicable roof warranty, unless Tenant
purchases or otherwise obtains an overburden or extended warranty in connection with such installation. In the event of any Structural Alterations which alter the footprint of the Improvements, promptly after Landlord’s request, upon completion of
such Alterations which alter the footprint of the Improvements, Tenant, at Tenant’s expense, shall deliver to Landlord an updated as-built ALTA survey of the Leased Premises certified to Landlord.
(d) All Alterations shall, upon the expiration or earlier termination of this Lease become the property of Landlord, without
any further act. To the extent permitted by the Code and by any applicable state tax laws and regulations, Tenant shall be entitled to the tax benefits, if any, with respect to any Alterations made by Tenant at Tenant’s expense until such time as
such Alterations become the property of Landlord pursuant to the foregoing sentence.
(e) In the event that Tenant desires to construct an Alteration that constitutes an Expansion, Tenant may request that
Landlord provide the funding for such Expansion. Landlord shall notify Tenant within thirty (30) days of receiving such request, the information with respect to the Expansion described in clause (C) of paragraph (b) above and such
other information with respect to the Expansion as Landlord shall reasonably request whether or not Landlord, in its sole discretion, is willing to provide such funding and, if so, the material terms and conditions, including the increase in Basic
Rent, that would be applicable thereto. In the event that Landlord declines to provide such funding, or Landlord and Tenant cannot reach agreement on the terms for such funding, Tenant may fund the cost of the Expansion itself provided that all of
the conditions for such Expansion set forth above, including Landlord’s consent thereto, have been satisfied, it being understood that any Expansion shall also constitute an Alteration and shall be subject to all of the provisions of this Section
12.
13. Condemnation.
(a) Each of Landlord and Tenant, promptly upon obtaining knowledge of the institution of any proceeding for Condemnation,
shall notify the other party thereof and each of Landlord and Tenant shall be entitled, at its sole cost and expense, to participate in any Condemnation proceeding. Subject to the provisions of this Section 13 and Section 15,
Tenant hereby irrevocably assigns to Landlord any award or payment in respect of any Condemnation of the Leased Premises or any part thereof, except that (except as hereinafter provided) nothing in this Lease shall be deemed to assign to Landlord
any Tenant’s Award to the extent Tenant shall have a right to make a separate claim therefor against the condemnor, it being agreed, however, that Tenant shall in no event be entitled to any payment that reduces the award to
which Landlord is or would be entitled for the condemnation of Landlord’s interest in the Leased Premises.
(b) If (I) the entire Leased Premises, (II) a material portion of the Land or the Improvements or any means of ingress, egress
or access to the Leased Premises, the loss of which even after restoration would, in Tenant’s reasonable business judgment, be substantially and materially adverse to the business operations of Tenant at the Leased Premises, or (III) any means of
ingress, egress or access to the Leased Premises which does not result in at least one method of ingress and egress to and from the Leased Premises remaining that is sufficient for Tenant’s use thereof and that meets all existing Legal
Requirements, as determined by Tenant in its reasonable discretion, shall be the subject of a Taking by a duly constituted authority or agency having jurisdiction, then Tenant may, not later than ninety (90) days after such Taking has occurred,
serve a Tenant’s Termination Notice upon Landlord, in which case this Lease shall terminate on the applicable Termination Date and Landlord shall be entitled to receive and retain the entire Net Award.
(c) (i) In the event of a Condemnation of any part of the Leased Premises which does not result in a termination of this Lease,
promptly after the Net Award with respect to such Condemnation has been paid by the related authority to the Trustee, Tenant, to the extent Restoration of the Leased Premises is practicable and subject to Section 13(c)(ii)and Section 15,
shall commence and diligently continue to completion such Restoration.
(ii) Upon the payment to the Trustee of the Net Award of a Taking which falls within the provisions of
this Section 13(c), the Trustee shall, to the extent received, make the Net Award available to Tenant for Restoration in accordance with the provisions of Section 15. The proceeds remaining after the completion of, and payment for,
the Restoration, if any, shall be retained by Landlord. In the event of any such partial Condemnation, all Basic Rent and Additional Rent shall continue unabated and unreduced.
(iii) In the event of a Requisition of the Leased Premises Landlord shall apply the Net Award of such
Requisition received by Landlord to the installments of Basic Rent or Additional Rent thereafter payable and Tenant shall pay any balance remaining thereafter. Upon the expiration of the Term, any portion of such Net Award which shall not have
been previously credited to Tenant on account of the Basic Rent and Additional Rent shall be retained by Landlord.
(d) No agreement with any condemnor in settlement of or under threat of any Condemnation shall be made by either Landlord or
Tenant without the written consent of the other, and of the Lenders, if the Leased Premises are then subject to a Mortgage, which consent shall not be unreasonably withheld, provided that if an Event of Default has occurred and is then
continuing or Tenant has served a Tenant’s Termination Notice, then Tenant’s consent shall not be required.
14. Insurance.
(a) Tenant shall maintain, during the Term at its sole cost and expense, the following insurance on the Leased Premises:
(i) Insurance against loss of or damage to the Improvements and the Equipment under an ISO special
form or broader coverage insurance policy, which shall include coverage against all risks of direct physical loss or damage (which shall include windstorm and earthquake insurance and flood insurance if the Leased Premises is located within either
a Special Flood Hazard Area or a Non-Special Flood Hazard Area as determined by FEMA flood zone ratings of A or V). Such insurance shall also include (A) ordinance and law coverage (hazards A, B and C, with limits for A of not less than
replacement cost and limits for B and C not less than $1,000,000 in the aggregate) and (B) a condition that permits the insured to elect to rebuild on another site (it being understood that Tenant may not rebuild at another
site without Landlord’s prior written approval, which approval shall not be unreasonably withheld, but which may be conditioned, among other things, on the fulfillment of certain reasonable conditions precedent). Such insurance shall be in amounts
sufficient to prevent Landlord or Tenant from becoming a co-insurer under the applicable policies, and in any event in amounts not less than the actual replacement cost of the Improvements and Equipment (excluding footings and foundations and other
parts of the Improvements that are not insurable). Such insurance policies may contain reasonable exclusions and deductible amounts, all in accordance with industry standards.
(ii) Commercial general liability insurance against claims for bodily injury, death or property damage
occurring on, in or about the Leased Premises, which insurance shall (A) be written on an “Occurrence Basis”, and shall provide minimum protection with a combined single limit in an amount not less than the greater of (x) $5,000,000 or (y) the
aggregate amount of such insurance carried by prudent owners or operators of similar commercial properties, for bodily injury, death and property damage in any one occurrence and (B) include premises and operations liability coverage, products and
completed operations liability coverage, and blanket contractual liability coverage. In addition, Tenant shall maintain auto liability insurance in an amount not less than $1,000,000.
(iii) Workers’ compensation insurance covering all persons employed by Tenant on the Leased Premises in
connection with any work done on or about the Leased Premises for which claims for death or bodily injury could be asserted against Landlord, Tenant or the Leased Premises.
(iv) Boiler and machinery coverage on a comprehensive form in an amount not less than the actual
replacement cost of the Improvements and Equipment (excluding footings and foundations and other parts of the Improvements which are not insurable).
(v) Business interruption insurance (A) covering all risks required to be covered by the insurance
provided for in subsection (i) above for a period commencing at the time of loss for such length of time as it takes to repair or replace with the exercise of due diligence, (B) containing an indemnity coverage extension which provides that
after the physical loss to the Leased Premises has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss or the expiration of twelve months, whichever occurs
first, and (C) in an amount not less than the amount carried by prudent owners or operators of similar properties.
(vi) Whenever Tenant shall be engaged in making any Alteration, repairs or construction work of any
kind (collectively, “Work”) for which the estimated cost exceeds the Threshold Amount, completed value builder’s risk insurance and worker’s compensation insurance or other adequate insurance coverage covering all persons employed in
connection with the Work, whether by Tenant, its contractors or subcontractors and with respect to whom death or bodily injury claims could be asserted against Landlord.
(vii) Such additional and/or other insurance with respect to the Leased Premises and in such amounts as
are reasonably requested by Landlord or a Lender.
(b) The insurance required by Section 14(a) shall be written by companies having an A.M. Best Insurance Reports rating
of not less than “A-” and a financial size category of at least “VIII”, and all such companies shall be authorized to do an insurance business in the State, or otherwise agreed to by Landlord. The insurance policies shall be in amounts sufficient
at all times to satisfy any coinsurance requirements thereof. The general liability insurance shall name Landlord, Tenant, and, if a Mortgage is then in effect, the Trustee and each Lender as additional insured parties, as their respective
interests may appear; the casualty insurance shall name Landlord (or, if directed by Landlord to Tenant, the Trustee) as loss payee. If said insurance or any part thereof shall expire, be withdrawn, become void by breach of any condition thereof
by Tenant or become void or unsafe by reason of the failure or impairment of the capital of any insurer, Tenant shall immediately obtain new or additional insurance reasonably satisfactory to Landlord and, if a Mortgage is then in place, the
Lenders.
(c) Each insurance policy referred to in clauses (i), (iv) and (vi) of Section 14(a), shall
contain standard non-contributory mortgagee clauses in favor of each Lender and the Trustee. Each of the policies required by Section 14(a) shall state that if at any time the policies are to be cancelled, or their coverage is to be
reduced (by any party including the insured), the insurer will endeavor to mail thirty (30) days’ (10 days’ in the event of non-payment of the premium) written notice to the additional insureds and/or loss payee named in such policies. Each policy
shall also provide that any losses otherwise payable thereunder shall be payable notwithstanding (i) any act, omission or neglect of Landlord, Tenant or any other Person which might, absent such provision, result in a forfeiture of all or a part of
such insurance payment, or (ii) the occupation or use of the Leased Premises for purposes more hazardous than permitted by the provisions of such policy. Tenant hereby waives any and every claim for recovery from the Lenders and Landlord, and
Landlord hereby waives any and every claim for recovery from Tenant, for any and all loss or damage covered by any of the insurance policies to be maintained under this Lease to the extent that such loss or damage is recovered by Tenant, Lenders or
Landlord, respectively, under any such policy. If the foregoing waiver will preclude the assignment of any such claim to the extent of such recovery, by subrogation (or otherwise), to an insurance company (or other person), Tenant (or other
appropriate party) shall give written notice of the terms of such waiver to each insurance company which has issued, or which may issue in the future, any such policy of insurance (if such notice is required by the insurance policy) and shall cause
each such insurance policy to be properly endorsed by the issuer thereof to, or to otherwise contain one or more provisions that, prevent the invalidation of the insurance coverage provided thereby by reason of such waiver.
(d) Tenant shall pay as they become due all premiums for the insurance required by this Section 14, shall renew or
replace each policy, and shall deliver to Landlord a certificate or other evidence (on an ACORD 28 (2003/10) form, in the case of property insurance, and on ACORD 25 (2001/08), in the case of liability insurance, and otherwise reasonably
satisfactory to Landlord) of the existing policy and such renewal or replacement policy at least two Business Days prior to the Insurance Expiration Date of each policy. In the event of Tenant’s failure to comply with any of the foregoing
requirements of this Section 14 within three (3) Business Days of the giving of written notice by Landlord to Tenant (or on the date any required insurance coverage will lapse, if sooner), Landlord shall be entitled to procure such
insurance. Any sums expended by Landlord in procuring such insurance shall be Additional Rent and shall be repaid by Tenant promptly upon written demand therefor by Landlord.
(e) Anything in this Section 14 to the contrary notwithstanding, any insurance which Tenant is required to obtain
pursuant to Section 14(a) may be carried under a “blanket” policy or policies covering other properties or liabilities of Tenant, provided that such “blanket” policy or policies otherwise comply with the provisions of this Section
14. In the event any such insurance is carried under a blanket policy, Tenant shall deliver to Landlord evidence of the issuance and effectiveness of the policy, the amount and character of the coverage with respect to the Leased Premises
and the presence in the policy of provisions of the character required in the above sections of this Section 14.
(f) In the event of any property loss (excluding, for the avoidance of doubt, Trade Fixtures) exceeding the Threshold Amount,
Tenant shall give Landlord prompt notice thereof. Tenant shall adjust, collect and compromise any and all claims, provided that Tenant will consult with and involve Landlord in the process of adjusting any insurance claims under this Section
14 and Landlord’s consent shall be required for any claim that exceeds the Threshold Amount, which consent will not be unreasonably withheld or delayed. If the estimated cost of Restoration or repair shall be an amount equal to the Threshold
Amount or less, all proceeds of any insurance required under clauses (i), (iv) and (v) of Section 14(a) shall be payable to Tenant. Except as expressly set forth below, in the event of any casualty (whether or not
insured against) resulting in damage to the Leased Premises or any part thereof, the Term shall nevertheless continue and there shall be no abatement or reduction of Basic Rent or Additional Rent. The Net Proceeds of all insurance payments for
property losses exceeding the Threshold Amount shall be paid to the Trustee, and the Trustee shall make the Net Proceeds available to Tenant for restoration in accordance with the provisions of Section 15. Subject to Section 14(g),
Tenant shall, whether or not the Net Proceeds are sufficient for the purpose, but provided that the Trustee makes such Net Proceeds available to Tenant, promptly and diligently repair or replace the Improvements and Equipment in accordance with the
provisions of Section 15. In the event that any damage or destruction shall occur at such time as Tenant shall not have maintained third-party insurance in accordance with Section 14(a)(i), (iv) and (vi), Tenant
shall pay to the Trustee Tenant’s Insurance Payment. Notwithstanding anything herein to the contrary, all proceeds of any business interruption insurance maintained by Tenant shall be payable directly to Tenant.
(g) If a casualty occurs during the last two (2) years of the Initial Term or during any Renewal Term and the cost of
Restoration with respect thereto exceeds sixty percent (60%) or more of the replacement cost of the Leased Premises, then Tenant may, at Tenant’s option, not later than ninety (90) days after such casualty has occurred, serve a Tenant’s Termination
Notice upon Landlord, in which case this Lease and the Term hereof shall terminate on the Termination Date specified in the Termination Notice; and in such event Tenant shall have no obligation to commence or complete the Restoration and all of the
insurance proceeds payable in connection with the casualty (other than Tenant’s business interruption insurance proceeds) shall be paid to, and Tenant shall pay the amount of any applicable deductible with respect to such casualty insurance to, the
Trustee.
15. Restoration. The Restoration Fund shall be disbursed by the Trustee in accordance with the following conditions:
(a) If the cost of Restoration will exceed the Threshold Amount, prior to commencement of the Restoration the architects,
general contractor(s), and plans and specifications for the Restoration shall be approved by Landlord, which approval shall not be unreasonably withheld, and which approval shall be granted to the extent that the plans and specifications depict a
Restoration which is substantially similar to the Improvements and Equipment which existed prior to the occurrence of the casualty or Taking, whichever is applicable. Landlord will not withhold its consent for variations to the Improvements
required as a result of then-current zoning and building code requirements.
(b) At the time of any disbursement, no Event of Default shall exist and no mechanics’ or materialmen’s Liens shall have been
filed and remain undischarged or unbonded or for which Tenant shall fail to provide affirmative title insurance coverage.
(c) Disbursements shall be made from time to time in an amount not exceeding the hard and soft cost of the work and costs
incurred since the last disbursement upon receipt of (1) reasonably satisfactory evidence, including architects’ certificates of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and
workmanlike manner in accordance with the contracts and the plans and specifications, (2) partial releases of Liens or conditional Lien waivers, and (3) other reasonable evidence of cost and payment so that Landlord can verify that the amounts
disbursed from time to time are represented by work that is completed in place or delivered to the site and free and clear of mechanics’ Lien claims.
(d) Each request for disbursement shall be sent by Tenant to Landlord and to the Trustee, accompanied by a certificate of
Tenant describing the work, materials or other costs or expenses for which payment is requested and stating (i) the cost incurred in connection therewith, (ii) that no Event of Default exists and no mechanics’ or materialmen’s Liens shall have been
filed and remain undischarged or unbonded, and (iii) that Tenant has not previously received payment for such work or expense; the certificate to be delivered by Tenant upon completion of the work shall, in addition, state that the work that is the
subject of the request for disbursement has been substantially completed and complies with the applicable requirements of this Lease. The Trustee shall not release funds from the Restoration Fund unless and until it has received a written
authorization from Landlord approving such release, which Landlord agrees to promptly give if Tenant has satisfied all of the requirements set forth in this Section 15 in connection with such release. If such proceeds are not made available
to Tenant despite Tenant’s compliance with such procedures, Tenant shall have no obligation to restore the Leased Premises until such time as such proceeds are made available to Tenant.
(e) The Trustee shall retain a commercially reasonable retainage amount (but in no event less than 5% of the expected repair
cost, other than general conditions) until the Restoration is 50% complete.
(f) The Restoration Fund shall be held by the Trustee and shall be invested in Permitted Investments as directed by Tenant.
All interest shall become a part of the Restoration Fund.
(g) At all times the undisbursed balance of the Restoration Fund held by the Trustee, plus any funds contributed thereto by
Tenant, at its option, shall be not less than the cost of completing the Restoration (as reasonably estimated by Tenant, provided that Tenant shall provide to Landlord the basis for such estimate, in reasonable detail, promptly after
Landlord’s written request therefor), free and clear of all Liens. Prior to commencement of Restoration and at any time during Restoration, if the estimated cost of Restoration, as reasonably determined by a contractor or architect mutually
selected by Landlord and Tenant, exceeds the amount of the Net Proceeds or the Net Award, as applicable, and Tenant’s Insurance Payment available for such Restoration, either, at Tenant’s option and determination, the amount of such excess shall be
paid by Tenant to the Trustee to be added to the Restoration Fund or Tenant shall fund at its own expense the costs of such Restoration until the remaining Restoration Fund is sufficient for the completion of the Restoration. Any sum in the
Restoration Fund which remains in the Restoration Fund upon the completion of Restoration with respect to a casualty shall be paid to Tenant; any portion of a Net Award remaining after completion of Restoration with respect to a Taking shall be
paid to Landlord.
16. Subordination to Financing.
(a) (i) Subject to the provisions of Section 16(a)(ii), Tenant agrees that this Lease shall at all times be subject and
subordinate to the Lien of the Mortgage, if any.
(ii) Except as expressly provided in this Lease by reason of the occurrence of an Event of Default, and
as a condition to the subordination described in Section 16(a)(i) above, Tenant’s tenancy and Tenant’s rights under this Lease shall not be disturbed, terminated or otherwise adversely affected, nor shall this Lease be affected, by the
existence of, or any default under, a Mortgage, and in the event of a foreclosure or other enforcement of a Mortgage, or sale in lieu thereof, the purchaser at such foreclosure sale shall be bound to Tenant for the Term of this Lease, the rights of
Tenant under this Lease shall expressly survive and this Lease shall in all respects continue in full force and effect so long as no Event of Default has occurred and is continuing. Tenant shall not be named as a party defendant in any such
foreclosure suit, except as may be required by law. Any Mortgage to which this Lease is now or hereafter subordinate shall provide, in effect, that during the time this Lease is in force and no Event of Default has occurred and is then continuing
hereunder, insurance proceeds and any condemnation award shall be disbursed pursuant to the provisions of this Lease.
(b) Notwithstanding the provisions of Section 16(a), the holder of the Mortgage to which this Lease is subject and
subordinate shall have the right, at its sole option, at any time, to subordinate and subject the Mortgage, in whole or in part, to this Lease by recording a unilateral declaration to such effect.
(c) At any time prior to the expiration of the Term, Tenant agrees, at the election and upon written demand of any owner of
the Leased Premises, or of a Lender who has granted non-disturbance to Tenant pursuant to Section 16(a) above, to attorn, from time to time, to any such owner or Lender, upon the terms and conditions of this Lease, for the remainder of the
Term. The provisions of this Section 16(c) shall inure to the benefit of any such owner or Lender, shall apply notwithstanding that, as a matter of law, this Lease may terminate upon the foreclosure of the Mortgage, shall be self-operative
upon any such demand, and no further instrument shall be required to give effect to said provisions.
(d) Each of Tenant and Landlord agrees that, if requested by the other or by any Lender, each shall (and Landlord shall cause
each Lender), without charge, enter into a Subordination, Non-Disturbance and Attornment Agreement, in substantially the form attached hereto as Exhibit C or such other commercially reasonable form reasonably requested by a Lender and
reasonably acceptable to Landlord and Tenant, provided such agreement contains provisions relating to non-disturbance in accordance with the provisions of Section 16(a); the party requested to enter into a Subordination,
Non-Disturbance and Attornment Agreement shall respond promptly, but in any event within ten (10) Business Days after receipt of the requested form of such agreement, with any comments thereto and, provided that such Subordination, Non-Disturbance
and Attornment Agreement is in substantially the form attached hereto as Exhibit C or is otherwise reasonably acceptable to such party, thereafter shall promptly execute and deliver such agreement.
17. Assignment, Subleasing.
(a) Tenant may assign its interest in this Lease and may sublet the Leased Premises in whole or in part, from time to time, to
any Affiliate of Tenant without the consent of Landlord and to any other Person with the prior written consent of Landlord, which consent shall not be unreasonably withheld. Tenant shall have no rights to mortgage or otherwise hypothecate its
leasehold interest under this Lease.
(b) Each sublease of the Leased Premises or any part thereof shall be subject and subordinate to the provisions of this
Lease. No assignment or sublease shall affect or reduce any of the obligations of Tenant hereunder, which shall remain the primary obligations of Tenant, and all such obligations shall continue in full force and effect as obligations of a
principal and not as obligations of a guarantor, as if no assignment or sublease had been made. No assignment or sublease shall impose any obligations on Landlord under this Lease except as otherwise provided in this Lease. Tenant agrees that in
the case of an assignment of this Lease, Tenant shall, within fifteen (15) days after the execution and delivery of any such assignment, deliver to Landlord (i) a copy of such assignment in form reasonably acceptable to Landlord and (ii) an
agreement executed and acknowledged by the assignee in form reasonably acceptable to Landlord wherein the assignee shall agree to assume and to observe and perform all of the terms and provisions of this Lease on the part of the Tenant to be
observed and performed from and after the date of such assignment. In the case of a sublease, Tenant shall, within fifteen (15) days after the execution and delivery of such sublease, deliver to Landlord a copy of such sublease.
(c) Upon the occurrence of an Event of Default under this Lease, Landlord shall have the right to collect and enjoy all rents
and other sums of money payable under any sublease of the Leased Premises, which rents and other sums shall be applied to Tenant’s outstanding obligations under this Lease (and any excess shall be paid to Tenant unless and until this Lease is
terminated) and Tenant hereby unconditionally assigns such rents and money to Landlord, which assignment may be exercised upon and after (but not before) the occurrence of an Event of Default. At such time, if any, as the Event of Default is
cured, Landlord’s right to collect such rents and other sums pursuant to the foregoing sentence shall terminate until such time, if any, as another Event of Default occurs.
18. Permitted Contests.
(a) So long as no Event of Default has occurred and is continuing Tenant shall not be required to (i) pay any Imposition, (ii)
comply with any Legal Requirement, (iii) discharge or remove any Lien referred to in Section 9 or 12, or (iv) take any action with respect to any violation referred to in Section 11(b) so long as Tenant shall contest, in
good faith and at its expense, the existence, the amount or the validity thereof, the amount of the damages caused thereby, or the extent of its or Landlord’s liability therefor, by appropriate proceedings which shall operate during the pendency
thereof to prevent (A) the collection of, or other realization upon, the Imposition or Lien so contested, (B) the sale, forfeiture or loss of the Leased Premises, any Basic Rent or any Additional Rent to satisfy the same or to pay any damages
caused by the violation of any such Legal Requirement or by any such violation, (C) any interference with the use or occupancy of the Leased Premises, (D) any interference with the payment of any Basic Rent or any Additional Rent, and (E) the
cancellation of any insurance policy required to be maintained under this Lease. Landlord shall fully cooperate with Tenant in connection with any such contest at Tenant’s sole cost and expense. During any contest meeting the standards set forth
in this Section 18, Landlord shall not, during the pendency of such legal or other proceeding or contest, pay or discharge any Impositions on the Leased Premises, or tax lien or tax title pertaining thereto, provided Landlord may do so in
order to stay a sale, loss or forfeiture of the Leased Premises or any Basic Rent. Any refund obtained by Tenant shall be paid first to Tenant to the extent of its costs and expenses of such contest and on account of any portion of the Impositions
so refunded which were previously paid by Tenant.
(b) In no event shall Tenant pursue any contest with respect to any Imposition, Legal Requirement, Lien, or violation,
referred to above in such manner that exposes Landlord or any Lender to (i) criminal liability, penalty or sanction, (ii) any civil liability, penalty or sanction for which Tenant has not made provisions reasonably acceptable to Landlord and
Lenders (which may include the requirement to post a bond therefor) or (iii) defeasance of its interest (including the subordination of the Lien of the Mortgage to a Lien to which such Mortgage is not otherwise subordinate prior to such contest) in
the Leased Premises.
(c) Tenant agrees that each such contest shall be promptly and diligently prosecuted to a final conclusion, except that Tenant
shall have the right to attempt to settle or compromise such contest through negotiations. If requested by Landlord, Tenant shall deliver a bond, cash collateral or other surety in an amount sufficient to discharge any Lien of record related to
such contest during the pendency thereof. Tenant shall pay and save each Indemnitee harmless against any and all actual, out-of-pocket losses, judgments, decrees and costs (including all reasonable attorneys’ fees and expenses) in connection with
any such contest and shall, promptly after the final determination of such contest, fully pay and discharge the amounts which shall be levied, assessed, charged or imposed or be determined to be payable therein or in connection therewith, together
with all penalties, fines, interest, costs and expenses thereof or in connection therewith, and perform all acts the performance of which shall be ordered or decreed as a result thereof.
19. Conditional Limitations; Default Provisions.
(a) If any Event of Default shall have occurred, Landlord shall have the right at its option, then or at any time thereafter,
to do any one or more of the following without demand upon or notice to Tenant:
(i) Landlord may give Tenant written notice of Landlord’s intention to terminate this Lease on a date
specified in such notice (which date shall be no sooner than fifteen (15) Business Days after the date of the notice); provided that Tenant has not cured all Events of Default prior to the date specified in Landlord’s notice, the Term and the
estate hereby granted and all rights of Tenant hereunder shall expire and terminate as if such date were the date hereinabove fixed for the expiration of the Term, but Tenant shall remain liable for all its obligations hereunder through the date
hereinabove fixed for the expiration of the Term, including its liability for Basic Rent and Additional Rent as hereinafter provided in Sections 19(b) and (c).
(ii) Landlord may, whether or not the Term of this Lease shall have been terminated pursuant to clause
(i) above, give Tenant written notice to surrender the Leased Premises to Landlord on a date specified in such notice (which date shall be no sooner than fifteen (15) Business Days after the date of the notice), at which time Tenant shall
surrender and deliver possession of the Leased Premises to Landlord and shall remove the Trade Fixtures and personal property which is owned by Tenant or third parties other than Landlord in accordance with Section 23(a). Upon or at any
time after taking possession of the Leased Premises, Landlord may remove any persons or property therefrom. Landlord shall be under no liability for or by reason of any such entry, repossession or removal. No such entry or repossession shall be
construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such intention to Tenant pursuant to clause (i) above.
(iii) After repossession of the Leased Premises pursuant to clause (ii) above, whether or not
this Lease shall have been terminated pursuant to clause (i) above, Landlord may, and shall use commercially reasonable efforts to, relet the Leased Premises or any part thereof to such tenant or tenants for such term or terms (which may be
greater or less than the period which would otherwise have constituted the balance of the Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its reasonable discretion, may
determine; and Landlord shall collect and receive any rents payable by reason of such reletting. The rents received on such reletting shall be applied (A) first to the reasonable and actual expenses of such reletting and collection, including
without limitation reasonable attorneys’ fees and any reasonable real estate commissions paid, and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be
realized, then Tenant shall pay Landlord any such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord shall not, in any event, be required to pay Tenant any sums received by Landlord on a
reletting of the Leased Premises in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or future obligations of Tenant hereunder. Landlord’s re-entry and reletting of the Leased Premises without termination
of this Lease shall not preclude Landlord from subsequently terminating this Lease as set forth above. Landlord may make such Alterations as Landlord in its reasonable discretion may deem advisable. Tenant agrees to pay Landlord, as Additional
Rent, immediately upon demand, all reasonable expenses incurred by Landlord in obtaining possession and in reletting the Leased Premises, including fees and commissions of attorneys, architects, agents and brokers.
(iv) Landlord may exercise any other right or remedy now or hereafter existing by law or in equity.
(b) In the event of any expiration or termination of this Lease or repossession of the Leased Premises by reason of the
occurrence of an Event of Default, Tenant shall pay to Landlord Basic Rent and all Additional Rent required to be paid by Tenant to and including the date of such expiration, termination or repossession and, thereafter, Tenant shall, until the end
of what would have been the Term in the absence of such expiration, termination or repossession, and whether or not the Leased Premises shall have been relet, be liable to Landlord for, and shall pay to Landlord as, liquidated and agreed current
damages:
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(i)
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Basic Rent and Additional Rent which would be payable under this Lease by Tenant in the absence of such expiration, termination or repossession from time to time as such
Basic Rent and Additional Rent become due, less
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(ii)
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the net proceeds, if any, of any reletting pursuant to Section 19(a)(iii), after deducting from such proceeds all of Landlord’s reasonable expenses in connection
with such reletting (including all reasonable repossession costs, brokerage commissions, legal expenses, attorneys’ fees, and expenses of preparation for reletting (the “Net Reletting Proceeds”), plus
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(iii)
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all Additional Payments paid or payable by Landlord at the time of, or in connection with, such termination or repossession.
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Tenant hereby agrees to be and remain liable for all sums aforesaid and Landlord may recover such damages from Tenant and institute and
maintain successive actions or legal proceedings against Tenant for the recovery of such damages. Nothing herein contained shall be deemed to require Landlord to wait to begin such action or other legal proceedings until the date when the Term would
have expired by limitation had there been no such Event of Default.
(c) Landlord shall be in default under this Lease if Landlord has breached or failed to perform any covenant, agreement or
undertaking of Landlord under this Lease and has not commenced to cure such failure within thirty (30) days of Landlord’s receipt of Tenant’s written notice thereof and diligently and in good faith continue to cure the default until completion, or
if such default is of such a nature that it cannot reasonably be cured within such period of thirty (30) days, such period shall be extended for such longer time as is reasonably necessary (not to exceed 180 days), provided that Landlord
has commenced to cure such default within said period of thirty (30) days and is actively, diligently and in good faith proceeding with continuity to remedy such default. In the event of a Landlord default and failure by Landlord to cure such
default in the time period required pursuant to the foregoing sentence, Tenant may: (i) (A) perform the obligations of Landlord, in which event Landlord shall reimburse Tenant upon written demand for any reasonable and necessary costs and
expenses which Tenant incurred in performing Landlord’s obligations, and, if Landlord fails to so reimburse Tenant within thirty (30) days of written demand, Tenant may (B) bring suit for damages against Landlord for any and all expenses (including
reasonable attorneys’ fees) incurred by Tenant under this Section 19 and/or (ii) seek injunctive or other equitable relief against Landlord. In no event shall Tenant have the right to terminate this Lease as a result of any default by
Landlord hereunder. No waiver by Tenant of any violation or breach of any of the terms, provisions and covenants herein contained shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions
and covenants herein contained.
20. Additional Rights of Landlord and Tenant.
(a) Except as may be specifically provided herein, no right or remedy conferred upon or reserved to Landlord in this Lease is
intended to be exclusive of any other right or remedy; and each and every right and remedy shall be cumulative and in addition to any other right or remedy contained in this Lease. No delay or failure by Landlord to enforce its rights under this
Lease shall be construed as a waiver, modification or relinquishment thereof. In addition to the other remedies provided in this Lease, Landlord shall be entitled, to the extent permitted by applicable law, to injunctive relief in case of the
violation or attempted or threatened violation of any of the provisions of this Lease, or to specific performance of any of the provisions of this Lease.
(b) Tenant hereby waives and surrenders for itself and all those claiming under it, including creditors of all kinds, any
right and privilege which it or any of them may have under any present or future law to redeem the Leased Premises or to have a continuance of this Lease after termination of this Lease or of Tenant’s right of occupancy or possession pursuant to
any court order or any provision hereof.
(c) Landlord hereby waives any right to distrain or levy upon Trade Fixtures or any property of Tenant (including, without
limitation, Tenant’s inventory) and any Landlord’s Lien or similar Lien upon Trade Fixtures and any other property of Tenant (including, without limitation, Tenant’s inventory). Landlord agrees, at the request and expense of Tenant, to execute a
waiver, in the form attached hereto as Exhibit E or in such other form reasonably acceptable to Landlord, of any Landlord’s or similar Lien for the benefit of any present or future holder of a security interest in or lessor of any of Trade
Fixtures or any other personal property of Tenant (a “Landlord Waiver”). Landlord agrees to review any requested form of Landlord Waiver provided by Tenant within ten (10) Business Days of receipt thereof.
(d) (i) Tenant agrees to pay to Landlord any and all reasonable out-of-pocket costs and expenses incurred by Landlord in
connection with any litigation or other action instituted by Landlord to enforce the obligations of Tenant under this Lease, to the extent that Landlord has prevailed in any such litigation or other action. Any amount payable by Tenant to Landlord
pursuant to this Section 20(d)(i) shall be due and payable by Tenant to Landlord as Additional Rent within thirty (30) days after a final, non-appealable judgment or decision is rendered in favor of Landlord in such litigation or other
action.
(ii) Landlord agrees to pay to Tenant any and all reasonable out-of-pocket costs and expenses incurred
by Tenant in connection with any litigation or other action instituted by Tenant to enforce the obligations of Landlord under this Lease, to the extent that Tenant has prevailed in any such litigation or other action. Any amount payable by
Landlord to Tenant pursuant to this Section 20(d)(ii) shall be due and payable within thirty (30) days after a final, non-appealable judgment or decision is rendered in favor of Tenant in such litigation or other action.
21. Notices. All notices, demands, requests and approvals pursuant to this Lease shall be in writing and shall be deemed to have been given for all purposes (i) three (3)
Business Days after having been sent by United States mail, by registered or certified mail, return receipt requested, postage prepaid, addressed to the other party at its address as stated below, (ii) one (1) Business Day after having been sent
for overnight delivery by a nationally recognized air courier service, (iii) on the day delivered, if personally delivered on a Business Day during business hours or (iv) for purposes of Section 6(c) only, on the day sent by electronic
mail, if sent during business hours on a Business Day (or if not sent during such time, on the next Business Day) so long as receipt thereof is confirmed electronically and the same written notice is also sent by nationally recognized air courier
service or messenger.
To the Addresses stated below:
If to Landlord:
HF Lakeland FL Landlord, LLC
c/o SunTrust Equity Funding, LLC
If to Landlord:
HF Lakeland FL Landlord, LLC
c/o SunTrust Equity Funding, LLC
3333 Peachtree Road, NE, 10th Floor
Atlanta, Georgia 30326
Attention: Patrick Zepeda
Email: [email protected]
If to Tenant:
Haverty Furniture Companies, Inc.
780 Johnson Ferry Road, Suite 800
Atlanta, Georgia 30342
Attention: Wendy Moza
Email: [email protected]
With a copy to:
Haverty Furniture Companies, Inc.
780 Johnson Ferry Road, Suite 800
Atlanta, Georgia 30342
Attention: Janet E. Taylor, Esq.
Email: [email protected]
and a copy to:
Jones Day
77 W Wacker Drive, Suite 3500
Chicago, IL 60601
Attention: Brian L. Sedlak, Esq.
If any Lender shall have advised Tenant by notice in the manner aforesaid that it is the holder of a Mortgage and states in said notice
its address for the receipt of notices, then simultaneously with the giving of any notice by Tenant to Landlord, Tenant shall make commercially reasonable efforts to send a copy of such Notice to Lender in the manner aforesaid. For the purposes of
this Section 21, any party may substitute its address by giving fifteen (15) days’ notice to the other party in the manner provided above. Any notice, demand and request may be given on behalf of any party by its counsel.
22. Estoppel Certificates. Tenant shall at any time and from time to time, upon not less than ten (10) Business Days’ prior written request by Landlord, execute and deliver an
estoppel certificate in substantially the form attached hereto as Exhibit D or such other form as may be reasonably requested by Landlord. It is intended that any such statements may be relied upon by Lenders or potential Lenders, by the
recipient of such statements or their assignees and/or by any prospective purchaser or assignee of the Leased Premises or of the membership interests in Landlord.
23. Surrender and Holding Over.
(a) Upon the expiration or earlier termination of this Lease, Tenant shall peaceably leave and surrender the Leased Premises
to Landlord. Tenant shall remove from the Leased Premises on or prior to such expiration or earlier termination the Trade Fixtures and personal property which is owned by Tenant or third parties other than Landlord, and Tenant at its expense
shall, on or prior to such expiration or earlier termination, repair any damage caused by such removal, provided that (i) Tenant shall not be required to remove any sprinkler systems or solar panels installed in the Leased Premises during
the Term and (ii) Tenant shall only be obligated to remove the racking installed in the Leased Premises if required by Landlord pursuant to a written demand delivered to Tenant on or before the forty-fifth (45th) day prior to such
expiration or earlier termination. Trade Fixtures and personal property not so removed within thirty (30) days after the expiration or earlier termination of the Term for any reason whatsoever shall become the property of Landlord, and Landlord
may thereafter cause such property to be removed from the Leased Premises. The cost of removing and disposing of such property (other than sprinkler systems or solar panels installed in the Leased Premises during the Term or racking installed in
the Leased Premises unless required to be removed by Landlord pursuant to the second sentence of this Section 23(a)) and repairing any damage to the Leased Premises caused by such removal shall be borne by Tenant. Landlord shall not in any
manner or to any extent be obligated to reimburse Tenant for any property which becomes the property of Landlord as a result of such expiration or earlier termination. Notwithstanding anything to the contrary contained in this Lease, at no time
either during or after the Term shall Landlord have any rights in or with respect to Tenant’s inventory (other than the right to remove it from the Leased Premises at Tenant’s expense if Tenant has not done so within thirty (30) days after the
expiration or termination of the Term, provided that such removal complies with the requirements of any Landlord Waiver, to the extent executed pursuant to Section 20(c)).
(b) Any holding over by Tenant of the Leased Premises after the expiration or earlier termination of the term of this Lease or
any extensions thereof, with the consent of Landlord, shall operate and be construed as tenancy from month to month only, at one hundred twenty-five percent (125%) of the Basic Rent in effect immediately prior to such expiration or termination for
the first three (3) months and at one hundred fifty percent (150%) of the Basic Rent in effect immediately prior to such expiration or termination thereafter and upon the same terms and conditions as contained in this Lease, provided that
there shall be no such increase during any period which Landlord and Tenant are engaged in negotiations with one another regarding an amendment or extension of this Lease, or for a new lease for some or all of the Leased Premises. Notwithstanding
the foregoing, (i) any holding over without Landlord’s consent beyond the first three (3) months shall entitle Landlord, in addition to collecting Basic Rent at the rate set forth in the previous sentence, to exercise all rights and remedies
provided by law or in equity, including the remedies of Section 19(b) and (ii) in the event that Landlord has notified Tenant in writing that Landlord has relet the Leased Premises or any part thereof at least thirty (30) days prior to the
commencement of such new lease and Tenant has not vacated the Leased Premises in accordance with the terms of this Lease on or before such commencement date, Tenant shall be liable to Landlord for any and all damages, including any consequential
damages, suffered by Landlord as a result of Tenant’s holding over.
24. No Merger of Title. There shall be no merger of this Lease nor of the leasehold estate created by this Lease with
the fee estate in or ownership of the Leased Premises by reason of the fact that the same person, corporation, firm or other entity may acquire or hold or own, directly or indirectly, (a) this Lease or the leasehold estate created by this Lease or
any interest in this Lease or in such leasehold estate and (b) the fee estate or ownership of the Leased Premises or any interest in such fee estate or ownership. No such merger shall occur unless and until all persons, corporations, firms and
other entities having any interest in (i) this Lease or the leasehold estate created by this Lease and (ii) the fee estate in or ownership of the Leased Premises or any part thereof sought to be merged shall join in a written instrument effecting
such merger and shall duly record the same.
25. Definition of Landlord.
(a) Anything contained herein to the contrary notwithstanding, any claim based on or in respect of any liability of Landlord
under this Lease shall be enforced only against the Landlord’s interest in the Leased Premises or condemnation, property insurance or sale proceeds related thereto, and shall not be enforced against the Landlord individually or personally, or
against any member or other Affiliate of Landlord. In no event shall Landlord have any liability for punitive, special, incidental or consequential damages with respect to the Leased Premises or this Lease.
(b) The term “Landlord” as used in this Lease so far as covenants or obligations on the part of Landlord are concerned, shall
be limited to mean and include only the owner or owners of the Leased Premises or holder of the Mortgage in possession at the time in question of the Leased Premises and in the event of any transfer or transfers of the title of the Leased Premises,
the Landlord herein named (and in case of any subsequent transfers or conveyances, the then grantor) shall be automatically freed and relieved from and after the date of such transfer and conveyance of all liability as respects the performance of
any covenants or obligations on the part of Landlord contained in this Lease thereafter to be performed (but shall remain liable with respect to all such liability arising from events or circumstances existing prior to the date of such transfer).
26. Hazardous Materials.
(a) Tenant agrees that it will not on, about, from or under the Leased Premises, Release any Hazardous Materials except in
accordance with all Environmental Laws.
(b) To the extent required by any Environmental Laws, Tenant shall remediate any Hazardous Materials that it, or any of its
Affiliates, subtenants, assignees, employees, invitees, contractors, licensees or subcontractors Releases on, about, from or under the Leased Premises (whether before or after the date of this Lease).
(c) The Tenant agrees that it will not install any underground storage tank at the Leased Premises requiring a permit under
Environmental Law without specific, prior written approval from Landlord.
27. Entry by Landlord. Subject to Tenant’s reasonable security requirements, Landlord and its authorized
representatives shall have the right upon reasonable written notice (which shall be not less than two (2) Business Days except in the case of emergency) to enter the Leased Premises at all reasonable business hours (and at all other times in the
event of an emergency): (a) for the purpose of inspecting the same or for the purpose of doing any work under Section 11(c), and may take all such action thereon as may be necessary or appropriate for any such purpose (but nothing
contained in this Lease or otherwise shall create or imply any duty upon the part of Landlord to make any such inspection or do any such work), and (b) for the purpose of showing the Leased Premises to prospective purchasers, lenders and mortgagees
and, at any time within twelve (12) months prior to the expiration of the Term of this Lease, for the purpose of showing the same to prospective tenants. No such entry shall constitute an eviction of Tenant, but any such entry shall be done by
Landlord in such reasonable manner as to minimize any disruption of Tenant’s business operation and Tenant may elect to have a representative accompany Landlord or Landlord’s authorized agents in connection with any such entry or inspection.
28. No Usury. The intention of the parties being to conform strictly to the applicable usury laws, whenever any provision herein provides for payment by Tenant to Landlord of
interest at a rate in excess of the legal rate permitted to be charged, such rate herein provided to be paid shall be deemed reduced to such legal rate.
29. Financial Statements.. Tenant hereby agrees to deliver to Landlord either in print or in electronic form, all of
the following financial statements, which shall be prepared in accordance with GAAP: (i) quarterly financial statements for Tenant, within forty-five (45) days after the end of each fiscal quarter of Tenant, and (ii) annual financial statements
for Tenant, audited by an independent certified public accountant, within one hundred twenty (120) days after the end of each fiscal year. For as long as Tenant shall be a publicly listed company and is required to file quarterly and annual
statements with the SEC, then Tenant shall submit to Landlord (in satisfaction of the requirements set forth in the preceding sentence), when filed with the SEC, copies of Tenant’s forms 10Q and 10K, provided that to the extent such forms
are available through EDGAR or a similar internet site, no such submission shall be required. Landlord acknowledges that the financial information provided by Tenant pursuant to this Section 29 is for Landlord’s informational purposes
only. Subject to the terms and conditions contained herein, Landlord shall hold as confidential all financial information that is not publicly available and shall not release any such financial information to third parties without Tenant’s prior
written consent, except (1) to Landlord’s Affiliates, and Landlord’s and such Affiliates’, directors, officers, employees, attorneys, accountants, auditors, financial or legal consultants or advisors, others providing professional services,
lenders, prospective lenders, investors or prospective purchasers of Landlord or the Leased Premises, (2) to comply with regulatory requirements (e.g., filings with the SEC), or pursuant to a court order
requiring such release or as otherwise may be required by law or legal process, (3) to banking and securities regulators in connection with the examination of the books and records of Landlord and its Affiliates by such regulators in the ordinary
course and (4) in connection with the enforcement of this Lease.
30. Separability. Each and every covenant and agreement contained in this Lease is, and shall be construed to be, a
separate and independent covenant and agreement, and the breach of any such covenant or agreement by Landlord shall not discharge or relieve Tenant from its obligation to perform the same. If any term or provision of this Lease or the application
thereof to any provision of this Lease or the application thereof to any person or circumstances shall to any extent be invalid and unenforceable, the remainder of this Lease, or the application of such term or provision to person or circumstances
other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and shall be enforced to the extent permitted by law.
31. Right of First Refusal. As further consideration for this Lease, Landlord hereby grants Tenant during the Term,
while the initial Tenant, or an Affiliate of the initial Tenant to whom Tenant has transferred its interest in this Lease in accordance with Section 17(a) hereof, is in possession and occupancy of the Leased Premise, and providing no Event
of Default remains uncured at the time of Tenant’s exercise of the Right (as defined below), a right of first refusal (the “Right”) to purchase the Leased Premises, or any portion thereof, in the event Landlord receives a bona fide offer to
purchase the Leased Premises, or any portion thereof, which it desires to accept. Landlord shall promptly notify Tenant of any such offer, and enclose a copy of the offer, and Tenant shall have ten (10) Business Days after receipt of such notice
to elect to purchase the Leased Premises, or the applicable portion thereof, for the same consideration and upon the same terms and conditions contained in the offer. If Tenant fails to respond to Landlord's notice during the ten (10) Business Day
period, Tenant's Right shall expire at the end of such ten (10) Business Day period and Landlord shall be free to sell in accordance with the specific terms specified in the offer. If requested by Landlord, Tenant promptly shall confirm in writing
that its Right has expired. If any of the terms and conditions of the offer are changed in any material respect that is favorable to the buyer, beyond reducing the consideration by less than five percent (5%), Landlord shall notify Tenant in the
same manner specified above as if a new bona fide offer had been received by Landlord. Tenant's Right shall expire on the last day of the Term of this Lease, or upon any earlier termination thereof. The Right shall constitute a covenant running
with the land and shall be binding upon Landlord and its successors and assigns.
32. Miscellaneous.
(a) The Section headings in this Lease are used only for convenience in finding the subject matters and are not part of this
Lease or to be used in determining the intent of the parties or otherwise interpreting this Lease.
(b) As used in this Lease the singular shall include the plural as the context requires and the following words and phrases
shall have the following meanings: (i) “including” shall mean “including but not limited to”; (ii) “provisions” shall mean “provisions, terms, agreements, covenants and/or conditions”; and (iii) “obligation” shall mean “obligation, duty, agreement,
liability, covenant or condition”.
(c) Any act which Landlord is permitted to perform under this Lease may be performed at any time and from time to time by
Landlord or any person or entity designated by Landlord. Any act which Tenant is required to perform under this Lease shall be performed at Tenant’s sole cost and expense.
(d) This Lease may be modified, amended, discharged or waived only by an agreement in writing signed by the party against whom
enforcement of any such modification, amendment, discharge or waiver is sought. This Lease embodies the entire agreement and understanding between Tenant and Landlord with respect to the transactions contemplated hereby and supersedes all other
agreements and understandings between Tenant and Landlord with respect to the subject matter thereof. This Lease represents the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements of Tenant and Landlord or any course of prior dealings. There are no unwritten oral agreements between the parties.
(e) The covenants of this Lease shall run with the Land and bind Tenant, the successors and assigns of Tenant and all present
and subsequent encumbrances and subtenants of the Leased Premises, and shall inure to the benefit of and bind Landlord, its successors and assigns.
(f) This Lease will be simultaneously executed in several counterparts, each of which when so executed and delivered shall
constitute an original, fully enforceable counterpart for all purposes. Executed copies of this Lease distributed in a pdf or similar format and/or executed by “DocuSign”, “esign” or similar manner shall constitute originals thereof.
(g) This Lease shall be governed by and construed according to the laws of the State in which the Leased Premises is located.
(h) TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAWS, LANDLORD AND TENANT IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS LEASE AND ANY COUNTERCLAIM THEREUNDER.
(i) Tenant hereby represents and warrants that neither Tenant nor any of its Affiliates is in violation of (i) any of the
foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, (ii) Executive Order No. 13,224, 66 Fed Reg 49,079 (2001),
issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism) or (iii) the anti-money laundering provisions of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “USA Patriot Act”) amending the Bank Secrecy Act, 31 U.S.C. Section 5311 et seq and any other laws relating to terrorism or money laundering.
(j) Whenever this Lease calls for performance of an act or obligation within a specified time period, such time period shall
be extended to the extent performance is impaired due to acts of God, riots, insurrection, terrorist acts, war, pandemic (including COVID-19), acts of the public enemy, strikes, lockouts, labor troubles, inability to procure materials, failure of
power, restrictive laws (except as otherwise specifically provided herein) or acts of governmental authority (provided, however, that such party substantially complies with Applicable Laws and cooperates with the requirements of such
governmental authority regarding approvals, permitting, registration, licensing, or similar legal requirements for the conduct of Tenant or Landlord’s business or the construction on, repair of or operation of all or any portion of the Leased
Premises), government delays in obtaining discretionary permits or building permits that are not attributable to such party's failure to timely apply for and diligently pursue such permits, or any other circumstances which are not within the
respective party’s control (collectively, “Force Majeure”); provided, that this provision shall not apply to failures by either party to pay their respective monetary obligations under this Lease or applicable to delays resulting
from the inability of a party to obtain financing or to proceed with its obligations under this Lease because of a lack of funds.
(k) RADON GAS: Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county health department.
[signatures appear on following page]
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed by their respective duly authorized
officers as of the day and year first above written.
|
Witnesses:
/s/
Print Name:
/s/
Print Name:
|
LANDLORD:
HF LAKELAND FL LANDLORD, LLC, a Delaware limited liability company By: STEF NLIP, LLC, its sole member
By: SunTrust Equity Funding, LLC, its sole member
By: /s/ Allison McLeod
Name: Allison McLeod Title: Manager
|
|
Witnesses:
/s/
Print Name:
/s/
Print Name:
|
TENANT:
HAVERTY FURNITURE COMPANIES, INC., a Maryland corporation By /s/ Richard B. Hare Name: Richard B. Hare Title: Executive Vice President & Chief Financial Officer |
EXHIBIT A
Legal Description
The Land referred to herein below is situated in the County of Polk, State of Florida, and is described as follows:
LOT 1, FIRST PARK AT BRIDGEWATER PHASE THREE, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 132, PAGE 30, OF THE
PUBLIC RECORDS OF POLK COUNTY, FLORIDA, AND THAT PART OF PRIVATE ROAD BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
A PARCEL OF LAND BEING A PORTION OF THE SOUTHEAST 1/4 OF SECTION 16. TOWNSHIP 27 SOUTH, RANGE 24 EAST POLK COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHEAST CORNER OF LOT 1, THENCE NORTH 60°42’36” EAST, A DISTANCE OF 55 FEET THENCE SOUTH 29°17’24” EAST, A DISTANCE OF 745 FEET, THENCE SOUTH 60°42’36” WEST, A DISTANCE OF 55 FEET TO THE SOUTHEAST CORNER OF LOT 1 THENCE NORTH 29°17’24” WEST, A DISTNACE OF 745 FEET TO POINT OF BEGINNING.
AND
THAT PART LOT 2, FIRST PARK AT BRIDGEWATER PHASE THREE, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 132, PAGE 30, OF THE PUBLIC RECORDS OF POLK COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
A PARCEL OF LAND BEING A PORTION OF THE SOUTHEAST 1/4 OF SECTION 16. TOWNSHIP 27 SOUTH, RANGE 24 EAST POLK COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHEAST CORNER OF THE SOUTHEAST 1/4 OF SECTION 16, THENCE NORTH 89°54’22” WEST ALONG NORTH LINE OF SAID SOUTHEAST 1/4, A DISTANCE OF 1362.13 FEET TO SOUTHERLY RIGHT-OF-WAY LINE OF THE CITY OF ORLANDO-ORLANDO UTILITIES RIGHT-OF-WAY, AS RECORDED IN OFFICIAL RECORDS BOOK 2070 PAGE 1834, OF THE PUBLIC RECORDS OF SAID POLK COUNTY, SAID POINT BEING ON A CURVE CONCAVE TO THE SOUTHEASTERLY HAVING A CENTRAL ANGLE OF 03°13’43”, A RADIUS OF 11144.16 FEET, A CHORD BEARING OF SOUTH 60°36’32” AND A CHORD DISTANCE OF 627.87 FEET, THENCE SOUTHWESTERLY ALONG SAID CURVE 627.95 FEET; THENCE SOUTH 29°17’24” EAST, A DISTANCE OF 183.45 FEET, TO THE NORTHWEST CORNER OF THE F.D.O.T. PARCEL 149F, AS CONTAINED IN THAT CERTAIN STIPULATED ORDER OF TAKING RECORDED IN OFFICIAL RECORDS BOOK 4596 PAGE 552, OF THE AFORESAID PUBLIC RECORDS; THENCE CONTINUE SOUTH 29°17’24” EAST, ALONG THE WEST LINE OF SAID PARCEL 149F, A DISTANCE OF 254.10 FEET, THENCE NORTH 60°42’36” EAST, ALONG THE SOUTH LINE OF SAID PARCEL 149F, A DISTANCE OF 559.68 FEET, THENCE SOUTH 29°17’24” EAST, A DISTANCE OF 800 FEET; THENCE SOUTH 60°42’36” WEST, A DISTANCE OF 860.67 FEET, TO THE POINT OF BEGINNING; THENCE CONTINUE SOUTH 60°42’36” WEST, A DISTANCE OF 397.12 FEET; THENCE NORTH 62°43’51” WEST, A DISTANCE OF 335.36 FEET; THENCE NORTH 36°06’09” WEST, A DISTANCE OF 468.46 FEET, THENCE NORTH 60°42’36” EAST, A DISTANCE OF 637.50 FEET; THENCE SOUTH 29°17’24” EAST, A DISTANCE OF 745 FEET TO THE POINT OF BEGINNING.
A PARCEL OF LAND BEING A PORTION OF THE SOUTHEAST 1/4 OF SECTION 16. TOWNSHIP 27 SOUTH, RANGE 24 EAST POLK COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHEAST CORNER OF LOT 1, THENCE NORTH 60°42’36” EAST, A DISTANCE OF 55 FEET THENCE SOUTH 29°17’24” EAST, A DISTANCE OF 745 FEET, THENCE SOUTH 60°42’36” WEST, A DISTANCE OF 55 FEET TO THE SOUTHEAST CORNER OF LOT 1 THENCE NORTH 29°17’24” WEST, A DISTNACE OF 745 FEET TO POINT OF BEGINNING.
AND
THAT PART LOT 2, FIRST PARK AT BRIDGEWATER PHASE THREE, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 132, PAGE 30, OF THE PUBLIC RECORDS OF POLK COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
A PARCEL OF LAND BEING A PORTION OF THE SOUTHEAST 1/4 OF SECTION 16. TOWNSHIP 27 SOUTH, RANGE 24 EAST POLK COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHEAST CORNER OF THE SOUTHEAST 1/4 OF SECTION 16, THENCE NORTH 89°54’22” WEST ALONG NORTH LINE OF SAID SOUTHEAST 1/4, A DISTANCE OF 1362.13 FEET TO SOUTHERLY RIGHT-OF-WAY LINE OF THE CITY OF ORLANDO-ORLANDO UTILITIES RIGHT-OF-WAY, AS RECORDED IN OFFICIAL RECORDS BOOK 2070 PAGE 1834, OF THE PUBLIC RECORDS OF SAID POLK COUNTY, SAID POINT BEING ON A CURVE CONCAVE TO THE SOUTHEASTERLY HAVING A CENTRAL ANGLE OF 03°13’43”, A RADIUS OF 11144.16 FEET, A CHORD BEARING OF SOUTH 60°36’32” AND A CHORD DISTANCE OF 627.87 FEET, THENCE SOUTHWESTERLY ALONG SAID CURVE 627.95 FEET; THENCE SOUTH 29°17’24” EAST, A DISTANCE OF 183.45 FEET, TO THE NORTHWEST CORNER OF THE F.D.O.T. PARCEL 149F, AS CONTAINED IN THAT CERTAIN STIPULATED ORDER OF TAKING RECORDED IN OFFICIAL RECORDS BOOK 4596 PAGE 552, OF THE AFORESAID PUBLIC RECORDS; THENCE CONTINUE SOUTH 29°17’24” EAST, ALONG THE WEST LINE OF SAID PARCEL 149F, A DISTANCE OF 254.10 FEET, THENCE NORTH 60°42’36” EAST, ALONG THE SOUTH LINE OF SAID PARCEL 149F, A DISTANCE OF 559.68 FEET, THENCE SOUTH 29°17’24” EAST, A DISTANCE OF 800 FEET; THENCE SOUTH 60°42’36” WEST, A DISTANCE OF 860.67 FEET, TO THE POINT OF BEGINNING; THENCE CONTINUE SOUTH 60°42’36” WEST, A DISTANCE OF 397.12 FEET; THENCE NORTH 62°43’51” WEST, A DISTANCE OF 335.36 FEET; THENCE NORTH 36°06’09” WEST, A DISTANCE OF 468.46 FEET, THENCE NORTH 60°42’36” EAST, A DISTANCE OF 637.50 FEET; THENCE SOUTH 29°17’24” EAST, A DISTANCE OF 745 FEET TO THE POINT OF BEGINNING.
EXHIBIT B
BASIC RENT
Basic Rent is due commencing on the Closing Date on each Basic Rent Payment Date during the Term (including any Renewal Term
exercised by Tenant) in an amount equal to the amount for such Basic Rent Payment Date set forth on Schedule I attached hereto.
SCHEDULE I
|
Month
|
Date
|
Rent Payment
(in US Dollars)
|
|
1
|
6/10/2020
|
$127,701.18
|
|
2
|
7/10/2020
|
$127,701.18
|
|
3
|
8/10/2020
|
$127,701.18
|
|
4
|
9/10/2020
|
$127,701.18
|
|
5
|
10/10/2020
|
$127,701.18
|
|
6
|
11/10/2020
|
$127,701.18
|
|
7
|
12/10/2020
|
$127,701.18
|
|
8
|
1/10/2021
|
$127,701.18
|
|
9
|
2/10/2021
|
$127,701.18
|
|
10
|
3/10/2021
|
$127,701.18
|
|
11
|
4/10/2021
|
$127,701.18
|
|
12
|
5/10/2021
|
$127,701.18
|
|
13
|
6/10/2021
|
$130,255.21
|
|
14
|
7/10/2021
|
$130,255.21
|
|
15
|
8/10/2021
|
$130,255.21
|
|
16
|
9/10/2021
|
$130,255.21
|
|
17
|
10/10/2021
|
$130,255.21
|
|
18
|
11/10/2021
|
$130,255.21
|
|
19
|
12/10/2021
|
$130,255.21
|
|
20
|
1/10/2022
|
$130,255.21
|
|
21
|
2/10/2022
|
$130,255.21
|
|
22
|
3/10/2022
|
$130,255.21
|
|
23
|
4/10/2022
|
$130,255.21
|
|
24
|
5/10/2022
|
$130,255.21
|
|
25
|
6/10/2022
|
$132,860.31
|
|
26
|
7/10/2022
|
$132,860.31
|
|
27
|
8/10/2022
|
$132,860.31
|
|
28
|
9/10/2022
|
$132,860.31
|
|
29
|
10/10/2022
|
$132,860.31
|
|
30
|
11/10/2022
|
$132,860.31
|
|
31
|
12/10/2022
|
$132,860.31
|
|
32
|
1/10/2023
|
$132,860.31
|
|
33
|
2/10/2023
|
$132,860.31
|
|
34
|
3/10/2023
|
$132,860.31
|
|
35
|
4/10/2023
|
$132,860.31
|
|
36
|
5/10/2023
|
$132,860.31
|
|
37
|
6/10/2023
|
$135,517.52
|
|
38
|
7/10/2023
|
$135,517.52
|
|
39
|
8/10/2023
|
$135,517.52
|
|
40
|
9/10/2023
|
$135,517.52
|
|
41
|
10/10/2023
|
$135,517.52
|
|
42
|
11/10/2023
|
$135,517.52
|
|
43
|
12/10/2023
|
$135,517.52
|
|
44
|
1/10/2024
|
$135,517.52
|
|
45
|
2/10/2024
|
$135,517.52
|
|
46
|
3/10/2024
|
$135,517.52
|
|
47
|
4/10/2024
|
$135,517.52
|
|
48
|
5/10/2024
|
$135,517.52
|
|
49
|
6/10/2024
|
$138,227.87
|
|
50
|
7/10/2024
|
$138,227.87
|
|
51
|
8/10/2024
|
$138,227.87
|
|
52
|
9/10/2024
|
$138,227.87
|
|
53
|
10/10/2024
|
$138,227.87
|
|
54
|
11/10/2024
|
$138,227.87
|
|
55
|
12/10/2024
|
$138,227.87
|
|
56
|
1/10/2025
|
$138,227.87
|
|
57
|
2/10/2025
|
$138,227.87
|
|
58
|
3/10/2025
|
$138,227.87
|
|
59
|
4/10/2025
|
$138,227.87
|
|
60
|
5/10/2025
|
$138,227.87
|
|
61
|
6/10/2025
|
$140,992.42
|
|
62
|
7/10/2025
|
$140,992.42
|
|
63
|
8/10/2025
|
$140,992.42
|
|
64
|
9/10/2025
|
$140,992.42
|
|
65
|
10/10/2025
|
$140,992.42
|
|
66
|
11/10/2025
|
$140,992.42
|
|
67
|
12/10/2025
|
$140,992.42
|
|
68
|
1/10/2026
|
$140,992.42
|
|
69
|
2/10/2026
|
$140,992.42
|
|
70
|
3/10/2026
|
$140,992.42
|
|
71
|
4/10/2026
|
$140,992.42
|
|
72
|
5/10/2026
|
$140,992.42
|
|
73
|
6/10/2026
|
$143,812.27
|
|
74
|
7/10/2026
|
$143,812.27
|
|
75
|
8/10/2026
|
$143,812.27
|
|
76
|
9/10/2026
|
$143,812.27
|
|
77
|
10/10/2026
|
$143,812.27
|
|
78
|
11/10/2026
|
$143,812.27
|
|
79
|
12/10/2026
|
$143,812.27
|
|
80
|
1/10/2027
|
$143,812.27
|
|
81
|
2/10/2027
|
$143,812.27
|
|
82
|
3/10/2027
|
$143,812.27
|
|
83
|
4/10/2027
|
$143,812.27
|
|
84
|
5/10/2027
|
$143,812.27
|
|
85
|
6/10/2027
|
$146,688.52
|
|
86
|
7/10/2027
|
$146,688.52
|
|
87
|
8/10/2027
|
$146,688.52
|
|
88
|
9/10/2027
|
$146,688.52
|
|
89
|
10/10/2027
|
$146,688.52
|
|
90
|
11/10/2027
|
$146,688.52
|
|
91
|
12/10/2027
|
$146,688.52
|
|
92
|
1/10/2028
|
$146,688.52
|
|
93
|
2/10/2028
|
$146,688.52
|
|
94
|
3/10/2028
|
$146,688.52
|
|
95
|
4/10/2028
|
$146,688.52
|
|
96
|
5/10/2028
|
$146,688.52
|
|
97
|
6/10/2028
|
$149,622.29
|
|
98
|
7/10/2028
|
$149,622.29
|
|
99
|
8/10/2028
|
$149,622.29
|
|
100
|
9/10/2028
|
$149,622.29
|
|
101
|
10/10/2028
|
$149,622.29
|
|
102
|
11/10/2028
|
$149,622.29
|
|
103
|
12/10/2028
|
$149,622.29
|
|
104
|
1/10/2029
|
$149,622.29
|
|
105
|
2/10/2029
|
$149,622.29
|
|
106
|
3/10/2029
|
$149,622.29
|
|
107
|
4/10/2029
|
$149,622.29
|
|
108
|
5/10/2029
|
$149,622.29
|
|
109
|
6/10/2029
|
$152,614.73
|
|
110
|
7/10/2029
|
$152,614.73
|
|
111
|
8/10/2029
|
$152,614.73
|
|
112
|
9/10/2029
|
$152,614.73
|
|
113
|
10/10/2029
|
$152,614.73
|
|
114
|
11/10/2029
|
$152,614.73
|
|
115
|
12/10/2029
|
$152,614.73
|
|
116
|
1/10/2030
|
$152,614.73
|
|
117
|
2/10/2030
|
$152,614.73
|
|
118
|
3/10/2030
|
$152,614.73
|
|
119
|
4/10/2030
|
$152,614.73
|
|
120
|
5/10/2030
|
$152,614.73
|
|
121
|
6/10/2030
|
$155,667.03
|
|
122
|
7/10/2030
|
$155,667.03
|
|
123
|
8/10/2030
|
$155,667.03
|
|
124
|
9/10/2030
|
$155,667.03
|
|
125
|
10/10/2030
|
$155,667.03
|
|
126
|
11/10/2030
|
$155,667.03
|
|
127
|
12/10/2030
|
$155,667.03
|
|
128
|
1/10/2031
|
$155,667.03
|
|
129
|
2/10/2031
|
$155,667.03
|
|
130
|
3/10/2031
|
$155,667.03
|
|
131
|
4/10/2031
|
$155,667.03
|
|
132
|
5/10/2031
|
$155,667.03
|
|
133
|
6/10/2031
|
$158,780.37
|
|
134
|
7/10/2031
|
$158,780.37
|
|
135
|
8/10/2031
|
$158,780.37
|
|
136
|
9/10/2031
|
$158,780.37
|
|
137
|
10/10/2031
|
$158,780.37
|
|
138
|
11/10/2031
|
$158,780.37
|
|
139
|
12/10/2031
|
$158,780.37
|
|
140
|
1/10/2032
|
$158,780.37
|
|
141
|
2/10/2032
|
$158,780.37
|
|
142
|
3/10/2032
|
$158,780.37
|
|
143
|
4/10/2032
|
$158,780.37
|
|
144
|
5/10/2032
|
$158,780.37
|
|
145
|
6/10/2032
|
$161,955.98
|
|
146
|
7/10/2032
|
$161,955.98
|
|
147
|
8/10/2032
|
$161,955.98
|
|
148
|
9/10/2032
|
$161,955.98
|
|
149
|
10/10/2032
|
$161,955.98
|
|
150
|
11/10/2032
|
$161,955.98
|
|
151
|
12/10/2032
|
$161,955.98
|
|
152
|
1/10/2033
|
$161,955.98
|
|
153
|
2/10/2033
|
$161,955.98
|
|
154
|
3/10/2033
|
$161,955.98
|
|
155
|
4/10/2033
|
$161,955.98
|
|
156
|
5/10/2033
|
$161,955.98
|
|
157
|
6/10/2033
|
$165,195.10
|
|
158
|
7/10/2033
|
$165,195.10
|
|
159
|
8/10/2033
|
$165,195.10
|
|
160
|
9/10/2033
|
$165,195.10
|
|
161
|
10/10/2033
|
$165,195.10
|
|
162
|
11/10/2033
|
$165,195.10
|
|
163
|
12/10/2033
|
$165,195.10
|
|
164
|
1/10/2034
|
$165,195.10
|
|
165
|
2/10/2034
|
$165,195.10
|
|
166
|
3/10/2034
|
$165,195.10
|
|
167
|
4/10/2034
|
$165,195.10
|
|
168
|
5/10/2034
|
$165,195.10
|
|
169
|
6/10/2034
|
$168,499.00
|
|
170
|
7/10/2034
|
$168,499.00
|
|
171
|
8/10/2034
|
$168,499.00
|
|
172
|
9/10/2034
|
$168,499.00
|
|
173
|
10/10/2034
|
$168,499.00
|
|
174
|
11/10/2034
|
$168,499.00
|
|
175
|
12/10/2034
|
$168,499.00
|
|
176
|
1/10/2035
|
$168,499.00
|
|
177
|
2/10/2035
|
$168,499.00
|
|
178
|
3/10/2035
|
$168,499.00
|
|
179
|
4/10/2035
|
$168,499.00
|
|
180
|
5/10/2035
|
$168,499.00
|
|
First Renewal Term
|
||
|
181
|
6/10/2035
|
$171,868.98
|
|
182
|
7/10/2035
|
$171,868.98
|
|
183
|
8/10/2035
|
$171,868.98
|
|
184
|
9/10/2035
|
$171,868.98
|
|
185
|
10/10/2035
|
$171,868.98
|
|
186
|
11/10/2035
|
$171,868.98
|
|
187
|
12/10/2035
|
$171,868.98
|
|
188
|
1/10/2036
|
$171,868.98
|
|
189
|
2/10/2036
|
$171,868.98
|
|
190
|
3/10/2036
|
$171,868.98
|
|
191
|
4/10/2036
|
$171,868.98
|
|
192
|
5/10/2036
|
$171,868.98
|
|
193
|
6/10/2036
|
$175,306.36
|
|
194
|
7/10/2036
|
$175,306.36
|
|
195
|
8/10/2036
|
$175,306.36
|
|
196
|
9/10/2036
|
$175,306.36
|
|
197
|
10/10/2036
|
$175,306.36
|
|
198
|
11/10/2036
|
$175,306.36
|
|
199
|
12/10/2036
|
$175,306.36
|
|
200
|
1/10/2037
|
$175,306.36
|
|
201
|
2/10/2037
|
$175,306.36
|
|
202
|
3/10/2037
|
$175,306.36
|
|
203
|
4/10/2037
|
$175,306.36
|
|
204
|
5/10/2037
|
$175,306.36
|
|
205
|
6/10/2037
|
$178,812.48
|
|
206
|
7/10/2037
|
$178,812.48
|
|
207
|
8/10/2037
|
$178,812.48
|
|
208
|
9/10/2037
|
$178,812.48
|
|
209
|
10/10/2037
|
$178,812.48
|
|
210
|
11/10/2037
|
$178,812.48
|
|
211
|
12/10/2037
|
$178,812.48
|
|
212
|
1/10/2038
|
$178,812.48
|
|
213
|
2/10/2038
|
$178,812.48
|
|
214
|
3/10/2038
|
$178,812.48
|
|
215
|
4/10/2038
|
$178,812.48
|
|
216
|
5/10/2038
|
$178,812.48
|
|
217
|
6/10/2038
|
$182,388.73
|
|
218
|
7/10/2038
|
$182,388.73
|
|
219
|
8/10/2038
|
$182,388.73
|
|
220
|
9/10/2038
|
$182,388.73
|
|
221
|
10/10/2038
|
$182,388.73
|
|
222
|
11/10/2038
|
$182,388.73
|
|
223
|
12/10/2038
|
$182,388.73
|
|
224
|
1/10/2039
|
$182,388.73
|
|
225
|
2/10/2039
|
$182,388.73
|
|
226
|
3/10/2039
|
$182,388.73
|
|
227
|
4/10/2039
|
$182,388.73
|
|
228
|
5/10/2039
|
$182,388.73
|
|
229
|
6/10/2039
|
$186,036.51
|
|
230
|
7/10/2039
|
$186,036.51
|
|
231
|
8/10/2039
|
$186,036.51
|
|
232
|
9/10/2039
|
$186,036.51
|
|
233
|
10/10/2039
|
$186,036.51
|
|
234
|
11/10/2039
|
$186,036.51
|
|
235
|
12/10/2039
|
$186,036.51
|
|
236
|
1/10/2040
|
$186,036.51
|
|
237
|
2/10/2040
|
$186,036.51
|
|
238
|
3/10/2040
|
$186,036.51
|
|
239
|
4/10/2040
|
$186,036.51
|
|
240
|
5/10/2040
|
$186,036.51
|
|
Second Renewal Term
|
||
|
241
|
6/10/2040
|
$189,757.24
|
|
242
|
7/10/2040
|
$189,757.24
|
|
243
|
8/10/2040
|
$189,757.24
|
|
244
|
9/10/2040
|
$189,757.24
|
|
245
|
10/10/2040
|
$189,757.24
|
|
246
|
11/10/2040
|
$189,757.24
|
|
247
|
12/10/2040
|
$189,757.24
|
|
248
|
1/10/2041
|
$189,757.24
|
|
249
|
2/10/2041
|
$189,757.24
|
|
250
|
3/10/2041
|
$189,757.24
|
|
251
|
4/10/2041
|
$189,757.24
|
|
252
|
5/10/2041
|
$189,757.24
|
|
253
|
6/10/2041
|
$193,552.38
|
|
254
|
7/10/2041
|
$193,552.38
|
|
255
|
8/10/2041
|
$193,552.38
|
|
256
|
9/10/2041
|
$193,552.38
|
|
257
|
10/10/2041
|
$193,552.38
|
|
258
|
11/10/2041
|
$193,552.38
|
|
259
|
12/10/2041
|
$193,552.38
|
|
260
|
1/10/2042
|
$193,552.38
|
|
261
|
2/10/2042
|
$193,552.38
|
|
262
|
3/10/2042
|
$193,552.38
|
|
263
|
4/10/2042
|
$193,552.38
|
|
264
|
5/10/2042
|
$193,552.38
|
|
265
|
6/10/2042
|
$197,423.43
|
|
266
|
7/10/2042
|
$197,423.43
|
|
267
|
8/10/2042
|
$197,423.43
|
|
268
|
9/10/2042
|
$197,423.43
|
|
269
|
10/10/2042
|
$197,423.43
|
|
270
|
11/10/2042
|
$197,423.43
|
|
271
|
12/10/2042
|
$197,423.43
|
|
272
|
1/10/2043
|
$197,423.43
|
|
273
|
2/10/2043
|
$197,423.43
|
|
274
|
3/10/2043
|
$197,423.43
|
|
275
|
4/10/2043
|
$197,423.43
|
|
276
|
5/10/2043
|
$197,423.43
|
|
277
|
6/10/2043
|
$201,371.90
|
|
278
|
7/10/2043
|
$201,371.90
|
|
279
|
8/10/2043
|
$201,371.90
|
|
280
|
9/10/2043
|
$201,371.90
|
|
281
|
10/10/2043
|
$201,371.90
|
|
282
|
11/10/2043
|
$201,371.90
|
|
283
|
12/10/2043
|
$201,371.90
|
|
284
|
1/10/2044
|
$201,371.90
|
|
285
|
2/10/2044
|
$201,371.90
|
|
286
|
3/10/2044
|
$201,371.90
|
|
287
|
4/10/2044
|
$201,371.90
|
|
288
|
5/10/2044
|
$201,371.90
|
|
289
|
6/10/2044
|
$205,399.34
|
|
290
|
7/10/2044
|
$205,399.34
|
|
291
|
8/10/2044
|
$205,399.34
|
|
292
|
9/10/2044
|
$205,399.34
|
|
293
|
10/10/2044
|
$205,399.34
|
|
294
|
11/10/2044
|
$205,399.34
|
|
295
|
12/10/2044
|
$205,399.34
|
|
296
|
1/10/2045
|
$205,399.34
|
|
297
|
2/10/2045
|
$205,399.34
|
|
298
|
3/10/2045
|
$205,399.34
|
|
299
|
4/10/2045
|
$205,399.34
|
|
300
|
5/10/2045
|
$205,399.34
|
|
Third Renewal Term
|
||
|
301
|
6/10/2045
|
$209,507.33
|
|
302
|
7/10/2045
|
$209,507.33
|
|
303
|
8/10/2045
|
$209,507.33
|
|
304
|
9/10/2045
|
$209,507.33
|
|
305
|
10/10/2045
|
$209,507.33
|
|
306
|
11/10/2045
|
$209,507.33
|
|
307
|
12/10/2045
|
$209,507.33
|
|
308
|
1/10/2046
|
$209,507.33
|
|
309
|
2/10/2046
|
$209,507.33
|
|
310
|
3/10/2046
|
$209,507.33
|
|
311
|
4/10/2046
|
$209,507.33
|
|
312
|
5/10/2046
|
$209,507.33
|
|
313
|
6/10/2046
|
$213,697.47
|
|
314
|
7/10/2046
|
$213,697.47
|
|
315
|
8/10/2046
|
$213,697.47
|
|
316
|
9/10/2046
|
$213,697.47
|
|
317
|
10/10/2046
|
$213,697.47
|
|
318
|
11/10/2046
|
$213,697.47
|
|
319
|
12/10/2046
|
$213,697.47
|
|
320
|
1/10/2047
|
$213,697.47
|
|
321
|
2/10/2047
|
$213,697.47
|
|
322
|
3/10/2047
|
$213,697.47
|
|
323
|
4/10/2047
|
$213,697.47
|
|
324
|
5/10/2047
|
$213,697.47
|
|
325
|
6/10/2047
|
$217,971.42
|
|
326
|
7/10/2047
|
$217,971.42
|
|
327
|
8/10/2047
|
$217,971.42
|
|
328
|
9/10/2047
|
$217,971.42
|
|
329
|
10/10/2047
|
$217,971.42
|
|
330
|
11/10/2047
|
$217,971.42
|
|
331
|
12/10/2047
|
$217,971.42
|
|
332
|
1/10/2048
|
$217,971.42
|
|
333
|
2/10/2048
|
$217,971.42
|
|
334
|
3/10/2048
|
$217,971.42
|
|
335
|
4/10/2048
|
$217,971.42
|
|
336
|
5/10/2048
|
$217,971.42
|
|
337
|
6/10/2048
|
$222,330.85
|
|
338
|
7/10/2048
|
$222,330.85
|
|
339
|
8/10/2048
|
$222,330.85
|
|
340
|
9/10/2048
|
$222,330.85
|
|
341
|
10/10/2048
|
$222,330.85
|
|
342
|
11/10/2048
|
$222,330.85
|
|
343
|
12/10/2048
|
$222,330.85
|
|
344
|
1/10/2049
|
$222,330.85
|
|
345
|
2/10/2049
|
$222,330.85
|
|
346
|
3/10/2049
|
$222,330.85
|
|
347
|
4/10/2049
|
$222,330.85
|
|
348
|
5/10/2049
|
$222,330.85
|
|
349
|
6/10/2049
|
$226,777.47
|
|
350
|
7/10/2049
|
$226,777.47
|
|
351
|
8/10/2049
|
$226,777.47
|
|
352
|
9/10/2049
|
$226,777.47
|
|
353
|
10/10/2049
|
$226,777.47
|
|
354
|
11/10/2049
|
$226,777.47
|
|
355
|
12/10/2049
|
$226,777.47
|
|
356
|
1/10/2050
|
$226,777.47
|
|
357
|
2/10/2050
|
$226,777.47
|
|
358
|
3/10/2050
|
$226,777.47
|
|
359
|
4/10/2050
|
$226,777.47
|
|
360
|
5/10/2050
|
$226,777.47
|
|
Fourth Renewal Term
|
||
|
361
|
6/10/2050
|
$231,313.02
|
|
362
|
7/10/2050
|
$231,313.02
|
|
363
|
8/10/2050
|
$231,313.02
|
|
364
|
9/10/2050
|
$231,313.02
|
|
365
|
10/10/2050
|
$231,313.02
|
|
366
|
11/10/2050
|
$231,313.02
|
|
367
|
12/10/2050
|
$231,313.02
|
|
368
|
1/10/2051
|
$231,313.02
|
|
369
|
2/10/2051
|
$231,313.02
|
|
370
|
3/10/2051
|
$231,313.02
|
|
371
|
4/10/2051
|
$231,313.02
|
|
372
|
5/10/2051
|
$231,313.02
|
|
373
|
6/10/2051
|
$235,939.28
|
|
374
|
7/10/2051
|
$235,939.28
|
|
375
|
8/10/2051
|
$235,939.28
|
|
376
|
9/10/2051
|
$235,939.28
|
|
377
|
10/10/2051
|
$235,939.28
|
|
378
|
11/10/2051
|
$235,939.28
|
|
379
|
12/10/2051
|
$235,939.28
|
|
380
|
1/10/2052
|
$235,939.28
|
|
381
|
2/10/2052
|
$235,939.28
|
|
382
|
3/10/2052
|
$235,939.28
|
|
383
|
4/10/2052
|
$235,939.28
|
|
384
|
5/10/2052
|
$235,939.28
|
|
385
|
6/10/2052
|
$240,658.06
|
|
386
|
7/10/2052
|
$240,658.06
|
|
387
|
8/10/2052
|
$240,658.06
|
|
388
|
9/10/2052
|
$240,658.06
|
|
389
|
10/10/2052
|
$240,658.06
|
|
390
|
11/10/2052
|
$240,658.06
|
|
391
|
12/10/2052
|
$240,658.06
|
|
392
|
1/10/2053
|
$240,658.06
|
|
393
|
2/10/2053
|
$240,658.06
|
|
394
|
3/10/2053
|
$240,658.06
|
|
395
|
4/10/2053
|
$240,658.06
|
|
396
|
5/10/2053
|
$240,658.06
|
|
397
|
6/10/2053
|
$245,471.22
|
|
398
|
7/10/2053
|
$245,471.22
|
|
399
|
8/10/2053
|
$245,471.22
|
|
400
|
9/10/2053
|
$245,471.22
|
|
401
|
10/10/2053
|
$245,471.22
|
|
402
|
11/10/2053
|
$245,471.22
|
|
403
|
12/10/2053
|
$245,471.22
|
|
404
|
1/10/2054
|
$245,471.22
|
|
405
|
2/10/2054
|
$245,471.22
|
|
406
|
3/10/2054
|
$245,471.22
|
|
407
|
4/10/2054
|
$245,471.22
|
|
408
|
5/10/2054
|
$245,471.22
|
|
409
|
6/10/2054
|
$250,380.65
|
|
410
|
7/10/2054
|
$250,380.65
|
|
411
|
8/10/2054
|
$250,380.65
|
|
412
|
9/10/2054
|
$250,380.65
|
|
413
|
10/10/2054
|
$250,380.65
|
|
414
|
11/10/2054
|
$250,380.65
|
|
415
|
12/10/2054
|
$250,380.65
|
|
416
|
1/10/2055
|
$250,380.65
|
|
417
|
2/10/2055
|
$250,380.65
|
|
418
|
3/10/2055
|
$250,380.65
|
|
419
|
4/10/2055
|
$250,380.65
|
|
420
|
5/10/2055
|
$250,380.65
|
APPENDIX A
“Additional Payments” shall mean all amounts (i) that are out-of-pocket costs incurred or payable by Landlord
in connection with the transfer of the Leased Premises to Tenant, and (ii) that are out-of-pocket costs, expenses, charges or penalties (including the Make-Whole Premium), if any, incurred by Landlord as a result of the prepayment or defeasance of a
Note(s) as the result of the occurrence of an Event of Default. Notwithstanding anything to the contrary set forth in this Lease, in no event shall Tenant be responsible for the payment of any Additional Payments that are payable by Landlord to a
Lender as a result of a default by Landlord pursuant to the Note or Mortgage, which default is not the result of a default by Tenant hereunder.
“Additional Rent” shall mean all amounts, costs, expenses, liabilities, indemnities and obligations (including
Tenant’s obligation to pay any Default Rate interest hereunder) which Tenant is required to pay pursuant to the terms of this Lease, other than Basic Rent.
“Affiliate” of any Person shall mean any other Person directly or indirectly controlling, controlled by or
under common control with, such Person and shall include, if such Person is an individual, members of the immediate family of such Person, and trusts for the benefit of such individual. For the purposes of this definition, the term “control”
(including the correlative meanings of the terms “controlling”, “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of
the management policies of such Person, whether through the ownership of voting securities or by contract or otherwise.
“Alteration” or “Alterations” shall mean any or all changes, additions (whether or not adjacent to or
abutting any then existing buildings), expansions (whether or not adjacent to or abutting any then existing buildings), improvements, reconstructions, removals or replacements of any of the Improvements or Equipment, both interior or exterior, and
ordinary and extraordinary, it being understood that Alterations shall not include repairs or ordinary maintenance.
“Applicable Laws” shall mean all existing and future applicable laws (including common laws), rules,
regulations, statutes, treaties, codes, ordinances, permits, certificates, orders and licenses of any Governmental Authorities, and applicable judgments, decrees, injunctions, writs, orders or like action of any court, arbitrator or other
administrative, judicial or quasi-judicial tribunal or agency of competent jurisdiction (including those pertaining to the environment and those pertaining to the construction, use or occupancy of the Leased Premises). Applicable Laws shall include
Environmental Laws.
“Basic Rent” shall mean the amounts set forth on Exhibit B annexed to this Lease.
“Basic Rent Payment Dates” shall mean the Closing Date and the tenth (10th) day of each month (or,
if such day is not a Business Day, the following Business Day) thereafter during the Term.
“Business Day” means any day other than a Saturday or a Sunday or other day on which commercial banks in the
State in which the Leased Premises are located are required or are authorized to be closed.
“CERCLA” shall mean the Comprehensive Environmental Response, Compensation and Liability Act, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601-9657.
“Claims” shall mean Liens (including, without limitation, Lien removal and bonding costs), liabilities,
obligations, damages, losses, demands, penalties, assessments, payments, fines, claims, actions, suits, judgments, settlements, costs, expenses and disbursements (including, without limitation, reasonable legal fees and expenses and costs of
investigation and enforcement) of any kind and nature whatsoever.
“Closing Date” shall mean May 18, 2020.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
“Condemnation” shall mean a Taking and/or a Requisition.
“Default Rate” shall mean the greater of (i) 9.25% per annum and (ii) the then current Prime Rate plus 3.00%
per annum.
“Environmental Laws” shall mean and include, all to the extent applicable to the Leased Premises or to
Tenant’s (or its subtenant’s or assignee’s) operations at, or use of, the Leased Premises, the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §§ 6901-6987, as amended by the Hazardous and Solid Waste Amendments of 1984, CERCLA, the
Hazardous Materials Transportation Act of 1975, 49 U.S.C. §§ 1801-1812, the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2671, the Clean Air Act, 42 U.S.C. §§ 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 et
seq and all other federal, state and local laws, rules, orders, statutes, codes and regulations applicable to the Leased Premises or the operations thereon or use thereof and (i) relating to the environment, human health or natural resources, (ii)
regulating, controlling or imposing liability or standards of conduct concerning Hazardous Materials, or (iii) regulating the clean-up or other remediation of the Leased Premises or any portion thereof, as any of the foregoing may have been amended,
supplemented or supplanted from time to time.
“Equipment” shall mean, collectively, the machinery and equipment which is attached to the Improvements in
such a manner as to become fixtures under Applicable Law, together with all additions and accessions thereto, substitutions therefor and replacements thereof, excepting therefrom the Trade Fixtures.
“Event of Default” shall mean the occurrence of any one or more of the following events under this Lease: (i)
a failure by Tenant to make (regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant
from complying with the provisions of this Lease): (x) any payment of Basic Rent when due and payable and the continuance of such failure for three (3) Business Days after written notice thereof to Tenant or (y) any payment of any other sum herein
required to be paid by Tenant which continues unremedied for a period of ten (10) days after written notice thereof to Tenant; (ii) failure by Tenant to perform and observe, or a violation or breach of, any other provision in this Lease and, in any
such case, such default shall continue for a period of thirty (30) days after written notice thereof is given by Landlord, or if such default is of such a nature that it cannot reasonably be cured within such period of thirty (30) days, such period
shall be extended for such longer time as is reasonably necessary (not to exceed 180 days), provided that Tenant has commenced to cure such default within said period of thirty (30) days and is actively, diligently and in good faith
proceeding with continuity to remedy such default; (iii) Tenant shall (A) voluntarily be adjudicated a bankrupt or insolvent, (B) voluntarily consent to the appointment of a receiver or trustee for itself or for the Leased Premises, (C) voluntarily
file a petition seeking relief under the bankruptcy or other similar laws of the United States, any state or any jurisdiction, (D) voluntarily file a general assignment for the benefit of creditors, (E) be the subject of an involuntary case or
proceeding against Tenant of the nature referred to in the foregoing subclauses of this clause (iii) which remains undismissed for more than ninety (90) days or (F) generally not pay its debts as they become due or declare that it will
generally be unable to pay its debts as they become due; (iv) a court shall enter an order, judgment or decree appointing a receiver or trustee for Tenant or for the Leased Premises or approving a petition filed against Tenant which seeks relief
under the bankruptcy or other similar laws of the United States or any State or otherwise entering an order for relief in any such proceeding, and such order, judgment or decree shall remain in force, undischarged or unstayed, sixty (60) days after
it is entered; (v) Tenant shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; or (vi) the estate or interest of Tenant in the Leased Premises shall be levied
upon or attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall not be vacated or discharged within sixty (60) days after such levy or attachment.
“Expansion” shall mean Alterations that consist of additions to the then existing Improvements, or the construction of additional
buildings or other structures on the Land, other than storage or utility sheds or similar structures with minimal square footage.
“Expiration Date” shall mean the last day of the month in which the fifteenth (15th) anniversary of
the Closing Date occurs, unless the Closing Date is the first day of a calendar month, in which case the Expiration Date shall mean the last day of the calendar month immediately preceding the month in which the fifteenth (15th)
anniversary of the Closing Date occurs.
“Fair Rental Value” shall mean, at any time of determination, the then prevailing market rate for new leases
for buildings of comparable size, age, use, location and quality as the Leased Premises in its condition at such time of determination for a term equal to the then remaining scheduled Term.
“GAAP” shall mean generally accepted accounting principles, uniformly applied, as in effect from time to time
in the United States of America.
“Governmental Authority” shall mean any federal, state, county, municipal, foreign or other governmental or
regulatory authority, agency, board, body, instrumentality, court or quasi governmental authority (or private entity in lieu thereof).
“Hazardous Materials” shall mean all chemicals, petroleum, crude oil or any fraction thereof, hydrocarbons,
polychlorinated biphenyls (PCBs), asbestos, asbestos-containing materials and/or products, urea formaldehyde, or any substances which are classified as “hazardous” or “toxic” under CERCLA; hazardous waste as defined under the Solid Waste Disposal
Act, as amended 42 U.S.C. § 6901; air pollutants regulated under the Clean Air Act, as amended, 42 U.S.C. § 7401, et seq.; pollutants as defined under the Clean Water Act, as amended, 33 U.S.C. § 1251, et seq., any pesticide as defined by Federal
Insecticide, Fungicide, and Rodenticide Act, as amended, 7 U.S.C. § 136, et seq., any hazardous chemical substance or mixture or imminently hazardous substance or mixture regulated by the Toxic Substances Control Act, as amended, 15 U.S.C. § 2601, et
seq., any substance listed in the United States Department of Transportation Table at 45 CFR 172.101; any chemicals included in regulations promulgated under the above listed statutes or any similar federal or state statutes relating to the
environment, human health or natural resources; any explosives, radioactive material, and any chemical regulated by state statutes similar to the federal statutes listed above and regulations promulgated under such state statutes.
“Imposition” or “Impositions” shall mean, collectively, all Taxes of every kind and nature on or with
respect to the Leased Premises or the Basic Rent or Additional Rent, or the use, lease, ownership or operation thereof; all charges, fees, expenses and/or taxes for or under any Record Agreement or other agreement maintained for the benefit of the
Leased Premises; all general and special assessments, levies, permits, inspection and license fees on or with respect to the Leased Premises; all water and sewer rents and other utility charges on or with respect to the Leased Premises; all ground
rents on or with respect to the Leased Premises, if any; all common area maintenance fees, if any, applicable to the Leased Premises, and all other public charges and/or taxes whether of a like or different nature, even if unforeseen or
extraordinary, imposed or assessed upon or with respect to the Leased Premises, prior to or during the Term, against Landlord, Tenant or the Leased Premises as a result of or arising in respect of the occupancy, leasing, use, maintenance, operation,
management, repair or possession thereof, or any activity conducted on the Leased Premises, or the Basic Rent or Additional Rent, including without limitation, any sales tax, occupancy tax, rent tax or excise tax levied by any governmental body on or
with respect to such Basic Rent or Additional Rent; all payments required to be made to a governmental or quasi-governmental authority (or private entity in lieu thereof) that are in lieu of any of the foregoing, whether or not expressly so
designated; and any penalties, fines, additions or interest thereon or additions thereto, provided that the term “Impositions” shall exclude any federal, state or local (A) transfer taxes as the result of a conveyance by (or suffered by)
Landlord to any Person other than (1) Tenant or a person designated by Tenant or (2) as a result of an Event of Default, (B) franchise, capital stock, gross income taxes that are in the nature of franchise or capital stock taxes or similar taxes, if
any, of Landlord, except to the extent such franchise, capital stock or similar taxes would not have been payable by Landlord but for the ownership by Landlord of the Leased Premises, (C) income, excess profits or other taxes, if any, of Landlord,
determined on the basis of or measured by its net income, (D) estate, inheritance, succession, gift, capital levy or similar taxes of Landlord, or (E) Tax that would not have been imposed but for the failure of an Indemnitee to comply with
certification, information, documentation or other reporting requirements applicable to such Indemnitee and for which Tenant is not responsible under this Lease, if compliance with such requirements is required by statute or regulation of the
relevant taxing authority as a precondition to relief or exemption from such Tax.
“Improvements” shall mean, collectively, the buildings, structures and other improvements on the Land.
“Indemnitee” shall mean Landlord, each Lender, the Trustee, any trustee under a Mortgage which is a deed of
trust, each of their assignees or other transferees and each of their Affiliates and their respective officers, directors, employees, shareholders, members or other equity owners.
“Initial Term” shall mean the period of time commencing on the Closing Date and terminating on the Expiration
Date.
“Insurance Expiration Date” shall mean, with respect to an insurance policy, the date that such insurance
policy will expire.
“Insurance Requirements” shall mean, as the case may be, any one or more of the terms of each insurance policy
required to be carried by Tenant under this Lease and the requirements of the issuer of such policy.
“Land” shall mean the lot(s) or parcel(s) of land described in Exhibit A attached to this Lease and
made a part hereof, together with the easements, rights and appurtenances thereunto belonging or appertaining.
“Landlord” shall mean HF Lakeland FL Landlord, LLC, a Delaware limited liability company.
“Leased Premises” shall mean, collectively, the Land, the Improvements and the Equipment, together with any
and all other property and interest in property conveyed to Landlord pursuant to the deeds, bills of sale or other documents executed in connection with the purchase of the Land, the Improvements and the Equipment by Landlord.
“Legal Requirement” or “Legal Requirements” shall mean, as the case may be, any one or more of all
present and future laws, codes, ordinances, orders, judgments, decrees, injunctions, rules, regulations and requirements, even if unforeseen or extraordinary, of every duly constituted governmental authority or agency and all covenants, restrictions
and conditions now of record which may be applicable to Tenant, Landlord (with respect to the Leased Premises) or to all or any part of or interest in the Leased Premises, or to the use, manner of use, occupancy, possession, operation, maintenance,
alteration, repair or reconstruction of the Leased Premises, even if compliance therewith (i) necessitates structural changes or improvements (including changes required to comply with the Americans with Disabilities Act) or results in interference
with the use or enjoyment of the Leased Premises or (ii) requires Tenant to carry insurance other than as specifically required by the provisions of this Lease.
“Lender” or “Lenders” shall mean, collectively, the Trustee and each financial institution or other
Person that makes a Loan to Landlord, secured, directly or indirectly, by a Mortgage and evidenced by a Note or which is the holder of the Mortgage and a Note, or an interest therein, as a result of an assignment thereof or otherwise.
“Lien” or “Liens” shall mean any lien, mortgage, pledge, charge, security interest or encumbrance of
any kind, or any type of preferential arrangement that has the practical effect of creating a security interest, including, without limitation, any thereof arising under any conditional sale agreement, capital lease or other title retention
agreement.
“Loan” shall mean a loan made by a Lender to Landlord secured by a Mortgage and evidenced by a Note.
“Make-Whole Premium” means any make-whole premium, prepayment amount, termination fee or similar amount or
charge payable by Landlord in connection with the early payment, in whole or in part, of any Note.
“Mortgage” shall mean a mortgage, deed of trust or similar security instrument hereafter executed covering the
Leased Premises from Landlord to secure the repayment of a Loan.
“Net Award” shall mean the entire award payable to Landlord or the Trustee by reason of a Condemnation, less
any reasonable expenses incurred by Landlord or the Trustee in collecting such award.
“Net Proceeds” shall mean the entire proceeds of any insurance required under clause (i), (iv),
or (vi) of Section 14(a) of this Lease, less any actual and reasonable expenses incurred by Tenant, Landlord or Trustee in collecting such proceeds.
“Note” or “Notes” shall mean a promissory note or notes executed from Landlord to a Lender, which note
or notes is secured by a Mortgage.
“Permitted Encumbrances” shall mean: (A) those covenants, restrictions, reservations, Liens, conditions,
encroachments, easements and other matters of title that affect the Leased Premises: (i) as of the Closing Date; or (ii) arising after the Closing Date that: (a) individually or in the aggregate, do not materially detract from the value or
marketability, or impair in any material manner the use, of the Leased Premises; or (b) arise or are created by municipal and zoning ordinances; and (B) current taxes and assessments not yet due and payable or being contested in accordance with the
provisions of Section 18.
“Permitted Investments” means (i) marketable direct obligations issued or unconditionally guaranteed by the
United States of America or issued by any agency thereof and backed by the full faith and credit of the United States of America, in each case maturing within six (6) months from the date of acquisition thereof, and (ii) marketable general
obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within six (6) months from the date of acquisition thereof and, at the time of acquisition,
having one of the two highest ratings generally obtainable from either Standard & Poor's Corporation or Moody's Investors Service, Inc.
“Person” shall mean an individual, corporation, partnership, joint venture, association, joint-stock company,
trust, limited liability company, non-incorporated organization or government or any agency or political subdivision thereof.
“Prime Rate” shall mean the prime rate of interest published in The Wall Street Journal
or its successor, from time to time.
“Record Agreement” shall mean an easement agreement, restrictive covenant, declaration, right-of-way or any
other agreement or document of record now or hereafter affecting the Leased Premises, including each Permitted Encumbrance for as long as it is in effect.
“Release” shall mean the release of any Hazardous Materials into or upon any land or water or air, or
otherwise into the environment, including, without limitation, by means of burial, disposal, discharge, emission, injection, spillage, leakage, seepage, leaching, dumping, pumping, escaping, emptying, placement and the like.
“Renewal Option Notice” shall mean a written notice from Tenant to Landlord of its election to extend the Term
(or any then Renewal Term) of this Lease pursuant to Section 5 of this Lease.
“Renewal Term” shall mean an additional Lease term of five (5) years.
“Replaced Equipment” shall mean Equipment that has been replaced by Tenant with Replacement Equipment.
“Replacement Equipment” shall mean operational equipment or other parts used by Tenant to replace any of the
Equipment.
“Requisition” shall mean any temporary condemnation or confiscation of the use or occupancy of the Leased
Premises by any Governmental Authority, civil or military, whether pursuant to an agreement with such Governmental Authority in settlement of or under threat of any such requisition or confiscation, or otherwise.
“Restoration” shall mean, following a casualty or Condemnation, the restoration of the Leased Premises to as
nearly as possible its value, condition and character immediately prior to such casualty or Condemnation (assuming that the Leased Premises has been maintained to no lesser standard than that required under this Lease), in accordance with the
provisions of this Lease, including but not limited to the provisions of Sections 11(a), 12 and 15.
“Restoration Award” shall mean that portion of the Net Award equal to the cost of Restoration.
“Restoration Fund” shall mean, collectively, the Net Proceeds, Restoration Award and Tenant’s Insurance
Payment.
“SEC” means the Securities and Exchange Commission.
“State” shall mean the State or Commonwealth in which the Leased Premises is situated.
“Structural Alteration” shall mean an Alteration that (i) will result in a change in the footprint of the
Improvements, (ii) involves the addition of one or more floors to the Improvements, (iii) materially adversely affects the structural elements or any exterior walls of the Improvements, or involves the removal or relocation of any exterior walls of
the Improvements, (iv) decreases the rentable square footage of the Leased Premises other than to a de minimis extent or (v) materially adversely affects the proper functioning and/or capacity of the building systems in the Improvements.
“Taking” shall mean any taking of the Leased Premises, or any portion thereof, in or by condemnation or other
eminent domain proceedings pursuant to any law, general or special, or by reason of any agreement with any condemnor in settlement of or under threat of any such condemnation or other eminent domain proceedings or by any other means, or any de facto
condemnation.
“Tax” or “Taxes” shall mean the following present and future taxes, including income (gross or net),
gross or net receipts, sales, use, leasing, value added, franchise, doing business, transfer, capital, property (tangible or intangible), ad valorem, municipal assessments, rent, excise and stamp taxes, levies, imposts, duties, charges, assessments
or withholding, together with any penalties, fines, additions or interest thereon or additions thereto (any of the forgoing being referred to herein individually as a “Tax”), imposed by any Governmental Authority. Taxes shall include the
costs of any contest or appeal pursued which reduces the Taxes (or attempts to do so), including reasonable attorneys’ fees and costs incident thereto. Without limiting the foregoing, if at any time during the term of this Lease the methods of
taxation prevailing at the execution hereof shall be changed or altered so that in lieu of or as a supplement or addition to or a substitute for the whole or any part of the real estate taxes or assessments now or from time to time thereafter levied,
assessed or imposed by applicable taxing authorities for the funding of governmental services, there shall be imposed (i) a tax, assessment, levy, imposition or charge, wholly or partially as a capital levy or otherwise, on the gross rents received
or otherwise attributable to the Leased Premises, or (ii) a tax, assessment, levy (including but not limited to any municipal, state or federal levy), imposition or charge measured by or based in whole or in part upon the Leased Premises or this
Lease, and imposed on the Landlord under this Lease or any portion thereof, or (iii) a license fee or other fee or tax measured by the gross rent payable under this Lease, or (iv) any other tax, assessment, levy, charge, fee or the like payable with
respect to the Leased Premises, the rents, issues and profits thereof, then all such taxes, assessments, levies, impositions and/or charges, or the part thereof so measured or based, shall be deemed to be Taxes.
“Tenant” shall mean Haverty Furniture Companies, Inc., a Maryland corporation.
“Tenant’s Award” shall mean, to the extent Tenant shall have a right to make a separate claim therefor against
the condemnor, any award or payment (in connection with a Condemnation) for Tenant’s leasehold interest hereunder, relocation assistance available to Tenant under federal or state law including, but not limited to, on account of Trade Fixtures,
Tenant’s moving expenses and Tenant’s out-of-pocket expenses incidental to the move, if available.
“Tenant’s Insurance Payment” shall mean, in the event of damage or destruction, the amount of the proceeds
that would have been payable under the third-party insurance required to be maintained pursuant to Section 14(a)(i), (iv) or (vi) had such insurance program been in effect.
“Tenant’s Termination Notice” shall mean a written notice from Tenant to Landlord of Tenant’s intention to
terminate this Lease in accordance with Section 13 or 14 of this Lease, which notice shall set forth the Termination Date.
“Term” shall mean the Initial Term, together with any Renewal Term.
“Termination Date” shall mean the date for the termination of this Lease pursuant to Tenant’s Termination
Notice, which date shall be on a Basic Rent Payment Date occurring no sooner than thirty (30) days after the date of such Tenant’s Termination Notice.
“Threshold Amount” shall mean $500,000.
“Trade Fixtures” shall mean all furniture, fixtures, equipment and other items of personal property (whether
or not attached to the Improvements) that are owned by Tenant and used in connection with the operation of the business conducted on the Leased Premises, that are not necessary for the operation of the Leased Premises and that have not been financed
or funded by Landlord.
“Trustee” shall mean any trustee for the benefit of lenders providing financing to Landlord in connection with
the Leased Premises, and any successor thereto. If no Notes are outstanding as of any date of determination, each reference to the Trustee in this Lease shall be inapplicable, and any payments to be made, or notices or consents to be given, to or by
the Trustee shall be paid or given, as the case may be, to or by Landlord, acting singly.
“Warranties” shall mean all warranties, guaranties and indemnities, express or implied, and similar rights
which Landlord may have against any manufacturer, seller, engineer, contractor or builder in respect of the Leased Premises, including, but not limited to, any rights and remedies existing under contract or pursuant to the Uniform Commercial Code.
Exhibit 10.5
DEED OF LEASE
Dated as of May 18, 2020
between
HAVERTY FURNITURE COMPANIES, INC.,
as the Tenant
as the Tenant
and
HF COLONIAL HEIGHTS VA LANDLORD, LLC,
as the Landlord
as the Landlord
_________________________________________________________________________
TABLE OF CONTENTS
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1.
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Certain Definitions
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1
|
|
|
2.
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Demise of Leased Premises
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1
|
|
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3.
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Title and Condition
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1
|
|
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4.
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Use of Leased Properties; Quiet Enjoyment
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3
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|
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5.
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Term
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3
|
|
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6.
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Rent
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4
|
|
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7.
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Net Lease; Non-Terminability
|
5
|
|
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8.
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Payment of Impositions; Compliance with Legal Requirements and Insurance Requirements
|
6
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|
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9.
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Liens; Recording and Title
|
7
|
|
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10.
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Indemnification
|
8
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|
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11.
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Maintenance and Repair
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10
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|
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12.
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Alterations
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11
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|
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13.
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Condemnation
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12
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|
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14.
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Insurance
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13
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|
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15.
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Restoration
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16
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|
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16.
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Subordination to Financing
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18
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|
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17.
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Assignment, Subleasing
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19
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|
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18.
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Permitted Contests
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20
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19.
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Conditional Limitations; Default Provisions
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21
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|
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20.
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Additional Rights of Landlord and Tenant
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23
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|
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21.
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Notices
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24
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|
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22.
|
Estoppel Certificates
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25
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|
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23.
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Surrender and Holding Over
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25
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|
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24.
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No Merger of Title
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26
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25.
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Definition of Landlord
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26
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26.
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Hazardous Materials
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27
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27.
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Entry by Landlord
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27
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28.
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No Usury
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27
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29.
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Financial Statements
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28
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30.
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Separability
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28
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31.
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Right of First Refusal
|
28
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|
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32.
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Miscellaneous
|
29
|
EXHIBIT A Legal Description
EXHIBIT B Basic Rent
EXHIBIT C Form of Subordination, Non-Disturbance and Attornment
Agreement*
EXHIBIT D Form of Estoppel Certificate*
EXHIBIT E Form of Landlord’s Waiver and Consent*
APPENDIX A Definitions
* Certain exhibits or schedules and annexes to this exhibit have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted exhibits, schedule and/or annex will be furnished to the U.S. Securities and Exchange Commission or its staff upon request.
DEED OF LEASE
THIS DEED OF LEASE (as amended, supplemented or otherwise modified from time to time, this “Lease”) made as of
May 18, 2020, by and between HF COLONIAL HEIGHTS VA LANDLORD, LLC, a Delaware limited liability company, as landlord, and HAVERTY FURNITURE COMPANIES, INC., a Maryland corporation, as tenant.
In consideration of the rents and provisions herein stipulated to be paid and performed, Landlord and Tenant,
intending to be legally bound, hereby covenant and agree as follows:
1. Certain Definitions. All capitalized terms, unless otherwise defined herein, shall have the respective meanings ascribed to such terms in Appendix A annexed hereto and by this reference
incorporated herein.
2. Demise of Leased Premises.
Landlord hereby demises and lets to Tenant and Tenant hereby takes and leases from Landlord, for the term and upon the provisions hereinafter specified, the Leased Premises.
3. Title and Condition.
(a) The Leased Premises are demised and let subject to (i) the Permitted Encumbrances and (ii) the condition of the Leased
Premises as of the Closing Date, without representation or warranty by Landlord; it being understood and agreed, however, that the recital of the Permitted Encumbrances herein shall not be construed as a revival of any thereof which for any reason
may have expired or which may hereafter expire.
(b) LANDLORD LEASES AND WILL LEASE, AND TENANT TAKES AND WILL TAKE, THE LEASED PREMISES “AS IS”, AND TENANT ACKNOWLEDGES THAT
LANDLORD (WHETHER ACTING AS LANDLORD HEREUNDER OR IN ANY OTHER CAPACITY) HAS NOT MADE AND WILL NOT MAKE, NOR SHALL LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PREMISES, INCLUDING
ANY WARRANTY OR REPRESENTATION AS TO ITS FITNESS FOR ANY PARTICULAR USE OR PURPOSE, AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, LATENT OR PATENT, AS TO LANDLORD’S TITLE THERETO, OR AS TO VALUE, COMPLIANCE WITH SPECIFICATIONS, DESIGN,
LOCATION, USE, OPERATION, CONDITION, MERCHANTABILITY, QUALITY, DESCRIPTION, DURABILITY, ENVIRONMENTAL OR SOIL CONDITION OR AVAILABILITY OF UTILITIES, IT BEING AGREED THAT ALL RISKS INCIDENT TO ANY OF THE FOREGOING ARE TO BE BORNE BY TENANT. Tenant
acknowledges and agrees that (i) the Leased Premises are of its selection and to its specifications, (ii) the Leased Premises have been inspected by Tenant and are satisfactory to it and (iii) Tenant has examined the title to the Leased Premises
prior to the execution and delivery of this Lease and has found such title to be satisfactory for the purposes contemplated by this Lease. In the event of any defect or deficiency in the Leased Premises of any nature, whether patent or latent,
Landlord shall not have any responsibility or liability with respect thereto (including strict liability in tort). The provisions of this Section 3(b) have been negotiated, and the foregoing provisions are intended to be a complete exclusion and
negation of any warranties by Landlord, express or implied, with respect to the Leased Premises, arising pursuant to the Uniform Commercial Code or any other law now or hereafter in effect or otherwise.
(c) Subject to Section 27 and so long as no Event of Default has occurred and is continuing, Landlord agrees that
during the Term, Tenant shall have sole and exclusive possession of the Leased Premises, and Landlord agrees that during the Term of this Lease, without Tenant’s prior written consent (i) no other improvements may be constructed by Landlord within
or on the Leased Premises, and (ii) Landlord shall not grant to any Person the right to lease, enter upon or use or occupy any portion of the Leased Premises during the Term other than Tenant and its contractors, employees, customers and invitees.
(d) If as of the Closing Date there are any contracts, escrow agreements, declarations, easements, or other agreements,
arrangements or documents of any kind relating to the Leased Premises or binding upon or inuring to the benefit of the owner of the Leased Premises providing for any obligations, payments, receipts, rights, credits or benefits that would have been
binding upon or would have inured to the benefit of Tenant or any Affiliate thereof but for the sale of the Leased Premises to Landlord, then Tenant shall timely perform and pay such obligations and Tenant shall be entitled to the receipts, rights,
and benefits in connection therewith to the extent that such performance is required or the benefits are receivable during the Term, it being understood that the foregoing provision shall not apply to any tax benefits,
including any depreciation, to which the owner of the Leased Premises is entitled.
(e) Landlord hereby assigns, without recourse or warranty whatsoever, to Tenant, all Warranties, if any. Such assignment
shall remain in effect until the termination of this Lease, provided that Landlord shall retain the right to enforce the Warranties in the name of Tenant during the continuance of an Event of Default. Any monies collected by Tenant (net of
reasonable out-of-pocket collection expenses) under any of the Warranties during the continuation of an Event of Default shall be held in trust by Tenant and promptly paid over to Landlord. Landlord hereby agrees to execute and deliver, at
Tenant’s expense, such further documents, including powers of attorney, as Tenant may reasonably request in order that Tenant may have the full benefit of the assignment effected by this Section 3(c). Upon the termination of this Lease, the
Warranties shall automatically revert to Landlord. The foregoing provision of reversion shall be self-operative and no further instrument of reassignment shall be required, provided that, in confirmation of such reassignment, Tenant shall
promptly execute and deliver any commercially reasonable instrument which Landlord may request.
(f) Landlord agrees to enter into, at Tenant’s expense, such Record Agreements as reasonably requested by Tenant, subject to
Landlord’s approval of the form thereof, not to be unreasonably withheld; provided, however, that no such Record Agreement shall (i) result in any material diminution in the value or utility of the Leased Premises for use as a distribution center
(a “Facility”) or (ii) render the use of the Leased Premises dependent upon any other property or condition or materially affect Tenant’s obligations under this Lease.
4. Use of Leased Premises; Quiet Enjoyment.
(a) Tenant may use the Leased Premises as a Facility or for any other lawful purpose, so long as such other lawful purpose
would not (i) in Landlord’s reasonable determination, have a material adverse effect on the value of the Leased Premises, (ii) materially increase (when compared to use as a Facility) the likelihood that Tenant or Landlord would incur material
liability under any provisions of any Environmental Laws, or (iii) subject Landlord to any burdensome regulation. Tenant shall, at its expense, timely observe, perform, comply with, make any payments required under, and carry out the provisions
of, each Record Agreement required therein to be observed and performed by the owner, operator or occupant of the Leased Premises during the Term, including, without limitation, paying any and all assessments for common area maintenance costs.
(b) Tenant, either itself or through one or more subtenants, shall continue to operate and occupy the Leased Premises during
the Term, except during any restoration of the Leased Premises after a casualty or Condemnation or during any remodeling or construction of Alterations permitted under this Lease, and subject to Force Majeure.
(c) Tenant shall not permit any unlawful occupation, business or trade to be conducted on the Leased Premises or any use to be
made thereof contrary to any applicable Legal Requirements or Insurance Requirements or the provisions of any Record Agreement. Tenant shall not use, occupy or permit the Leased Premises to be used or occupied, nor do or permit anything to be done
in or on the Leased Premises, in a manner that would (i) make void or voidable any insurance that Tenant is required hereunder to maintain in force, (ii) affect the ability of Tenant to obtain any insurance which Tenant is required to furnish
hereunder, or (iii) cause any material injury or damage to any of the Improvements, except in connection with Alterations permitted under Section 12.
(d) So long as no Event of Default exists hereunder and remains uncured and subject to the provisions of Section 27,
Landlord covenants that neither Landlord, nor any Person claiming by, through or under Landlord, shall do any act to disturb the peaceful and quiet occupation and enjoyment of the Leased Premises by Tenant.
5. Term
(a) Subject to the provisions hereof, Tenant shall have and hold the Leased Premises for an initial term commencing on the
date hereof and ending on the Expiration Date.
(b) Provided (i) this Lease shall not have been terminated pursuant to the provisions of Section 13(b) or 19
and (ii) no Event of Default has occurred and remains uncured, in each case on the date of its Renewal Option Notice or on the Expiration Date (or the expiration date of the then expiring Renewal Term, as applicable), Tenant shall have four (4)
consecutive options to extend the term of this Lease for a Renewal Term, commencing upon the day after the Expiration Date (or the expiration date of the then expiring Renewal Term, as applicable). If Tenant elects to exercise any one or more of
said renewal options, it shall do so by giving a Renewal Option Notice to Landlord at any time during the Term (or the then Renewal Term, as applicable) but, in any event, on or before that date which is twelve (12) months prior to the commencement
of the Renewal Term for which such election is exercised (each, a “Renewal Term Exercise Deadline”); provided, however, if Tenant has not elected to exercise the then-applicable renewal option on or before the Renewal Term
Exercise Deadline, such Renewal Term Exercise Deadline shall be extended to the date that is thirty (30) days after that date Landlord gives Tenant written notice of such failure and of Tenant’s right to extend the Term of this Lease, which notice
shall state conspicuously in all caps and bold font at the top of the page that “FAILURE TO RESPOND MAY RESULT IN TENANT’S FORFEITURE OF ITS LEASE RENEWAL OPTION.” If Tenant has not provided the notice for
the exercise of a Renewal Term within thirty (30) days following delivery of notice to Tenant as set forth in the previous sentence, then Tenant shall forever waive its right to exercise such renewal option and any subsequent renewal option. If
Tenant shall elect to exercise any such renewal option, the term of this Lease shall be automatically extended for five (5) years without the execution of an extension or renewal lease. Any Renewal Term shall be subject to all of the provisions of
this Lease, including, but not limited to, the Basic Rent provisions for such Renewal Term set forth on Exhibit B attached hereto, and all such provisions shall continue in full force and effect. Within ten (10) days after request by
either Landlord or Tenant, Landlord and Tenant shall execute, acknowledge and deliver to each other an instrument confirming that such option has been effectively exercised and confirming the extended expiration date of this Lease and the then
applicable Basic Rent.
6. Rent.
(a) Tenant shall pay to Landlord, as rent for the Leased Premises during the Term, on the Closing Date (if the Closing Date
occurs after the tenth (10th) day of the calendar month in which the Closing Date occurs) and on each Basic Rent Payment Date occurring after the Closing Date, the Basic Rent for the calendar month in which such Basic Rent Payment Date
occurs, and shall pay the same by ACH or wire transfer in immediately available federal funds, by 1:00 p.m., New York time on the date due, to such account in such bank as Landlord shall designate from time to time in writing. In the event that
the Closing Date is a date other than the first day of a calendar month, the Basic Rent due on the Closing Date (or on the tenth (10th) day of such calendar month if the Closing Date occurs prior to such tenth (10th) day)
shall be an amount equal to the amount of Basic Rent set forth on Exhibit B hereto for the first Basic Rent Payment Date, times 1/30, times the number of days from and including the Closing Date to and excluding the first
day of the following calendar month, and the Basic Rent due on the first Business Day of the month following the month in which the Closing Date occurs shall be the amount set forth on Exhibit B for the first Basic Rent Payment Date.
(b) Tenant shall pay and discharge, as Additional Rent, all other amounts and obligations which Tenant assumes or agrees to
pay or discharge pursuant to this Lease, together with every fine, penalty, interest and cost which may be added by the party to whom such payment is due for nonpayment or late payment thereof. Notwithstanding the foregoing, Tenant shall not be
required to pay any obligations Landlord may voluntarily elect to incur unless this Lease expressly requires or permits the incurring of such obligation or expressly requires Tenant to pay the same. All payments of Additional Rent that are payable
to Landlord shall be paid by Tenant by ACH or wire transfer in immediately available federal funds in the same manner as payments of Basic Rent in Section 6(a) (unless otherwise specified by Landlord to Tenant in writing).
(c) If any installment of Basic Rent or Additional Rent is not paid when the same is due, Tenant shall pay to Landlord, on
demand, as Additional Rent, interest on such installment from the date such installment was due to the date such installment is paid at the Default Rate, provided that the first such late installment in any calendar year shall not commence
to accrue such interest at the Default Rate until the date that is five (5) days after delivery to Tenant of written notice from Landlord that such installment has not been paid on time. In addition to the interest payable pursuant to the
foregoing sentence, to the extent Tenant fails to make a payment of Basic Rent or Additional Rent by the applicable due date more than two (2) times in any calendar year, any payment not received by the applicable due date after the second instance
of late payment in such calendar year shall incur a late charge in the amount of one percent (1%) of such late payment amount (except to the extent such late charge is prohibited by applicable law). Tenant and Landlord agree that this late charge
represents a reasonable sum (considering all of the circumstances existing on the date of the execution of this Lease) and a fair and reasonable estimate of the costs that Landlord will incur by reason of Tenant’s failure to pay such amounts on
time. Tenant and Landlord further agree that proof of actual damages would be costly and inconvenient. Acceptance of any late charge shall not constitute a waiver of the default with respect to the overdue Basic Rent or Additional Rent payment
and shall not prevent Landlord from exercising any of the other rights available under this Lease, except to the extent Tenant has cured such default by paying the overdue Basic Rent or Additional Rent in full.
(d) Landlord and Tenant agree that this Lease is a true lease and does not represent a financing arrangement. Each party
shall reflect the transactions represented by this Lease in all applicable books, records and reports (including, without limitation, income tax filings) in a manner consistent with “true lease” treatment rather than “financing” treatment.
7. Net Lease; Non-Terminability.
(a) Except as otherwise expressly provided in this Lease, this Lease shall not terminate and Tenant shall not have, and hereby
waives, any right to terminate this Lease during the Term. This is a net lease and, except as otherwise expressly provided in this Lease, Tenant shall not be entitled to, and hereby waives any right to, any setoff, counterclaim, recoupment,
abatement, suspension, deferment, diminution, deduction, reduction or defense of or to Basic Rent or Additional Rent, and the obligations of Tenant under this Lease shall not be affected by any circumstance or event, or for any reason, including
but not limited to the following: (i) any damage to or destruction of the Leased Premises by any cause whatsoever, (ii) any Condemnation, (iii) the prohibition, limitation or restriction of, or interference with, Tenant’s use of the Leased
Premises, (iv) any eviction by paramount title, constructive eviction or otherwise, (v) any default on the part of Landlord under this Lease or under any other agreement between Landlord and Tenant, (vii) any latent or other defect in, or any theft
or loss of, the Leased Premises, or (viii) any other cause, whether similar or dissimilar to the foregoing, any present or future Applicable Law to the contrary notwithstanding. This Lease is an absolute and unconditional obligation of Tenant, and
it is the intention of the parties hereto that the obligations of Tenant under this Lease shall be separate and independent covenants and agreements, and that Basic Rent and Additional Rent shall continue to be payable in all events (or, in lieu
thereof, Tenant shall pay amounts equal thereto), and that the obligations of Tenant under this Lease shall continue unaffected, unless expressly provided in this Lease to the contrary or unless this Lease shall have been terminated pursuant to an
express provision of this Lease. Notwithstanding the foregoing, Tenant shall have the right to pursue a cause of action against Landlord for actual damages resulting from Landlord’s default under this Lease or from the gross negligence or willful
misconduct of Landlord or its agents or employees, it being understood that Tenant shall have no right to set off any such damages against the Basic Rent or Additional Rent payable under this Lease.
(b) Tenant agrees that it shall remain obligated under this Lease in accordance with its provisions and that, except as
otherwise expressly provided herein, it shall not take any action to terminate, rescind or avoid this Lease, notwithstanding (i) the bankruptcy, insolvency, reorganization, composition, readjustment, liquidation, dissolution, winding-up or other
proceeding affecting Landlord, (ii) the exercise of any remedy, including foreclosure, under any Mortgage, or (iii) any action with respect to this Lease (including the disaffirmance hereof) which may be taken by Landlord under the Federal
Bankruptcy Code or by any trustee, receiver or liquidator of Landlord or by any court under the Federal Bankruptcy Code or otherwise, provided that if no Event of Default has occurred and is continuing, this Lease is terminated by Landlord,
or by any trustee, receiver, liquidator or court, under the Federal Bankruptcy Code and Tenant is dispossessed of the Leased Premises, Tenant shall have no obligation to pay Basic Rent or any other obligation under this Lease that accrues after
such termination and dispossession so long as Tenant has returned the Leased Premises in accordance with the terms of this Lease.
8. Payment of Impositions; Compliance with Legal Requirements and Insurance Requirements.
(a) (i) During the Term and subject to Tenant’s right to contest as set forth in Section 18, Tenant shall, before interest
or penalties are due thereon, pay directly to the applicable third party and discharge all Impositions. If received by Landlord, Landlord shall, within thirty (30) days of Landlord’s receipt thereof, but in any event at least five (5) Business
Days prior to the due date for the related Imposition (provided that Landlord has received such bill or invoice prior to seven (7) Business Days preceding such due date) deliver to Tenant any bill or invoice with respect to any Imposition. If
Landlord fails to timely deliver a bill or invoice for Impositions hereunder, Landlord shall be responsible for any penalties, late charges or other expenses incurred by Tenant if Tenant is unable to timely pay such Impositions as a result of such
delay. Tenant (and Landlord, if required) shall notify the applicable taxing authority that all invoices for property taxes and similar taxes should be sent directly to Tenant, to the extent permitted by Applicable Laws. Any payments required to
be made by Tenant pursuant to this Section 8 that are not allowed to be paid directly to the appropriate Governmental Authority or such other Person to whom such payment is due shall be made directly to Landlord and Landlord shall make such
payment to the appropriate Governmental Authority or other Person.
(ii) In the event that any assessment against the Leased Premises may be paid in installments, Tenant
shall have the option to pay such assessment in installments; and in such event, Tenant shall be liable only for those installments which become due and payable during the Term. Tenant shall prepare and file all tax reports required by
Governmental Authorities which relate to the Impositions. Tenant shall deliver to Landlord, (1) within ten (10) days after Landlord’s written request therefor, receipts for the payments of all property taxes related to the Leased Premises and (2)
within twenty (20) days after Landlord’s written request therefor, copies of all settlements and notices pertaining to the Impositions which may be issued by any Governmental Authority and receipts for payments of all other Impositions made during
each calendar year of the Term.
(b) Tenant shall promptly comply with and conform to all of the Legal Requirements and Insurance Requirements.
(c) If any report, return or statement (a “Filing”) is required to be filed with respect to any Imposition payable by
Tenant hereunder, Tenant shall, if permitted by Applicable Laws to do so, timely file or cause to be filed such Filing with respect to such Imposition and shall promptly, upon Landlord’s written request therefor, provide notice of such Filing to
Landlord (except for any such Filing that Landlord has notified Tenant in writing that Landlord intends to file) and will (if ownership of the Leased Premises or any part thereof or interest therein is required to be shown on such Filing) show the
ownership of the Leased Premises in the name of Landlord and send a copy of such Filing to Landlord. If Tenant is not permitted by Applicable Laws to file any such Filing, Tenant will promptly notify Landlord of such requirement and prepare and
deliver to Landlord a proposed form of such Filing and such information as is within Tenant’s reasonable control or access with respect to such Filing within a reasonable time, and in all events at least twenty (20) days, prior to the time such
Filing is required to be filed. Tenant shall hold Landlord harmless from and against any liabilities, including, but not limited to penalties, additions to tax, fines and interest, arising out of any insufficiency or inaccuracy in any such Filing,
if such insufficiency or inaccuracy is attributable to Tenant, it being understood that Tenant shall have no liability hereunder with respect to any failure of Landlord to timely file any Filing that Tenant has provided to
Landlord pursuant to the second sentence of this subsection (c) or for any insufficiency or inaccuracy in any Filing if such insufficiency or inaccuracy is attributable to Landlord.
(d) Notwithstanding anything herein to the contrary, any obligations of Tenant under the provisions of this Section 8
that accrue prior to the expiration or earlier termination of this Lease shall survive such expiration or earlier the termination of this Lease for a period of two (2) years.
9. Liens; Recording and Title.
(a) Subject to the Tenant’s right to contest as set forth in Section 18, Tenant shall not, directly or
indirectly, create or permit to be created or to remain, and shall promptly discharge, any Lien on the Leased Premises, the Basic Rent or any Additional Rent, other than the Permitted Encumbrances and any mortgage, Lien or other charge created by
or resulting from any act of Landlord or those claiming by, through or under Landlord (except Tenant). Notice is hereby given that Landlord shall not be liable for any labor, services or materials furnished or to
be furnished to Tenant, or to anyone holding the Leased Premises through or under Tenant, and that no mechanic’s or other Liens for any such labor, services or materials shall attach to or affect the interest of Landlord in and to the Leased
Premises.
(b) Each of Landlord and Tenant shall execute, acknowledge and deliver to the other a written Memorandum of this Lease to be
recorded in the appropriate land records of the jurisdiction in which the Leased Premises is located, in order to give public notice and protect the validity of this Lease. In the event of any discrepancy between the provisions of such recorded
Memorandum of this Lease and the provisions of this Lease, the provisions of this Lease shall prevail.
(c) Nothing in this Lease and no action or inaction by Landlord shall be deemed or construed to mean that Landlord has granted
to Tenant any right, power or permission to do any act or to make any agreement which may create, give rise to, or be the foundation for, any right, title, interest or Lien in or upon the estate of Landlord in the Leased Premises, other than an
assignment or a sublease, in either case, as permitted under the provisions of Section 17.
10. Indemnification.
(a) Subject to Section 10(e) below, Tenant agrees to assume liability for, and to indemnify, protect, defend, save and
keep harmless each Indemnitee from and against any and all Claims, whether asserted prior to, during or after the Term, that may be suffered, imposed on or asserted against any Indemnitee (including any Claims resulting from any Indemnitee’s
ordinary negligence) arising, directly or indirectly, out of (i) the operation, possession, use, leasing, sub-leasing, non‑use, maintenance, modification, alteration, construction, reconstruction, restoration, condition, design or replacement of
the Leased Premises (or any portion thereof), (ii) any Record Agreement, (iii) patent, trademark or copyright infringement and latent or other defects, whether or not discoverable, (iv) the non-compliance of the Leased Premises with Applicable Laws
and any other liability under Applicable Laws related to the Leased Premises or this Lease (including, without limitation, any Claims arising directly or indirectly out of any actual or alleged violation, now or hereafter existing, of any
Environmental Laws), (v) this Lease or any modification, amendment or supplement hereto, (vi) any default by Tenant under this Lease, (vii) the business and activities of Tenant or of any other Person on or about the Leased Premises (whether as an
invitee, subtenant, licensee, contractor, employee or otherwise), and (viii) the actual or alleged presence, use, storage, generation or Release of any Hazardous Materials on, under, from, to or at the Leased Premises or any portion thereof (or
any surrounding areas for which Tenant or Landlord has any legal liability or obligation), in each case whether prior to or during the Term, including the cost of assessment, containment and/or removal of any such Hazardous Materials, the cost of
any actions taken in response to a Release of any such Hazardous Materials so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and costs incurred to comply with
Environmental Laws in connection with all or any portion of the Leased Premises, or the operation thereof (or any surrounding areas for which Tenant or Landlord has any legal liability or obligation). Notwithstanding the foregoing, nothing herein
shall be construed to obligate Tenant to indemnify, defend and hold harmless any Indemnitee from and against any Claims imposed on or incurred by such Indemnitee to the extent such Claims arise by reason of (i) any Indemnitee’s willful misconduct
or gross negligence, (ii) any Liens and liabilities created by Landlord on the Leased Premises or that arise from Landlord’s failure to pay any Taxes, in each case for which Tenant is not responsible under this Lease, or (iii) events or
circumstances that occur after the expiration or termination of this Lease and the return of the Leased Premises in accordance with this Lease.
(b) In case any Claim shall be made or brought against any Indemnitee, such Indemnitee shall give prompt written notice
thereof to Tenant; provided that failure to so notify Tenant shall not reduce Tenant’s obligations to indemnify any Indemnitee hereunder except to the extent such failure adversely affects Tenant’s rights to defend such Claim. Tenant shall
be entitled, at its expense, acting through counsel selected by Tenant (and reasonably satisfactory to such Indemnitee), to assume and control the negotiation, litigation and/or settlement of any such Claim; if Tenant does not assume the
negotiation, litigation and settlement of such Claim, then Indemnitee may so assume such negotiation, litigation and settlement, at Tenant’s expense. Such Indemnitee may (but shall not be obligated to) participate at its own expense and with its
own counsel in any proceeding conducted by Tenant in accordance with the foregoing, in which case Tenant shall keep such Indemnitee and its counsel fully informed of all proceedings and filings. Notwithstanding the foregoing, Tenant shall not be
entitled to assume and control the defense of any Claim if (i) an Event of Default has occurred and is continuing, (ii) the proceeding involves possible imposition of any criminal liability or penalty or unindemnified civil penalty on such
Indemnitee, (iii) the proceeding involves the granting of injunctive relief against the Indemnitee not related to this Lease, (iv) a significant counterclaim is available to the Indemnitee that would not be available to and cannot be asserted by
Tenant or (v) Tenant has not acknowledged to such Indemnitee in writing that such Claim is fully covered by Tenant’s indemnity set forth herein.
(c) Upon payment in full of any Claim by Tenant pursuant to this Section 10 to or on behalf of an Indemnitee, Tenant,
without any further action, shall be subrogated to any and all Claims that such Indemnitee may have relating thereto (other than claims in respect of insurance policies maintained by such Indemnitee at its own expense or claims against another
Indemnitee for which Tenant would have indemnity obligations hereunder) to the extent of such payment, and such Indemnitee shall execute such instruments of assignment and conveyance and other documents as may be necessary to preserve any such
Claims and otherwise reasonably cooperate with Tenant to enable Tenant to pursue such Claims. In no event shall Tenant settle or compromise any Claim against any Indemnitee if such settlement or compromise does not contain a full release of such
Indemnitee or admits culpability on the part of such Indemnitee, unless such Indemnitee otherwise consents in writing.
(d) Subject to Section 10(e) below, Landlord agrees to assume liability for, and to indemnify, protect, defend, save
and keep harmless Tenant from and against all Claims, occurring during the Term, that may be suffered, imposed on or asserted against Tenant as a result of any failure on the part of Landlord to perform or comply with any of the terms of this Lease
after expiration of all applicable notice and cure periods hereunder, except to the extent any such Claims arise from, or are caused by, the gross negligence or willful misconduct of, or breach of this Lease by, Tenant.
(e) Notwithstanding anything to the contrary set forth in this Lease, to the fullest extent permitted by Law, neither Landlord
nor Tenant shall be liable (by way of subrogation or otherwise) to the other party (or to any insurance company insuring the other party) for any loss or damage to the property of the releasing party to the extent the loss or damage is paid by
insurance carried by the releasing party even though such loss might have been occasioned by the negligence or willful acts or omissions of the Landlord or Tenant or their respective employees, agents, contractors or invitees. Landlord and Tenant
shall give each insurance company which issues policies of insurance, with respect to the items covered by this waiver, written notice of the terms of this mutual waiver, and shall have such insurance policies properly endorsed, if necessary, to
prevent the invalidation of any of the coverage provided by such insurance policies by reason of such mutual waiver. Each party shall pay any additional expense, if any, for obtaining such waiver.
(f) The obligations of Tenant and Landlord under this Section 10 shall survive any termination or expiration of this
Lease.
11. Maintenance and Repair.
(a) Tenant shall at all times from and after the Closing Date, put, keep and maintain the Leased Premises (including, without
limitation, the roof, landscaping, walls, footings, foundations, parking areas, driveways and structural components of the Leased Premises) in the same (or better) condition and order of repair as exists as of the Closing Date, except for ordinary
wear and tear, and shall promptly make all repairs and replacements of every kind and nature, whether foreseen or unforeseen, which may be required to be made upon or in connection with the Leased Premises in order to keep and maintain the Leased
Premises in the order and condition required by this Section 11(a). Tenant shall do, or cause others to do, all shoring of the Leased Premises or of foundations and walls of the Improvements and every other act necessary or appropriate for
preservation and safety thereof, by reason of or in connection with any excavation or other building operation upon the Leased Premises, whether or not Landlord shall, by reason of any Legal Requirements or Insurance Requirements, be required to
take such action or be liable for failure to do so. LANDLORD SHALL NOT BE REQUIRED TO MAKE ANY REPAIR, WHETHER FORESEEN OR UNFORESEEN, OR TO MAINTAIN THE LEASED PREMISES OR ADJOINING PROPERTY IN ANY WAY, AND TENANT HEREBY EXPRESSLY WAIVES THE
RIGHT TO MAKE REPAIRS AT THE EXPENSE OF THE LANDLORD, WHICH RIGHT MAY BE PROVIDED FOR IN ANY LAW NOW OR HEREAFTER IN EFFECT. Nothing in the preceding sentence shall be deemed to preclude Tenant from being entitled to insurance proceeds or
condemnation awards for Restoration pursuant to Sections 13(c) and 14(g). Tenant shall, in all events, make all repairs for which it is responsible hereunder promptly (but in any event shall commence such repairs within thirty (30)
days of the date Tenant becomes aware that such repairs are necessary, or, in the event of a Restoration pursuant to Section 13(c) or 14(g), within thirty (30) days of the date insurance proceeds or a condemnation award has been
paid to the Trustee (it being understood that Tenant shall take such steps as are reasonably necessary to protect and preserve the integrity and safety of the Leased Premises pending such payment) and shall diligently pursue
such repairs to completion), and all repairs shall be made in a good, proper and workmanlike manner.
(b) In the event that any Improvement shall violate any Legal Requirements or Insurance Requirements, then Tenant, at the
written request of Landlord, shall either (i) obtain valid and effective variances, waivers or settlements of all claims, liabilities and damages resulting from each such violation, whether the same shall affect Landlord, Tenant or both (or in the
case of a violation of Insurance Requirements, obtain new coverage where there is no violation of any Insurance Requirements), or (ii) take such action as shall be necessary to remove such violation, including, if necessary, the making of an
Alteration. Any such repair or Alteration shall be made in conformity with the provisions of Section 12.
(c) If Tenant shall be in default under any of the provisions of this Section 11, Landlord may, thirty (30) days after
Tenant’s receipt of written notice of default and failure of Tenant to commence to cure during such period or to diligently pursue such cure to completion, but without notice in the event of an emergency, do whatever is necessary to cure such
default as may be appropriate under the circumstances for the account of, and at the expense of, Tenant. In the event of an emergency Landlord shall notify Tenant of the situation by phone or other available communication and shall give Tenant as
much time as is reasonably practicable (not to exceed thirty (30) days) before acting independently to cure such default. All reasonable sums so paid by Landlord and all reasonable out-of-pocket costs and expenses (including, without limitation,
attorneys’ fees and expenses) so incurred, together with interest thereon at the Default Rate from the date of payment or incurring the expense, shall constitute Additional Rent payable by Tenant under this Lease.
(d) Tenant shall from time to time replace with Replacement Equipment any of the Equipment that shall have become, in Tenant’s
commercially reasonable judgment , worn out or unusable for the purpose for which it is intended, been taken by a Condemnation as provided in Section 13, or been lost, stolen, damaged or destroyed as provided in Section 14. Tenant
shall repair at its sole cost and expense all damage to the Leased Premises caused by the removal of Equipment or other personal property of Tenant or the installation of Replacement Equipment. All Replacement Equipment (except for Trade Fixtures)
shall become the property of Landlord, shall be free and clear of all Liens and rights of others and shall become a part of the Equipment as if originally demised herein.
12. Alterations.
(a) Tenant shall have the right, without obtaining the consent of Landlord, to (i) make any Alteration(s) to the Leased
Premises that are not Structural Alterations and the cost of which does not exceed the Threshold Amount, in the aggregate, in any calendar year, and (ii) install additional and/or relocate existing racking and inline sprinkler systems in the Leased
Premises, the cost of which shall not be included when calculating the Threshold Amount for purposes of Tenant’s right to make any other Alterations; provided, in each case, that, Tenant complies with clause (c) of this Section
12. Promptly after written request by Landlord, given not more than once in any calendar year, Tenant shall provide to Landlord a list, in reasonable detail, of all of the material Alterations that Tenant has made since the date of the most
recent such list provided by Tenant to Landlord (or since the Closing Date in the case of the first such request).
(b) Upon at least 30 days’ prior written notice to Landlord, Tenant shall have the right to (i) make any Alteration(s) to the
Leased Premises that are Structural Alterations and/or the cost of which exceeds the Threshold Amount, in the aggregate, in any calendar year and (ii) to install solar panels on the roof of the Premises, the cost of which shall not be included when
calculating the Threshold Amount for purposes of Tenant’s right to make any other Alterations; provided, in each case that (A) no Event of Default has occurred and is then continuing, (B) Tenant complies with clause (c) of this Section
12, and (C) prior to making any such Alteration(s), Tenant shall provide Landlord with the plans and specifications, estimated budget and proposed schedule of construction with respect thereto and Landlord shall have consented to such
Alterations, which consent shall not be unreasonably withheld.
(c) In connection with any Alteration: (i) the structural integrity of the Leased Premises shall not be impaired, and the
fair market value of the Leased Premises shall not be materially lessened, after the completion of any such Alteration; (ii) all such Alterations shall be performed in a good and workmanlike manner, and shall be expeditiously completed in
compliance with all Legal Requirements and Insurance Requirements; (iii) no such Alteration shall cause the Leased Premises to fail to comply with Section 4, (iv) Tenant shall promptly pay all costs and expenses of any such Alteration and
shall discharge all Liens filed against the Leased Premises arising out of the same; (v) Tenant shall procure and pay for all permits and licenses required in connection with any such Alteration; (vi) Tenant shall not, without obtaining Landlord’s
prior consent (which consent may be granted or withheld in Landlord’s sole discretion), incur any debt with respect to such Alteration that results in any mortgage or other encumbrance on the Leased Premises or any part thereof, and (vii) in the
case of any Alteration the estimated cost of which in any one instance exceeds the Threshold Amount, such Alterations shall be made under the supervision of an architect or engineer and in accordance with plans and specifications which shall be
submitted to Landlord prior to the commencement of the Alterations. In particular, in the case of the installation of any solar panels on the roof, such installation shall not void or impair any then applicable roof warranty, unless Tenant
purchases or otherwise obtains an overburden or extended warranty in connection with such installation. In the event of any Structural Alterations which alter the footprint of the Improvements, promptly after Landlord’s request, upon completion of
such Alterations which alter the footprint of the Improvements, Tenant, at Tenant’s expense, shall deliver to Landlord an updated as-built ALTA survey of the Leased Premises certified to Landlord.
(d) All Alterations shall, upon the expiration or earlier termination of this Lease become the property of Landlord, without
any further act. To the extent permitted by the Code and by any applicable state tax laws and regulations, Tenant shall be entitled to the tax benefits, if any, with respect to any Alterations made by Tenant at Tenant’s expense until such time as
such Alterations become the property of Landlord pursuant to the foregoing sentence.
(e) In the event that Tenant desires to construct an Alteration that constitutes an Expansion, Tenant may request that
Landlord provide the funding for such Expansion. Landlord shall notify Tenant within thirty (30) days of receiving such request, the information with respect to the Expansion described in clause (C) of paragraph (b) above and such
other information with respect to the Expansion as Landlord shall reasonably request whether or not Landlord, in its sole discretion, is willing to provide such funding and, if so, the material terms and conditions, including the increase in Basic
Rent, that would be applicable thereto. In the event that Landlord declines to provide such funding, or Landlord and Tenant cannot reach agreement on the terms for such funding, Tenant may fund the cost of the Expansion itself provided that all of
the conditions for such Expansion set forth above, including Landlord’s consent thereto, have been satisfied, it being understood that any Expansion shall also constitute an Alteration and shall be subject to all of the provisions of this Section
12.
13. Condemnation.
(a) Each of Landlord and Tenant, promptly upon obtaining knowledge of the institution of any proceeding for Condemnation,
shall notify the other party thereof and each of Landlord and Tenant shall be entitled, at its sole cost and expense, to participate in any Condemnation proceeding. Subject to the provisions of this Section 13 and Section 15,
Tenant hereby irrevocably assigns to Landlord any award or payment in respect of any Condemnation of the Leased Premises or any part thereof, except that (except as hereinafter provided) nothing in this Lease shall be deemed to assign to Landlord
any Tenant’s Award to the extent Tenant shall have a right to make a separate claim therefor against the condemnor, it being agreed, however, that Tenant shall in no event be entitled to any payment that reduces the award to
which Landlord is or would be entitled for the condemnation of Landlord’s interest in the Leased Premises.
(b) If (I) the entire Leased Premises, (II) a material portion of the Land or the Improvements or any means of ingress, egress
or access to the Leased Premises, the loss of which even after restoration would, in Tenant’s reasonable business judgment, be substantially and materially adverse to the business operations of Tenant at the Leased Premises, or (III) any means of
ingress, egress or access to the Leased Premises which does not result in at least one method of ingress and egress to and from the Leased Premises remaining that is sufficient for Tenant’s use thereof and that meets all existing Legal
Requirements, as determined by Tenant in its reasonable discretion, shall be the subject of a Taking by a duly constituted authority or agency having jurisdiction, then Tenant may, not later than ninety (90) days after such Taking has occurred,
serve a Tenant’s Termination Notice upon Landlord, in which case this Lease shall terminate on the applicable Termination Date and Landlord shall be entitled to receive and retain the entire Net Award.
(c) (i) In the event of a Condemnation of any part of the Leased Premises which does not result in a termination of this Lease,
promptly after the Net Award with respect to such Condemnation has been paid by the related authority to the Trustee, Tenant, to the extent Restoration of the Leased Premises is practicable and subject to Section 13(c)(ii)and Section 15,
shall commence and diligently continue to completion such Restoration.
(ii) Upon the payment to the Trustee of the Net Award of a Taking which falls within the provisions of
this Section 13(c), the Trustee shall, to the extent received, make the Net Award available to Tenant for Restoration in accordance with the provisions of Section 15. The proceeds remaining after the completion of, and payment for,
the Restoration, if any, shall be retained by Landlord. In the event of any such partial Condemnation, all Basic Rent and Additional Rent shall continue unabated and unreduced.
(iii) In the event of a Requisition of the Leased Premises Landlord shall apply the Net Award of such
Requisition received by Landlord to the installments of Basic Rent or Additional Rent thereafter payable and Tenant shall pay any balance remaining thereafter. Upon the expiration of the Term, any portion of such Net Award which shall not have
been previously credited to Tenant on account of the Basic Rent and Additional Rent shall be retained by Landlord.
(d) No agreement with any condemnor in settlement of or under threat of any Condemnation shall be made by either Landlord or
Tenant without the written consent of the other, and of the Lenders, if the Leased Premises are then subject to a Mortgage, which consent shall not be unreasonably withheld, provided that if an Event of Default has occurred and is then
continuing or Tenant has served a Tenant’s Termination Notice, then Tenant’s consent shall not be required.
14. Insurance.
(a) Tenant shall maintain, during the Term at its sole cost and expense, the following insurance on the Leased Premises:
(i) Insurance against loss of or damage to the Improvements and the Equipment under an ISO special
form or broader coverage insurance policy, which shall include coverage against all risks of direct physical loss or damage (which shall include windstorm and earthquake insurance and flood insurance if the Leased Premises is located within either
a Special Flood Hazard Area or a Non-Special Flood Hazard Area as determined by FEMA flood zone ratings of A or V). Such insurance shall also include (A) ordinance and law coverage (hazards A, B and C, with limits for A of not less than
replacement cost and limits for B and C not less than $1,000,000 in the aggregate) and (B) a condition that permits the insured to elect to rebuild on another site (it being understood that Tenant may not rebuild at another
site without Landlord’s prior written approval, which approval shall not be unreasonably withheld, but which may be conditioned, among other things, on the fulfillment of certain reasonable conditions precedent). Such insurance shall be in amounts
sufficient to prevent Landlord or Tenant from becoming a co-insurer under the applicable policies, and in any event in amounts not less than the actual replacement cost of the Improvements and Equipment (excluding footings and foundations and other
parts of the Improvements that are not insurable). Such insurance policies may contain reasonable exclusions and deductible amounts, all in accordance with industry standards.
(ii) Commercial general liability insurance against claims for bodily injury, death or property damage
occurring on, in or about the Leased Premises, which insurance shall (A) be written on an “Occurrence Basis”, and shall provide minimum protection with a combined single limit in an amount not less than the greater of (x) $5,000,000 or (y) the
aggregate amount of such insurance carried by prudent owners or operators of similar commercial properties, for bodily injury, death and property damage in any one occurrence and (B) include premises and operations liability coverage, products and
completed operations liability coverage, and blanket contractual liability coverage. In addition, Tenant shall maintain auto liability insurance in an amount not less than $1,000,000.
(iii) Workers’ compensation insurance covering all persons employed by Tenant on the Leased Premises in
connection with any work done on or about the Leased Premises for which claims for death or bodily injury could be asserted against Landlord, Tenant or the Leased Premises.
(iv) Boiler and machinery coverage on a comprehensive form in an amount not less than the actual
replacement cost of the Improvements and Equipment (excluding footings and foundations and other parts of the Improvements which are not insurable).
(v) Business interruption insurance (A) covering all risks required to be covered by the insurance
provided for in subsection (i) above for a period commencing at the time of loss for such length of time as it takes to repair or replace with the exercise of due diligence, (B) containing an indemnity coverage extension which provides that
after the physical loss to the Leased Premises has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss or the expiration of twelve months, whichever occurs
first, and (C) in an amount not less than the amount carried by prudent owners or operators of similar properties.
(vi) Whenever Tenant shall be engaged in making any Alteration, repairs or construction work of any
kind (collectively, “Work”) for which the estimated cost exceeds the Threshold Amount, completed value builder’s risk insurance and worker’s compensation insurance or other adequate insurance coverage covering all persons employed in
connection with the Work, whether by Tenant, its contractors or subcontractors and with respect to whom death or bodily injury claims could be asserted against Landlord.
(vii) Such additional and/or other insurance with respect to the Leased Premises and in such amounts as
are reasonably requested by Landlord or a Lender.
(b) The insurance required by Section 14(a) shall be written by companies having an A.M. Best Insurance Reports rating
of not less than “A-” and a financial size category of at least “VIII”, and all such companies shall be authorized to do an insurance business in the State, or otherwise agreed to by Landlord. The insurance policies shall be in amounts sufficient
at all times to satisfy any coinsurance requirements thereof. The general liability insurance shall name Landlord, Tenant, and, if a Mortgage is then in effect, the Trustee and each Lender as additional insured parties, as their respective
interests may appear; the casualty insurance shall name Landlord (or, if directed by Landlord to Tenant, the Trustee) as loss payee. If said insurance or any part thereof shall expire, be withdrawn, become void by breach of any condition thereof
by Tenant or become void or unsafe by reason of the failure or impairment of the capital of any insurer, Tenant shall immediately obtain new or additional insurance reasonably satisfactory to Landlord and, if a Mortgage is then in place, the
Lenders.
(c) Each insurance policy referred to in clauses (i), (iv) and (vi) of Section 14(a), shall
contain standard non-contributory mortgagee clauses in favor of each Lender and the Trustee. Each of the policies required by Section 14(a) shall state that if at any time the policies are to be cancelled, or their coverage is to be
reduced (by any party including the insured), the insurer will endeavor to mail thirty (30) days’ (10 days’ in the event of non-payment of the premium) written notice to the additional insureds and/or loss payee named in such policies. Each policy
shall also provide that any losses otherwise payable thereunder shall be payable notwithstanding (i) any act, omission or neglect of Landlord, Tenant or any other Person which might, absent such provision, result in a forfeiture of all or a part of
such insurance payment, or (ii) the occupation or use of the Leased Premises for purposes more hazardous than permitted by the provisions of such policy. Tenant hereby waives any and every claim for recovery from the Lenders and Landlord, and
Landlord hereby waives any and every claim for recovery from Tenant, for any and all loss or damage covered by any of the insurance policies to be maintained under this Lease to the extent that such loss or damage is recovered by Tenant, Lenders or
Landlord, respectively, under any such policy. If the foregoing waiver will preclude the assignment of any such claim to the extent of such recovery, by subrogation (or otherwise), to an insurance company (or other person), Tenant (or other
appropriate party) shall give written notice of the terms of such waiver to each insurance company which has issued, or which may issue in the future, any such policy of insurance (if such notice is required by the insurance policy) and shall cause
each such insurance policy to be properly endorsed by the issuer thereof to, or to otherwise contain one or more provisions that, prevent the invalidation of the insurance coverage provided thereby by reason of such waiver.
(d) Tenant shall pay as they become due all premiums for the insurance required by this Section 14, shall renew or
replace each policy, and shall deliver to Landlord a certificate or other evidence (on an ACORD 28 (2003/10) form, in the case of property insurance, and on ACORD 25 (2001/08), in the case of liability insurance, and otherwise reasonably
satisfactory to Landlord) of the existing policy and such renewal or replacement policy at least two Business Days prior to the Insurance Expiration Date of each policy. In the event of Tenant’s failure to comply with any of the foregoing
requirements of this Section 14 within three (3) Business Days of the giving of written notice by Landlord to Tenant (or on the date any required insurance coverage will lapse, if sooner), Landlord shall be entitled to procure such
insurance. Any sums expended by Landlord in procuring such insurance shall be Additional Rent and shall be repaid by Tenant promptly upon written demand therefor by Landlord.
(e) Anything in this Section 14 to the contrary notwithstanding, any insurance which Tenant is required to obtain
pursuant to Section 14(a) may be carried under a “blanket” policy or policies covering other properties or liabilities of Tenant, provided that such “blanket” policy or policies otherwise comply with the provisions of this Section
14. In the event any such insurance is carried under a blanket policy, Tenant shall deliver to Landlord evidence of the issuance and effectiveness of the policy, the amount and character of the coverage with respect to the Leased Premises
and the presence in the policy of provisions of the character required in the above sections of this Section 14.
(f) In the event of any property loss (excluding, for the avoidance of doubt, Trade Fixtures) exceeding the Threshold Amount,
Tenant shall give Landlord prompt notice thereof. Tenant shall adjust, collect and compromise any and all claims, provided that Tenant will consult with and involve Landlord in the process of adjusting any insurance claims under this Section
14 and Landlord’s consent shall be required for any claim that exceeds the Threshold Amount, which consent will not be unreasonably withheld or delayed. If the estimated cost of Restoration or repair shall be an amount equal to the Threshold
Amount or less, all proceeds of any insurance required under clauses (i), (iv) and (v) of Section 14(a) shall be payable to Tenant. Except as expressly set forth below, in the event of any casualty (whether or not
insured against) resulting in damage to the Leased Premises or any part thereof, the Term shall nevertheless continue and there shall be no abatement or reduction of Basic Rent or Additional Rent. The Net Proceeds of all insurance payments for
property losses exceeding the Threshold Amount shall be paid to the Trustee, and the Trustee shall make the Net Proceeds available to Tenant for restoration in accordance with the provisions of Section 15. Subject to Section 14(g),
Tenant shall, whether or not the Net Proceeds are sufficient for the purpose, but provided that the Trustee makes such Net Proceeds available to Tenant, promptly and diligently repair or replace the Improvements and Equipment in accordance with the
provisions of Section 15. In the event that any damage or destruction shall occur at such time as Tenant shall not have maintained third-party insurance in accordance with Section 14(a)(i), (iv) and (vi), Tenant
shall pay to the Trustee Tenant’s Insurance Payment. Notwithstanding anything herein to the contrary, all proceeds of any business interruption insurance maintained by Tenant shall be payable directly to Tenant.
(g) If a casualty occurs during the last two (2) years of the Initial Term or during any Renewal Term and the cost of
Restoration with respect thereto exceeds sixty percent (60%) or more of the replacement cost of the Leased Premises, then Tenant may, at Tenant’s option, not later than ninety (90) days after such casualty has occurred, serve a Tenant’s Termination
Notice upon Landlord, in which case this Lease and the Term hereof shall terminate on the Termination Date specified in the Termination Notice; and in such event Tenant shall have no obligation to commence or complete the Restoration and all of the
insurance proceeds payable in connection with the casualty (other than Tenant’s business interruption insurance proceeds) shall be paid to, and Tenant shall pay the amount of any applicable deductible with respect to such casualty insurance to, the
Trustee.
15. Restoration. The Restoration Fund shall be disbursed by the Trustee in accordance with the following conditions:
(a) If the cost of Restoration will exceed the Threshold Amount, prior to commencement of the Restoration the architects,
general contractor(s), and plans and specifications for the Restoration shall be approved by Landlord, which approval shall not be unreasonably withheld, and which approval shall be granted to the extent that the plans and specifications depict a
Restoration which is substantially similar to the Improvements and Equipment which existed prior to the occurrence of the casualty or Taking, whichever is applicable. Landlord will not withhold its consent for variations to the Improvements
required as a result of then-current zoning and building code requirements.
(b) At the time of any disbursement, no Event of Default shall exist and no mechanics’ or materialmen’s Liens shall have been
filed and remain undischarged or unbonded or for which Tenant shall fail to provide affirmative title insurance coverage.
(c) Disbursements shall be made from time to time in an amount not exceeding the hard and soft cost of the work and costs
incurred since the last disbursement upon receipt of (1) reasonably satisfactory evidence, including architects’ certificates of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and
workmanlike manner in accordance with the contracts and the plans and specifications, (2) partial releases of Liens or conditional Lien waivers, and (3) other reasonable evidence of cost and payment so that Landlord can verify that the amounts
disbursed from time to time are represented by work that is completed in place or delivered to the site and free and clear of mechanics’ Lien claims.
(d) Each request for disbursement shall be sent by Tenant to Landlord and to the Trustee, accompanied by a certificate of
Tenant describing the work, materials or other costs or expenses for which payment is requested and stating (i) the cost incurred in connection therewith, (ii) that no Event of Default exists and no mechanics’ or materialmen’s Liens shall have been
filed and remain undischarged or unbonded, and (iii) that Tenant has not previously received payment for such work or expense; the certificate to be delivered by Tenant upon completion of the work shall, in addition, state that the work that is the
subject of the request for disbursement has been substantially completed and complies with the applicable requirements of this Lease. The Trustee shall not release funds from the Restoration Fund unless and until it has received a written
authorization from Landlord approving such release, which Landlord agrees to promptly give if Tenant has satisfied all of the requirements set forth in this Section 15 in connection with such release. If such proceeds are not made available
to Tenant despite Tenant’s compliance with such procedures, Tenant shall have no obligation to restore the Leased Premises until such time as such proceeds are made available to Tenant.
(e) The Trustee shall retain a commercially reasonable retainage amount (but in no event less than 5% of the expected repair
cost, other than general conditions) until the Restoration is 50% complete.
(f) The Restoration Fund shall be held by the Trustee and shall be invested in Permitted Investments as directed by Tenant.
All interest shall become a part of the Restoration Fund.
(g) At all times the undisbursed balance of the Restoration Fund held by the Trustee, plus any funds contributed thereto by
Tenant, at its option, shall be not less than the cost of completing the Restoration (as reasonably estimated by Tenant, provided that Tenant shall provide to Landlord the basis for such estimate, in reasonable detail, promptly after
Landlord’s written request therefor), free and clear of all Liens. Prior to commencement of Restoration and at any time during Restoration, if the estimated cost of Restoration, as reasonably determined by a contractor or architect mutually
selected by Landlord and Tenant, exceeds the amount of the Net Proceeds or the Net Award, as applicable, and Tenant’s Insurance Payment available for such Restoration, either, at Tenant’s option and determination, the amount of such excess shall be
paid by Tenant to the Trustee to be added to the Restoration Fund or Tenant shall fund at its own expense the costs of such Restoration until the remaining Restoration Fund is sufficient for the completion of the Restoration. Any sum in the
Restoration Fund which remains in the Restoration Fund upon the completion of Restoration with respect to a casualty shall be paid to Tenant; any portion of a Net Award remaining after completion of Restoration with respect to a Taking shall be
paid to Landlord.
16. Subordination to Financing.
(a) (i) Subject to the provisions of Section 16(a)(ii), Tenant agrees that this Lease shall at all times be subject and
subordinate to the Lien of the Mortgage, if any.
(ii) Except as expressly provided in this Lease by reason of the occurrence of an Event of Default, and
as a condition to the subordination described in Section 16(a)(i) above, Tenant’s tenancy and Tenant’s rights under this Lease shall not be disturbed, terminated or otherwise adversely affected, nor shall this Lease be affected, by the
existence of, or any default under, a Mortgage, and in the event of a foreclosure or other enforcement of a Mortgage, or sale in lieu thereof, the purchaser at such foreclosure sale shall be bound to Tenant for the Term of this Lease, the rights of
Tenant under this Lease shall expressly survive and this Lease shall in all respects continue in full force and effect so long as no Event of Default has occurred and is continuing. Tenant shall not be named as a party defendant in any such
foreclosure suit, except as may be required by law. Any Mortgage to which this Lease is now or hereafter subordinate shall provide, in effect, that during the time this Lease is in force and no Event of Default has occurred and is then continuing
hereunder, insurance proceeds and any condemnation award shall be disbursed pursuant to the provisions of this Lease.
(b) Notwithstanding the provisions of Section 16(a), the holder of the Mortgage to which this Lease is subject and
subordinate shall have the right, at its sole option, at any time, to subordinate and subject the Mortgage, in whole or in part, to this Lease by recording a unilateral declaration to such effect.
(c) At any time prior to the expiration of the Term, Tenant agrees, at the election and upon written demand of any owner of
the Leased Premises, or of a Lender who has granted non-disturbance to Tenant pursuant to Section 16(a) above, to attorn, from time to time, to any such owner or Lender, upon the terms and conditions of this Lease, for the remainder of the
Term. The provisions of this Section 16(c) shall inure to the benefit of any such owner or Lender, shall apply notwithstanding that, as a matter of law, this Lease may terminate upon the foreclosure of the Mortgage, shall be self-operative
upon any such demand, and no further instrument shall be required to give effect to said provisions.
(d) Each of Tenant and Landlord agrees that, if requested by the other or by any Lender, each shall (and Landlord shall cause
each Lender), without charge, enter into a Subordination, Non-Disturbance and Attornment Agreement, in substantially the form attached hereto as Exhibit C or such other commercially reasonable form reasonably requested by a Lender and
reasonably acceptable to Landlord and Tenant, provided such agreement contains provisions relating to non-disturbance in accordance with the provisions of Section 16(a); the party requested to enter into a Subordination,
Non-Disturbance and Attornment Agreement shall respond promptly, but in any event within ten (10) Business Days after receipt of the requested form of such agreement, with any comments thereto and, provided that such Subordination, Non-Disturbance
and Attornment Agreement is in substantially the form attached hereto as Exhibit C or is otherwise reasonably acceptable to such party, thereafter shall promptly execute and deliver such agreement.
17. Assignment, Subleasing.
(a) Tenant may assign its interest in this Lease and may sublet the Leased Premises in whole or in part, from time to time, to
any Affiliate of Tenant without the consent of Landlord and to any other Person with the prior written consent of Landlord, which consent shall not be unreasonably withheld. Tenant shall have no rights to mortgage or otherwise hypothecate its
leasehold interest under this Lease.
(b) Each sublease of the Leased Premises or any part thereof shall be subject and subordinate to the provisions of this
Lease. No assignment or sublease shall affect or reduce any of the obligations of Tenant hereunder, which shall remain the primary obligations of Tenant, and all such obligations shall continue in full force and effect as obligations of a
principal and not as obligations of a guarantor, as if no assignment or sublease had been made. No assignment or sublease shall impose any obligations on Landlord under this Lease except as otherwise provided in this Lease. Tenant agrees that in
the case of an assignment of this Lease, Tenant shall, within fifteen (15) days after the execution and delivery of any such assignment, deliver to Landlord (i) a copy of such assignment in form reasonably acceptable to Landlord and (ii) an
agreement executed and acknowledged by the assignee in form reasonably acceptable to Landlord wherein the assignee shall agree to assume and to observe and perform all of the terms and provisions of this Lease on the part of the Tenant to be
observed and performed from and after the date of such assignment. In the case of a sublease, Tenant shall, within fifteen (15) days after the execution and delivery of such sublease, deliver to Landlord a copy of such sublease.
(c) Upon the occurrence of an Event of Default under this Lease, Landlord shall have the right to collect and enjoy all rents
and other sums of money payable under any sublease of the Leased Premises, which rents and other sums shall be applied to Tenant’s outstanding obligations under this Lease (and any excess shall be paid to Tenant unless and until this Lease is
terminated) and Tenant hereby unconditionally assigns such rents and money to Landlord, which assignment may be exercised upon and after (but not before) the occurrence of an Event of Default. At such time, if any, as the Event of Default is
cured, Landlord’s right to collect such rents and other sums pursuant to the foregoing sentence shall terminate until such time, if any, as another Event of Default occurs.
18. Permitted Contests.
(a) So long as no Event of Default has occurred and is continuing Tenant shall not be required to (i) pay any Imposition, (ii)
comply with any Legal Requirement, (iii) discharge or remove any Lien referred to in Section 9 or 12, or (iv) take any action with respect to any violation referred to in Section 11(b) so long as Tenant shall contest, in
good faith and at its expense, the existence, the amount or the validity thereof, the amount of the damages caused thereby, or the extent of its or Landlord’s liability therefor, by appropriate proceedings which shall operate during the pendency
thereof to prevent (A) the collection of, or other realization upon, the Imposition or Lien so contested, (B) the sale, forfeiture or loss of the Leased Premises, any Basic Rent or any Additional Rent to satisfy the same or to pay any damages
caused by the violation of any such Legal Requirement or by any such violation, (C) any interference with the use or occupancy of the Leased Premises, (D) any interference with the payment of any Basic Rent or any Additional Rent, and (E) the
cancellation of any insurance policy required to be maintained under this Lease. Landlord shall fully cooperate with Tenant in connection with any such contest at Tenant’s sole cost and expense. During any contest meeting the standards set forth
in this Section 18, Landlord shall not, during the pendency of such legal or other proceeding or contest, pay or discharge any Impositions on the Leased Premises, or tax lien or tax title pertaining thereto, provided Landlord may do so in
order to stay a sale, loss or forfeiture of the Leased Premises or any Basic Rent. Any refund obtained by Tenant shall be paid first to Tenant to the extent of its costs and expenses of such contest and on account of any portion of the Impositions
so refunded which were previously paid by Tenant.
(b) In no event shall Tenant pursue any contest with respect to any Imposition, Legal Requirement, Lien, or violation,
referred to above in such manner that exposes Landlord or any Lender to (i) criminal liability, penalty or sanction, (ii) any civil liability, penalty or sanction for which Tenant has not made provisions reasonably acceptable to Landlord and
Lenders (which may include the requirement to post a bond therefor) or (iii) defeasance of its interest (including the subordination of the Lien of the Mortgage to a Lien to which such Mortgage is not otherwise subordinate prior to such contest) in
the Leased Premises.
(c) Tenant agrees that each such contest shall be promptly and diligently prosecuted to a final conclusion, except that Tenant
shall have the right to attempt to settle or compromise such contest through negotiations. If requested by Landlord, Tenant shall deliver a bond, cash collateral or other surety in an amount sufficient to discharge any Lien of record related to
such contest during the pendency thereof. Tenant shall pay and save each Indemnitee harmless against any and all actual, out-of-pocket losses, judgments, decrees and costs (including all reasonable attorneys’ fees and expenses) in connection with
any such contest and shall, promptly after the final determination of such contest, fully pay and discharge the amounts which shall be levied, assessed, charged or imposed or be determined to be payable therein or in connection therewith, together
with all penalties, fines, interest, costs and expenses thereof or in connection therewith, and perform all acts the performance of which shall be ordered or decreed as a result thereof.
19. Conditional Limitations; Default Provisions.
(a) If any Event of Default shall have occurred, Landlord shall have the right at its option, then or at any time thereafter,
to do any one or more of the following without demand upon or notice to Tenant:
(i) Landlord may give Tenant written notice of Landlord’s intention to terminate this Lease on a date
specified in such notice (which date shall be no sooner than fifteen (15) Business Days after the date of the notice); provided that Tenant has not cured all Events of Default prior to the date specified in Landlord’s notice, the Term and the
estate hereby granted and all rights of Tenant hereunder shall expire and terminate as if such date were the date hereinabove fixed for the expiration of the Term, but Tenant shall remain liable for all its obligations hereunder through the date
hereinabove fixed for the expiration of the Term, including its liability for Basic Rent and Additional Rent as hereinafter provided in Sections 19(b) and (c).
(ii) Landlord may, whether or not the Term of this Lease shall have been terminated pursuant to clause
(i) above, give Tenant written notice to surrender the Leased Premises to Landlord on a date specified in such notice (which date shall be no sooner than fifteen (15) Business Days after the date of the notice), at which time Tenant shall
surrender and deliver possession of the Leased Premises to Landlord and shall remove the Trade Fixtures and personal property which is owned by Tenant or third parties other than Landlord in accordance with Section 23(a). Upon or at any
time after taking possession of the Leased Premises, Landlord may remove any persons or property therefrom. Landlord shall be under no liability for or by reason of any such entry, repossession or removal. No such entry or repossession shall be
construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such intention to Tenant pursuant to clause (i) above.
(iii) After repossession of the Leased Premises pursuant to clause (ii) above, whether or not
this Lease shall have been terminated pursuant to clause (i) above, Landlord may, and shall use commercially reasonable efforts to, relet the Leased Premises or any part thereof to such tenant or tenants for such term or terms (which may be
greater or less than the period which would otherwise have constituted the balance of the Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its reasonable discretion, may
determine; and Landlord shall collect and receive any rents payable by reason of such reletting. The rents received on such reletting shall be applied (A) first to the reasonable and actual expenses of such reletting and collection, including
without limitation reasonable attorneys’ fees and any reasonable real estate commissions paid, and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be
realized, then Tenant shall pay Landlord any such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord shall not, in any event, be required to pay Tenant any sums received by Landlord on a
reletting of the Leased Premises in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or future obligations of Tenant hereunder. Landlord’s re-entry and reletting of the Leased Premises without termination
of this Lease shall not preclude Landlord from subsequently terminating this Lease as set forth above. Landlord may make such Alterations as Landlord in its reasonable discretion may deem advisable. Tenant agrees to pay Landlord, as Additional
Rent, immediately upon demand, all reasonable expenses incurred by Landlord in obtaining possession and in reletting the Leased Premises, including fees and commissions of attorneys, architects, agents and brokers.
(iv) Landlord may exercise any other right or remedy now or hereafter existing by law or in equity.
(b) In the event of any expiration or termination of this Lease or repossession of the Leased Premises by reason of the
occurrence of an Event of Default, Tenant shall pay to Landlord Basic Rent and all Additional Rent required to be paid by Tenant to and including the date of such expiration, termination or repossession and, thereafter, Tenant shall, until the end
of what would have been the Term in the absence of such expiration, termination or repossession, and whether or not the Leased Premises shall have been relet, be liable to Landlord for, and shall pay to Landlord as, liquidated and agreed current
damages:
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(i)
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Basic Rent and Additional Rent which would be payable under this Lease by Tenant in the absence of such expiration, termination or repossession from time to time as such
Basic Rent and Additional Rent become due, less
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(ii)
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the net proceeds, if any, of any reletting pursuant to Section 19(a)(iii), after deducting from such proceeds all of Landlord’s reasonable expenses in connection
with such reletting (including all reasonable repossession costs, brokerage commissions, legal expenses, attorneys’ fees, and expenses of preparation for reletting (the “Net Reletting Proceeds”), plus
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(iii)
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all Additional Payments paid or payable by Landlord at the time of, or in connection with, such termination or repossession.
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Tenant hereby agrees to be and remain liable for all sums aforesaid and Landlord may recover such damages from Tenant and institute and
maintain successive actions or legal proceedings against Tenant for the recovery of such damages. Nothing herein contained shall be deemed to require Landlord to wait to begin such action or other legal proceedings until the date when the Term would
have expired by limitation had there been no such Event of Default.
(c) Landlord shall be in default under this Lease if Landlord has breached or failed to perform any covenant, agreement or
undertaking of Landlord under this Lease and has not commenced to cure such failure within thirty (30) days of Landlord’s receipt of Tenant’s written notice thereof and diligently and in good faith continue to cure the default until completion, or
if such default is of such a nature that it cannot reasonably be cured within such period of thirty (30) days, such period shall be extended for such longer time as is reasonably necessary (not to exceed 180 days), provided that Landlord
has commenced to cure such default within said period of thirty (30) days and is actively, diligently and in good faith proceeding with continuity to remedy such default. In the event of a Landlord default and failure by Landlord to cure such
default in the time period required pursuant to the foregoing sentence, Tenant may: (i) (A) perform the obligations of Landlord, in which event Landlord shall reimburse Tenant upon written demand for any reasonable and necessary costs and
expenses which Tenant incurred in performing Landlord’s obligations, and, if Landlord fails to so reimburse Tenant within thirty (30) days of written demand, Tenant may (B) bring suit for damages against Landlord for any and all expenses (including
reasonable attorneys’ fees) incurred by Tenant under this Section 19 and/or (ii) seek injunctive or other equitable relief against Landlord. In no event shall Tenant have the right to terminate this Lease as a result of any default by
Landlord hereunder. No waiver by Tenant of any violation or breach of any of the terms, provisions and covenants herein contained shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions
and covenants herein contained.
20. Additional Rights of Landlord and Tenant.
(a) Except as may be specifically provided herein, no right or remedy conferred upon or reserved to Landlord in this Lease is
intended to be exclusive of any other right or remedy; and each and every right and remedy shall be cumulative and in addition to any other right or remedy contained in this Lease. No delay or failure by Landlord to enforce its rights under this
Lease shall be construed as a waiver, modification or relinquishment thereof. In addition to the other remedies provided in this Lease, Landlord shall be entitled, to the extent permitted by applicable law, to injunctive relief in case of the
violation or attempted or threatened violation of any of the provisions of this Lease, or to specific performance of any of the provisions of this Lease.
(b) Tenant hereby waives and surrenders for itself and all those claiming under it, including creditors of all kinds, any
right and privilege which it or any of them may have under any present or future law to redeem the Leased Premises or to have a continuance of this Lease after termination of this Lease or of Tenant’s right of occupancy or possession pursuant to
any court order or any provision hereof.
(c) Landlord hereby waives any right to distrain or levy upon Trade Fixtures or any property of Tenant (including, without
limitation, Tenant’s inventory) and any Landlord’s Lien or similar Lien upon Trade Fixtures and any other property of Tenant (including, without limitation, Tenant’s inventory). Landlord agrees, at the request and expense of Tenant, to execute a
waiver, in the form attached hereto as Exhibit E or in such other form reasonably acceptable to Landlord, of any Landlord’s or similar Lien for the benefit of any present or future holder of a security interest in or lessor of any of Trade
Fixtures or any other personal property of Tenant (a “Landlord Waiver”). Landlord agrees to review any requested form of Landlord Waiver provided by Tenant within ten (10) Business Days of receipt thereof.
(d) (i) Tenant agrees to pay to Landlord any and all reasonable out-of-pocket costs and expenses incurred by Landlord in
connection with any litigation or other action instituted by Landlord to enforce the obligations of Tenant under this Lease, to the extent that Landlord has prevailed in any such litigation or other action. Any amount payable by Tenant to Landlord
pursuant to this Section 20(d)(i) shall be due and payable by Tenant to Landlord as Additional Rent within thirty (30) days after a final, non-appealable judgment or decision is rendered in favor of Landlord in such litigation or other
action.
(ii) Landlord agrees to pay to Tenant any and all reasonable out-of-pocket costs and expenses incurred
by Tenant in connection with any litigation or other action instituted by Tenant to enforce the obligations of Landlord under this Lease, to the extent that Tenant has prevailed in any such litigation or other action. Any amount payable by
Landlord to Tenant pursuant to this Section 20(d)(ii) shall be due and payable within thirty (30) days after a final, non-appealable judgment or decision is rendered in favor of Tenant in such litigation or other action.
21. Notices. All notices, demands, requests and approvals pursuant to this Lease shall be in writing and shall be deemed to have been given for all purposes (i) three (3)
Business Days after having been sent by United States mail, by registered or certified mail, return receipt requested, postage prepaid, addressed to the other party at its address as stated below, (ii) one (1) Business Day after having been sent
for overnight delivery by a nationally recognized air courier service, (iii) on the day delivered, if personally delivered on a Business Day during business hours or (iv) for purposes of Section 6(c) only, on the day sent by electronic
mail, if sent during business hours on a Business Day (or if not sent during such time, on the next Business Day) so long as receipt thereof is confirmed electronically and the same written notice is also sent by nationally recognized air courier
service or messenger.
To the Addresses stated below:
If to Landlord:
HF Colonial Heights VA Landlord, LLC
c/o SunTrust Equity Funding, LLC
If to Landlord:
HF Colonial Heights VA Landlord, LLC
c/o SunTrust Equity Funding, LLC
3333 Peachtree Road, NE, 10th Floor
Atlanta, Georgia 30326
Attention: Patrick Zepeda
Email: [email protected]
If to Tenant:
Haverty Furniture Companies, Inc.
780 Johnson Ferry Road, Suite 800
Atlanta, Georgia 30342
Attention: Wendy Moza
Email: [email protected]
With a copy to:
Haverty Furniture Companies, Inc.
780 Johnson Ferry Road, Suite 800
Atlanta, Georgia 30342
Attention: Janet E. Taylor, Esq.
Email: [email protected]
and a copy to:
Jones Day
77 W Wacker Drive, Suite 3500
Chicago, IL 60601
Attention: Brian L. Sedlak, Esq.
If any Lender shall have advised Tenant by notice in the manner aforesaid that it is the holder of a Mortgage and states in said notice
its address for the receipt of notices, then simultaneously with the giving of any notice by Tenant to Landlord, Tenant shall make commercially reasonable efforts to send a copy of such Notice to Lender in the manner aforesaid. For the purposes of
this Section 21, any party may substitute its address by giving fifteen (15) days’ notice to the other party in the manner provided above. Any notice, demand and request may be given on behalf of any party by its counsel.
22. Estoppel Certificates. Tenant shall at any time and from time to time, upon not less than ten (10) Business Days’ prior written request by Landlord, execute and deliver an
estoppel certificate in substantially the form attached hereto as Exhibit D or such other form as may be reasonably requested by Landlord. It is intended that any such statements may be relied upon by Lenders or potential Lenders, by the
recipient of such statements or their assignees and/or by any prospective purchaser or assignee of the Leased Premises or of the membership interests in Landlord.
23. Surrender and Holding Over.
(a) Upon the expiration or earlier termination of this Lease, Tenant shall peaceably leave and surrender the Leased Premises
to Landlord. Tenant shall remove from the Leased Premises on or prior to such expiration or earlier termination the Trade Fixtures and personal property which is owned by Tenant or third parties other than Landlord, and Tenant at its expense
shall, on or prior to such expiration or earlier termination, repair any damage caused by such removal, provided that (i) Tenant shall not be required to remove any sprinkler systems or solar panels installed in the Leased Premises during
the Term and (ii) Tenant shall only be obligated to remove the racking installed in the Leased Premises if required by Landlord pursuant to a written demand delivered to Tenant on or before the forty-fifth (45th) day prior to such
expiration or earlier termination. Trade Fixtures and personal property not so removed within thirty (30) days after the expiration or earlier termination of the Term for any reason whatsoever shall become the property of Landlord, and Landlord
may thereafter cause such property to be removed from the Leased Premises. The cost of removing and disposing of such property (other than sprinkler systems or solar panels installed in the Leased Premises during the Term or racking installed in
the Leased Premises unless required to be removed by Landlord pursuant to the second sentence of this Section 23(a)) and repairing any damage to the Leased Premises caused by such removal shall be borne by Tenant. Landlord shall not in any
manner or to any extent be obligated to reimburse Tenant for any property which becomes the property of Landlord as a result of such expiration or earlier termination. Notwithstanding anything to the contrary contained in this Lease, at no time
either during or after the Term shall Landlord have any rights in or with respect to Tenant’s inventory (other than the right to remove it from the Leased Premises at Tenant’s expense if Tenant has not done so within thirty (30) days after the
expiration or termination of the Term, provided that such removal complies with the requirements of any Landlord Waiver, to the extent executed pursuant to Section 20(c)).
(b) Any holding over by Tenant of the Leased Premises after the expiration or earlier termination of the term of this Lease or
any extensions thereof, with the consent of Landlord, shall operate and be construed as tenancy from month to month only, at one hundred twenty-five percent (125%) of the Basic Rent in effect immediately prior to such expiration or termination for
the first three (3) months and at one hundred fifty percent (150%) of the Basic Rent in effect immediately prior to such expiration or termination thereafter and upon the same terms and conditions as contained in this Lease, provided that
there shall be no such increase during any period which Landlord and Tenant are engaged in negotiations with one another regarding an amendment or extension of this Lease, or for a new lease for some or all of the Leased Premises. Notwithstanding
the foregoing, (i) any holding over without Landlord’s consent beyond the first three (3) months shall entitle Landlord, in addition to collecting Basic Rent at the rate set forth in the previous sentence, to exercise all rights and remedies
provided by law or in equity, including the remedies of Section 19(b) and (ii) in the event that Landlord has notified Tenant in writing that Landlord has relet the Leased Premises or any part thereof at least thirty (30) days prior to the
commencement of such new lease and Tenant has not vacated the Leased Premises in accordance with the terms of this Lease on or before such commencement date, Tenant shall be liable to Landlord for any and all damages, including any consequential
damages, suffered by Landlord as a result of Tenant’s holding over.
24. No Merger of Title. There shall be no merger of this Lease nor of the leasehold estate created by this Lease with
the fee estate in or ownership of the Leased Premises by reason of the fact that the same person, corporation, firm or other entity may acquire or hold or own, directly or indirectly, (a) this Lease or the leasehold estate created by this Lease or
any interest in this Lease or in such leasehold estate and (b) the fee estate or ownership of the Leased Premises or any interest in such fee estate or ownership. No such merger shall occur unless and until all persons, corporations, firms and
other entities having any interest in (i) this Lease or the leasehold estate created by this Lease and (ii) the fee estate in or ownership of the Leased Premises or any part thereof sought to be merged shall join in a written instrument effecting
such merger and shall duly record the same.
25. Definition of Landlord.
(a) Anything contained herein to the contrary notwithstanding, any claim based on or in respect of any liability of Landlord
under this Lease shall be enforced only against the Landlord’s interest in the Leased Premises or condemnation, property insurance or sale proceeds related thereto, and shall not be enforced against the Landlord individually or personally, or
against any member or other Affiliate of Landlord. In no event shall Landlord have any liability for punitive, special, incidental or consequential damages with respect to the Leased Premises or this Lease.
(b) The term “Landlord” as used in this Lease so far as covenants or obligations on the part of Landlord are concerned, shall
be limited to mean and include only the owner or owners of the Leased Premises or holder of the Mortgage in possession at the time in question of the Leased Premises and in the event of any transfer or transfers of the title of the Leased Premises,
the Landlord herein named (and in case of any subsequent transfers or conveyances, the then grantor) shall be automatically freed and relieved from and after the date of such transfer and conveyance of all liability as respects the performance of
any covenants or obligations on the part of Landlord contained in this Lease thereafter to be performed (but shall remain liable with respect to all such liability arising from events or circumstances existing prior to the date of such transfer).
26. Hazardous Materials.
(a) Tenant agrees that it will not on, about, from or under the Leased Premises, Release any Hazardous Materials except in
accordance with all Environmental Laws.
(b) To the extent required by any Environmental Laws, Tenant shall remediate any Hazardous Materials that it, or any of its
Affiliates, subtenants, assignees, employees, invitees, contractors, licensees or subcontractors Releases on, about, from or under the Leased Premises (whether before or after the date of this Lease).
(c) The Tenant agrees that it will not install any underground storage tank at the Leased Premises requiring a permit under
Environmental Law without specific, prior written approval from Landlord.
27. Entry by Landlord. Subject to Tenant’s reasonable security requirements, Landlord and its authorized
representatives shall have the right upon reasonable written notice (which shall be not less than two (2) Business Days except in the case of emergency) to enter the Leased Premises at all reasonable business hours (and at all other times in the
event of an emergency): (a) for the purpose of inspecting the same or for the purpose of doing any work under Section 11(c), and may take all such action thereon as may be necessary or appropriate for any such purpose (but nothing
contained in this Lease or otherwise shall create or imply any duty upon the part of Landlord to make any such inspection or do any such work), and (b) for the purpose of showing the Leased Premises to prospective purchasers, lenders and mortgagees
and, at any time within twelve (12) months prior to the expiration of the Term of this Lease, for the purpose of showing the same to prospective tenants. No such entry shall constitute an eviction of Tenant, but any such entry shall be done by
Landlord in such reasonable manner as to minimize any disruption of Tenant’s business operation and Tenant may elect to have a representative accompany Landlord or Landlord’s authorized agents in connection with any such entry or inspection.
28. No Usury. The intention of the parties being to conform strictly to the applicable usury laws, whenever any provision herein provides for payment by Tenant to Landlord of
interest at a rate in excess of the legal rate permitted to be charged, such rate herein provided to be paid shall be deemed reduced to such legal rate.
29. Financial Statements.. Tenant hereby agrees to deliver to Landlord either in print or in electronic form, all of
the following financial statements, which shall be prepared in accordance with GAAP: (i) quarterly financial statements for Tenant, within forty-five (45) days after the end of each fiscal quarter of Tenant, and (ii) annual financial statements
for Tenant, audited by an independent certified public accountant, within one hundred twenty (120) days after the end of each fiscal year. For as long as Tenant shall be a publicly listed company and is required to file quarterly and annual
statements with the SEC, then Tenant shall submit to Landlord (in satisfaction of the requirements set forth in the preceding sentence), when filed with the SEC, copies of Tenant’s forms 10Q and 10K, provided that to the extent such forms
are available through EDGAR or a similar internet site, no such submission shall be required. Landlord acknowledges that the financial information provided by Tenant pursuant to this Section 29 is for Landlord’s informational purposes
only. Subject to the terms and conditions contained herein, Landlord shall hold as confidential all financial information that is not publicly available and shall not release any such financial information to third parties without Tenant’s prior
written consent, except (1) to Landlord’s Affiliates, and Landlord’s and such Affiliates’, directors, officers, employees, attorneys, accountants, auditors, financial or legal consultants or advisors, others providing professional services,
lenders, prospective lenders, investors or prospective purchasers of Landlord or the Leased Premises, (2) to comply with regulatory requirements (e.g., filings with the SEC), or pursuant to a court order
requiring such release or as otherwise may be required by law or legal process, (3) to banking and securities regulators in connection with the examination of the books and records of Landlord and its Affiliates by such regulators in the ordinary
course and (4) in connection with the enforcement of this Lease.
30. Separability. Each and every covenant and agreement contained in this Lease is, and shall be construed to be, a
separate and independent covenant and agreement, and the breach of any such covenant or agreement by Landlord shall not discharge or relieve Tenant from its obligation to perform the same. If any term or provision of this Lease or the application
thereof to any provision of this Lease or the application thereof to any person or circumstances shall to any extent be invalid and unenforceable, the remainder of this Lease, or the application of such term or provision to person or circumstances
other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and shall be enforced to the extent permitted by law.
31. Right of First Refusal. As further consideration for this Lease, Landlord hereby grants Tenant during the Term,
while the initial Tenant, or an Affiliate of the initial Tenant to whom Tenant has transferred its interest in this Lease in accordance with Section 17(a) hereof, is in possession and occupancy of the Leased Premise, and providing no Event
of Default remains uncured at the time of Tenant’s exercise of the Right (as defined below), a right of first refusal (the “Right”) to purchase the Leased Premises, or any portion thereof, in the event Landlord receives a bona fide offer to
purchase the Leased Premises, or any portion thereof, which it desires to accept. Landlord shall promptly notify Tenant of any such offer, and enclose a copy of the offer, and Tenant shall have ten (10) Business Days after receipt of such notice
to elect to purchase the Leased Premises, or the applicable portion thereof, for the same consideration and upon the same terms and conditions contained in the offer. If Tenant fails to respond to Landlord's notice during the ten (10) Business Day
period, Tenant's Right shall expire at the end of such ten (10) Business Day period and Landlord shall be free to sell in accordance with the specific terms specified in the offer. If requested by Landlord, Tenant promptly shall confirm in writing
that its Right has expired. If any of the terms and conditions of the offer are changed in any material respect that is favorable to the buyer, beyond reducing the consideration by less than five percent (5%), Landlord shall notify Tenant in the
same manner specified above as if a new bona fide offer had been received by Landlord. Tenant's Right shall expire on the last day of the Term of this Lease, or upon any earlier termination thereof. The Right shall constitute a covenant running
with the land and shall be binding upon Landlord and its successors and assigns.
32. Miscellaneous.
(a) The Section headings in this Lease are used only for convenience in finding the subject matters and are not part of this
Lease or to be used in determining the intent of the parties or otherwise interpreting this Lease.
(b) As used in this Lease the singular shall include the plural as the context requires and the following words and phrases
shall have the following meanings: (i) “including” shall mean “including but not limited to”; (ii) “provisions” shall mean “provisions, terms, agreements, covenants and/or conditions”; and (iii) “obligation” shall mean “obligation, duty, agreement,
liability, covenant or condition”.
(c) Any act which Landlord is permitted to perform under this Lease may be performed at any time and from time to time by
Landlord or any person or entity designated by Landlord. Any act which Tenant is required to perform under this Lease shall be performed at Tenant’s sole cost and expense.
(d) This Lease may be modified, amended, discharged or waived only by an agreement in writing signed by the party against whom
enforcement of any such modification, amendment, discharge or waiver is sought. This Lease embodies the entire agreement and understanding between Tenant and Landlord with respect to the transactions contemplated hereby and supersedes all other
agreements and understandings between Tenant and Landlord with respect to the subject matter thereof. This Lease represents the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements of Tenant and Landlord or any course of prior dealings. There are no unwritten oral agreements between the parties.
(e) The covenants of this Lease shall run with the Land and bind Tenant, the successors and assigns of Tenant and all present
and subsequent encumbrances and subtenants of the Leased Premises, and shall inure to the benefit of and bind Landlord, its successors and assigns.
(f) This Lease will be simultaneously executed in several counterparts, each of which when so executed and delivered shall
constitute an original, fully enforceable counterpart for all purposes. Executed copies of this Lease distributed in a pdf or similar format and/or executed by “DocuSign”, “esign” or similar manner shall constitute originals thereof.
(g) This Lease shall be governed by and construed according to the laws of the State in which the Leased Premises is located.
(h) TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAWS, LANDLORD AND TENANT IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS LEASE AND ANY COUNTERCLAIM THEREUNDER.
(i) Tenant hereby represents and warrants that neither Tenant nor any of its Affiliates is in violation of (i) any of the
foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, (ii) Executive Order No. 13,224, 66 Fed Reg 49,079 (2001),
issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism) or (iii) the anti-money laundering provisions of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “USA Patriot Act”) amending the Bank Secrecy Act, 31 U.S.C. Section 5311 et seq and any other laws relating to terrorism or money laundering.
(j) Whenever this Lease calls for performance of an act or obligation within a specified time period, such time period shall
be extended to the extent performance is impaired due to acts of God, riots, insurrection, terrorist acts, war, pandemic (including COVID-19), acts of the public enemy, strikes, lockouts, labor troubles, inability to procure materials, failure of
power, restrictive laws (except as otherwise specifically provided herein) or acts of governmental authority (provided, however, that such party substantially complies with Applicable Laws and cooperates with the requirements of such
governmental authority regarding approvals, permitting, registration, licensing, or similar legal requirements for the conduct of Tenant or Landlord’s business or the construction on, repair of or operation of all or any portion of the Leased
Premises), government delays in obtaining discretionary permits or building permits that are not attributable to such party's failure to timely apply for and diligently pursue such permits, or any other circumstances which are not within the
respective party’s control (collectively, “Force Majeure”); provided, that this provision shall not apply to failures by either party to pay their respective monetary obligations under this Lease or applicable to delays resulting
from the inability of a party to obtain financing or to proceed with its obligations under this Lease because of a lack of funds.
[signatures appear on following page]
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed by their respective duly authorized
officers as of the day and year first above written.
|
LANDLORD:
HF COLONIAL HEIGHTS VA LANDLORD, LLC, a Delaware limited liability company By: STEF NLIP, LLC, its sole member
By: SunTrust Equity Funding, LLC, its sole member
By: /s/ Allison McLeod
Name: Allison McLeod Title: Manager
|
|
|
TENANT:
HAVERTY FURNITURE COMPANIES, INC., a Maryland corporation By /s/ Richard B. Hare Name: Richard B. Hare Title: Executive Vice President & Chief Financial Officer |
EXHIBIT A
Legal Description
All of those lots or parcels of land located in Chesterfield County, Virginia, and more particularly described as follows:
All that certain tract or parcel of land, with any and all improvements thereon and appurtenances thereto belonging, lying,
being and situate at the intersection of the easterly line of Ruffin Mill Road and the northerly line of Port Walthall Drive in Bermuda District of Chesterfield County, Virginia, containing 21.744 acres, more or less, and designated as ‘PARCEL A,
21.744 ACRES,” on that certain plat of survey entitled, “ALTA LAND TITLE SURVEY FOR HAVERTY FURNITURE COMPANIES, INC., SHOWING A 21.744 ACRE PARCEL OF LAND SITUATED AT THE NORTHEAST CORNER OF RUFFIN MILL ROAD AND PORT WALTHALL DRIVE, BERMUDA
DISTRICT, CHESTERFIELD, VIRGINIA”, dated February 20, 2002, and made by Jordan Consulting Engineers, P.C., a copy of which plat is recorded in the Clerk’s Office of the Circuit Court of Chesterfield County in Plat Book 124, at page 41, and
reference to which plat is hereby made for a more particular description of the property hereby conveyed.
EXHIBIT B
BASIC RENT
Basic Rent is due commencing on the Closing Date on each Basic Rent Payment Date during the Term (including any Renewal Term
exercised by Tenant) in an amount equal to the amount for such Basic Rent Payment Date set forth on Schedule I attached hereto.
SCHEDULE I
|
Month
|
Date
|
Rent Payment
(in US Dollars)
|
|
1
|
6/10/2020
|
$42,567.18
|
|
2
|
7/10/2020
|
$42,567.18
|
|
3
|
8/10/2020
|
$42,567.18
|
|
4
|
9/10/2020
|
$42,567.18
|
|
5
|
10/10/2020
|
$42,567.18
|
|
6
|
11/10/2020
|
$42,567.18
|
|
7
|
12/10/2020
|
$42,567.18
|
|
8
|
1/10/2021
|
$42,567.18
|
|
9
|
2/10/2021
|
$42,567.18
|
|
10
|
3/10/2021
|
$42,567.18
|
|
11
|
4/10/2021
|
$42,567.18
|
|
12
|
5/10/2021
|
$42,567.18
|
|
13
|
6/10/2021
|
$43,418.52
|
|
14
|
7/10/2021
|
$43,418.52
|
|
15
|
8/10/2021
|
$43,418.52
|
|
16
|
9/10/2021
|
$43,418.52
|
|
17
|
10/10/2021
|
$43,418.52
|
|
18
|
11/10/2021
|
$43,418.52
|
|
19
|
12/10/2021
|
$43,418.52
|
|
20
|
1/10/2022
|
$43,418.52
|
|
21
|
2/10/2022
|
$43,418.52
|
|
22
|
3/10/2022
|
$43,418.52
|
|
23
|
4/10/2022
|
$43,418.52
|
|
24
|
5/10/2022
|
$43,418.52
|
|
25
|
6/10/2022
|
$44,286.89
|
|
26
|
7/10/2022
|
$44,286.89
|
|
27
|
8/10/2022
|
$44,286.89
|
|
28
|
9/10/2022
|
$44,286.89
|
|
29
|
10/10/2022
|
$44,286.89
|
|
30
|
11/10/2022
|
$44,286.89
|
|
31
|
12/10/2022
|
$44,286.89
|
|
32
|
1/10/2023
|
$44,286.89
|
|
33
|
2/10/2023
|
$44,286.89
|
|
34
|
3/10/2023
|
$44,286.89
|
|
35
|
4/10/2023
|
$44,286.89
|
|
36
|
5/10/2023
|
$44,286.89
|
|
37
|
6/10/2023
|
$45,172.63
|
|
38
|
7/10/2023
|
$45,172.63
|
|
39
|
8/10/2023
|
$45,172.63
|
|
40
|
9/10/2023
|
$45,172.63
|
|
41
|
10/10/2023
|
$45,172.63
|
|
42
|
11/10/2023
|
$45,172.63
|
|
43
|
12/10/2023
|
$45,172.63
|
|
44
|
1/10/2024
|
$45,172.63
|
|
45
|
2/10/2024
|
$45,172.63
|
|
46
|
3/10/2024
|
$45,172.63
|
|
47
|
4/10/2024
|
$45,172.63
|
|
48
|
5/10/2024
|
$45,172.63
|
|
49
|
6/10/2024
|
$46,076.08
|
|
50
|
7/10/2024
|
$46,076.08
|
|
51
|
8/10/2024
|
$46,076.08
|
|
52
|
9/10/2024
|
$46,076.08
|
|
53
|
10/10/2024
|
$46,076.08
|
|
54
|
11/10/2024
|
$46,076.08
|
|
55
|
12/10/2024
|
$46,076.08
|
|
56
|
1/10/2025
|
$46,076.08
|
|
57
|
2/10/2025
|
$46,076.08
|
|
58
|
3/10/2025
|
$46,076.08
|
|
59
|
4/10/2025
|
$46,076.08
|
|
60
|
5/10/2025
|
$46,076.08
|
|
61
|
6/10/2025
|
$46,997.60
|
|
62
|
7/10/2025
|
$46,997.60
|
|
63
|
8/10/2025
|
$46,997.60
|
|
64
|
9/10/2025
|
$46,997.60
|
|
65
|
10/10/2025
|
$46,997.60
|
|
66
|
11/10/2025
|
$46,997.60
|
|
67
|
12/10/2025
|
$46,997.60
|
|
68
|
1/10/2026
|
$46,997.60
|
|
69
|
2/10/2026
|
$46,997.60
|
|
70
|
3/10/2026
|
$46,997.60
|
|
71
|
4/10/2026
|
$46,997.60
|
|
72
|
5/10/2026
|
$46,997.60
|
|
73
|
6/10/2026
|
$47,937.56
|
|
74
|
7/10/2026
|
$47,937.56
|
|
75
|
8/10/2026
|
$47,937.56
|
|
76
|
9/10/2026
|
$47,937.56
|
|
77
|
10/10/2026
|
$47,937.56
|
|
78
|
11/10/2026
|
$47,937.56
|
|
79
|
12/10/2026
|
$47,937.56
|
|
80
|
1/10/2027
|
$47,937.56
|
|
81
|
2/10/2027
|
$47,937.56
|
|
82
|
3/10/2027
|
$47,937.56
|
|
83
|
4/10/2027
|
$47,937.56
|
|
84
|
5/10/2027
|
$47,937.56
|
|
85
|
6/10/2027
|
$48,896.31
|
|
86
|
7/10/2027
|
$48,896.31
|
|
87
|
8/10/2027
|
$48,896.31
|
|
88
|
9/10/2027
|
$48,896.31
|
|
89
|
10/10/2027
|
$48,896.31
|
|
90
|
11/10/2027
|
$48,896.31
|
|
91
|
12/10/2027
|
$48,896.31
|
|
92
|
1/10/2028
|
$48,896.31
|
|
93
|
2/10/2028
|
$48,896.31
|
|
94
|
3/10/2028
|
$48,896.31
|
|
95
|
4/10/2028
|
$48,896.31
|
|
96
|
5/10/2028
|
$48,896.31
|
|
97
|
6/10/2028
|
$49,874.23
|
|
98
|
7/10/2028
|
$49,874.23
|
|
99
|
8/10/2028
|
$49,874.23
|
|
100
|
9/10/2028
|
$49,874.23
|
|
101
|
10/10/2028
|
$49,874.23
|
|
102
|
11/10/2028
|
$49,874.23
|
|
103
|
12/10/2028
|
$49,874.23
|
|
104
|
1/10/2029
|
$49,874.23
|
|
105
|
2/10/2029
|
$49,874.23
|
|
106
|
3/10/2029
|
$49,874.23
|
|
107
|
4/10/2029
|
$49,874.23
|
|
108
|
5/10/2029
|
$49,874.23
|
|
109
|
6/10/2029
|
$50,871.72
|
|
110
|
7/10/2029
|
$50,871.72
|
|
111
|
8/10/2029
|
$50,871.72
|
|
112
|
9/10/2029
|
$50,871.72
|
|
113
|
10/10/2029
|
$50,871.72
|
|
114
|
11/10/2029
|
$50,871.72
|
|
115
|
12/10/2029
|
$50,871.72
|
|
116
|
1/10/2030
|
$50,871.72
|
|
117
|
2/10/2030
|
$50,871.72
|
|
118
|
3/10/2030
|
$50,871.72
|
|
119
|
4/10/2030
|
$50,871.72
|
|
120
|
5/10/2030
|
$50,871.72
|
|
121
|
6/10/2030
|
$51,889.15
|
|
122
|
7/10/2030
|
$51,889.15
|
|
123
|
8/10/2030
|
$51,889.15
|
|
124
|
9/10/2030
|
$51,889.15
|
|
125
|
10/10/2030
|
$51,889.15
|
|
126
|
11/10/2030
|
$51,889.15
|
|
127
|
12/10/2030
|
$51,889.15
|
|
128
|
1/10/2031
|
$51,889.15
|
|
129
|
2/10/2031
|
$51,889.15
|
|
130
|
3/10/2031
|
$51,889.15
|
|
131
|
4/10/2031
|
$51,889.15
|
|
132
|
5/10/2031
|
$51,889.15
|
|
133
|
6/10/2031
|
$52,926.93
|
|
134
|
7/10/2031
|
$52,926.93
|
|
135
|
8/10/2031
|
$52,926.93
|
|
136
|
9/10/2031
|
$52,926.93
|
|
137
|
10/10/2031
|
$52,926.93
|
|
138
|
11/10/2031
|
$52,926.93
|
|
139
|
12/10/2031
|
$52,926.93
|
|
140
|
1/10/2032
|
$52,926.93
|
|
141
|
2/10/2032
|
$52,926.93
|
|
142
|
3/10/2032
|
$52,926.93
|
|
143
|
4/10/2032
|
$52,926.93
|
|
144
|
5/10/2032
|
$52,926.93
|
|
145
|
6/10/2032
|
$53,985.47
|
|
146
|
7/10/2032
|
$53,985.47
|
|
147
|
8/10/2032
|
$53,985.47
|
|
148
|
9/10/2032
|
$53,985.47
|
|
149
|
10/10/2032
|
$53,985.47
|
|
150
|
11/10/2032
|
$53,985.47
|
|
151
|
12/10/2032
|
$53,985.47
|
|
152
|
1/10/2033
|
$53,985.47
|
|
153
|
2/10/2033
|
$53,985.47
|
|
154
|
3/10/2033
|
$53,985.47
|
|
155
|
4/10/2033
|
$53,985.47
|
|
156
|
5/10/2033
|
$53,985.47
|
|
157
|
6/10/2033
|
$55,065.18
|
|
158
|
7/10/2033
|
$55,065.18
|
|
159
|
8/10/2033
|
$55,065.18
|
|
160
|
9/10/2033
|
$55,065.18
|
|
161
|
10/10/2033
|
$55,065.18
|
|
162
|
11/10/2033
|
$55,065.18
|
|
163
|
12/10/2033
|
$55,065.18
|
|
164
|
1/10/2034
|
$55,065.18
|
|
165
|
2/10/2034
|
$55,065.18
|
|
166
|
3/10/2034
|
$55,065.18
|
|
167
|
4/10/2034
|
$55,065.18
|
|
168
|
5/10/2034
|
$55,065.18
|
|
169
|
6/10/2034
|
$56,166.49
|
|
170
|
7/10/2034
|
$56,166.49
|
|
171
|
8/10/2034
|
$56,166.49
|
|
172
|
9/10/2034
|
$56,166.49
|
|
173
|
10/10/2034
|
$56,166.49
|
|
174
|
11/10/2034
|
$56,166.49
|
|
175
|
12/10/2034
|
$56,166.49
|
|
176
|
1/10/2035
|
$56,166.49
|
|
177
|
2/10/2035
|
$56,166.49
|
|
178
|
3/10/2035
|
$56,166.49
|
|
179
|
4/10/2035
|
$56,166.49
|
|
180
|
5/10/2035
|
$56,166.49
|
|
First Renewal Term
|
||
|
181
|
6/10/2035
|
$57,289.82
|
|
182
|
7/10/2035
|
$57,289.82
|
|
183
|
8/10/2035
|
$57,289.82
|
|
184
|
9/10/2035
|
$57,289.82
|
|
185
|
10/10/2035
|
$57,289.82
|
|
186
|
11/10/2035
|
$57,289.82
|
|
187
|
12/10/2035
|
$57,289.82
|
|
188
|
1/10/2036
|
$57,289.82
|
|
189
|
2/10/2036
|
$57,289.82
|
|
190
|
3/10/2036
|
$57,289.82
|
|
191
|
4/10/2036
|
$57,289.82
|
|
192
|
5/10/2036
|
$57,289.82
|
|
193
|
6/10/2036
|
$58,435.61
|
|
194
|
7/10/2036
|
$58,435.61
|
|
195
|
8/10/2036
|
$58,435.61
|
|
196
|
9/10/2036
|
$58,435.61
|
|
197
|
10/10/2036
|
$58,435.61
|
|
198
|
11/10/2036
|
$58,435.61
|
|
199
|
12/10/2036
|
$58,435.61
|
|
200
|
1/10/2037
|
$58,435.61
|
|
201
|
2/10/2037
|
$58,435.61
|
|
202
|
3/10/2037
|
$58,435.61
|
|
203
|
4/10/2037
|
$58,435.61
|
|
204
|
5/10/2037
|
$58,435.61
|
|
205
|
6/10/2037
|
$59,604.32
|
|
206
|
7/10/2037
|
$59,604.32
|
|
207
|
8/10/2037
|
$59,604.32
|
|
208
|
9/10/2037
|
$59,604.32
|
|
209
|
10/10/2037
|
$59,604.32
|
|
210
|
11/10/2037
|
$59,604.32
|
|
211
|
12/10/2037
|
$59,604.32
|
|
212
|
1/10/2038
|
$59,604.32
|
|
213
|
2/10/2038
|
$59,604.32
|
|
214
|
3/10/2038
|
$59,604.32
|
|
215
|
4/10/2038
|
$59,604.32
|
|
216
|
5/10/2038
|
$59,604.32
|
|
217
|
6/10/2038
|
$60,796.41
|
|
218
|
7/10/2038
|
$60,796.41
|
|
219
|
8/10/2038
|
$60,796.41
|
|
220
|
9/10/2038
|
$60,796.41
|
|
221
|
10/10/2038
|
$60,796.41
|
|
222
|
11/10/2038
|
$60,796.41
|
|
223
|
12/10/2038
|
$60,796.41
|
|
224
|
1/10/2039
|
$60,796.41
|
|
225
|
2/10/2039
|
$60,796.41
|
|
226
|
3/10/2039
|
$60,796.41
|
|
227
|
4/10/2039
|
$60,796.41
|
|
228
|
5/10/2039
|
$60,796.41
|
|
229
|
6/10/2039
|
$62,012.34
|
|
230
|
7/10/2039
|
$62,012.34
|
|
231
|
8/10/2039
|
$62,012.34
|
|
232
|
9/10/2039
|
$62,012.34
|
|
233
|
10/10/2039
|
$62,012.34
|
|
234
|
11/10/2039
|
$62,012.34
|
|
235
|
12/10/2039
|
$62,012.34
|
|
236
|
1/10/2040
|
$62,012.34
|
|
237
|
2/10/2040
|
$62,012.34
|
|
238
|
3/10/2040
|
$62,012.34
|
|
239
|
4/10/2040
|
$62,012.34
|
|
240
|
5/10/2040
|
$62,012.34
|
|
Second Renewal Term
|
||
|
241
|
6/10/2040
|
$63,252.59
|
|
242
|
7/10/2040
|
$63,252.59
|
|
243
|
8/10/2040
|
$63,252.59
|
|
244
|
9/10/2040
|
$63,252.59
|
|
245
|
10/10/2040
|
$63,252.59
|
|
246
|
11/10/2040
|
$63,252.59
|
|
247
|
12/10/2040
|
$63,252.59
|
|
248
|
1/10/2041
|
$63,252.59
|
|
249
|
2/10/2041
|
$63,252.59
|
|
250
|
3/10/2041
|
$63,252.59
|
|
251
|
4/10/2041
|
$63,252.59
|
|
252
|
5/10/2041
|
$63,252.59
|
|
253
|
6/10/2041
|
$64,517.64
|
|
254
|
7/10/2041
|
$64,517.64
|
|
255
|
8/10/2041
|
$64,517.64
|
|
256
|
9/10/2041
|
$64,517.64
|
|
257
|
10/10/2041
|
$64,517.64
|
|
258
|
11/10/2041
|
$64,517.64
|
|
259
|
12/10/2041
|
$64,517.64
|
|
260
|
1/10/2042
|
$64,517.64
|
|
261
|
2/10/2042
|
$64,517.64
|
|
262
|
3/10/2042
|
$64,517.64
|
|
263
|
4/10/2042
|
$64,517.64
|
|
264
|
5/10/2042
|
$64,517.64
|
|
265
|
6/10/2042
|
$65,807.99
|
|
266
|
7/10/2042
|
$65,807.99
|
|
267
|
8/10/2042
|
$65,807.99
|
|
268
|
9/10/2042
|
$65,807.99
|
|
269
|
10/10/2042
|
$65,807.99
|
|
270
|
11/10/2042
|
$65,807.99
|
|
271
|
12/10/2042
|
$65,807.99
|
|
272
|
1/10/2043
|
$65,807.99
|
|
273
|
2/10/2043
|
$65,807.99
|
|
274
|
3/10/2043
|
$65,807.99
|
|
275
|
4/10/2043
|
$65,807.99
|
|
276
|
5/10/2043
|
$65,807.99
|
|
277
|
6/10/2043
|
$67,124.15
|
|
278
|
7/10/2043
|
$67,124.15
|
|
279
|
8/10/2043
|
$67,124.15
|
|
280
|
9/10/2043
|
$67,124.15
|
|
281
|
10/10/2043
|
$67,124.15
|
|
282
|
11/10/2043
|
$67,124.15
|
|
283
|
12/10/2043
|
$67,124.15
|
|
284
|
1/10/2044
|
$67,124.15
|
|
285
|
2/10/2044
|
$67,124.15
|
|
286
|
3/10/2044
|
$67,124.15
|
|
287
|
4/10/2044
|
$67,124.15
|
|
288
|
5/10/2044
|
$67,124.15
|
|
289
|
6/10/2044
|
$68,466.63
|
|
290
|
7/10/2044
|
$68,466.63
|
|
291
|
8/10/2044
|
$68,466.63
|
|
292
|
9/10/2044
|
$68,466.63
|
|
293
|
10/10/2044
|
$68,466.63
|
|
294
|
11/10/2044
|
$68,466.63
|
|
295
|
12/10/2044
|
$68,466.63
|
|
296
|
1/10/2045
|
$68,466.63
|
|
297
|
2/10/2045
|
$68,466.63
|
|
298
|
3/10/2045
|
$68,466.63
|
|
299
|
4/10/2045
|
$68,466.63
|
|
300
|
5/10/2045
|
$68,466.63
|
|
Third Renewal Term
|
||
|
301
|
6/10/2045
|
$69,835.97
|
|
302
|
7/10/2045
|
$69,835.97
|
|
303
|
8/10/2045
|
$69,835.97
|
|
304
|
9/10/2045
|
$69,835.97
|
|
305
|
10/10/2045
|
$69,835.97
|
|
306
|
11/10/2045
|
$69,835.97
|
|
307
|
12/10/2045
|
$69,835.97
|
|
308
|
1/10/2046
|
$69,835.97
|
|
309
|
2/10/2046
|
$69,835.97
|
|
310
|
3/10/2046
|
$69,835.97
|
|
311
|
4/10/2046
|
$69,835.97
|
|
312
|
5/10/2046
|
$69,835.97
|
|
313
|
6/10/2046
|
$71,232.69
|
|
314
|
7/10/2046
|
$71,232.69
|
|
315
|
8/10/2046
|
$71,232.69
|
|
316
|
9/10/2046
|
$71,232.69
|
|
317
|
10/10/2046
|
$71,232.69
|
|
318
|
11/10/2046
|
$71,232.69
|
|
319
|
12/10/2046
|
$71,232.69
|
|
320
|
1/10/2047
|
$71,232.69
|
|
321
|
2/10/2047
|
$71,232.69
|
|
322
|
3/10/2047
|
$71,232.69
|
|
323
|
4/10/2047
|
$71,232.69
|
|
324
|
5/10/2047
|
$71,232.69
|
|
325
|
6/10/2047
|
$72,657.34
|
|
326
|
7/10/2047
|
$72,657.34
|
|
327
|
8/10/2047
|
$72,657.34
|
|
328
|
9/10/2047
|
$72,657.34
|
|
329
|
10/10/2047
|
$72,657.34
|
|
330
|
11/10/2047
|
$72,657.34
|
|
331
|
12/10/2047
|
$72,657.34
|
|
332
|
1/10/2048
|
$72,657.34
|
|
333
|
2/10/2048
|
$72,657.34
|
|
334
|
3/10/2048
|
$72,657.34
|
|
335
|
4/10/2048
|
$72,657.34
|
|
336
|
5/10/2048
|
$72,657.34
|
|
337
|
6/10/2048
|
$74,110.49
|
|
338
|
7/10/2048
|
$74,110.49
|
|
339
|
8/10/2048
|
$74,110.49
|
|
340
|
9/10/2048
|
$74,110.49
|
|
341
|
10/10/2048
|
$74,110.49
|
|
342
|
11/10/2048
|
$74,110.49
|
|
343
|
12/10/2048
|
$74,110.49
|
|
344
|
1/10/2049
|
$74,110.49
|
|
345
|
2/10/2049
|
$74,110.49
|
|
346
|
3/10/2049
|
$74,110.49
|
|
347
|
4/10/2049
|
$74,110.49
|
|
348
|
5/10/2049
|
$74,110.49
|
|
349
|
6/10/2049
|
$75,592.70
|
|
350
|
7/10/2049
|
$75,592.70
|
|
351
|
8/10/2049
|
$75,592.70
|
|
352
|
9/10/2049
|
$75,592.70
|
|
353
|
10/10/2049
|
$75,592.70
|
|
354
|
11/10/2049
|
$75,592.70
|
|
355
|
12/10/2049
|
$75,592.70
|
|
356
|
1/10/2050
|
$75,592.70
|
|
357
|
2/10/2050
|
$75,592.70
|
|
358
|
3/10/2050
|
$75,592.70
|
|
359
|
4/10/2050
|
$75,592.70
|
|
360
|
5/10/2050
|
$75,592.70
|
|
Fourth Renewal Term
|
||
|
361
|
6/10/2050
|
$77,104.55
|
|
362
|
7/10/2050
|
$77,104.55
|
|
363
|
8/10/2050
|
$77,104.55
|
|
364
|
9/10/2050
|
$77,104.55
|
|
365
|
10/10/2050
|
$77,104.55
|
|
366
|
11/10/2050
|
$77,104.55
|
|
367
|
12/10/2050
|
$77,104.55
|
|
368
|
1/10/2051
|
$77,104.55
|
|
369
|
2/10/2051
|
$77,104.55
|
|
370
|
3/10/2051
|
$77,104.55
|
|
371
|
4/10/2051
|
$77,104.55
|
|
372
|
5/10/2051
|
$77,104.55
|
|
373
|
6/10/2051
|
$78,646.64
|
|
374
|
7/10/2051
|
$78,646.64
|
|
375
|
8/10/2051
|
$78,646.64
|
|
376
|
9/10/2051
|
$78,646.64
|
|
377
|
10/10/2051
|
$78,646.64
|
|
378
|
11/10/2051
|
$78,646.64
|
|
379
|
12/10/2051
|
$78,646.64
|
|
380
|
1/10/2052
|
$78,646.64
|
|
381
|
2/10/2052
|
$78,646.64
|
|
382
|
3/10/2052
|
$78,646.64
|
|
383
|
4/10/2052
|
$78,646.64
|
|
384
|
5/10/2052
|
$78,646.64
|
|
385
|
6/10/2052
|
$80,219.57
|
|
386
|
7/10/2052
|
$80,219.57
|
|
387
|
8/10/2052
|
$80,219.57
|
|
388
|
9/10/2052
|
$80,219.57
|
|
389
|
10/10/2052
|
$80,219.57
|
|
390
|
11/10/2052
|
$80,219.57
|
|
391
|
12/10/2052
|
$80,219.57
|
|
392
|
1/10/2053
|
$80,219.57
|
|
393
|
2/10/2053
|
$80,219.57
|
|
394
|
3/10/2053
|
$80,219.57
|
|
395
|
4/10/2053
|
$80,219.57
|
|
396
|
5/10/2053
|
$80,219.57
|
|
397
|
6/10/2053
|
$81,823.97
|
|
398
|
7/10/2053
|
$81,823.97
|
|
399
|
8/10/2053
|
$81,823.97
|
|
400
|
9/10/2053
|
$81,823.97
|
|
401
|
10/10/2053
|
$81,823.97
|
|
402
|
11/10/2053
|
$81,823.97
|
|
403
|
12/10/2053
|
$81,823.97
|
|
404
|
1/10/2054
|
$81,823.97
|
|
405
|
2/10/2054
|
$81,823.97
|
|
406
|
3/10/2054
|
$81,823.97
|
|
407
|
4/10/2054
|
$81,823.97
|
|
408
|
5/10/2054
|
$81,823.97
|
|
409
|
6/10/2054
|
$83,460.44
|
|
410
|
7/10/2054
|
$83,460.44
|
|
411
|
8/10/2054
|
$83,460.44
|
|
412
|
9/10/2054
|
$83,460.44
|
|
413
|
10/10/2054
|
$83,460.44
|
|
414
|
11/10/2054
|
$83,460.44
|
|
415
|
12/10/2054
|
$83,460.44
|
|
416
|
1/10/2055
|
$83,460.44
|
|
417
|
2/10/2055
|
$83,460.44
|
|
418
|
3/10/2055
|
$83,460.44
|
|
419
|
4/10/2055
|
$83,460.44
|
|
420
|
5/10/2055
|
$83,460.44
|
APPENDIX A
“Additional Payments” shall mean all amounts (i) that are out-of-pocket costs incurred or payable by Landlord
in connection with the transfer of the Leased Premises to Tenant, and (ii) that are out-of-pocket costs, expenses, charges or penalties (including the Make-Whole Premium), if any, incurred by Landlord as a result of the prepayment or defeasance of a
Note(s) as the result of the occurrence of an Event of Default. Notwithstanding anything to the contrary set forth in this Lease, in no event shall Tenant be responsible for the payment of any Additional Payments that are payable by Landlord to a
Lender as a result of a default by Landlord pursuant to the Note or Mortgage, which default is not the result of a default by Tenant hereunder.
“Additional Rent” shall mean all amounts, costs, expenses, liabilities, indemnities and obligations (including
Tenant’s obligation to pay any Default Rate interest hereunder) which Tenant is required to pay pursuant to the terms of this Lease, other than Basic Rent.
“Affiliate” of any Person shall mean any other Person directly or indirectly controlling, controlled by or
under common control with, such Person and shall include, if such Person is an individual, members of the immediate family of such Person, and trusts for the benefit of such individual. For the purposes of this definition, the term “control”
(including the correlative meanings of the terms “controlling”, “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of
the management policies of such Person, whether through the ownership of voting securities or by contract or otherwise.
“Alteration” or “Alterations” shall mean any or all changes, additions (whether or not adjacent to or
abutting any then existing buildings), expansions (whether or not adjacent to or abutting any then existing buildings), improvements, reconstructions, removals or replacements of any of the Improvements or Equipment, both interior or exterior, and
ordinary and extraordinary, it being understood that Alterations shall not include repairs or ordinary maintenance.
“Applicable Laws” shall mean all existing and future applicable laws (including common laws), rules,
regulations, statutes, treaties, codes, ordinances, permits, certificates, orders and licenses of any Governmental Authorities, and applicable judgments, decrees, injunctions, writs, orders or like action of any court, arbitrator or other
administrative, judicial or quasi-judicial tribunal or agency of competent jurisdiction (including those pertaining to the environment and those pertaining to the construction, use or occupancy of the Leased Premises). Applicable Laws shall include
Environmental Laws.
“Basic Rent” shall mean the amounts set forth on Exhibit B annexed to this Lease.
“Basic Rent Payment Dates” shall mean the Closing Date and the tenth (10th) day of each month (or,
if such day is not a Business Day, the following Business Day) thereafter during the Term.
“Business Day” means any day other than a Saturday or a Sunday or other day on which commercial banks in the
State in which the Leased Premises are located are required or are authorized to be closed.
“CERCLA” shall mean the Comprehensive Environmental Response, Compensation and Liability Act, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601-9657.
“Claims” shall mean Liens (including, without limitation, Lien removal and bonding costs), liabilities,
obligations, damages, losses, demands, penalties, assessments, payments, fines, claims, actions, suits, judgments, settlements, costs, expenses and disbursements (including, without limitation, reasonable legal fees and expenses and costs of
investigation and enforcement) of any kind and nature whatsoever.
“Closing Date” shall mean May 18, 2020.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
“Condemnation” shall mean a Taking and/or a Requisition.
“Default Rate” shall mean the greater of (i) 9.25% per annum and (ii) the then current Prime Rate plus 3.00%
per annum.
“Environmental Laws” shall mean and include, all to the extent applicable to the Leased Premises or to
Tenant’s (or its subtenant’s or assignee’s) operations at, or use of, the Leased Premises, the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §§ 6901-6987, as amended by the Hazardous and Solid Waste Amendments of 1984, CERCLA, the
Hazardous Materials Transportation Act of 1975, 49 U.S.C. §§ 1801-1812, the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2671, the Clean Air Act, 42 U.S.C. §§ 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 et
seq and all other federal, state and local laws, rules, orders, statutes, codes and regulations applicable to the Leased Premises or the operations thereon or use thereof and (i) relating to the environment, human health or natural resources, (ii)
regulating, controlling or imposing liability or standards of conduct concerning Hazardous Materials, or (iii) regulating the clean-up or other remediation of the Leased Premises or any portion thereof, as any of the foregoing may have been amended,
supplemented or supplanted from time to time.
“Equipment” shall mean, collectively, the machinery and equipment which is attached to the Improvements in
such a manner as to become fixtures under Applicable Law, together with all additions and accessions thereto, substitutions therefor and replacements thereof, excepting therefrom the Trade Fixtures.
“Event of Default” shall mean the occurrence of any one or more of the following events under this Lease: (i)
a failure by Tenant to make (regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant
from complying with the provisions of this Lease): (x) any payment of Basic Rent when due and payable and the continuance of such failure for three (3) Business Days after written notice thereof to Tenant or (y) any payment of any other sum herein
required to be paid by Tenant which continues unremedied for a period of ten (10) days after written notice thereof to Tenant; (ii) failure by Tenant to perform and observe, or a violation or breach of, any other provision in this Lease and, in any
such case, such default shall continue for a period of thirty (30) days after written notice thereof is given by Landlord, or if such default is of such a nature that it cannot reasonably be cured within such period of thirty (30) days, such period
shall be extended for such longer time as is reasonably necessary (not to exceed 180 days), provided that Tenant has commenced to cure such default within said period of thirty (30) days and is actively, diligently and in good faith
proceeding with continuity to remedy such default; (iii) Tenant shall (A) voluntarily be adjudicated a bankrupt or insolvent, (B) voluntarily consent to the appointment of a receiver or trustee for itself or for the Leased Premises, (C) voluntarily
file a petition seeking relief under the bankruptcy or other similar laws of the United States, any state or any jurisdiction, (D) voluntarily file a general assignment for the benefit of creditors, (E) be the subject of an involuntary case or
proceeding against Tenant of the nature referred to in the foregoing subclauses of this clause (iii) which remains undismissed for more than ninety (90) days or (F) generally not pay its debts as they become due or declare that it will
generally be unable to pay its debts as they become due; (iv) a court shall enter an order, judgment or decree appointing a receiver or trustee for Tenant or for the Leased Premises or approving a petition filed against Tenant which seeks relief
under the bankruptcy or other similar laws of the United States or any State or otherwise entering an order for relief in any such proceeding, and such order, judgment or decree shall remain in force, undischarged or unstayed, sixty (60) days after
it is entered; (v) Tenant shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; or (vi) the estate or interest of Tenant in the Leased Premises shall be levied
upon or attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall not be vacated or discharged within sixty (60) days after such levy or attachment.
“Expansion” shall mean Alterations that consist of additions to the then existing Improvements, or the construction of additional
buildings or other structures on the Land, other than storage or utility sheds or similar structures with minimal square footage.
“Expiration Date” shall mean the last day of the month in which the fifteenth (15th) anniversary of
the Closing Date occurs, unless the Closing Date is the first day of a calendar month, in which case the Expiration Date shall mean the last day of the calendar month immediately preceding the month in which the fifteenth (15th)
anniversary of the Closing Date occurs.
“Fair Rental Value” shall mean, at any time of determination, the then prevailing market rate for new leases
for buildings of comparable size, age, use, location and quality as the Leased Premises in its condition at such time of determination for a term equal to the then remaining scheduled Term.
“GAAP” shall mean generally accepted accounting principles, uniformly applied, as in effect from time to time
in the United States of America.
“Governmental Authority” shall mean any federal, state, county, municipal, foreign or other governmental or
regulatory authority, agency, board, body, instrumentality, court or quasi governmental authority (or private entity in lieu thereof).
“Hazardous Materials” shall mean all chemicals, petroleum, crude oil or any fraction thereof, hydrocarbons,
polychlorinated biphenyls (PCBs), asbestos, asbestos-containing materials and/or products, urea formaldehyde, or any substances which are classified as “hazardous” or “toxic” under CERCLA; hazardous waste as defined under the Solid Waste Disposal
Act, as amended 42 U.S.C. § 6901; air pollutants regulated under the Clean Air Act, as amended, 42 U.S.C. § 7401, et seq.; pollutants as defined under the Clean Water Act, as amended, 33 U.S.C. § 1251, et seq., any pesticide as defined by Federal
Insecticide, Fungicide, and Rodenticide Act, as amended, 7 U.S.C. § 136, et seq., any hazardous chemical substance or mixture or imminently hazardous substance or mixture regulated by the Toxic Substances Control Act, as amended, 15 U.S.C. § 2601, et
seq., any substance listed in the United States Department of Transportation Table at 45 CFR 172.101; any chemicals included in regulations promulgated under the above listed statutes or any similar federal or state statutes relating to the
environment, human health or natural resources; any explosives, radioactive material, and any chemical regulated by state statutes similar to the federal statutes listed above and regulations promulgated under such state statutes.
“Imposition” or “Impositions” shall mean, collectively, all Taxes of every kind and nature on or with
respect to the Leased Premises or the Basic Rent or Additional Rent, or the use, lease, ownership or operation thereof; all charges, fees, expenses and/or taxes for or under any Record Agreement or other agreement maintained for the benefit of the
Leased Premises; all general and special assessments, levies, permits, inspection and license fees on or with respect to the Leased Premises; all water and sewer rents and other utility charges on or with respect to the Leased Premises; all ground
rents on or with respect to the Leased Premises, if any; all common area maintenance fees, if any, applicable to the Leased Premises, and all other public charges and/or taxes whether of a like or different nature, even if unforeseen or
extraordinary, imposed or assessed upon or with respect to the Leased Premises, prior to or during the Term, against Landlord, Tenant or the Leased Premises as a result of or arising in respect of the occupancy, leasing, use, maintenance, operation,
management, repair or possession thereof, or any activity conducted on the Leased Premises, or the Basic Rent or Additional Rent, including without limitation, any sales tax, occupancy tax, rent tax or excise tax levied by any governmental body on or
with respect to such Basic Rent or Additional Rent; all payments required to be made to a governmental or quasi-governmental authority (or private entity in lieu thereof) that are in lieu of any of the foregoing, whether or not expressly so
designated; and any penalties, fines, additions or interest thereon or additions thereto, provided that the term “Impositions” shall exclude any federal, state or local (A) transfer taxes as the result of a conveyance by (or suffered by)
Landlord to any Person other than (1) Tenant or a person designated by Tenant or (2) as a result of an Event of Default, (B) franchise, capital stock, gross income taxes that are in the nature of franchise or capital stock taxes or similar taxes, if
any, of Landlord, except to the extent such franchise, capital stock or similar taxes would not have been payable by Landlord but for the ownership by Landlord of the Leased Premises, (C) income, excess profits or other taxes, if any, of Landlord,
determined on the basis of or measured by its net income, (D) estate, inheritance, succession, gift, capital levy or similar taxes of Landlord, or (E) Tax that would not have been imposed but for the failure of an Indemnitee to comply with
certification, information, documentation or other reporting requirements applicable to such Indemnitee and for which Tenant is not responsible under this Lease, if compliance with such requirements is required by statute or regulation of the
relevant taxing authority as a precondition to relief or exemption from such Tax.
“Improvements” shall mean, collectively, the buildings, structures and other improvements on the Land.
“Indemnitee” shall mean Landlord, each Lender, the Trustee, any trustee under a Mortgage which is a deed of
trust, each of their assignees or other transferees and each of their Affiliates and their respective officers, directors, employees, shareholders, members or other equity owners.
“Initial Term” shall mean the period of time commencing on the Closing Date and terminating on the Expiration
Date.
“Insurance Expiration Date” shall mean, with respect to an insurance policy, the date that such insurance
policy will expire.
“Insurance Requirements” shall mean, as the case may be, any one or more of the terms of each insurance policy
required to be carried by Tenant under this Lease and the requirements of the issuer of such policy.
“Land” shall mean the lot(s) or parcel(s) of land described in Exhibit A attached to this Lease and
made a part hereof, together with the easements, rights and appurtenances thereunto belonging or appertaining.
“Landlord” shall mean HF Colonial Heights VA Landlord, LLC, a Delaware limited liability company.
“Leased Premises” shall mean, collectively, the Land, the Improvements and the Equipment, together with any
and all other property and interest in property conveyed to Landlord pursuant to the deeds, bills of sale or other documents executed in connection with the purchase of the Land, the Improvements and the Equipment by Landlord.
“Legal Requirement” or “Legal Requirements” shall mean, as the case may be, any one or more of all
present and future laws, codes, ordinances, orders, judgments, decrees, injunctions, rules, regulations and requirements, even if unforeseen or extraordinary, of every duly constituted governmental authority or agency and all covenants, restrictions
and conditions now of record which may be applicable to Tenant, Landlord (with respect to the Leased Premises) or to all or any part of or interest in the Leased Premises, or to the use, manner of use, occupancy, possession, operation, maintenance,
alteration, repair or reconstruction of the Leased Premises, even if compliance therewith (i) necessitates structural changes or improvements (including changes required to comply with the Americans with Disabilities Act) or results in interference
with the use or enjoyment of the Leased Premises or (ii) requires Tenant to carry insurance other than as specifically required by the provisions of this Lease.
“Lender” or “Lenders” shall mean, collectively, the Trustee and each financial institution or other
Person that makes a Loan to Landlord, secured, directly or indirectly, by a Mortgage and evidenced by a Note or which is the holder of the Mortgage and a Note, or an interest therein, as a result of an assignment thereof or otherwise.
“Lien” or “Liens” shall mean any lien, mortgage, pledge, charge, security interest or encumbrance of
any kind, or any type of preferential arrangement that has the practical effect of creating a security interest, including, without limitation, any thereof arising under any conditional sale agreement, capital lease or other title retention
agreement.
“Loan” shall mean a loan made by a Lender to Landlord secured by a Mortgage and evidenced by a Note.
“Make-Whole Premium” means any make-whole premium, prepayment amount, termination fee or similar amount or
charge payable by Landlord in connection with the early payment, in whole or in part, of any Note.
“Mortgage” shall mean a mortgage, deed of trust or similar security instrument hereafter executed covering the
Leased Premises from Landlord to secure the repayment of a Loan.
“Net Award” shall mean the entire award payable to Landlord or the Trustee by reason of a Condemnation, less
any reasonable expenses incurred by Landlord or the Trustee in collecting such award.
“Net Proceeds” shall mean the entire proceeds of any insurance required under clause (i), (iv),
or (vi) of Section 14(a) of this Lease, less any actual and reasonable expenses incurred by Tenant, Landlord or Trustee in collecting such proceeds.
“Note” or “Notes” shall mean a promissory note or notes executed from Landlord to a Lender, which note
or notes is secured by a Mortgage.
“Permitted Encumbrances” shall mean: (A) those covenants, restrictions, reservations, Liens, conditions,
encroachments, easements and other matters of title that affect the Leased Premises: (i) as of the Closing Date; or (ii) arising after the Closing Date that: (a) individually or in the aggregate, do not materially detract from the value or
marketability, or impair in any material manner the use, of the Leased Premises; or (b) arise or are created by municipal and zoning ordinances; and (B) current taxes and assessments not yet due and payable or being contested in accordance with the
provisions of Section 18.
“Permitted Investments” means (i) marketable direct obligations issued or unconditionally guaranteed by the
United States of America or issued by any agency thereof and backed by the full faith and credit of the United States of America, in each case maturing within six (6) months from the date of acquisition thereof, and (ii) marketable general
obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within six (6) months from the date of acquisition thereof and, at the time of acquisition,
having one of the two highest ratings generally obtainable from either Standard & Poor's Corporation or Moody's Investors Service, Inc.
“Person” shall mean an individual, corporation, partnership, joint venture, association, joint-stock company,
trust, limited liability company, non-incorporated organization or government or any agency or political subdivision thereof.
“Prime Rate” shall mean the prime rate of interest published in The Wall Street Journal
or its successor, from time to time.
“Record Agreement” shall mean an easement agreement, restrictive covenant, declaration, right-of-way or any
other agreement or document of record now or hereafter affecting the Leased Premises, including each Permitted Encumbrance for as long as it is in effect.
“Release” shall mean the release of any Hazardous Materials into or upon any land or water or air, or
otherwise into the environment, including, without limitation, by means of burial, disposal, discharge, emission, injection, spillage, leakage, seepage, leaching, dumping, pumping, escaping, emptying, placement and the like.
“Renewal Option Notice” shall mean a written notice from Tenant to Landlord of its election to extend the Term
(or any then Renewal Term) of this Lease pursuant to Section 5 of this Lease.
“Renewal Term” shall mean an additional Lease term of five (5) years.
“Replaced Equipment” shall mean Equipment that has been replaced by Tenant with Replacement Equipment.
“Replacement Equipment” shall mean operational equipment or other parts used by Tenant to replace any of the
Equipment.
“Requisition” shall mean any temporary condemnation or confiscation of the use or occupancy of the Leased
Premises by any Governmental Authority, civil or military, whether pursuant to an agreement with such Governmental Authority in settlement of or under threat of any such requisition or confiscation, or otherwise.
“Restoration” shall mean, following a casualty or Condemnation, the restoration of the Leased Premises to as
nearly as possible its value, condition and character immediately prior to such casualty or Condemnation (assuming that the Leased Premises has been maintained to no lesser standard than that required under this Lease), in accordance with the
provisions of this Lease, including but not limited to the provisions of Sections 11(a), 12 and 15.
“Restoration Award” shall mean that portion of the Net Award equal to the cost of Restoration.
“Restoration Fund” shall mean, collectively, the Net Proceeds, Restoration Award and Tenant’s Insurance
Payment.
“SEC” means the Securities and Exchange Commission.
“State” shall mean the State or Commonwealth in which the Leased Premises is situated.
“Structural Alteration” shall mean an Alteration that (i) will result in a change in the footprint of the
Improvements, (ii) involves the addition of one or more floors to the Improvements, (iii) materially adversely affects the structural elements or any exterior walls of the Improvements, or involves the removal or relocation of any exterior walls of
the Improvements, (iv) decreases the rentable square footage of the Leased Premises other than to a de minimis extent or (v) materially adversely affects the proper functioning and/or capacity of the building systems in the Improvements.
“Taking” shall mean any taking of the Leased Premises, or any portion thereof, in or by condemnation or other
eminent domain proceedings pursuant to any law, general or special, or by reason of any agreement with any condemnor in settlement of or under threat of any such condemnation or other eminent domain proceedings or by any other means, or any de facto
condemnation.
“Tax” or “Taxes” shall mean the following present and future taxes, including income (gross or net),
gross or net receipts, sales, use, leasing, value added, franchise, doing business, transfer, capital, property (tangible or intangible), ad valorem, municipal assessments, rent, excise and stamp taxes, levies, imposts, duties, charges, assessments
or withholding, together with any penalties, fines, additions or interest thereon or additions thereto (any of the forgoing being referred to herein individually as a “Tax”), imposed by any Governmental Authority. Taxes shall include the
costs of any contest or appeal pursued which reduces the Taxes (or attempts to do so), including reasonable attorneys’ fees and costs incident thereto. Without limiting the foregoing, if at any time during the term of this Lease the methods of
taxation prevailing at the execution hereof shall be changed or altered so that in lieu of or as a supplement or addition to or a substitute for the whole or any part of the real estate taxes or assessments now or from time to time thereafter levied,
assessed or imposed by applicable taxing authorities for the funding of governmental services, there shall be imposed (i) a tax, assessment, levy, imposition or charge, wholly or partially as a capital levy or otherwise, on the gross rents received
or otherwise attributable to the Leased Premises, or (ii) a tax, assessment, levy (including but not limited to any municipal, state or federal levy), imposition or charge measured by or based in whole or in part upon the Leased Premises or this
Lease, and imposed on the Landlord under this Lease or any portion thereof, or (iii) a license fee or other fee or tax measured by the gross rent payable under this Lease, or (iv) any other tax, assessment, levy, charge, fee or the like payable with
respect to the Leased Premises, the rents, issues and profits thereof, then all such taxes, assessments, levies, impositions and/or charges, or the part thereof so measured or based, shall be deemed to be Taxes.
“Tenant” shall mean Haverty Furniture Companies, Inc., a Maryland corporation.
“Tenant’s Award” shall mean, to the extent Tenant shall have a right to make a separate claim therefor against
the condemnor, any award or payment (in connection with a Condemnation) for Tenant’s leasehold interest hereunder, relocation assistance available to Tenant under federal or state law including, but not limited to, on account of Trade Fixtures,
Tenant’s moving expenses and Tenant’s out-of-pocket expenses incidental to the move, if available.
“Tenant’s Insurance Payment” shall mean, in the event of damage or destruction, the amount of the proceeds
that would have been payable under the third-party insurance required to be maintained pursuant to Section 14(a)(i), (iv) or (vi) had such insurance program been in effect.
“Tenant’s Termination Notice” shall mean a written notice from Tenant to Landlord of Tenant’s intention to
terminate this Lease in accordance with Section 13 or 14 of this Lease, which notice shall set forth the Termination Date.
“Term” shall mean the Initial Term, together with any Renewal Term.
“Termination Date” shall mean the date for the termination of this Lease pursuant to Tenant’s Termination
Notice, which date shall be on a Basic Rent Payment Date occurring no sooner than thirty (30) days after the date of such Tenant’s Termination Notice.
“Threshold Amount” shall mean $350,000.
“Trade Fixtures” shall mean all furniture, fixtures, equipment and other items of personal property (whether
or not attached to the Improvements) that are owned by Tenant and used in connection with the operation of the business conducted on the Leased Premises, that are not necessary for the operation of the Leased Premises and that have not been financed
or funded by Landlord.
“Trustee” shall mean any trustee for the benefit of lenders providing financing to Landlord in connection with
the Leased Premises, and any successor thereto. If no Notes are outstanding as of any date of determination, each reference to the Trustee in this Lease shall be inapplicable, and any payments to be made, or notices or consents to be given, to or by
the Trustee shall be paid or given, as the case may be, to or by Landlord, acting singly.
“Warranties” shall mean all warranties, guaranties and indemnities, express or implied, and similar rights
which Landlord may have against any manufacturer, seller, engineer, contractor or builder in respect of the Leased Premises, including, but not limited to, any rights and remedies existing under contract or pursuant to the Uniform Commercial Code.
Havertys Reports Earnings for First Quarter 2020, Declares Second Quarter Cash Dividend, and Completion of $70 Million Sale-Leaseback Transaction
Atlanta, Georgia, May 20, 2020 – HAVERTYS (NYSE: HVT and HVT.A)
reports earnings per share for the first quarter ended March 31, 2020 of $0.09 compared to $0.17 for the same period of 2019.
The Company also announced today that, on May 19, 2020, its board of directors declared a cash dividend to be paid on the outstanding shares of the two classes of
$1 par value common stock of the company at a rate of $0.15 per share on the common stock and $0.14 per share on the Class A common stock. The dividend is payable on June 19, 2020, to stockholders of record at the close of business on June 4, 2020.
Havertys has paid a cash dividend in each year since 1935.
Clarence H. Smith, chairman, president and CEO, said, “Before the COVID-19 pandemic became a part of our daily conversation, our first quarter business was ahead of
last year. Sales were up 12.8% and comp-store sales were up 11.6% for the first two months of 2020 compared to 2019. March brought increased awareness and a national health emergency was declared on March 13. To protect our team members, customers, and
communities, we closed our stores March 19 and halted deliveries March 21. The past few weeks have been challenging and extremely difficult, especially the decisions concerning our workforce made to protect the viability of our company during these
unprecedented times. We used our credit facility for the first time since putting it in place in 2008 and completed a sale-leaseback transaction of three distribution facilities to enhance our liquidity position. We have reduced capital spending, cut
salaries for senior management, and reduced our quarterly dividend to our common stockholders 25%. Each step we have taken was made to help secure our brand as we face the unknown duration and severity of this pandemic.
“The Havertys team has performed remarkable tasks: pausing our operations, handling key support functions remotely, and communicating with our customers, vendors,
lender and landlords as we traversed unfamiliar ground. Our teams thought outside the box as existing communication tools were put to greater use by larger numbers and in creative ways. We reopened 103 of our 120 stores on May 1 and today we are
serving customers, albeit behind a mask and socially distant, with a renewed enthusiasm in 116 stores. Our deliveries resumed on May 5 and we are offering customers the option of delivery to the doorstep or in-home placement and set-up. Digital
shopping has been elevated to new levels and we have increased the number of team members that can serve online customers via chat.
There will certainly be new challenges in the months ahead but the Havertys teams’ experience, tenaciousness, flexibility, and compassion was evident these past
weeks. We have all been changed by these events, people are more focused on their homes than ever before, and we believe that Havertys is well suited to connect and fulfill the desires of customers as they create the special place they call home.”
Financial Highlights
First Quarter 2020 Compared to First Quarter 2019
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Sales were $179.4 million for 2020, a decrease of 4.2% compared with $187.2 million for 2019.
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Gross profit margins increased 40 basis points to 55.5% from 55.1%. The increase is primarily due to merchandise pricing and mix and reductions in
inventory markdowns.
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SG&A costs as a percent of sales were 54.4% in 2020 and 52.8% in 2019. Total SG&A dollars were $1.3 million lower in 2020 primarily due to a
reduction in advertising expense of $1.2 million.
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Dividends declared in February of $3.8 million, an 11% per common share increase over 2019, were paid in March 2020.
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Purchased 419,111 in treasury shares for approximately $6.8 million in transactions from February 21 to March 13, 2020.
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NEWS RELEASE – May 20, 2020
Page 2
Expectations and Other
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We are not providing guidance on our gross margin and SG&A expense expectations for the remainder of 2020 at this time given the uncertainty caused
by the pandemic.
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Our selling square footage is expected to be slightly lower in 2020 compared to 2019. We closed our outlet location in the first quarter, plan to close
our Galleria location in Dallas, TX in the third quarter, and open a store in Southlake, TX in the fourth quarter. Our previously announced store expansions are delayed or under review.
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Total capital expenditures are estimated to be approximately $5.0 million in 2020.
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Sale-Leaseback Transaction
On May 18, we completed a sale and leaseback transaction of three properties with SunTrust Equity Funding, LLC, a subsidiary of Truist Financial Corporation. The
Coppell, TX location has approximately 394,000 distribution square feet used to serve our western stores, 44,000 retail square feet, and 20,000 square feet of office space used for a call center and general management purposes. The Lakeland, FL
property is a distribution center with approximately 335,000 square feet and the Colonial Heights property is a distribution facility with 129,000 square feet. The total sales price for these properties, excluding costs and taxes, is $70.0 million and
their net book value is approximately $39.8 million. Net proceeds from the sales will be used to strengthen our liquidity and support corporate initiatives.
The facilities will be leased back to Havertys via 15-year operating lease agreements with renewal options.
Recap of Response to COVID-19
Q-1
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Ceased non-essential company travel, instituted a hiring freeze, and adjusted marketing plans.
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Closed all locations on March 19, halted deliveries on March 21, and transitioned corporate functions to remote working. Paid salaries and wages of
approximately $4.3 million to affected team members in sales, warehouse, and distribution.
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Borrowed $43.8 million of $60.0 million credit facility in late March, with net availability of $14.6 million at March 31, 2020.
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Suspended stock repurchase program.
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NEWS RELEASE – May 20, 2020
Page 3
Q-2
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Instituted salary reductions beginning in April: 40% for the chief executive officer and tiered reductions for officers and managers and suspension of
directors’ cash retainer fees.
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Furloughed 3,033 team members of total workforce of 3,495 on April 1 for 30 days: virtually all store and distribution personnel, majority of warehouse
staff, and all but minimum level of corporate personnel necessary for operations. The monthly wages associated with furloughed personnel are approximately $9.9 million. Havertys paid enrolled health benefits of furloughed team members.
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Froze company 401(k) contribution.
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Reduced or cancelled certain purchase orders and extended certain vendor payment terms.
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Worked with landlords to defer rent payments.
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Elimination of non-essential capital expenditures.
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On April 27, reduced total workforce by approximately 1,200 team members effective April 30, and extended furlough of 730 team members for another 30
days. The annualized total compensation costs associated with the permanent reduction in workforce is approximately $42.6 million.
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Reopened 103 stores on May 1 and restarted home deliveries on May 5.
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Completed sale-leaseback transaction of approximately $70.0 million on May 18.
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NEWS RELEASE – May 20, 2020
Page 4
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HAVERTY FURNITURE COMPANIES, INC.
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CONDENSED CONSOLIDATED STATEMENTS OF INCOME
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(In thousands, except per share data – Unaudited)
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Three Months Ended
March 31,
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(In thousands, except per share data - unaudited)
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2020
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2019
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Net sales
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$
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179,432
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$
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187,242
|
||||
|
Cost of goods sold
|
79,879
|
84,159
|
||||||
|
Gross profit
|
99,553
|
103,083
|
||||||
|
Credit service charges
|
19
|
22
|
||||||
|
Gross profit and other revenue
|
99,572
|
103,105
|
||||||
|
Expenses:
|
||||||||
|
Selling, general and administrative
|
97,535
|
98,879
|
||||||
|
Provision for doubtful accounts
|
34
|
4
|
||||||
|
Other (income) expense, net
|
(83
|
)
|
(154
|
)
|
||||
|
Total expenses
|
97,486
|
98,729
|
||||||
|
Income before interest and income taxes
|
2,086
|
4,376
|
||||||
|
Interest income, net
|
214
|
349
|
||||||
|
Income before income taxes
|
2,300
|
4,725
|
||||||
|
Income tax expense
|
481
|
1,104
|
||||||
|
Net income
|
$
|
1,819
|
$
|
3,621
|
||||
|
Other comprehensive income
|
||||||||
|
Adjustments related to retirement plans; net of tax expense of $10 in 2020 and $3 in 2019
|
$
|
31
|
$
|
9
|
||||
|
Comprehensive income
|
$
|
1,850
|
$
|
3,630
|
||||
|
Basic earnings per share:
|
||||||||
|
Common Stock
|
$
|
0.10
|
$
|
0.18
|
||||
|
Class A Common Stock
|
$
|
0.09
|
$
|
0.17
|
||||
|
Diluted earnings per share:
|
||||||||
|
Common Stock
|
$
|
0.09
|
$
|
0.17
|
||||
|
Class A Common Stock
|
$
|
0.09
|
$
|
0.17
|
||||
|
Cash dividends per share:
|
||||||||
|
Common Stock
|
$
|
0.20
|
$
|
0.18
|
||||
|
Class A Common Stock
|
$
|
0.19
|
$
|
0.17
|
||||
NEWS RELEASE – May 20, 2020
Page 5
|
HAVERTY FURNITURE COMPANIES, INC.
|
|
CONDENSED CONSOLIDATED BALANCE SHEETS
|
|
(In thousands - Unaudited)
|
|
|
March 31,
2020 |
December 31,
2019 |
March 31,
2019 |
|||||||||
|
|
(Unaudited)
|
(unaudited)
|
||||||||||
|
ASSETS
|
||||||||||||
|
Current assets
|
||||||||||||
|
Cash and cash equivalents
|
$
|
84,570
|
$
|
75,739
|
$
|
72,951
|
||||||
|
Restricted cash equivalents
|
6,699
|
6,663
|
6,549
|
|||||||||
|
Accounts receivable, net
|
1,374
|
1,527
|
1,716
|
|||||||||
|
Inventories
|
110,547
|
104,817
|
109,379
|
|||||||||
|
Prepaid expenses
|
9,989
|
7,652
|
8,590
|
|||||||||
|
Other current assets
|
7,004
|
8,125
|
8,573
|
|||||||||
|
Total current assets
|
220,183
|
204,523
|
207,758
|
|||||||||
|
Accounts receivable, long-term, net
|
167
|
195
|
213
|
|||||||||
|
Property and equipment, net
|
153,215
|
156,534
|
158,316
|
|||||||||
|
Right-of-use lease assets
|
180,058
|
175,474
|
188,400
|
|||||||||
|
Deferred income taxes
|
12,067
|
13,198
|
10,757
|
|||||||||
|
Other assets
|
9,189
|
10,148
|
9,639
|
|||||||||
|
Total assets
|
$
|
574,879
|
$
|
560,072
|
$
|
575,083
|
||||||
|
|
||||||||||||
|
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
||||||||||||
|
Current liabilities
|
||||||||||||
|
Accounts payable
|
$
|
16,819
|
$
|
27,830
|
$
|
22,134
|
||||||
|
Customer deposits
|
26,174
|
30,121
|
29,437
|
|||||||||
|
Accrued liabilities
|
29,759
|
39,654
|
32,078
|
|||||||||
|
Current lease liabilities
|
30,201
|
29,411
|
28,799
|
|||||||||
|
Notes payable to bank
|
43,800
|
—
|
—
|
|||||||||
|
Total current liabilities
|
146,753
|
127,016
|
112,448
|
|||||||||
|
Noncurrent lease liabilities
|
153,824
|
149,594
|
157,499
|
|||||||||
|
Other liabilities
|
21,855
|
22,959
|
23,210
|
|||||||||
|
Total liabilities
|
322,432
|
299,569
|
293,157
|
|||||||||
|
|
||||||||||||
|
Stockholders’ equity
|
252,447
|
260,503
|
281,926
|
|||||||||
|
Total liabilities and stockholders’ equity
|
$
|
574,879
|
$
|
560,072
|
$
|
575,083
|
||||||
NEWS RELEASE – May 20, 2020
Page 6
|
HAVERTY FURNITURE COMPANIES, INC.
|
|
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
|
|
(In thousands – Unaudited)
|
|
Three Months Ended March 31,
|
||||||||
|
2020
|
2019
|
|||||||
|
(unaudited)
|
(unaudited)
|
|||||||
|
Cash Flows from Operating Activities:
|
||||||||
|
Net income
|
$
|
1,819
|
$
|
3,621
|
||||
|
Adjustments to reconcile net income to net cash (used in)
provided by operating activities: |
||||||||
|
Depreciation and amortization
|
5,124
|
5,105
|
||||||
|
Share-based compensation expense
|
972
|
1,061
|
||||||
|
Other
|
1,241
|
(485
|
)
|
|||||
|
Changes in operating assets and liabilities:
|
||||||||
|
Inventories
|
(5,731
|
)
|
(3,539
|
)
|
||||
|
Customer deposits
|
(3,947
|
)
|
4,972
|
|||||
|
Other assets and liabilities
|
(826
|
)
|
(1,224
|
)
|
||||
|
Accounts payable and accrued liabilities
|
(20,231
|
)
|
(4,093
|
)
|
||||
|
Net cash (used in) provided by operating activities
|
(21,579
|
)
|
5,418
|
|||||
|
|
||||||||
|
Cash Flows from Investing Activities:
|
||||||||
|
Capital expenditures
|
(2,480
|
)
|
(3,764
|
)
|
||||
|
Proceeds from sale of property and equipment
|
4
|
2,255
|
||||||
|
Net cash used in investing activities
|
(2,476
|
)
|
(1,509
|
)
|
||||
|
|
||||||||
|
Cash Flows from Financing Activities:
|
||||||||
|
Proceeds from borrowings under revolving credit facilities
|
43,800
|
—
|
||||||
|
Payments of borrowings under revolving credit facilities
|
—
|
—
|
||||||
|
Net change in borrowings under revolving credit facilities
|
43,800
|
—
|
||||||
|
Dividends paid
|
(3,750
|
)
|
(3,685
|
)
|
||||
|
Common stock repurchased
|
(6,810
|
)
|
—
|
|||||
|
Other
|
(318
|
)
|
(533
|
)
|
||||
|
Net cash provided by (used in) financing activities
|
32,922
|
(4,218
|
)
|
|||||
|
Increase (decrease) in cash, cash equivalents and restricted cash equivalents during the period
|
8,867
|
(309
|
)
|
|||||
|
Cash, cash equivalents and restricted cash equivalents at beginning of period
|
82,402
|
79,809
|
||||||
|
Cash, cash equivalents and restricted cash equivalents at end of period
|
$
|
91,269
|
$
|
79,500
|
||||
NEWS RELEASE – May 20, 2020
Page 7
Conference Call Information
The company invites interested parties to listen to the live audiocast of the conference call on May 21, 2020 at 10:00 a.m. ET at its website, havertys.com under the investor relations section. If you cannot listen live, a replay will be available on the day of the conference call at the website or via telephone at
approximately 1:00 p.m. ET through June 1, 2020. The number to access the telephone playback is 1-888-203-1112 (access code: 4738831).
About Havertys
Havertys (NYSE: HVT and HVT.A), established in 1885, is a full-service home furnishings retailer with 120 showrooms in 16 states in the Southern and Midwestern
regions providing its customers with a wide selection of quality merchandise in middle to upper-middle price ranges. Additional information is available on the Company’s website havertys.com.
Safe Harbor
This press release contains, and the conference call may contain forward-looking statements subject to the safe harbor provisions of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Act of 1934. These forward-looking statements are subject to risks and uncertainties and change based on various important factors, many of which are beyond our control.
All statements in the future tense and all statements accompanied by words such as “expect,” “likely,” “outlook,” “forecast,” “preliminary,” “would,” “could,”
“should,” “position,” “will,” “project,” “intend,” “plan,” “on track,” “anticipate,” “to come,” “may,” “possible,” “assume,” and variations of such words and similar expressions are intended to identify such forward-looking statements. These
forward-looking statements include, without limitation, our expected ability to operate and protect our team members and customers during the COVID-19 pandemic, the execution and effect of our cost savings initiatives, the use of proceeds from our
sale-leaseback transaction, our expectations for selling square footage and capital expenditures for 2020, our liquidity position to continue to operate during these highly uncertain times, and our efforts and initiatives to help us emerge from the
pandemic well-positioned.
We caution that our forward-looking statements involve risks and uncertainties, and while we believe that our expectations for the future are reasonable in view of
currently available information you are cautioned not to place undue reliance on our forward-looking statements and they should not be relied upon as a prediction of actual results. Factors that could cause actual results to differ materially from
those expressed or implied in any forward-looking statements include, but are not limited to: the extent and duration of the disruption to our business operations caused by the health crisis associated with the COVID-19 pandemic, including the effects
on the financial health of our business partners and customers, on supply chains and our suppliers, and on access to capital and liquidity provided by the financial and capital markets; our ability to maintain compliance with debt covenants and amend
such credit facilities as necessary; disruptions in our suppliers' operations, including from the impact of COVID-19, including potential problems with inventory availability and the potential result of the volatility or higher cost of product and
international freight due to the high demand of products and low supply for an unpredictable period of time; disruptions in our third-party producers’ operations in foreign countries; changes in national and international legislation or government
regulations or policies, including changes to import tariffs and the unpredictability of such changes; failure of vendors to meet our quality control standards or to react to changes in legislative or regulatory frameworks; disruptions in our
distribution centers; changes in general economic conditions, including unemployment, inflation (including the impact of tariffs); labor shortages and the Company's ability to successfully attract and retain employees in the current labor market;
uncertain credit markets and
NEWS RELEASE – May 20, 2020
Page 8
Forward-looking statements are only as of the date they are made, and the Company undertakes no duty to update its forward-looking statements except as required by
law. You are advised, however, to review any further disclosures we make on related subjects in our subsequent Forms 10-K, 10-Q, 8-K and other reports filed with the SEC.
Contact:
Havertys 404-443-2900
Jenny Hill Parker
SVP, Finance, and Corporate Secretary
SOURCE: Havertys