HomeMy WebLinkAboutBAK NINTH ST. VENTURE,LLC
INDENTURE OF LEASE
THIS INDENTURE, made and entered into as the 1 day Of~, 2005,
by and between Richmond County Public Facilities, Inc., as Lessor, and BAK Ninth
Street Venture, LLC, a Georgia limited liability company, as Lessee.
WITNESSETH
WHEREAS, the Lessor is the owner of that certain tract of land described on
Exhibit "A" (the "Land") upon which are located certain dilapidated commercial
buildings (the "Buildings") (the Land and Buildings are collectively referred to as the
"Property"); and
WHEREAS, the Lessor desires to encourage investment and redevelopment of
the Property and the surrounding area (the "Renewal Area") which area has suffered
from urban decay for several years; and
WHEREAS, Lessor has determined that the renovation and conversion of the
Buildings into office space for court-related and other uses which will compliment the
proposed new Federal Annex to be constructed on land adjacent to the Property (the
"New Federal Annex") will encourage further investment and redevelopment in the
Renewal Area; and
WHEREAS, the Lessee possesses the required skill and expertise necessary to
successfully execute said renovation and conversion; and
WHEREAS, the Lessee is willing to undertake said renovation and conversion
subject to the terms and conditions set forth herein.
NOW THEREFORE, for and in consideration of the foregoing, and the mutual
covenants and considerations herein set forth, Lessor and Lessee agree as follows:
1. Definitions. For the purposes of this Lease, the following defined terms shall
have the meanings ascribed thereto in this Article 1.
"Buildings" means the dilapidated commercial buildings located on the Land.
"Improvements" means, collectively, any and all buildings, structures and other
permanent improvements to the real estate of every nature, character and description
located, as of the date hereof or thereafter, on the Land or (if the context hereof so
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indicates) portions thereof, and any and all fixtures located therein and owned by
Lessee and specifically including duct work and heating, ventilating and air
conditioning equipment and machinery. The Improvements include, without limitation,
the existing improvements and any improvements constructed by Lessee.
"Land" means all that tract or parcel of land lying and being in Augusta,
Richmond County, Georgia, and being more particularly described in Exhibit "A"
attached hereto and by reference made a part hereof.
"Lease" means this Indenture of Lease.
"Lessee" means BAK Ninth Street Venture, LLC, a Georgia limited liability
company as the lessee under this Lease and the successors and permitted assigns
thereof.
"Lessor" means Richmond County Public Facilities, Inc. as the lessor under this
Lease and the successors and assigns thereof.
"Parties" means all parties to this Lease; that is, Lessor and Lessee.
"Party" means any party to this Lease; that is, Lessor or Lessee.
"Property" means the Land, Buildings, and Improvements.
"Sublease" means, generically, anyone of the Subleases.
"Subleases" means all written or oral leases, rental agreements, licenses,
concessions, easements, occupancies or other agreements or arrangements for use or
hire of, or in respect to, any portion of the Property or both entered into by Lessee.
"Subrents" means any charges or sums from time to time and at any time due or
payable under Subleases.
"Subtenant" means any entity which is or may hereafter be the sublessee or
tenant under any Sublease.
"Subtenant Occupancy Date" means the date on which the Property is first
occupied by any Subtenants, provided that in no event shall such date be later than
December 31, 2006.
2. Lease of Property-Term of Lease-Parking.
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2.1 Lease. Lessor, in consideration ofthe rents, covenants, agreements and
conditions herein set forth, which Lessee hereby agrees shall be paid, kept and
performed by Lessee, does hereby lease, let, demise and rent to Lessee, and Lessee does
hereby rent and lease from Lessor the Property. The interest in the Property created
hereby shall and shall be deemed to be an estate for years under the Laws of the State
of Georgia.
TO HAVE AND TO HOLD the Property and all rights, privileges and
appurtenances thereunto appertaining unto Lessee, for and during the Term, unless
sooner terminated in accordance with any of the provisions ofthe Lease, subject only to
matters set forth in this Lease.
2.2 Term. The term of this Lease shall commence on the date hereof and
expire on the date which is fifty (50) years after the Subtenant Occupancy Date.
2.3 Parking. The parties acknowledge that the Property does not provide
sufficient area to allow Lessee to provide parking for the Subtenants. Lessor agrees to
provide parking spaces for use in connection with the Property as may be reasonably
necessary to satisfy the Subtenants (including the Office of the Chapter 13 Trustee),
local zoning laws and to obtain a certificate of occupancy for the Improvements. Such
required parking may be across 9th Street from the Improvements and may be free,
metered or subject to daily/monthly fees reasonably acceptable to the Subtenants.
3. Agreement to Renovate, Rent.
3.1 Agreement to Renovate. In order to induce Lessor to enter into this
Lease, Lessee agrees to renovate the Buildings from their current dilapidated state into
office space and other uses compatible with the New Federal Annex. Lessee agrees to
pay all costs associated with such renovation.
Lessee shall and does hereby indemnify Lessor against, and shall keep the
Property free from any and all liens which may arise from any work performed,
material furnished, or obligations incurred by the Lessee in connection with the
Property.
3.2 Rent. In exchange for Lessee agreeing to undertake the renovation of
the Buildings, Lessor agrees that there will be no rent due from Lessee for the portion
of the Term beginning on the date hereof and ending on the date which is 20 years after
the Subtenant Occupancy Date (the "Rent Abatement Period"). After the expiration of
the Rent Abatement Period, Lessee shall begin making rental payments to Lessor in an
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amount equal to 20% of the Gross Rents collected from the Subtenants. For the
purpose of this Lease, Gross Rents shall mean all amounts collected from Subtenants
excluding any payments for utilities, property taxes and insurance which the
Subtenants may be required to pay under their respective leases.
3.3 Payment of Rent.
3.3.1 Payment of Rent. On or before the fifteenth (15th) day of each
calendar month of each Lease Year starting with the second month following the
expiration of the Rent Abatement Period, Lessee shall pay to Lessor 20% of the Gross
Rents collected from the subtenants for the prior month.
3.3.2 Books, Records and the Statement. Lessee shall keep and
maintain full and correct books and records showing in detail all rental income and
expenses for the Property and shall permit Lessor or Lessor's agents to examine such
books and records and all supporting vouchers and data at any time and from time to
time on request, at Lessee's offices, or at such other location as may be mutually agreed
upon. Within forty-five (45) days following the expiration of each Lease Year, Lessee
will furnish to Lessor a written statement certified by Lessee as to the Gross Rents
collected from Subtenants for such Lease Year.
3.3.3 Refusal or Failure. Lessee's refusal or failure to permit Lessor
to inspect the Property or books and records on request or to furnish the annual Gross
Rents Certificate any statement required by Subsection 3.2.4, or the delivery to Lessor
of a Gross Rents Certificate that is inaccurate or false to a material extent, shall
constitute a breach by Lessee of the terms of this Lease.
3.3.4 Manner of Payment. All amounts payable hereunder shall be
paid in lawful money of the United States of America at the time of payment, which
shall be legal tender for the payment of all public and private debts, either (i) to Lessor
at the address of Lessor as hereinafter set forth or (ii) if Lessor so requests by Notice, to
such other Entity or place or places as Lessor may designate from time to time by such
Notice to Lessee.
3.3.5 "Net" Lease. This Lease shall be deemed and construed to be a
completely net lease and Lessee shall pay to Lessor, net throughout the Term, the Rent
hereunder free of any offset, abatement or other deduction whatsoever and without
notice (including, without limitation, any Notice) or demand. Under no circumstances
or conditions, whether now existing or hereafter arising, or whether or not beyond the
present contemplation of the Parties, shall Lessor be required to make any payment of
any kind whatsoever with respect to this Lease or be under any other obligation or
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liability hereunder except as herein otherwise expressly set forth.
4. Taxes and Utilities.
4.1 Payment. As rental additional to the Rent during the Term, Lessee will
payor cause to be paid all taxes attributable to its leasehold estate in the Property, as
and when the same shall become due, except that all taxes for the fiscal year or tax year
in which this Lease expires shall be apportioned so that Lessee shall pay the portions of
the taxes that are applicable to the period prior to expiration of this Lease and Lessor
shall pay the portion thereof applicable thereafter. Lessee shall pay all such taxes
directly to the taxing authority.
4.2 Contests. Lessee, if Lessee shall so desire, may contest the validity or
amount of any taxes, in which event Lessee may defer payment thereof during the
pendency of such contest provided that, prior to the date the same shall have become
due, Lessee shall have deposited with the applicable governmental authority the amount
required thereby, or if no such sum is required by such authority, Lessee shall have
deposited with Lessor an amount sufficient to pay such contested item, together with
the interest and penalties thereon, which amount shall be applied to the payment of
such item when the amount thereof shall be finally fixed and determined. Nothing
herein contained, however, shall be construed to allow such items to remain unpaid for
such length of time as shall permit the Property, or any part thereof, to be sold by any
governmental or quasi-governmental authority or a lien with respect thereto foreclosed
for the non-payment of the same.
4.3 Assessed Valuation. Lessee shall render and return its interest in the
Property for taxing to all taxing jurisdictions and may, if Lessee shall so desire,
endeavor at any time or times to obtain a lowering of the assessed valuation upon the
Property, for any year for the purpose of reducing taxes thereon.
4.4 Lessee shall be solely responsible for all charges for gas, electricity,
telephone and other utility services used, rendered, supplied or imposed on the
Property and shall indemnify Lessor and save it harmless against any liability or
charges on account thereof.
5. Improvements.
5.1 Title. Lessor represents and warrants that it has good and marketable
title to the Property subject only to those permitted title exceptions shown on Exhibit
"B" attached hereto. This Lease shall vest a leasehold estate in the Property in Lessee
for the Term. Title to all Improvements (that is, both the existing improvements and
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any improvements made by Lessee) and all equipment, fixtures and machinery therein
contained and all furniture and furnishings of Lessee therein made, erected,
constructed, installed or placed shall automatically vest in Lessor upon the expiration of
the Term.
5.2 Rule Against Perpetuities. If the Rule Against Perpetuities or any
rule of law with respect to restriction on the alienation of property or remoteness of
vesting of property intere~ts, including, without limitation, official Code of Georgia
Annotated Section 44-6-1, as amended, shall limit the time within which the vesting
of title to the Improvements for which provision is made in Section 5.1 must occur,
then such vesting of title shall occur not later than twenty (20) years after the death
of the last survivor of those persons described in the titles and text of Subsections
5.2.1 through 5.2.10. In the event such vesting should occur due to the provisions of
this Section 5.2 and prior to the Expiration or Termination of this Lease, this Lease
shall continue in full force and effect, except that the term "Property" shall be
automatically modified to include the Improvements.
5.2.1 Elizabeth Alexandra Mary Windsor. Her Most Excellent
Majesty Elizabeth the Second, Queen of the United Kingdom of Great Britain and
Northern Ireland.
5.2.2 Charles Philip Arthur George Windsor. His Royal Highness
Prince Charles, the Prince of Wales.
5.2.3 William Arthur Philip Louis Windsor. His Royal Highness
Prince William of Wales.
5.2.4 Henry Charles Albert David Windsor. His Royal Highness
Prince Henry of Wales.
5.2.5 Andrew Albert Christian Edward Windsor. His Royal
Highness Prince Andrew, Duke of York.
5.2.6 Sarah Margaret Ferguson Windsor. Her Royal Highness
Princess Sarah, Duchess of York.
5.2.7 Edward Antony Richard Louis Windsor. His Royal Highness
Prince Edward.
5.2.8 Anne Elizabeth Alice Louise Windsor. Her Royal Highness
Princess Anne.
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5.2.9 Philip Mountbatten. His Royal Highness Prince Philip, Duke of
Edinburgh.
6. Maintenance, Use and Alteration.
6.1 Acceptance. Lessee accepts the Property in its current physical
condition or state without any representation or warranty, express or implied in fact or
by law, by Lessor and without recourse against Lessor, as to the physical nature,
condition or usability thereof.
6.2 Maintenance. Lessee shall maintain the Property in a good, tenantable,
and safe condition in good repair throughout the Term and shall promptly make any
and all repairs and replacements (interior and exterior, structural and nonstructural,
ordinary and extraordinary, foreseen and unforeseen) required to maintain such
condition and state of repair. Lessor shall not be required to furnish any services or
facilities, or to make any repairs or alterations, of any nature whatsoever with respect
to the Property. Lessee hereby assumes the full and sole responsibility for the condition,
construction, operation, repair, replacement, maintenance and management of the.
Property.
6.3 Use. Lessee shall not use or occupy, or permit the use or occupancy of,
the Property, and shall not do or permit anything to be done in or to the Property, in
whole or in part, in a manner which (i) would in any way make void or voidable any
insurance then in force with respect thereto, or (ii) may make it impossible to obtain (at
standard rates therefor) fire or other insurance thereon required to be furnished by
Lessee hereunder, or (iii) would cause or be apt to cause structural injury to the
Improvements or any part thereof, or (iv) might constitute a public or private nuisance
or offensive conduct or circumstances, whether or not constituting a nuisance, or (v)
violate any limitations or restrictions imposed by the United States of America on the
use of the Property designed to protect the safety of the New Federal Annex. Lessee
acknowledges that due to the close proximity of the Property to the New Federal Annex
all Subtenants and uses for the Property must be approved by the Assistant Regional
Administrator of Public Building Service ofthe General Services Administration acting
on behalf of the United States of America (GSA), Region 4, Atlanta, Georgia.
6.4 Waste. Except as expressly provided in Section 6.6, Lessee will not do
or permit or suffer any waste, damages, disfigurement or injury to or upon the
Property, or any part thereof. Lessee shall have the right at any time and from time to
time to sell or dispose of any building equipment or personal property subject to this
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Lease which may have become obsolete or unfitted for use, provided that if such
equipment or property is necessary or desirable for the operation of the Property,
Lessee shall then or theretofore substitute for the same, other building equipment or
personal property not necessarily of the same character, but capable of performing the
same function as that performed by the property so disposed of, and of high quality and
suitable for its intended purpose.
6.5 Compliance with Laws. Lessee shall diligently comply, at Lessee's own
expense during the Term, with all present and future laws, acts, rules; requirements,
orders, directions, ordinances and regulations, ordinary and extraordinary, foreseen or
unforeseen, concerning the condition or use of the Property, or any part thereof, or the
street adjacent thereto, or any Federal, State, municipal or other public department,
bureau, office or authority or of the National Board of Fire Underwriters, or other
body having similar functions, or of any liability, fire or other insurance company
having policies outstanding with respect to the Property whether or not such laws, acts,
rules, requirements, orders, directions, ordinances and regulations require the making
of structural alterations or the use or application of portions of the Property for
compliance therewith or interfere with the use and enjoyment of the Property, and shall
protect, hold harmless and indemnity Lessor against and from all fines, penalties, claim
or claims for damages of every kind and nature arising out of any failure to comply
with any such laws, acts, rules, requirements, orders, direction, ordinances and
regulations. Lessee may, however, in good faith contest the validity of any law, act, rule,
requirement, order, direction, ordinance or regulation and, pending the determination
of such contest, may postpone compliance with, except that Lessee shall not so postpone
compliance therewith as to subject Lessor to any fine or penalty or to prosecution for
any misdemeanor, felony or other crime, or to cause the Property or any part thereofto
be condemned or to be vacated.
6.6 Alterations. Lessee shall make those certain improvements and
renovations which are described on Exhibit "C" attached hereto (the "Initial
Renovations"). After the Initial Renovations, Lessee shall have the right to make any
structural alterations of any of the Property or any part thereof, provided such
alterations do not materially change the character of the Property for the rises to which
it could be put, or which would weaken or impair the structural integrity or lessen the
value of the Property and the following conditions are met:
6.6.1 No Defaults. There is no existing and unremedied default on
the part of Lessee, and of which Lessee has received Notice, under any of the terms,
covenants or conditions herein on the part of Lessee.
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6.6.2 No Adverse Effect. The proposed work shall not adversely
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affect the rights or obligations of Lessee under any Sublease.
6.6.3 Due Diligence. The work shall be performed with diligence
and in a first class workmanlike manner.
6.6.4 Compatibility. All alterations and additions shall be
architecturally compatible with the Buildings. No demolition of any Improvements shall
be commenced without the prior approval of Lessor. Prior to commencement of any
material modifications to the exterior of the Buildings, Lessee shall deliver to Lessor
detailed plans and specifications and obtain Lessor's approval thereof, and the written
approval of any and all governmental authorities and departments having jurisdiction.
Lessor, in Lessor's reasonable discretion, shall have the right to disapprove such
proposed demolition and such plans and specifications, or either, by delivering written
notice of such disapproval to Lessee within thirty (30) days after receipt by Lessor of
Notice of such proposed demolition or such plans and specifications, as the case may be.
6.6.5 Insurance. Lessee, Lessee's contractor or the contractor
performing any work on the Property shall provide and maintain, at their own cost and
expense, full workers' compensation insurance in respect to such work and all risk
builder's risk insurance covering such work in an amount not less than the cost of such
work as well as any other insurance in respect to such work as may then be required by
law. Certificates of all such policies shall be delivered to Lessor prior to commencement
of such work.
6.6.6 Inspections. During the construction and performance of any
such work, Lessor may inspect the Property and Lessee will permit Lessor, including
Lessor's agents and officials of Augusta, Georgia, to examine the plans, especially
drawings and specifications relating thereto, or in the alternative, shall furnish Lessor
with copies of same. Lessor shall have the right to object to any material deviation from
such plans and specifications as so approved and upon receipt of any such objection,
Lessee shall take such steps as shall be necessary to correct such deviation. Lessor may,
at Lessor's expense, engage an architect, engineer or other consultant for the foregoing
purposes.
6.6.7 Compliance with Laws. Lessee shall, in the performance of
any work, comply with all applicable requirements of the zoning ordinances and
building codes of Augusta, Georgia and with all other laws, ordinances, rules, orders
and regulations of all governmental and quasi-governmental authorities which have
jurisdiction thereof, and the Property, when completed, shall comply with all applicable
laws, ordinances, rules, orders and regulations of any and all governmental and
quasi-governmental authorities have jurisdiction thereof and of the local Board of Fire
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Underwriters or any similar body, and shall comply with all matters to which this
Lease is subject as then in effect.
6.6.8 Permits. Lessee shall procure all necessary permits for the
work and shall deliver to Lessor a final certificate of occupancy as a condition
precedent to the use of the Property for its designated purpose.
6.6.9 Prohibited Activities. Nothing herein contained shall be
construed to authorize Lessee to subject Lessor's fee title in and to the Property to any
easements or to any liens of mechanics, artisans, laborers, materialmen, contractors or
subcontractors, or to any other liens or charges whatsoever arising out of any work or
arising in any other manner; and Lessee is hereby expressly prohibited from subjecting
Lessor's title to any such easement, lien or charges. Lessee agrees to immediately
discharge (either by payment or by filing of the necessary bond, or otherwise) any
mechanics', materialmen's or other lien against the Property which may arise out of
any payment due for, or purported to be due for, any work or any other labor, services,
materials, supplies or equipment furnished or alleged to have been furnished to or for
Lessee, any Subtenant, or any entity claiming through Lessee or any Subtenant in, upon
or about the Property.
7. Insurance.
7.1 Coverage. During the Term, Lessee, at no cost and expense to Lessor,
will keep and maintain the following types of insurance described in Subsections 7.1.1
through 7.1.2.
7.1.1 Extended Coverage Insurance. Insurance on the Property
against loss or damage by fire and against loss or damage by other risks now insured
against by "extended coverage" provisions of policies generally in force on first-class
office buildings in Georgia, in amounts sufficient to provide coverage in an amount not
less than one hundred percent (1000/0) ofthe actual replacement cost ofthe Buildings or
any replacements or substitutions therefor.
7.1.2 Liability Insurance. General public liability insurance
protecting and indemnifying Lessee and Lessor and Augusta, Georgia, its elected officials,
employees and agents against any and all claims for damages to person or property or
for loss of life or of property occurring upon, in or about the Property in such forms
and amounts as are reasonable and customary for the insurance of similar businesses in
the vicinity of the Property, but in no event less than Four Million Dollars
($4,000,000.00) in respect of bodily injury or death to anyone person, and to the limit of
not less than Four Million Dollars ($4,000,000.00) in respect to anyone accident, and to
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the limit of not less than Four Million Dollars ($4,000,000.00) for property damage
with not more than a Ten Thousand Dollars ($10,000.00) deductible.
7.2 Policies.
7.2.1 General Requirements. All of the policies of insurance
provided for in this Lease shall be in form and substance and with companies approved
by Lessor. Such insurance may be carried under blanket policies that provide separate
coverage for the Land and the Buildings. Lessee shall deliver to Lessor copies of the
originals of such policies, together with certificates showing such insurance to be in full
force and effect.
7.2.2 Insureds. All insurance to be provided by Lessee shall name
Lessee, Lessor and Augusta, Georgia, as insureds and, at the option of Lessor, any
other Entity as an additional insured, all as their respective interests may appear;
except that the comprehensive general liability insurance shall name Lessee only as
insured, and Lessor and other Entities requested by Lessor as additional insureds.
7.2.3 Payment of Loss. All policies ofinsurance required hereunder,
except for the comprehensive general liability insurance and workers' compensation
insurance, shall provide for payment of loss to Lessor, Lessee and any leasehold
mortgagee, as their interests may appear.
7.2.4 Renewal and Cancellation. All insurance policies shall be
renewed by Lessee and proof of such renewals delivered to Lessor, at least fourteen (14)
days prior to their respective expiration dates. All such policies shall provide that they
may not be cancelled by the insurer for nonpayment of premiums or otherwise until at
least thirty days (30) days after service of registered mail notice of the proposed
cancellation upon Lessor and any leasehold mortgagee named in such policy, and in any
event that such policies shall not be invalidated, as to the interests of Lessor and any
leasehold mortgagee therein, by any act, omission or neglect of Lessee, or any occupant
of the Property (including, without limitation, any Subtenant), which might otherwise
result in a forfeiture or suspension of such insurance. Each policy shall contain a waiver
of subrogation rights by the insurer.
7.3 Insurance Proceeds. Any and all Insurance Proceeds received by or on
account of Lessor under policies of insurance ofthe kinds described in Subsection 7.1.1
shall be held in trust by the recipient thereof, who shall administer and apply such
proceeds in accordance with the provisions of Section 8.2.
8. Damage or Destruction.
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8.1 Damage or Destruction. If, at any time during the Term, the Land, the
Improvements or the Buildings or any part thereof shall be damaged or destroyed by
fire or other casualty (including any casualty for which insurance coverage was not
obtained or obtainable) of any kind or nature, ordinary or extraordinary, foreseen or
unforeseen, Lessee, at Lessee's sole cost and expense, shall commence and thereafter
proceed with reasonable diligence (subject to a reasonable time allowance for the
purpose of adjusting the insurance loss and for unavoidable delay) to perform the
work; that is, to repair, alter, restore, replace or rebuild the same as nearly as possible
to its value immediately prior to such damage or destruction. Except as otherwise
provided in this Article 8, the conditions under which any work is to be performed and
the method of proceeding with and performing the same shall be governed by all of the
provisions of Subsection 6 above.
8.2 Insurance Proceeds.
8.2.1 Receipt and Disbursement. All Insurance Proceeds received by
Lessor and Lessee or either on account of such damage or destruction under the policies
of insurance required by Article 7 shall be paid by Lessor and Lessee to a mutually
agreeable banking institution to act as the insurance trustee (the "Insurance Trustee")
for the payment of the cost of the work to the extent such Insurance Proceeds shall be
sufficient for the purpose and shall be paid out to or for the account of Lessee from time
to time as such work progresses. Until required to be disbursed pursuant hereto, the
Insurance Trustee shall invest all sums received by it pursuant hereto in obligations of
the United States of America. The Insurance Trustee shall make such payments or
disbursements upon the written request by Lessee when accompanied by satisfactory
evidence of the progress of the work.
9. Condemnation.
9.1 General. If, at any time during the Term, the Property or any part
thereof be condemned and taken by the United States of America, the State of Georgia
or any other authority or entity having the power of eminent domain, then the
provisions of this Article 9 shall apply to such condemnation proceedings and the
distribution of any awards pertaining thereto (including, without limitation, the
Condemnation Proceeds and the Condemned Land Value).
9.2 Separate Awards by Court. The court in such condemnation
proceedings shall, if not prohibited by law, be requested to make separate awards to
Lessor and Lessee, and Lessor and Lessee hereby agree to request such action by such
court.
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9.3 Single Award by Court. If the court in such condemnation proceedings
is prohibited by law from making separate awards to Lessor and Lessee, or declines to
do so, then the provisions of this Section 9.3 shall apply to the distribution ofthe single
award made by such court.
9.3.1 Condemnation of Whole. If title to the whole or substantially
all of the Land and the Improvements shall be taken in such condemnation proceedings
(and "substantially all of the Land and the Improvements" shall be deemed to have
been taken if the untaken portion or portions cannot be practically and economically
used or converted for use by Lessee for the purposes for which the Land and the
Improvements were being used immediately prior to such taking), this Lease shall
Expire on the date of such taking and the Rent and other charges payable under this
Lease (including, without limitation, Impositions) shall be apportioned between Lessor
and Lessee and paid to and as of the date of such taking as determined by the Court.
9.3.2 Condemnation of Part. If title to less than the whole or
substantially all of the Land and the Improvements shall be taken in such
condemnation proceedings (and "substantially all of the Land and the Improvements"
shall have the same meaning as ascribed thereto in Subsection 9.3.1), the Term shall not
be reduced or affected in any way and the provisions hereof shall apply to the allocation
of any awards for such taking. Lessee, shall use the Condemnation Proceeds to repair,
alter and restore the remaining part of the Land and the Improvements to substantially
the former condition thereof to the extent that the same may be feasible and so as to
constitute a complete, rentable building. The conditions and procedures under which
such work is to be performed shall be governed by all of the provisions of subsection
6.6. The balance of the award, if any, shall be distributed to the Parties as they may
agree, or as determined by the Court.
9.4 Notice of Condemnation. In the event Lessor or Lessee shall receive
notification of any proposed or pending condemnation proceeding affecting the
Property, the Party receiving such notification shall promptly notify, by written notice,
the other Party.
10. Assignments, Subleases and Mortgages.
10.1 Assignments. Without the prior approval of Lessor, Lessee shall not
Transfer all or any part of (i) the leasehold estate created by this Lease, (ii) the rights,
powers, privileges, benefits, interests, obligations and options of Lessee under this Lease
or (iii) the Improvements or any interest or estate therein (except for replacement or
substitution of equipment, furnishings and fixtures comprising part of the
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Improvements by similar equipment, furnishings or fixtures of same or better quality).
10.2 Subleases. Lessee shall have the right to sublet portions of the
Property at any time and from time to time, provided Subtenants and Subleases with
such Subtenants have been approved by the Assistant Regional Administrator of Public
Building Service of the General Services Administration acting on behalf of the United
States of America (GSA), Region 4, Atlanta, Georgia. Lessee hereby transfers unto
Lessor all the right, title and interest of Lessee in and to each and every Sublease now
or hereafter executed and affecting the Property or any part thereof, as well as all
Sub rents now or hereafter due and payable thereunder and all security now held by or
hereafter paid to Lessee to secure such Subrents; provided, however, such Transfer
shall become operative and effective only (i) in the event this Lease shall be terminated
or shall have expired pursuant to the terms and conditions hereof; or (ii) in the event of
the issuance and execution of a dispossessory warrant or other reentry or repossession
by Lessor under the provisions hereof; or (iii) thirty (30) days after an Event of Default
shall have occurred or been declared and not cured.
10.3 Non-Disturbance. In the event of the Termination of this Lease prior
to the scheduled date of Expiration, the Subleases that have been approved as herein
provided and under which the Subtenant is not in default shall not be terminated or
extinguished and Lessor does hereby covenant for the benefit of each such Subtenant
that (i) such Subtenant shall have quiet and peaceful possession under such Sublease
and (ii) such Sublease shall continue in full force and effect.
10.4 Leasehold Mortgages. Lessee may not Transfer the leasehold estate
created by this Lease as security for a Leasehold Mortgage without the prior approval
of Lessor, which approval shall not be unreasonably withheld.
11. Defaults.
11.1 Acts of Default. The occurrence of any of the events, acts or
circumstances described in Subsections 11.1.1 through 11.1.7 shall be and constitute an
Act of Default under this Lease.
11.1.1 Failure in Payment. Failure by Lessee to pay in full any Rent,
taxes, insurance premium or other charge payable under this Lease on the date upon
which such ought to be paid, and the continuance of such failure for ten (10) days after
Lessor has given Lessee written notice of such failure.
11.1.2 Failure in Performance. Failure by Lessee to observe,
perform or comply with any of the terms, covenants, agreements or conditions
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contained in this Lease (other than as specified in Subsection 11.1.1), and the
continuance of such failure for twenty (20) days after Lessor has given Lessee Notice of
such failure, unless Lessee has commenced to cure such failure within such period of
twenty (20) days and has been prevented from completing such cure by circumstances
contemplated by Section 11.2, and then only if Lessee diligently and continuously
prosecutes to completion such cure at the earliest possible date allowed by
circumstances contemplated by Section 11.2.
11.1.3 Voluntary Debtor Relief Proceedings. Filing by Lessee, of a
voluntary petition in bankruptcy or a voluntary petition or answer seeking
reorganization, arrangement, composition, liquidation, dissolution or readjustment of
the debts of Lessee or for any other relief under the Bankruptcy Code, as amended, or
under any other insolvency act law, rule or regulation, State or Federal, now or
hereafter existing, or any action by Lessee indicating consent to, approval of or
acquiescence in, any such petition or proceeding; the application by Lessee for, or the
appointment by consent or acquiescence of, a receiver, liquidator or trustee of Lessee,
or for all or a substantial part of the' property of Lessee; the making by Lessee of any
general assignment for the benefit of the creditors of Lessee; or the inability of Lessee,
or the admission of Lessee of the inability thereof, to pay the debts thereof as such
mature.
11.1.4 Involuntary Debtor Relief Proceedings. The filing of any
involuntary petition against Lessee, in bankruptcy or seeking reorganization,
arrangement, composition, liquidation, dissolution or readjustment of the debts of
Lessee for any other relief under the Bankruptcy Code, as amended, or under any other
insolvency act, law, rule or regulation, State or Federal, now or hereafter existing; or
the involuntary appointment of a receiver, liquidator or trustee of Lessee or for all or a
substantial part of the property of Lessee, or the issuance of attachment, execution or
other similar process against any substantial part of the property of Lessee and the
continuation of any such for a period of ninety (90) days undismissed, unbonded or
undischarged.
11.1.5 Insolvency. The insolvency of Lessee.
11.1.6 Abandonment. The desertion, vacation or abandonment of
the Property by Lessee, regardless of whether or not Lessee continues to pay all
stipulated Rent and other charges payable under this Lease.
11.1.7 Levy. The Property or Lessee's interest therein are levied
upon or attached under process against Lessee and not satisfied or dissolved within
ninety (90) days after notice from Lessor to Lessee to obtain satisfaction thereof.
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11.2 Force Majeure. For the purposes of any of the provisions of this
Lease, except such provisions as require or concern the payment of monies, neither
Lessor nor Lessee, as the case may be, shall be considered in breach of, or default in,
the obligations thereof with respect to this Lease in the event of enforced delay in the
performance of such obligations due to unforeseeable causes beyond the control and
without the fault or negligence thereof, including, but not restricted to, acts of God, acts
of the public enemy, acts of the other Party, fires, floods, epidemics, quarantine
restrictions, strikes, freight embargoes and unusually severe weather or delays due to
such causes; it being the purpose and intent of this Section 11.2 that in the event of the
occurrence of any such enforced delay, the time or times for performance of the
obligations of Lessor or Lessee, as the case may be, with respect to this Lease shall be
extended for the period of the enforced delay; provided, that the Party seeking the
benefit of the provisions of this Section 11.2 shall, within thirty (30) days after the
beginning of any such enforced delay, have first advised the other Party thereof by
Notice, and of the cause of causes thereof, and requested an extension for the period of
the enforced delay.
11.3 Remedies. Whenever any Act of Default shall have happened, Lessor
may, to the extent not prohibited by law, take anyone or more of the remedial steps
described in Subsections 11.3.1 through 11.3.3.
11.3.1 Operation. Lessor, as Lessee's agent, without Terminating
this Lease, may at Lessor's option enter upon and operate the Property, and in this
connection, Lessee authorizes Lessor upon such entry, to take over and assume the
management, operation and maintenance ofthe Property and in general to perform all
actions necessary in connection therewith in the same manner and to the same extent as
Lessee might so act, using Lessor's best efforts to operate the Property for the account
of Lessee, holding Lessee liable for all Rent and other charges payable by Lessee
hereunder.
11.3.2 Termination. Lessor may Terminate the Term and this Lease,
exclude Lessee from possession of the Property and use Lessor's best efforts to lease the
same to another Entity for the account of Lessee, holding Lessee liable for all Rent and
other charges payable by Lessee hereunder.
11.3.3 Enforcement. Lessor may take whatever action at law or in
equity may appear necessary or desirable to collect the Rent and other charges then due
and thereafter to become due or to enforce performance and observance of any
obligation, agreement or covenant of Lessee under this Lease, and in connection with
either to recover any or all damages to Lessor for Lessee's violation or breach of this
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Lease.
11.4 No Remedy Exclusive. No remedy herein conferred upon or reserved
to Lessor is intended to be exclusive of any other available remedy or remedies, but
each and every such remedy shall be cumulative, and shall be in addition to every other
remedy given under this Lease or now or hereafter existing at law or in equity or by
statute. No delay or omission to exercise any right or power accruing upon any default
or Act of Default shall impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised from time to time and
as often as may be deemed expedient.
11.5 Interestfrom Maturity. All amounts of money payable by Lessee to
Lessor hereunder (including, without limitation, Rent) shall, if not paid when due, bear
interest from the date due until paid at the highest contractual rate of interest allowed
by applicable law be charged with reference to such amounts.
11.6 Attorney's Fees. If any rental owing under this Lease is collected by or
through an attorney at law, Lessee agrees to payor reimburse Lessor for all reasonable
associated attorneys' fees incurred in connection therewith.
12. Miscellaneous Provisions.
12.1 Recording and Filing. A memorandum ofthis Lease may be filed for
recordation in the Office of the Clerk of the Superior Court of Richmond County,
Georgia, and in such other location as may from time to time be provided by law as the
proper place for recordation.
12.2 Lessor's Rights of Access. Lessee agrees that Lessor and Lessor's duly
authorized agents which may include security review representatives of the United
States Government shall have the right at all reasonable times during normal business
hours to enter upon the Property and to examine and inspect the same.
12.3 Surrender of Demised Premises. At the Expiration or sooner
Termination of the Term, Lessee agrees to surrender possession of the Property
peaceably and promptly to Lessor, subject to the rights of the Subtenants.
12.4 Notices. Each Notice shall be deemed to have been properly given or
served by the deposit of such with the United States Postal Service, or any official
successor thereto, designated as registered or certified mail, return receipt requested,
bearing adequate postage and addressed as hereinafter provided. Such notice shall be
effective upon being deposited as aforesaid. The time period in which a response to any
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such notice must be given or any action taken with respect thereto, however, shall
commence to run from the date of receipt on the return receipt of the notice by the
addressee thereof. Rejection or other refusal to accept or the inability to deliver because
of changed address of which no notice was given shall be deemed to be receipt of the
notice sent. By giving to the other party at least fourteen (14) days notice thereof, any
party shall have the right from time to time during the Term to change the addresses
thereof and to specify as the address thereof any other address within the United States
of America.
12.4.1 Notice to Lessor. Each Notice to Lessor shall be addressed as
follows:
Administrator
801 Municipal Building
530 Greene Street
Augusta, GA 30911
With a copy to:
City Attorney
806 Municipal Building
530 Greene Street
Augusta, GA 30911
12.4.2 Notice to Lessee. Each Notice to Lessee shall be addressed as ,
follows:
BAK Ninth Street Venture, LLC
3133 Washington Road, N.W.
Thomson, Georgia 30824
Attn: Boone A. Knox
12.4.3 Copy of Notice to GSA. A copy of any Notice to Lessor or
Lessee shall also be furnished to the GSA as follows:
Assistant Regional Administrator of Public Building Service
Region 4
Suite 400
77 Forsyth Street
Atlanta, Georgia 30303
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12.5 Fees and Commissions. Lessor and Lessee each represent to the other
that there are no claims for brokerage or other commissions or finder's or other similar
fees in connection with the transactions contemplated by this Lease insofar as such
claims shall be based on arrangements or agreements made by or on behalf of the Party
so representing.
12.6 Severability. If any provision of this Lease or the application thereof
to any Entity or circumstance shall be invalid or unenforceable to any extent, the
remainder of this Lease and the application of such provisions to any other entity or
circumstance shall not be affected thereby and shall be enforced to the greatest extent
permitted by law.
12.7 Status Reports. Recognizing that Lessor and Lessee may find it
necessary from time to time to establish to other entities such as accountants, banks,
mortgagees or the like, the then current status of performance hereunder, Lessor and
Lessee each agree, upon the written request of the other Party, made from time to time
by notice, to furnish promptly a written statement (in recordable form, if requested) on
the status of any matter pertaining to this Lease to the best ofthe knowledge and belief
of the Party making such statement.
12.8 Amendment. Neither this Lease nor any provision hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in writing
signed by the Party against whom enforcement of the change, waiver, discharge or
termination is sought.
12.9 Terminology. All personal pronouns used in this Lease, whether used
in the masculine, feminine or neuter gender, shall include all other genders; the singular
shall include the plural; and the plural shall include the singular. Unless otherwise
expressly stated, titles of Articles, Sections, Subsections and Paragraphs of this Lease
are for convenience only, and neither limit nor amplify the provisions ofthis Lease, and
all references in this Lease of Articles, Sections, Subsections or Paragraphs shall refer
to the corresponding Article, Section, Subsection or Paragraph of this Lease unless
specific reference is made to the articles, sections or subdivisions of another document
or instrument.
12.10 Counterparts. This Lease may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which together
shall comprise but a single instrument.
12.11 Binding Agreement. Subject to the restrictions on transfers set forth
herein, this Lease shall inure to the benefit of and be binding upon Lessor and Lessee
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and their respective heirs, executors, legal representatives, successors and assigns.
Whenever in this Lease a reference to Lessor, Lessee or any entity is made, such
reference shall be deemed to include a reference to the heirs, executors, legal
representatives, successors and assigns of Lessor, Lessee or such entity.
12.12Interpretation. No provision of this Lease shall be construed against
or interpreted to the disadvantage of either Lessor or Lessee by any court or other
governmental or judicial authority by reason of such Party having or being deemed to
have structured or dictated such provision.
12.13 Governing Law. This Lease and the obligations of Lessor and Lessee
hereunder shall be interpreted, construed and enforced in accordance with the Laws of
the State of Georgia.
12.14 Relationship of Parties. No express or implied term, provision or
condition of this Lease shall or shall be deemed to constitute Lessor and Lessee as
partners or joint venturers.
IN WITNESS WHEREOF, the parties have caused this Lease to be executed by
their duly authorized officers as of the day and year first above written.
LESSOR:
LESSEE:
Richmond County Public Facilities,
Inc.
BAK Ninth Street Venture, LLC
~ By:
at
J;JBy: N
Boone A. Knox
As its managing member
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Exhibit" A"
All that tract or parcel of land with improvements thereon, situate, lying
and being in the City of Augusta, Georgia fronting on the Southwestern side of
Telfair Street and the Southeastern side of 9th Street and being more particularly
described as follows: BEGINNING at a building corner at the intersection ofthe
Southwestern right of way of Telfair Street and the Southeastern right of way of
9th Street and running thence South 67027'31" East a distance of 80.14 feet to a
building corner; thence turn and run South 23018'24" West a distance of 26.37
feet to a building corner; thence turn and run South 23017'25" West a distance of
75.30 feet to a No.5 rebar; thence turn and run South 23017'31" West a distance
of 24.93 feet to a No.5 rebar; thence turn and run North 67017'22" West a
distance of 81.14 feet to a building corner on the Southeastern right of way of 9th
Street; thence turn and run North 23049'22" East a distance of 99.82 feet to the
corner of a building; thence turn and run North 23028'23" East a distance of
26.56 feet to a building corner and the POINT OF BEGINNING.
The above-described property is shown and designated as Tracts "A," "B,"
and "C" on a plat prepared for Augusta, Georgia by John Thomas Attaway, RLS
on December 27, 2002, a copy of which is recorded in the office of the Clerk of
Superior Court for Richmond County, Georgia in Realty Reel 843, at Page 2306.
Reference is hereby made to said plat and it is incorporated herein and made a
part hereof for a more complete and accurate description of the metes, bounds
and location of said property.
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Exhibit "B"
1. All taxes subsequent to 2005.
2. Terms and conditions of the Memorandum of Lease as evidenced by
memorandum of Lease between Richmond County Public Facilities, Inc. as lessor
and BAK Ninth Street Venture, LLC, a Georgia limited liability company, as
Lessee dated and recorded in the Office of the Clerk of Superior
Court of Richmond County, Georgia in Book _ , Page _, creating the
leasehold estate hereby insured.
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