Maryland-Glen Burnie-1910 Park 100 Drive Lease - Opus East LLC and Mohawk Industries Inc.
STANDARD COMMERCIAL NET MOHAWK INDUSTRIES, INC.
LEASE AGREEMENT 79 1910 Park 100 Drive
Glen Burnie, MD 21061
187,200 Square Feet
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between Opus East, L.L.C., a
Delaware limited liability company hereinafter referred to as "Landlord" and
Mohawk Industries, Inc. (a Delaware corporation) hereinafter referred to as
"Tenant";
W I T N E S S E T H :
1. Premises and Term. In consideration of the obligation of Tenant to pay
rent herein provided, and in consideration of the other terms, provisions and
convenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby takes from Landlord certain premises situated within the County of Anne
Arundel, State of Maryland, more particularly described on Exhibit "A" attached
hereto and incorporated herein by reference, together with all rights,
privileges, easements, appurtenances and immunities belonging to or in any way
pertaining to the premises and together with the buildings and other
improvements situated or to be upon said premises said real property, buildings
and improvements being hereinafter referred to as the "premises").
TO HAVE AND TO HOLD the same for a term commencing on the "commencement
date", as hereinafter defined, and ending 120 months thereafter, provided,
however, that, in the event the "commencement date" is a date other than the
first day of a calendar month said term shall extend for said number of months
in addition to the remainder of the calendar month following the "commencement
date." (see Addendum Paragraph 1)
A. The "commencement date" shall be May 1, 1997. Tenant acknowledges that
it has inspected and accepts the premises, and specifically the buildings and
improvements comprising the same, in their present condition as suitable for the
purpose to which the premises are leased. Taking of possession by Tenant shall
be deemed conclusively to establish that said buildings and other improvements
are in good and satisfactory condition as of when possession was taken. Tenant
further acknowledges that no representations as to the repair of the premises,
nor promises to alter, remodel or improve the premises have been made by
Landlord, unless such are expressly set forth in this lease. If this lease is
executed before the premises become vacant or otherwise available and ready for
occupancy, or if any present tenant or occupant of the premises holds over, and
Landlord cannot acquire possession of the premises prior to said "commencement
date," Landlord shall not be deemed to be in default hereunder, and Tenant
agrees to accept possession of the premises at such time as Landlord is able to
tender the same, which date shall thenceforth be deemed the "commencement date";
and Landlord hereby waives payment of rent covering any period prior to the
tendering of possession to Tenant hereunder. After the commencement date Tenant
shall, upon demand, execute and deliver to Landlord a letter of acceptance of
delivery of the premises.
B. In the event this lease pertains to a building to be constructed, the
provisions of this subparagraph B shall apply in lieu of the provisions of
subparagraph A above and the "commencement date" shall be the date upon which
the buildings and other improvements erected and to be erected upon the premises
shall have been substantially completed in accordance with the plans and
specifications described on Exhibit "B" attached hereto and incorporated herein
by reference. Landlord shall notify Tenant in writing as soon as Landlord deems
said buildings and other improvements to be completed and ready for occupancy as
aforesaid. In the event that said buildings and other improvements have not in
fact been substantially completed as aforesaid, Tenant shall notify Landlord in
writing of its objections. Landlord shall have a reasonable time after delivery
of such notice in which to take such corrective action as may be necessary, and
shall notify Tenant in writing as soon as it deems such corrective action has
been completed so that said buildings and other improvements are completed and
ready for occupancy. Taking of possession by Tenant shall be deemed conclusively
to establish that said buildings and other improvements have been competed in
accordance with the plans and specifications and that the premises are in good
and satisfactory condition, as of when possession was so taken. Tenant
acknowledges that no representations as to the repair of the premises have been
made by Landlord, unless such are expressly set forth in this lease. After such
"commencement date" Tenant shall, upon demand, execute and deliver to Landlord a
letter of acceptance of delivery of the premises. In the event of any dispute as
to substantial completion or work performed or required to be performed by
Landlord, the certificate of Landlord's architect or general contractor shall be
conclusive.
2. Base Rent and Security Deposits
A. Tenant agrees to pay to Landlord rent for the premises in advance,
without demand, deduction or set off, for months one (1) through forty-eight
(48) of the [ILLEGIBLE] hereof at the rate of Sixty-Four Thousand Seven Hundred
Forty and No/100 Dollars ($64,740.00) per month (See Addendum Paragraph 2). One
such monthly installment shall be due and payable on the date hereof and a like
monthly installment shall be due and payable, without demand, on or before the
first day of each calendar month succeeding the "commencement date" during the
hereby demised term, except that the rental payment for any fractional calendar
month at the commencement of the lease term shall be prorated.
B. In addition, Tenant agrees to deposit with Landlord on the date hereof
the sum of Sixty-Four Thousand Seven Hundred Forty and No/100 Dollars
($64,740.00), which sum shall be held by Landlord, without obligation for
interest, as security for the performance of Tenant's covenants and obligations
under this lease, it being expressly understood and agreed that such deposit is
not an advance rental deposit or a measure of Landlord's damages in case of
Tenant's default. Upon the occurrence of any event of default by Tenant,
Landlord may, from time to time, without prejudice to any other remedy provided
herein or provided by law, use such fund to the extent necessary to make good
any arrears of rent or other payments due Landlord hereunder, and any other
damage, injury, expense or liability caused by such event of default, and Tenant
shall pay to Landlord, on demand, the amount so applied in order to restore the
security deposit to its original amount. Although the security deposit shall be
deemed the property of Landlord, any remaining balance of such deposit shall be
returned by Landlord to Tenant at such time after termination of this lease that
all of the Tenant's obligations under this lease have been fulfilled.
3. Use. The premises shall be used only for the purpose of receiving,
storing, shipping and selling (other than retail) products, materials and
merchandise made and/or distributed by Tenant, and for such other lawful
purposes as may be incidental thereto. Outside storage is prohibited without
Landlord's prior written consent. Tenant shall, as its own cost and expense,
obtain any and all licenses and permits necessary for any such use. Tenant shall
comply with all governmental laws, ordinances and regulations applicable to the
condition, occupancy and use of the premises, and shall promptly comply with all
governmental orders and directives for the correction, prevention and abatement
of nuisances in or upon, or connected with, the premises, all at Tenant's sole
expense. Tenant shall not permit any objectionable or unpleasant odors, smoke,
dust, gas noise or vibrations to emanate from the premises, nor take any other
action which would constitute a nuisance or would disturb or endanger any other
tenants of the building in which the premises are situated or unreasonably
interfere with their use of their respective premises. Without Landlord's prior
written consent, Tenant shall not receive, store or otherwise handle any
product, material or merchandise which is explosive or highly inflammable.
Tenant will not permit the premises to be used for any purpose or in any manner
(including without limitation any method of storage) which would render the
insurance thereon void or the insurance risk more hazardous or cause the State
Board of Insurance or other insurance authority to disallow any sprinkler
credits.
4. Taxes
A. Tenant agrees to pay before they become delinquent all taxes
assessments, and governmental charges of any kind and nature whatsoever
(hereinafter collectively referred to as the "taxes") lawfully levied or
assessed against the building and the grounds, parking areas, driveways and
alleys around the building. Tenant shall furnish to Landlord, not later than
twenty (20) days before the date any such taxes become delinquent, official
receipts of the appropriate taxing authority or other evidence satisfactory to
Landlord evidencing payment thereof. If Tenant should fail to pay any taxes,
assessments, or governmental charges required to be paid by Tenant hereunder, in
addition to any other remedies provided herein, Landlord may, if it so elects,
pay such taxes, assessments, and governmental charges. Any sums so paid by
Landlord shall be deemed to be so much additional rental owing by Tenant to
Landlord and due and payable, on demand, by Landlord. together with interest
thereon, as the rate of ten per cent (10%) per annum from date paid by Landlord
to data of repayment by Tenant.
B. In the event the premises constitute a portion of a multiple occupancy
building, In lieu of Tenant paying the "taxes" as above provided, Landlord
agrees to pay, before they become delinquent, all "taxes" lawfully levied or
assessed against such building and the grounds, parking areas, driveways and
alleys around the building, and Tenant agrees to pay to Landlord, an additional
rental, upon demand, the amount of Tenant's "proportionate share" of all such
"taxes" paid by Landlord. Tenant's "proportionate share", as used in this lease,
shall mean a fraction, the numerator of which is the space contained in the
premises and the denominator of which is the entire space contained in the
building.
C. If, at any time during the term of this lease, the present method of
taxation shall be changed so that in lieu of the whole or any part of any taxes,
assessments or governmental charges levied, assessed or imposed on real estate
and the improvements thereon, there shall be levied, assessed or imposed on
Landlord a capital levy or other tax directly on the rents received therefrom
and/or a franchise tax, assessment, levy or charge measured by or based, in
whole or in part, upon such rents for the present or any future building or
buildings on the premises, then all such taxes, assessments, levies or charges,
or the part thereof so measured or based, shall be deemed to be included within
the term "taxes" for the purposes hereof.
D. Tenant may, alone or along with any other tenants of said building, at
its or their sole cost and expense, in its or their own name(s) and/or in the
name of Landlord, dispute and contest any "taxes" by appropriate proceedings
diligently conducted in good faith, but only after Tenant and all other tenants,
if any, joining with Tenant in such contest, have deposited with Landlord the
amount so contested and unpaid, or their proportionate shares thereof, as the
case may be, which shall be held by Landlord without obligation for interest
until the termination of the proceedings, as which time the amount(s) deposited
shall be applied by Landlord toward the payments of the items held valid
(plus any court costs, interest, penalties, and other liabilities associated
with the proceedings), and Tenants share of any excess shall be returned to
Tenant. Tenant further agrees to pay to Landlord, upon demand, Tenant's share
(as among all tenants who participated in the contest) of all court costs,
interest penalties, and other liabilities relating to such proceedings. Tenant
hereby indemnifies and agrees to hold harmless the Landlord from and against any
cost, damage, or expense (including attorneys' fees) in connection with any
such proceedings.
E. Any payment to be made pursuant to this Paragraph 4, with respect to
the real estate tax year in which this lease commences or terminates shall be
prorated.
5. Repairs and Maintenance
A. Except as expressly set forth in Section 5.F below, Tenant shall, at
its own cost and expense, keep and maintain all parts of the premises in good
condition, promptly making all necessary repairs and replacements, interior and
exterior, structural and non-structural, ordinary and extraordinary, including
but not limited to, windows, glass and plate glass, doors and any special office
entry, walls and finish work, floors and floor covering, roof, foundation, down-
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spouts, gutters, heating and air conditioning systems, dock boards, truck doors,
dock bumpers, paving, plumbing work and fixtures, termite and pest
extermination, regular removal of trash and debris, regular mowing of any grass,
trimming, weed removal and general landscape maintenance, including rail spur
areas, keeping the parking areas, driveways, alleys and the whole of the
premises in a clean and sanitary condition, and maintaining any spur track
serving the premises (Tenant agrees to sign a joint maintenance agreement with
the railroad company servicing the premises, if requested by the railroad
company). Tenant shall at its own cost and expense repaint exterior overhead
doors, canopies, entries, handrails, gutters, and other exposed parts of the
building which reasonably require periodic repainting to prevent deterioration
or to maintain aesthetic standards.
B. The cost of maintenance and repair of any common party wall (any wall,
divider, partition or any other structure separating the premises from any
adjacent premises occupied by other tenants) shall be shared equally by Tenant
and the tenant occupying adjacent premises. Tenant shall not damage any party
wall or disturb the integrity and support provided by any party wall and shall,
as its sole cost and expense, promptly repair any damage or injury to any party
wall caused by Tenant or its employees, agents or invitees.
C. In the event the premises constitute a portion of a multiple occupancy
building, Tenant and its employees, customers and licensees shall have the
exclusive right to use the parking areas, if any, as may be designated by
Landlord in writing, subject to such reasonable rules and regulations as
Landlord may from time to time prescribe, Further, in multiple occupancy
buildings, Landlord reserves the right to perform the roof, paving, and
landscape maintenance, exterior painting and common sewage line plumbing which
are otherwise Tenant's obligations under subparagraph A above, and Tenant shall,
in lieu of the obligations set forth under subparagraph A above with respect to
such items, be liable for its proportionate share (as defined in subparagraph
4(B) above) of the cost and expense of the care for the grounds around the
building, including but not limited so, the mowing of grass, care of shrubs,
general landscaping, maintenance of parking areas, driveways and alleys, roof
maintenance, exterior repainting and common sewage line plumbing; provided,
however, that Landlord shall have the right to require Tenant so pay such other
reasonable proportion of said mowing, shrub care and general landscaping costs
as may be determined by Landlord in its sole discretion; and further provided
that if Tenant or any other particular tenant of the building can be clearly
identified as being responsible for obstruction or stoppage of the common
sanitary sewage lien then Tenant, if Tenant is responsible, or such other
responsible tenant, shall pay the entire cost thereof, upon demand, as
additional rent. Tenant shall pay when due its share, determined as aforesaid,
of such costs and expenses along with the other tenants of the building to
Landlord upon demand, as additional rent, for the amount of its share as
aforesaid of such costs and expenses in the events Landlord elects to perform or
cause to be performed such work. (See Addendum Paragraph 3)
D. In the event the premises constitute a portion of a multiple occupancy
building, Landlord shall be responsible for coordinating any repairs and other
maintenance of any rail tracks serving or to serve the building, and if Tenant
uses such rail tracks, Tenant shall reimburse Landlord from time to time upon
demand, as additional rent, for a share of the costs of such repairs and
maintenance and any other sums specified in any agreement to which Landlord is a
party respecting such tracks, such share so be a fraction the numerator of which
is the space contained in the premises, and the denominator of which is the
entire space occupied by rail users in the building.
E. Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
for servicing all heating and air conditioning systems and equipment within the
premises. The maintenance contractor and the contract must be approved by
Landlord. The service contract must include all services suggested by the
equipment manufacturer within the operation/maintenance manual and must become
effective (and a copy thereof delivered to Landlord) within thirty (30) days of
the date Tenant takes possession of the premises. (See Addendum Paragraph 4)
6. Alteration. Tenant shall not make any alterations, additions or
improvements to the premises without the prior written consent of Landlord.
Tenant may, without the consent of Landlord, but as its own cost and expense and
in a good workmanlike manner make such minor alterations, additions or
improvements or erect, remove or alter such partitions, or erect such shelves,
bins, machinery and trade fixtures as it may deem advisable, without altering
the basic character of the building or improvements and without overloading or
damaging such building or improvements, and in each case complying with all
applicable governmental laws, ordinances, regulations and other requirements.
All alterations, additions, improvements and partitions erected by Tenant shall
be and remain the property of Tenant during the term of this lease and Tenant
shall unless Landlord otherwise elects as hereinafter provided, remove all
alterations, additions, improvements and partitions erected by Tenant and
restore the premises so their original condition by the date of termination of
this lease; provided, however, that if Landlord so elects prior to termination
of this lease, such alterations, additions, improvements and partitions shall
become the property of Landlord as of the date of termination of this lease and
shall be delivered up to the Landlord with the premises. All shelves, bins,
machinery and trade fixtures installed by Tenant may be removed by Tenant prior
to the termination of this lease if Tenant so elects, and shall be removed if
required by Landlord; upon any such removal Tenant shall restore the premises to
their original condition. All such removals and restoration shall be
accomplished in a good workmanlike manner so as not to damage the primary
structure or structural qualities of the buildings and other improvements
situated on the premises.
7. Signs. Tenant shall have the right to install signs upon the premises
only when first approved in writing by Landlord and subject to any applicable
governmental laws, ordinances, regulations and other requirements. Tenant shall
remove all such signs by the termination of this lease. Such installations and
removals shall be made is such manner as to avoid injury or defacement of the
building and other improvements, and Tenant shall repair any injury or
defacement including without limitation discoloration, caused by such
installation or removal.
8. Inspection. Landlord and Landlord's agents and representatives shall
have the right to enter and inspect the premises at any reasonable time during
business hours, for the purpose of ascertaining the condition of the premises or
in order to make such repairs as may be required or permitted to be made by
Landlord under the terms of this lease. During the period that is six (6) months
prior to the end of the term hereof, Landlord and Landlord's agents and
representatives shall have the right to enter the premises at any reasonable
time during business hours for the purpose of showing the premises, and shall
have the right to erect on the premises a suitable sign indicating that the
premises are available. Tenant shall give written notice to Landlord at least
thirty (30) days prior to vacating the premises and shall arrange to meet with
Landlord for joint inspection of the premises as the time of vacating. In the
event of Tenant's failure to give such notice or arrange such joint inspection,
Landlord's inspection at or after Tenant's vacating the premises shall be
conclusively deemed correct for purposes of determining Tenant's responsibility
for repairs and restoration.
9. Utilities. Landlord agrees to provide, as its cost, water, electricity
and telephone service connections to the premises; but Tenant shall pay for all
water, gas, heat, light, power, telephone, sewer, sprinkler charges and other
utilities and services used on or from the premises, together with any taxes,
penalties, surcharges or the like pertaining thereto, and maintenance charges
for utilities, and shall furnish all electric light bulbs and fixtures. If any
such services are not separately metered to Tenant, Tenant shall pay a
reasonable proportion, as determined by Landlord, of all charges jointly metered
with other premises. Landlord shall in no event be liable for any interruption
or failure of utility services on the premises.
10. Assignment and Subletting. Tenant shall not have the right to assign
this lease or to sublet the whole or any part of the premises without the prior
written consent of Landlord. Notwithstanding any permitted assignment or
subletting, Tenant shall at all times remain directly, primarily and fully
responsible and liable for the payment of the rent herein specified and for
compliance with all of Tenant's other obligations under the terms, provisions
and covenants of this lease. Upon the occurrence of an "event of default" as
hereinafter defined, if the premises or any part thereof are then assigned or
sublet, Landlord, in addition to any other remedies herein provided or provided
by law, may at its option collect directly from such assignee or subtenant all
rents becoming due to Tenant under such assignment or sublease and apply such
rent against any sums due to Landlord from Tenant hereunder, and no such
collection shall be construed to constitute a novation or a release of Tenant
from the further performance of Tenant's obligations hereunder.
11. Insurance, Fire end Casualty Damages.
A. Landlord agrees to maintain insurance covering the building of which
the premises are a part in an amount not less than eighty percent (80%) (or such
greater percentage as may be necessary to comply with the provisions of any
co-insurance clauses of the policy) of the "replacement cost" thereof as such
term is defined in the Replacement Cost Endorsement to be attached thereto,
insuring against the perils of Fire, Lightning, Extended Coverage, Vandalism and
Malicious Mischief, extended by Special Extended Coverage Endorsement to insure
against all other Risks of Direct Physical Loss, such coverages and endorsements
to be as defined, provided and limited in the standard bureau forms prescribed
by the insurance regulatory authority for the State in which the premises are
situated for use by insurance companies admitted in such state for the writing
of such insurance on risks located within such state. Subject to the provisions
of subparagraphs 11B and 11D below, such insurance shall be for the sole benefit
of Landlord and under its sole control. Tenant agrees to pay, to Landlord, as
additional rental, Landlord's cost of maintaining such insurance on said
building (or, in the event the premises constitute a portion of a multiple
occupancy building, Tenant's full proportionate share (as defined in
subparagraph 4(B) above) of such cost. Said payments shall be made to Landlord
within ten (10) days after presentation to Tenant of Landlord's statement
setting forth the amount due. Any payments to be made pursuant to this
subparagraph A, with respect to the year in which this lease commences or
terminates shall bear the same ratio to the payment which would be required to
be made for the full year as that part of such year covered by the term of this
lease bears to a full year.
B. If the buildings situated upon the premises should be damaged or
destroyed by any peril covered by the insurance to be provided by Landlord under
subparagraph 11A above, Tenant shall give immediate notice thereof to Landlord
and Landlord shall at its sole cost and expense thereupon proceed with
reasonable diligence so rebuild and repair such buildings to substantially the
condition in which they a existed prior to such damage or destruction, except
that Landlord shall not be required to rebuild, repair or replace any part of
the partitions, fixtures, additions and other improvements which may have been
placed in, on or about the premises by Tenant and except that Tenant shall pay
to Landlord, upon demand, any applicable deductible amount specified under
Landlord's insurance. The rent payable hereunder shall in no event abate by
reason of any damage or destruction. (See Addendum Paragraph 5)
C. If the buildings situated upon the premises should he damaged or
destroyed by a casualty other than a peril covered by the insurance to be
provided by Landlord under subparagraph 11A. above, or if any other improvements
situated on the premises should be in any manner damaged or destroyed, Tenant
shall at its sole cost and expense thereupon proceed with reasonable diligence
to rebuild and repair such buildings and/or other improvements to substantially
the condition in which they existed prior to such damage or destruction, subject
to Landlord's approval of the plans and specifications for such rebuilding and
repairing, which approval shall not be unreasonably withheld.
D. Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
premises requires that the insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon all rights and obligations hereunder shall
cease and terminate.
E. Each of Landlord and Tenant hereby releases the other from any and all
liability or responsibility to the other or any claiming through or under them
by way of subrogation or otherwise for any loss or damage to property caused by
fire or any other perils insured in policies of insurance covering such
property, even if such loss or damage shall have been caused by the fault or
negligence of the other party, or anyone for whom such party may be responsible,
provided, however, that this release shall be applicable and in force and effect
only with respect to loss or damage occurring during such times as the
releasor's policies shall contain a clause or endorsement to the effect that any
such release shall not adversely affect or impair said policies or prejudice the
right of the releasor to recover thereunder and then only to the extent of the
insurance proceeds payable under such policies. Each of Landlord and Tenant
agrees that it will request its insurance carriers to include in its policies
such a clause or endorsement. If extra cost shall be charged therefor, each
party shall advise the other thereof and of the amount of the extra cost, and
the other party, at its election, may pay the same, but shall not be obligated
to do so.
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12. Liabilities. Landlord shall not be liable to Tenant or Tenant's
employees, agents, patrons or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the premises, resulting
from and/or caused in part or whole by the negligence or misconduct of Tenant,
its agents, servants or employees, or of any other person entering upon the
premises, or caused by the buildings and improvements located on the premises
becoming out of repair, or caused by leakage of gas, oil, water or steam, or by
electricity emanating from the premises, or due to any cause whatsoever, and
Tenant hereby covenants and agrees that it will at all times indemnify and hold
safe and harmless the property, the Landlord (including without limitation the
trustee and beneficiaries if Landlord is a trust), Landlord's agents and
employees from any loss, liability, claims, suits, costs, expenses, including
without limitation attorneys' fees and damages, both real and alleged, arising
out of any such damages or injury; except injury to persons or damage to
property the sole cause of which is the negligence of Landlord. Tenant shall
procure and maintain throughout the term of this lease a policy or policies of
insurance, at its sole cost and expense, insuring both Landlord and Tenant
against all claims, demands, or actions arising out of or in connection with:
(i) the premises; (ii) the condition of the premises; (iii) Tenant's operations
in and maintenance and use of the premises; and (iv) Tenant's liability assumed
under this lease, the limits of such policy or policies to be in the amount of
not less than $2,000,000 per occurrence for bodily injury and property damage
(See Addendum Paragraph 6). All such policies shall be procured by Tenant from
responsible insurance companies satisfactory to Landlord. Certified copies of
such policies, together with receipt evidencing payment of premiums therefor,
shall be delivered to Landlord prior to the commencement date of this lease. Not
less than fifteen (15) days prior to the expiration date of any such policies,
certified copies of the renewals thereof (bearing notations evidencing the
payment of renewal premiums) shall be delivered to the Landlord. Such policies
shall further provide that not less than thirty (30) days' written notice shall
be given to Landlord before such policy may be cancelled or changed to reduce
insurance provided thereby.
13. Condemnation.
A. If the whole or any substantial part of the premises should be taken
for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and the taking would prevent or materially interfere with the use of
the premises for the purpose for which they are then being used, this lease
shall terminate and the rent shall be abated during the unexpired portion of
this lease, effective when the physical taking of said premises shall occur.
B. If part of the premises shall be taken for any public or quasi-public
use under any governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, and this lease is not terminated
as provided in the subparagraph above, this Lease shall not terminate, but the
rent payable hereunder during the unexpired portion of the lease shall be
reduced to such extent as may be fair and reasonable under all the
circumstances.
C. In the event of any such taking or private purchase in lieu thereof,
Landlord and Tenant shall each be entitled to receive and retain such separate
awards and/or portion of lump sum awards as may be allocated to their respective
interests in any condemnation proceedings.
14. Holding Over. Tenant will, at the termination of this lease by lapse
of time or otherwise, yield up immediate possession to Landlord. In the event of
any holding over by Tenant or any of its successors in interest after the
expiration or termination of this lease, unless the parties hereto otherwise
agree to writing, the hold over tenancy shall be subject to termination by
Landlord at any time upon not less than five (5) days advance written notice, or
by Tenant at any time upon not less than thirty (30) days advance written
notice, and all of the other terms and provisions of this lease shall be
applicable during that period, except that Tenant shall pay Landlord from time
to time upon demand, as rental for the time of any hold over, an amount equal to
one and one half (1 1/2) the rent in effect on the termination date, computed on
a daily basis for each day of the holdover period. No holding over by Tenant,
whether with or without consent of Landlord, shall operate to extend this Lease
except as otherwise expressly provided.
15. Quiet Enjoyment. Landlord covenants that it now has, or will acquire
before Tenant takes possession of the premises, good title to the premises, free
and clear of all liens and encumbrances excepting only the lien for current
taxes not yet due, such mortgage or mortgages as are permitted by the terms of
this lease, zoning ordinances, and other building and fire ordinances and
governmental regulations relating to the use of such property, and easements,
restrictions, and other conditions of the record. In the event this lease is a
sublease, then Tenant agrees to take the premises subject to the provisions of
the prior leases. Landlord represents and warrants that it has full right and
authority to enter into this lease and that Tenant, upon paying the rental
herein set forth and performing its other covenants and agreements herein set
forth, shall peaceably and quietly have, hold, and enjoy the premises for the
term hereof without hindrance or molestation from Landlord, subject to the terms
and provisions of this Lease.
16. Events of Default. The following events shall be deemed to be events
of default by Tenant under this lease:
(a) Tenant shall fall to pay any installment of the rent hereby
reserved when due, or any payment with respect to taxes hereunder when
due, or any other payment or reimbursement to Landlord required herein
when due, and such failure shall continue for a period of five (5) days
from the date such payment was due.
(b) Tenant shall become insolvent, or shall make a transfer in fraud
of creditors, or shall make an assignment for the benefit of creditors.
(c) Tenant shall file a petition under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or statute
of the United States or any State thereof; or Tenant shall be adjudged
bankrupt or insolvent in proceeding filed against Tenant thereunder.
(d) A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant.
(e) Tenant shall desert or vacate any substantial portion of the
premises.
(f) Tenant shall fail to comply with any term, provision, or
covenant of this lease (other than the foregoing in this Paragraph 16),
and shall not cure such failure within twenty (20) days after written
notice thereof to Tenant.
17. Remedies, Upon the occurrence of any of such events of default
described in Paragraph 16 hereof, Landlord shall have the option to pursue any
one or more of the following remedies without any notice or demand whatsoever:
(a) Terminate this lease, in which event Tenant shall immediately
surrender the premises to Landlord, and if Tenant fails to do so, Landlord
may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession of the
premises and expel or remove Tenant and any other person who may be
occupying such premises or any thereof, by force if necessary, without
being liable for prosecution or any claim or damages therefor; and Tenant
agrees to pay to Landlord on demand the amount of any loss and damage
which Landlord may suffer by reason of such termination (See addendum
Paragraph 7), whether through inability to relet the premises on
satisfactory terms or otherwise.
(b) Enter upon and take possession of the premises and expel or
remove Tenant and any other person who may be occupying such premises or
any part thereof, by force if necessary, without being liable for
prosecution or any claims for damages therefor, and Tenant agrees to pay
to the Landlord on demand any deficiency that may arise by reason of such
reletting. In the event Landlord is successful in reletting the premises
at a rental in excess of that agreed to be paid by Tenant pursuant to the
terms of this Agreement, Landlord and Tenant each mutually agree that
Tenant shall not be entitled, under any circumstances, to such excess
rental, and Tenant does hereby specifically waive any claim to such excess
rental.
(c) Enter upon the premises, by force if necessary, without being
liable for prosecution or any claim for damages therefor, whatever Tenant
is obligated to do under the terms of this lease; and Tenant agrees to
reimburse Landlord, on demand, for any expenses which Landlord may incur
in thus effecting compliance with Tenant's obligations under this lease,
and Tenant further agrees that Landlord shall not be liable for any
damages resulting to the Tenant from such action, whether caused by the
negligence of the Landlord or otherwise. Notwithstanding the foregoing, in
the event of an emergency, Landlord shall have the right to perform for
Tenant's account prior to the expiration of any cure period.
In the event Tenant fails to pay any installment of rent hereunder
as and when such installment is due, to help defray the additional cost to
Landlord for processing late payments Tenant shall pay to Landlord on
demand a late charge in an amount equal to five percent (5%) of and the
failure to pay such amount within ten (10) days after demand therefor
shall be an event of default hereunder. The provision for such late
charges shall be in addition to all of Landlord's other rights and
remedies hereunder or at law and shall not be construed as liquidated
damages or as limiting Landlord's remedies in any manner.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law, nor
shall pursuit of any remedy herein provided constitute a forfeiture or waiver of
any rent due to Landlord hereunder or of any damages accruing to Landlord by
reason of the violation of any of the terms, provisions and covenants herein
contained. No act or thing done by Landlord or its agents during the term hereby
granted shall be decried a termination of this lease or an acceptance of the
surrender of the premises, and no agreement to terminate this lease or to accept
a surrender of said premises shall be valid unless in writing signed by
Landlord. No waiver by Landlord or any violation or breach of any of the terms,
provisions covenants herein contained. Landlord's acceptance of the payment of
rental or other payments hereunder after the occurrence of an event of default
shall not be construed as a waiver of such default, unless Landlord so notifies
Tenant in writing. Forbearance by Landlord to enforce one or more of the
remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default or of Landlord's right to
enforce any such remedies with respect to such default or any subsequent
default. If, on account of any breach or default by Tenant in Tenant's
obligations under the terms and conditions of said lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney
concerning or to enforce or defend any of Landlord's rights or remedies
hereunder, Tenant agrees to pay any reasonable attorneys' fees so incurred.
18. Landlord's Lien. In addition to any statutory lien for rent in
Landlord's favor, Landlord shall have and Tenant hereby grants to Landlord a
continuing security interest for all rentals and other sums of money becoming
due hereunder from Tenant, upon all goods, wares, equipment, fixtures,
furniture, inventory, accounts, contract rights, chattel paper and other
personal property of Tenant, situated on the premises, and such property shall
not be removed therefrom without the consent of Landlord until all arranges in
rent as well as any and other sums of money then due to the hereunder shall
first have been paid and discharged. In the event of default under this lease,
Landlord shall have, in addition to any other remedies provided herein or by
law, all rights and remedies under the Uniform Commercial Code, including
without limitation the right to sell the property described in this Paragraph 18
at public or private sale upon five (5) days notice to Tenant. Tenant hereby
agrees to execute such financing statements and other instruments necessary or
desirable in Landlord's discretion to perfect the security interest hereby
created. Any stationary lien for rent is not hereby waived, the express
contractual lien herein granted being in addition and supplementary thereto.
19. Mortgages. Tenant accepts this lease subject and subordinate to any
mortgage(s) and/or deed(s) of trust now or at any time hereafter constituting a
lien or charge upon the premises or the improvements situated thereon; provided,
however, that if the mortgagee, trustee, or holder of any such mortgage or deed
of trust elects to have Tenant's interest in this lease superior to any such
instrument, then by notice to Tenant from such mortgagee, trustee or holder,
this lease shall be deemed superior to such lien, whether this lease was
executed before or after said notice or deed of trust. Tenant shall at any time
hereafter, on demand, execute any instruments, releases or other documents which
may be required by any mortgagee for the purpose of subjecting and subordinating
this lease to the lien of any such mortgage.
<PAGE>
20. Landlord's Default. In the event Landlord should become in default in
any payments due on any such mortgage described in Paragraph 19 hereof, Tenant
is authorized and empowered, after giving Landlord five (5) days prior written
notice of such default and Landlord's failure to cure such default, to pay any
such items for and on behalf of Landlord, and use amount of any item so paid by
Tenant for or on behalf of Landlord, together with any interest or penalty
required to be paid in connection therewith, shall be payable on demand by
Landlord to Tenant; provided, however that Tenant shall not be authorized and
empowered to make any payment under the terms of this Paragraph 20, unless the
item paid shall be superior to Tenant's interest hereunder. In the event Tenant
pays any mortgage debt in full, in accordance with this paragraph, it shall, at
its election, be entitled to the mortgage security by assignment or subrogation.
21. Mechanic's Liens. Tenant shall have no authority, express or implied,
to create or place any lien or encumbrance, of any kind or nature whatsoever
upon, or in any maneuver to bind, the interest of Landlord in the premises or to
charge the rentals payable hereunder for any claim in favor of any person
dealing with Tenant, including those who may furnish materials or perform labor
for any construction or repairs, and each such claim shall affect and each such
lien shall attach to, if at all, only the leasehold interest granted to Tenant
by this instrument. Tenant covenants and agrees that it will pay or cause to be
paid all sums legally due and payable by it on account of any labor performed or
materials furnished in connection with any work performed on the premises on
which any lien is or can be validly and legally asserted against its leasehold
interest in the premises or the improvements thereon and that it will save and
hold Landlord harmless from any and loss, cost or expense based on or arising
out of asserted claims or liens against the leasehold estate or against the
tight, title and interest of thus Landlord in the premises or under the terms of
this lease.
22. Notices. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivery of any notice or the making of any payment
by Landlord to Tenant or with reference to the sending, mailing or delivery of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and if the following steps are taken:
(a) All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address herein
below set forth or at such other address as Landlord may specify from time
to time by written notice delivered in accordance herewith. Tenant's
obligation to pay rent and any other amounts to Landlord under the terms
of this lease shall not be deemed satisfied until such rent and other
amounts have been actually received by Landlord.
(b) All payment required to be made by Landlord to Tenant hereunder
shall be payable to Landlord at the address herein below set forth, or at
such other address within the continental United States as Tenant may
specify from time so time by written notice delivered in accordance
herewith.
(c) Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered when actually received when
deposited in the United States Mail, postage prepaid, Certified or
Registered Mail, hand delivery or overnight mail, addressed to the parties
hereto at the respective addresses set out below, or as such other address
as they have theretofore specified by written notice delivered in
accordance herewith.
Landlord: Tenant:
Opus East, L.L.C. Mohawk Industries, Inc.
6707 Democracy Boulevard, Suite 510 1910 Park 100 Drive
Bethesda, Maryland 20817 Glen Burnie, Maryland 21061
Attn: Geoffrey R. Lilja, Director Attn: Larrry Morris, Vice President
of Leasing
(See Addendum Paragraph 8)
If and when included within the term "Landlord", as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual as some specific address for the receipt of notices
and payments to Landlord; if and when included within the term "Tenant", as used
in this instrument, there are more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of such a
notice specifying some individual at some specific address within the
continental United States for the receipt of notices and payments to Tenant. All
parties included within the terms "Landlord" and "Tenant", respectively, shall
be bound by notices given in accordance with the provisions of this paragraph to
the same effect as if each had received such notice.
23. Miscellaneous.
A. Words of any gender used in this lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the contest otherwise requires.
B. The terms, provisions, covenants, and conditions contained in this
lease shall apply to, insure to the benefit of, and be binding upon, the parties
hereto and upon their respective heirs, legal representatives, successors and
permitted assigns except as otherwise herein expressly provided. Each party
agrees to furnish the other, promptly upon demand, a corporate resolution, proof
of due authorization by partners, or other appropriate documentation evidencing
the due authorization of such party to enter into this lease.
C. The captions inserted in this lease are for convenience only and in no
way define, limit or otherwise describe the scope or intent of this lease, or
any provision hereof, or in any way affect the interpretation of this lease.
D. Tenant agrees from time so time within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating that this lease is in full force and effect, the date to
which rent has been paid, the unexpired term of this lease and such other
matters pertaining so this lease as may be reasonably requested by Landlord. It
is understood and agreed that Tenant's obligation to furnish such estoppel
certificates in a timely fashion is a material inducement for Landlord's
execution of this lease.
E. This lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
F. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation all payment obligations with respect to taxes and insurance and all
obligations concerning the condition of the premises. Upon the expiration or
earlier termination of the term hereof, and prior to Tenant vacating the
premises, Tenant shall pay to Landlord any amount reasonably estimated by
Landlord as necessary to put the premises, including without limitation all
heating and air conditioning systems and equipment therein, in good condition
and repair. Tenant shall also, prior to vacating the premises, pay to Landlord
the amount, as estimated by Landlord, of Tenant's obligation hereunder for real
estate taxes and insurance premiums one year in which the lease expires or
terminates. All such amounts shall be used and held by Landlord for payments of
such obligations of Tenant hereunder, with Tenant being liable for any
additional costs therefor upon demand by Landlord, or with any excess to be
returned so Tenant after all such obligations have been determined and
satisfied, as the case may be. Any security deposit held by Landlord shall be
credited against the amount payable by Tenant under this Paragraph 23(F).
G. If any clause or provision of this lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
lease, then and in that event, it is the intention of the parties hereto that
the remainder of this lease shall not be affected thereby, and it is also the
intention of the parties of this lease that in lieu of each clause or provision
of this lease that is illegal, invalid or unenforceable, there be added as a
part of this lease contract a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
H. Because the premises are on the open market and are presently being
shown, this lease shall be treated as an offer with the premises being subject
to prior lease and offer subject to withdrawal or non-acceptance by Landlord or
to other use of the premises without notice, and this lease shall not be valid
or binding unless and until accepted by Landlord in writing and a fully executed
copy delivered to both parties hereto.
I. All references in this lease to "the date hereof" or similar references
shall be deemed to refer to the last date, in point of time, on which all
parties hereto have executed this lease.
24. Additional Provisions.
EXECUTED BY LANDLORD, this 14th day of March, 1997.
LANDLORD:
Attest/Witness OPUS EAST, L.L.C.
-----------------------------------
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
----------------------------------- -----------------------------------
Title: Vice President Title: President
----------------------------------- -----------------------------------
EXECUTED BY TENANT, this 10th day of March, 1997.
TENANT
Attest/Witness: Theal E. Mackey, Jr. MOHAWK INDUSTRIES, INC.
----------------------------------- -----------------------------------
/s/ Theal E. Mackey, Jr. By: /s/ [ILLEGIBLE]
----------------------------------- -----------------------------------
Title: Controller Title: Exec. V.P.
----------------------------------- -----------------------------------
<PAGE>
ADDENDUM TO LEASE
BY AND BETWEEN
OPUS EAST, L.L.C.
AND
MOHAWK INDUSTRIES, INC.
The printed part of the Lease Agreement is hereby modified and supplemented as
follows. Wherever there is any conflict between this Addendum and the printed
part of the Lease Agreement, the provisions of this Addendum are paramount and
the Lease Agreement shall be construed accordingly.
1. Insert the following language at the end of Section 1, as indicated:
"Termination. Tenant shall have the right to terminate this Lease
effective 12:01 a.m. local time on the first day of the eighty-fifth (85th) full
month of the Lease Term by providing Landlord with two hundred seventy (270)
days prior written notice. Upon such termination, each party shall be relieved
of its obligations to the other party hereunder, except with respect to
indemnifications by each party relating to events occurring during the Lease
term. It is understood that in the event of default, termination of the Lease
will not release Tenant from any obligation under the Lease. Upon such
termination, each party shall be relieved of its obligation to the other party
hereunder, except with respect to indemnification by each party relating to
events occurring during the Lease term, and any other matters which either
expressly or by their very nature survive termination."
2. Insert the following language where indicated in Section 2.A:
";and, for months forty-nine (49) through eighty-four (84) of the term
hereof at the rate of Sixty-Seven Thousand Eight Hundred Sixty and No/100
Dollars ($67,860.00) per month; and, for months eighty-five (85) through one
hundred twenty (120) of the term hereof at the rate of Seventy-Four Thousand One
Hundred and No/100 Dollars ($74,100.00) per month."
3. Insert the following language at the end of Section 5.C., as indicated:
"During the term, Tenant will pay as additional rent to Landlord Tenant's
proportionate share of common area expenses. The term "common area" shall mean
those areas and facilities which may be furnished from time to time by the
Landlord at or near the premises for the nonexclusive use of Landlord's tenants,
their officers, employees, invitees and customers. The term "common area
expense" shall include but not be limited to the total cost and expenses
incurred by the Landlord, including property management fees not to exceed 3% of
gross receipts from Tenant, landscaping maintenance, trash removal, exterior
painting, utility casts, snow removal, policing of the premises, Anne Arundel
County Fire Protection charge, and other costs of maintaining, repairing,
lighting and cleaning the common areas or any off-site easement areas to the
extent of any charges incurred by Landlord. Tenant agrees to pay its
proportionate share of the common area expenses within ten (10) days after
written request therefore by Landlord and Tenant further agrees that, in lieu
thereof, that upon prior request of the Landlord, Tenant will pay the same in
equal monthly installments as estimated in bills for each lease year with
appropriate adjustments being made at the end of each lease year. The Tenant's
proportionate share of common area expenses shall be one hundred percent (100%)
of the project.
Tenant acknowledges that the Premises are part of a larger development,
and that certain dues or assessments may be levied in connection with
maintenance and repair of signage serving the occupants of the development, as
the same may be erected from time to time. In the event any such signage is
erected and Tenant is included thereon, tenant shall be responsible for its
prorata share of costs related to the maintenance and repair of the signage"
<PAGE>
4. Insert the following language as Section 5F, as indicated:
"5.F. Landlord shall at its expense maintain only the roof, foundation and
the structural soundness of the exterior walls of the building in good repair,
reasonable wear and tear excepted. Tenant shall repair, and pay for any damage
caused by the negligence of Tenant, or Tenant's employees, agents or invitees,
or caused by Tenant's default hereunder. The term "walls" as used herein shall
not include windows, glass or plate glass, doors, special store fronts or office
entrys. Tenant shall immediately give Landlord written notice of defect or need
for repairs, after which Landlord shall have reasonable opportunity to repair
same or cure such defect. Landlord's liability with respect to any defects,
repairs or maintenance for which Landlord is responsible under any of the
provisions of this lease shall be limited to the cost of such repairs or
maintenance or the curing of such defect."
5. Insert the following language at the end of Section 11B of the Lease as
indicated:
"If during the last two (2) years of the Lease term the premises or a
substantial portion of the building in which the premises are located are
rendered substantially or wholly untenantable as a result of fire, the elements,
unavoidable accident or other casualty, Landlord shall have the option either to
restore the premises to their condition immediately prior to the casualty or to
terminate this Lease. In the event Landlord elects to terminate this Lease, such
option shall be exercised by Landlord by written notice to Tenant within ninety
(90) days after the fire, accident or casualty. In the event of such
termination, the rent reserved hereunder shall be adjusted as of the date of the
fire, accident or casualty."
6. Insert the following language where indicated in Section 12:
"Additionally, Tenant shall at its expense procure and maintain throughout
the Term the following insurance policies: (1) insurance covering the full value
of Tenant's property and improvements, and other property (including property of
others), in the Premises; (2) workman's compensation insurance, containing a
waiver of subrogation endorsement reasonably acceptable to Landlord, and (3)
business interruption insurance. Tenant's insurance shall provide primary
coverage to Landlord when any policy issued to Landlord provides duplicate or
similar coverage, and in such circumstance Landlord's policy will be excess over
Tenant's policy.
In addition, Tenant shall procure such other insurance and in such amounts
as may from time to time be reasonably required by Landlord, against other
insurable hazards which at the time are commonly insured against in the case of
premises and/or buildings or improvements similar in construction, design,
general location, use and occupancy to those on or appurtenant to the Premises.
The insurance set forth in Paragraphs 11 and 12 shall be maintained by
Tenant at not less than the limits set forth herein until reasonably required to
be changed from time to time by Landlord, in writing, whereupon Tenant covenants
to obtain and maintain thereafter such protection in the amount or amounts so
required by Landlord."
7. Insert the following language where indicated in Section 17 of the Lease:
"which may include all rental and other payments owed to Landlord
hereunder accrued to the date of termination plus an amount equal to the present
value of the total rental and other payments owed hereunder for the remainder of
the lease term."
8. Insert the following additional notice addresses in Section 22 as indicated:
"Additional notice addresses are as follows:
if to Landlord:
OPUS U.S. Corporation
700 Opus Center
9900 Bren Road
Minnetonka, MN 55343
Attn: Dan F. Nicol, Esquire
<PAGE>
if to Tenant:
Mohawk Industries, Inc.
2001 Antioch Road
Dalton, Georgia 30720
Attn: Jack Sharpe"
9. Insert the following language as Section 25 of the Lease:
"WAIVER OF TRIAL BY JURY. Landlord and Tenant hereby waive trial by jury
in any action, proceeding or counterclaim brought by either of the parties
hereto against the other with regard to any matter whatsoever arising out of, or
in any way connected with this Lease, the relationship of Landlord and Tenant
hereunder, Tenant's use or occupancy of the Leased Premise, and/or any claim of
injury or damage."
10. Insert the following language as Section 26 of the Lease:
"HAZARDOUS WASTE. The term "Hazardous Substances", as used in this lease
shall mean pollutants, contaminants, toxic or hazardous wastes, or any other
substances, the use and/or the removal of which is required or the use of which
is restricted, prohibited or penalized by any "Environmental Law," which term
shall mean any federal, state or local law, ordinance or other statute of a
governmental or quasi-governmental authority relating to pollution or protection
of the environment. Tenant hereby agrees that (i) no activity will be conducted
on the Premises that will produce any Hazardous Substance, except for such
activities that are part of the ordinary course of Tenant's business activities
(the "Permitted Activities") provided said Permitted Activities are conducted in
accordance with all Environmental Laws and have been approved in advance in
writing by Landlord; Tenant shall be responsible for obtaining any required
permits and paying any fees and providing any testing required by any
governmental agency; (ii) the Premises will not be used in any manner for the
storage of any Hazardous Substances except for the temporary storage of such
materials that are used in the ordinary course of Tenant's business (the
"Permitted Materials") provided such Permitted Materials are properly stored in
a manner and location meeting all Environmental Laws and approved in advance in
writing by Landlord; Tenant shall be responsible for obtaining any required
permits and paying any fees and providing any testing required by any
governmental agency, (iii) no portion of the Premises will be used as a landfill
or a dump; (iv) Tenant will not install any underground tanks of any type; (v)
Tenant will not allow any surface or subsurface conditions to exist or come into
existence that constitute, or with the passage of time may constitute public or
private nuisance; (vi) Tenant will not permit any Hazardous Substances to be
brought onto the Premises, except for the Permitted Materials described below,
and if so brought or found located thereon, the same shall be immediately
removed, with proper disposal, and all required cleanup procedures shall be
diligently undertaken pursuant to all Environmental Laws. Landlord or Landlord's
representative shall have the right but not the obligation to enter the Premises
for the purpose of inspecting the storage, use and disposal of Permitted
Materials to ensure compliance with all Environmental Laws. Should it be
determined, in Landlord's sole opinion, that said Permitted Materials are being
improperly stored, used, or disposed of, then Tenant shall immediately take such
corrective action as requested by Landlord. Should Tenant fail to take such
corrective action within 24 hours, Landlord shall have the right to perform such
work and Tenant shall promptly reimburse Landlord for any and all costs
associated with said work. If at any time during or after the term of the lease,
the Premises is found to be so contaminated or subject to said conditions,
Tenant shall diligently institute proper and thorough cleanup procedures at
Tenant's sole cost, and Tenant agrees to indemnify and hold Landlord harmless
from all claims, demands, actions, liabilities, costs, expenses, damages and
obligations of any nature arising from or as a result of the presence of
Hazardous Substances, to the extent caused by Tenant, its agents, employees,
contractors, invitees and the like. The foregoing indemnifications and the
responsibilities of Tenant shall survive the termination or expiration of this
Lease."
11. Insert the following language as Section 27 of the Lease:
"RENEWAL. Provided that this lease is in full force and effect and
provided that Tenant is not in default hereunder, (either at the time of the
giving of notice or at the time of the commencement of the renewal term) Tenant
(but no other person or entity, whether or not such person is a subtenant or
assignee of Tenant) shall be entitled to renew this lease for one (1) additional
term which is hereinafter referred to as "the Renewal Term") of five (5) years,
<PAGE>
commencing on the date on which (but for such renewal) the term would have
expired and terminating on the fifth (5th) anniversary of such date (which
anniversary shall, if this lease is so renewed, thereafter be the Termination
Date for all purposes of the provisions of this lease as applicable thereafter),
by and only by giving to the Landlord express, written notice of such renewal
not less than two hundred seventy (270) days before the date on which the
Renewal Term is to commence (in which event the Term shall automatically be
deemed to have been extended by the length of the Renewal Term, and all
reference to "the Term" in the provisions of this lease shall thereafter mean
the Term as so extended). All terms and conditions of this lease shall continue
in full force and effect, except that (i) the Monthly Base Rent during the
Renewal Term shall be the greater of (a) the fair market rent ("Market Rate")
for equivalent buildings in equivalent areas or (b) the rent in the last twelve
(12) months of the original term and (ii) Tenant shall have no further renewal
options.
Tenant and Landlord shall make an effort in good faith to agree on such
Market Rate. Any such determination of the Market Rate shall be for the period
of time during which such rent is to be in effect and not for the period of time
during which rental is being determined. In the event the Landlord and Tenant
are unable to agree upon the Market Rate within 30 days of Tenant's notice to
Landlord to renew, Landlord and Tenant shall each promptly appoint a real estate
appraiser who is a member of the American Institute of Real Estate Appraisers
(or its equivalent) to assist in the determination of the Market Rate, and the
two appraisers shall appoint a third appraiser who is also a member of the
American Institute of Real Estate Appraisers (or its equivalent). The
determination of the Market Rate by the agreement of any two of such three
appraisers shall be accepted by and binding upon Landlord and Tenant as the
Market Rate, which rate shall thereafter be payable until further adjustment as
provided hereunder. Landlord and Tenant will use all reasonable diligence to
cause their appointed appraisers to perform in good faith and in a timely manner
in order to make the determination of the Market Rate on or before the date on
which the Market Rate is to become effective. In the event such appraisers shall
not make such determination prior to the date on which the Market Rate is to
become effective, this Lease shall nevertheless continue in full force and
effect until such determination is made, and the rental for such period shall be
payable at the rate otherwise payable hereunder. Upon the determination by such
appraisers of the Market Rate, the payment of the Market Rate shall commence on
the first day of the month following the date of such determination, and in
addition to such monthly installment of rental, Tenant shall pay to Landlord the
increase in the rental payable hereunder, if any, applicable to the period from
the date on which the Market Rate was scheduled to become effective to the
payment of the first installment at the Market Rate. Landlord and Tenant shall
each bear the costs and fees of their respective appraisers and shall share
equally the cost of the third appraiser."
12. Insert the following language as Section 28 of the Lease:
"Landlord, at its sole cost and expense, shall improve the Premises in
accordance with the Plans and Specifications, drawings A1-A3, prepared by Robert
T. Hofmann & Associates dated February 17, 1997 which shall consist of the
following:
a) Minimum of twenty (20) dock doors (Series 426, 24 gauge sectional
steel with single lite or equal) equipped with manual edge of dock
plates and bumpers (MEOD 7220 or equal) and dock seals (TS183H or
Equal);
b) Metal halide light fixtures to provide 20 foot candles at floor
level in a vacant warehouse;
c) Approximately 8,000 square feet of office improvements built in
accordance with the schematic shown in Exhibit B herein; and
d) Up to $20,000 allowance for miscellaneous warehouse electric."
13. Insert the following language as Section 29 of the Lease:
"LIABILITY OF SHAREHOLDERS. Any obligation or liability whatsoever of the
Landlord (or Lessor) which may arise at any time under this Agreement or any
obligation or liability which may be incurred by it pursuant to any other
instrument, transaction or undertaking contemplated hereby shall be satisfied,
if at all, out of the Landlord's (or Lessor's) interest in the Premises and the
project which they form a part. No such obligations or liability shall be
personally binding upon nor shall resort for the enforcement thereof be had to
any other property of the Landlord (or Lessor) or the private property of any of
its Trust Property Managers,
<PAGE>
Shareholders, officers, employees or agents, regardless of whether such
obligations or liability is in the nature of contract, tort or otherwise."
14. Insert the following language as Section 30 of the Lease:
"Notwithstanding any provision of this Lease to the contrary, if this
Lease is entered into on or before March 14, 1997 and that certain Purchase and
Sale Agreement dated February 28, 1997 between Opus East, L.L.C. and Trammell
Crow NE, Inc. ("the Purchase Agreement") is subsequently terminated due to
either (i) Trammell Crow NE, Inc. not issuing the Affirmative Notice under
paragraph 5.1.1. of the Purchase Agreement or (ii) the failure of any other
Condition Precedent in subsection 5.3 of the Purchase Agreement to be satisfied
in accordance with the terms thereof, then this Lease shall automatically
terminate."
15. Insert the following language as Section 31 of the Lease:
"Landlord and Tenant represent to each other that they have not dealt with
any brokers in connection with this Lease other than CB Commercial, whose
commissions shall be paid by Landlord pursuant to separate agreements. Landlord
and Tenant shall indemnify and hold each other harmless against any claims for
brokerage or other commissions arising by reason of a breach of the aforesaid
representation and warranty."
16. Insert the following language as Section 32 of the Lease:
"This Lease shall be governed by and construed under the laws of the State
of Maryland, without reference to its conflicts of laws principles. Tenant
hereby consents to jurisdiction and venue in any court in the State of
Maryland."
<PAGE>
EXHIBIT A
BY AND BETWEEN
OPUS EAST L.L.C.
AND
MOHAWK INDUSTRIES, INC.
Lot 2-R, as shown on Administrative Plat recorded in Plat Book 190 at pages 27
and 28, being formerly part of Lot 2 and Reserved Parcel 3, PARK 100 INDUSTRIAL
DEVELOPMENT, Section 1, as shown on plat recorded in Plat Book 135 at pages 47
and 48 among the land records of Anne Arundel County, Maryland, and
Lots 41, 42, 43, 44, 51, 52 and 53 Block L, as shown on Plat entitled "ARUNDEL
MANOR", as recorded among the land records of Anne Arundel County, Maryland, in
Plat Book 15, Page 3.
[GRAPHIC]
<PAGE>
EXHIBIT B
BY AND BETWEEN
OPUS EAST L.L.C.
AND
MOHAWK INDUSTRIES, INC.
[GRAPHIC]
<PAGE>
EXHIBIT C
BY AND BETWEEN
OPUS EAST LL.C.
AND
MOHAWK INDUSTRIES, INC.
Current Rules and Regulations
1. The sidewalks in front of premises shall not be obstructed by the Tenant or
used for any purposes other than ingress and egress from and to the Tenant's
offices. Tenant shall remove promptly at its own expense, without the use of
chemical, any snow or other debris from the sidewalks in front of premises. The
Landlord shall in all cases retain the right to control or prevent access
thereto by any person whose presence, in the Landlord's judgment, would be
prejudicial to the safety, peace, character or reputation of the Building or of
any tenant of the Property.
2. The toilet rooms, water closets, sinks, faucets, plumbing and other service
apparatus of any kind shall not be used by the Tenant for any purpose other than
those for which they were installed, and no sweepings, rubbish, rags, ashes,
chemicals or other refuse or injurious substances shall be placed therein or
used in connection therewith by the Tenant.
3. No skylight, window, door or transom of the Building shall be covered or
obstructed by the Tenant, and no window shade, blind curtain, screen, storm
window, awning or other material shall be installed or placed on any window or
in any window space, except as approved in writing by the landlord. If the
Landlord has installed or hereafter installs any shade, blind or curtain in the
premises, the Tenant shall not remove it without first obtaining the Landlord's
written consent hereto.
4. No sign, lettering, insignia, advertisement, notice or other thing shall be
inscribed, painted, installed, erected or placed in any portion of the premises
which may be seen from outside the Building, or on any window, window space or
other part of the exterior or interior of the Building, unless first approved in
writing by the Landlord. Names on suite entrances shall be provided by and only
by the Landlord and at the Tenant's expense, using in each instance lettering of
a design and in a form consistent with the other lettering in the Building, and
first approved in writing by the Landlord. The Tenant shall not erect any stand,
booth or showcase or other article or matter in or upon the premises and/or the
Building without first obtaining the Landlord's written consent thereto.
5. The Tenant shall not place any additional lock upon the door within the
premises or elsewhere upon the Property without Landlord's written consent, and
shall surrender all keys or all such locks at the end of the Term. The Landlord
shall provide the Tenant with one set of keys to the premises when the Tenant
assumes possession thereof.
6. The Tenant shall not do or permit to be done anything which obstructs or
interferes with the rights of any other tenant of the Property. The Tenant shall
not keep anywhere within the Property any matter having an offensive odor, or
any kerosene, gasoline, benzine, camphene, fuel or other explosive or highly
flammable material. No bird, fish or other animal shall be brought into or kept
in or about the premises.
7. If the Tenant desires to install signaling, telegraphic, telephonic,
protective alarm or other wires, apparatus or devices within the premises, the
Landlord shall direct where and how they are to be installed and, except as so
directed, no installation, boring or cutting shall be permitted. The Landlord
shall have the right (a) to prevent or interrupt the transmission of excessive,
dangerous or annoying current of electricity or otherwise into or through the
Building or the premises, (b) to require compliance with such reasonable rules
as the Landlord may establish relating thereto, and (c) in the event of
noncompliance with such requirements or rules, immediately to cut wiring or do
whatever else it considers necessary to remove the danger,
<PAGE>
the number of the office to which such wire leads and the purpose for which it
is used, together with the names of the Tenant or other concern, if any,
operating or using it.
8. The Tenant shall have access to the premises at all reasonable times. The
Landlord shall in no event be responsible for admitting or excluding any person
from the premises. In case of invasion, hostile attack, insurrection, mob
violence, riot, public excitement or other commotion, explosion, fire or any
casualty, the Landlord shall have the right to bar or limit access to the
Building to protect the safety of occupants of the Property, or any property
within the Property.
9. Tenant and its employees, agents and invitees, shall observe and comply with
the driving and parking signs and markers on the premises surrounding the
Building.
10. The Landlord shall have the right to rescind, suspend or modify the Rules
and Regulations and to promulgate such other Rules or Regulations as, in the
Landlord's reasonable judgment, are from time to time needed for the safety,
care maintenance, operation and cleanliness of the Building, or for the
preservation of good order therein. Upon the Tenant's having been given notice
of the taking of any such action, the Rules and Regulations as so rescinded,
suspended, modified or promulgated shall have the same force and effect as if in
effect at the time at which the Tenant's lease was entered into (except that
nothing in the Rules and Regulations shall be deemed in any way to alter or
impair any provision of such lease).
11. The use of any room within the Building as sleeping quarters is strictly
prohibited at all times.
12. Nothing in these Rules and Regulations shall give any Tenant any right or
claim against the Landlord or any other person if the Landlord does not enforce
any of them against any other tenant or person (whether or not the Landlord has
the right to enforce them against such tenant or person), and no such
nonenforcement with respect to any tenant shall constitute a waiver of the right
to enforce them as to the Tenant or any other tenant person.
<PAGE>
SUBORDINATION NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance and Attornment Agreement (this
"Agreement") dated March 21, 1997, is made among Mohawk Industries, Inc., a
Delaware Corporation ("Tenant"), Opus East, L.L.C., a Delaware L.L.C.
("Landlord") and NationsBank, N.A., a national banking association
("Mortgagee").
WHEREAS, Mortgagee is the owner of a promissory note (herein, as it may
have been or may be from time to time renewed, extended, amended or
supplemented, called the "Note") dated 10-30-96, executed by Opus East, L.L.C.,
(the "Borrower") payable to the order of Mortgagee in the principal face amount
of $5,400,000, bearing interest and payable as therein provided, secured by,
among other things, a Deed of Trust (herein, as it may have been or may be from
time to time renewed, extended, amended or supplemented, called the "Mortgage"),
recorded in Volume 7660. Page 411, real property records of Anne Arundel County,
MD. covering, among other property, the land (the "Land") described in Exhibit
"A" which is attached hereto and incorporated herein by reference, and the
improvements ("Improvements") thereon (such Land and Improvements being herein
together called the "Property");
WHEREAS, Tenant is the tenant under a lease which, including all
amendments and supplements thereto, is described as follows: 187,200 SQUARE FEET
AT 1910 PARK 100 DRIVE (herein, as it may from time to time be renewed,
extended, amended or supplemented, called the "Lease"), covering a portion of
the Property (said portion being herein referred to as the "Premises"); and
WHEREAS, the term "Landlord" as used herein means the present landlord
under the Lease or, if the landlord's interest is transferred in any manner, the
successor(s) or assign(s) occupying the position of landlord under the Lease at
the time in question;
THEREFORE, in consideration of the mutual agreements herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Subordination. Tenant agrees and covenants that the Lease and the
rights of Tenant thereunder, all of Tenant's right, title and interest in and to
the property covered by the Lease, and any lease thereafter executed by Tenant
covering any part of the Property, are and shall be subordinate and inferior to
(a) the Mortgage and the rights of Mortgagee thereunder, and all right, title
and interest of Mortgagee in the Property, and (b) all other security documents
now or hereafter securing payment of say indebtedness of the Landlord (or any
prior landlord) to Mortgagee which cover or affect the Property (the "Security
Documents"). This Agreement is not intended and shall not be construed to
subordinate the Lease to any mortgage, deed of trust or other security document
other than those referred to in the preceding sentence, securing the
indebtedness to Mortgagee. Without limitation of any other provision hereof,
Mortgagee may, at its option and without joinder or further consent of Tenant,
Landlord, or anyone else, at any time after the date hereof subordinate the lien
of the Mortgage (or any other lien or security interest held by Mortgagee which
covers or affects the Property) to the Lease by executing an instrument which is
intended for that purpose and which specifies such subordination and, in the
event of any such election by Mortgagee to subordinate, Tenant will execute any
documents required to evidence such subordination; provided however,
notwithstanding that the Lease may by unilateral subordination by Mortgagee
hereafter be made superior to the lien of the Mortgage, the provisions of the
Mortgage relative to the rights of Mortgagee with respect to proceeds arising
from an eminent domain taking (including a voluntary conveyance by Landlord)
and/or insurance payable by reason of damage to or destruction of the Premises
shall be prior and superior to and shall control over any contrary provisions in
the Lease.
2. Non-Disturbance. Mortgagee agrees that so long as the Lease is in full
force and effect and Tenant is not in default in the payment of rent, additional
rent, or other payments or in the performance of any of the other terms,
covenants or conditions of the Lease on Tenant's part to be performed (beyond
the period, if any. specified in the Lease within which Tenant may cure such
default),
(a) Tenants possession of the Premises under the Lease shall not be
disturbed or interfered with by Mortgagee in the exercise of any of its
rights under the Mortgage, including any foreclosure or conveyance in lieu
of foreclosure, and
(b) Mortgagee will not join Tenant as a party defendant for the
purpose of terminating Tenant's interest and estate under the Lease in any
proceeding for foreclosure of the Mortgage.
3. Attornment.
(a) Tenant covenants and agrees that in the event of foreclosure of
the Mortgage, whether by power of sale or by court action, or upon a
transfer of the Property by conveyance in lieu of foreclosure (the
purchaser at foreclosure or the transferee in lieu of foreclosure,
including Mortgagee if it is such purchaser or transferee, being herein
called "New Owner"), Tenant shall attorn to the New Owner as Tenants new
landlord, and agrees that the Lease shall continue in full force and
effect as a direct lease between Tenant and New Owner upon all of the
terms, covenants, conditions and agreements set forth in the Lease and
this Agreement, except for provisions which are impossible for Mortgagee
to perform; provided, however, that in no event shall the New Owner be:
(i) liable for any act, omission, default, misrepresentation,
or breach of warranty, of any previous landlord (including Landlord)
or obligations accruing prior to New Owner's actual ownership of the
property;
(ii) subject to any offset, defense, claim or counterclaim
which Tenant might be entitled to assert against any previous
landlord (including Landlord);
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Page 1
<PAGE>
(iii) bound by any payment of rent, additional rent or other
payments, made by Tenant to any previous landlord (including
Landlord) for more than one (1) month in advance;
(iv) bound by any amendment, or modification of the Lease
hereafter made, or consent by any previous landlord (including
Landlord) under the Lease to any assignment or sublease hereafter
granted, without the written consent of Mortgagee; or
(v) liable for any deposit that Tenant may have given to any
previous landlord (including Landlord) which has nor, as such, been
transferred to New Owner.
(b) The provisions of this Agreement regarding attornment by Tenant
shall be self-operative and effective without the necessity of execution
of any new lease or other document on the part of any party hereto or the
respective heirs, legal representatives, successors or assigns of any such
party. Tenant agrees, however, to execute and deliver at any time and from
time to time, upon the request of Landlord or of any holder(s) of any of
the indebtedness or other obligations secured by the Mortgage, any
instrument or certificate which, in the reasonable judgement of Landlord
or of such holder(s), may be necessary or appropriate in any such
foreclosure proceeding or otherwise to evidence such attornment,
including, if requested, a new lease of the Premises on the same terms and
conditions as the Lease for the then unexpired term of the Lease.
4. Estoppel Certificate. Tenant agrees to execute and deliver from time to
time, upon the request of Landlord or of any holder(s) of any of the
indebtedness or other obligations secured by the Mortgage, a certificate
regarding the status of the Lease, consisting of statements, if true (or if not,
specifying why not), (a) that the Lease is in full force and effect, (b) the
date through which rentals have been paid, (c) the date of the commencement of
the term of the Lease, (d) the nature of any amendments or modifications of the
Lease, (e) that no default, or state of facts which with the passage of time or
notice (or both) would constitute a default, exists under the Lease, and (f)
such other matters as may be reasonably requested.
5. Acknowledgement and Agreement by Tenant. Tenant acknowledges and agrees
as follows:
(a) Tenant acknowledges that Landlord will execute and deliver to
Mortgagee in connection with the financing of the Property an Assignment
of Leases and Rents assigning absolutely the rent and all other sums due
under the Lease. Tenant hereby expressly consents to such absolute
assignment and agrees that such assignment shall, in all respects, be
superior to any interest Tenant has in the Lease or the Property, subject
to the provisions of this Agreement. Tenant will not amend, alter,
terminate, or waive any provision of, or consent to the amendment,
alteration, termination or waiver of any provision of the Lease without
the prior written consent of Mortgagee, and no termination of the Lease,
whether pursuant to the terms of the Lease or otherwise, will be effective
without the prior written consent of Mortgagee. Tenant shall not prepay
any rents or other sums due under the lease for more than one (1) month in
advance of the due date therefor. Tenant acknowledges that Mortgagee will
rely upon this instrument in connection with such financing.
(b) Mortgagee, in making any disbursements to Landlord, is under no
obligation or duty to oversee or direct the application of the proceeds of
such disbursements, and such proceeds may be used by Landlord for purposes
other than improvement of the Property.
(c) From and after the date hereof, in the event of any act or
omission by Landlord which would give Tenant the right, either immediately
or after the lapse of time, to terminate the Lease or to claim a partial
or total eviction, Tenant will not exercise any such right (i) until it
has given written notice of such act or omission to the Mortgagee; and
(ii) until the same period of time as is given to Landlord under the Lease
to cure such act or omission shall have elapsed following such giving of
notice to Mortgagee and following the time when Mortgagee shall have
become entitled under the Mortgage to remedy the same, but in any event 30
days after receipt of such notice or such longer period of time as may be
necessary to cure or remedy such default, act, or omission including such
period of time necessary to obtain possession of the Property and
thereafter cure such default, act, or omission, during which period of
time Mortgagee shall be permitted to cure or remedy such default, act, or
omission; provided, however, that Mortgagee shall have no duty or
obligation to cure or remedy any breach or default. It is specifically
agreed that Tenant stall not, as to Mortgagee, require cure of any such
default which is personal to Landlord and therefore not susceptible to
cure by Mortgagee.
(d) In the event that Mortgagee notifies Tenant of a default under
the Mortgage, Note, or Security Documents and demands that Tenant pay its
rent and all other sums due under the Lease directly to Mortgagee, Tenant
shall honor such demand and pay the full amount of its rent and all other
sums due under the Lease directly to Mortgagee or as otherwise required
pursuant to such notice beginning with the payment next due after such
notice of default, without inquiry as to whether a default actually exists
under the Mortgage, Security Documents or otherwise in connection with the
Note, and notwithstanding any contrary instructions of or demands from
Landlord.
(e) Tenant shall send a copy of any notice or statement under the
Lease to Mortgagee at the same time such notice or statement is sent to
Landlord.
(f) Tenant has no right or option of any nature whatsoever, whether
pursuant to the Lease or otherwise, to purchase the Premises or the
Property, or any portion thereof or any interest therein, and to the
extent that Tenant has had, or hereafter acquires, any such right or
option, same is hereby acknowledged to be subject and subordinate to the
Mortgage and is hereby waived and released as against Mortgagee.
(g) This Agreement satisfies any condition or requirement in the
Lease relating to the granting of a non-disturbance agreement and Tenant
waives any requirement to the contrary in the Lease.
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Page 2
<PAGE>
(h) Mortgagee and any New Owner shall have no liability to Tenant or
any other party for any conflict between the provisions of the Lease and
the provisions of any other lease affecting the Property, including, but
not limited to, any provisions relating to exclusive or non-conforming
uses or rights, renewal options and options to expand, and in the event of
such a conflict, Tenant shall have no right to cancel the Lease or take
any other remedial action against Mortgagee or New Owner, or against any
other party for which Mortgagee or any New Owner would be liable.
(i) Mortgagee and any New Owner shall have no obligation nor incur
any liability with respect to the erection or completion of the
improvements in which the Premises are located or for completion of the
Premises or any improvements for Tenant's use and occupancy, either at the
commencement of the term of the Lease or upon any renewal or extension
thereof or upon the addition of additional space, pursuant to any
expansion rights contained in the Lease.
(j) Mortgagee and any New Owner shall have no obligation nor incur
any liability with respect to any warranties of any nature whatsoever,
whether pursuant to the Lease or otherwise, including, without limitation,
any warranties respecting use, compliance with zoning, Landlord's title,
Landlord's authority, habitability, fitness for purpose or possession.
(k) In the event that Mortgagee or any New Owner shall acquire title
to the Premises or the Property, Mortgagee or such New Owner shall have no
obligation, nor incur any liability, beyond Mortgagee's or New Owners then
equity interest, if any, in the Property or the Premises, and Tenant shall
look exclusively to such equity interest of Mortgagee or New Owner, if
any, for the payment and discharge of any obligations imposed upon
Mortgagee or New Owner hereunder or under the Lease or for recovery of any
judgment from Mortgagee, or New Owner, and in no event shall Mortgagee,
New Owner, nor any of their respective officers, directors, shareholders,
agents, representatives, servants, employees or partners ever be
personally liable for such judgement.
(l) Nothing heroin contained is intended, nor shall it be construed,
to abridge or adversely affect any right or remedy of Landlord under the
Lease in the event of any default by Tenant in the payment of rent and/or
any other sums due under the Lease or in the performance of any of the
other terms, covenants or conditions of the Lease on Tenant's part to be
performed.
(m) Landlord has not agreed to any abatement of rent or other sums
or period of "free rent" for the Premises unless same is specifically
provided in the Lease, and Tenant agrees that in the event Mortgagee, or
any New Owner becomes the owner of the Property, no agreement for
abatement of rent or any other sum not specifically provided in the Lease
will be binding on Mortgagee or New Owner.
(n) Tenant has never permitted, and will not permit, the generation,
treatment, storage or disposal of any hazardous substance as defined under
federal, state, or local law, on the Premises or Property except for such
substances of a type and only in a quantity normally used in connection
with the occupancy or operation of buildings (such as non-flammable
cleaning fluids and supplies normally used in the day to day operation of
first class industrial building, which substances are being held, stored,
and used in strict compliance with federal, state, and local laws. Tenant
shall be solely responsible for and shall reimburse Landlord for any loss,
liability, claim or expense, including without limitation, cleanup and all
other expenses, that Landlord may incur by reason of Tenant's violation of
the requirements of this Paragraph 5(n).
6. Acknowledgement and Agreement by Landlord. Landlord, as landlord under
the Lease and grantor under the Mortgage, acknowledges and agrees for itself and
its heirs, representatives, successors and assigns, that: (a) this Agreement
does not constitute a waiver by Mortgagee of any of its rights under the
Mortgage, Note, or Security Documents, or in any way release Landlord from its
obligations to comply with the terms, provisions, conditions, covenants,
agreements and clauses of the Mortgage, Note, and Security Documents; (b) the
provisions of the Mortgage, Note, or Security Documents remain in full force and
effect and must be complied with by Landlord; and (c) Tenant is hereby
authorized to pay its rent authorized and all other sums due under the Lease
directly to Mortgagee upon receipt of a notice as set forth in paragraph 5(d)
above from Mortgagee and that Tenant is not obligated to inquire as to whether a
default actually exists under the Mortgage, Security Documents or otherwise in
connection with the Note. Landlord hereby releases and discharges Tenant of and
from any liability to Landlord resulting from Tenant's payment to Mortgagee in
accordance with this Agreement. Landlord represents and warrants to Mortgagee
that a true and complete copy of the Lease has been delivered by Landlord to
Mortgagee.
7. Lease Status. Landlord and Tenant certify to Mortgagee that neither
Landlord nor Tenant has knowledge of any default on the part of the other under
the Lease, that the Lease is bona fide and contains all of the agreements of the
parties thereto with respect to the letting of the Premises and that all of the
agreements and provisions therein contained are in full force and effect.
8. Notices. All notices, requests, consents, demands and other
communications required or which any party desires to give hereunder shall be in
writing and shall be deemed sufficiently given or furnished if delivered by
personal delivery, by telegram, telex, or facsimile, by expedited delivery
service with proof of delivery, or by registered or certified United States
mail, postage prepaid, at the addresses specified at the end of this Agreement
(unless changed by similar notice in writing given by the particular party whose
address is to be changed). Any such notice or communication shall be deemed to
have been given either at the time of personal delivery or, in the case of
delivery service or mail, as of the date of first attempted delivery at the
address and in the manner provided herein, or, in the case of telegram, telex or
facsimile, upon receipt. Notwithstanding the foregoing, no notice of change of
address shall be effective except upon receipt. This Paragraph 8 shall not be
construed in any way to affect or impair any waiver of notice or demand provided
in this Agreement or in the lease or in any document evidencing, securing or
pertaining to the loan evidenced by the Note or to require giving of notice or
demand to or upon any person in any situation or for any reason.
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Page 3
<PAGE>
9. Miscellaneous.
(a) This Agreement supersedes any inconsistent provision of the
Lease.
(b) Nothing contained in this Agreement shall be construed to
derogate from or in any way impair or affect the lien, security interest
or provisions of the Mortgage, Note, or Security Documents.
(c) This Agreement shall inure to the benefit of the parties hereto,
their respective successors and permitted assigns, and any New Owner, and
its heirs, personal representatives, successors and assigns; provided,
however, that in the event of the assignment or transfer of the interest
of Mortgagee, all obligations and liabilities of the assigning Mortgagee
under this Agreement shall terminate, and thereupon all such obligations
and liabilities shall be the responsibility of the party to whom
Mortgagee's interest is assigned or transferred; and provided further that
the interest of Tenant under this Agreement may not be assigned or
transferred without the prior written consent of Mortgagee.
(4) THIS AGREEMENT AND ITS VALIDITY, ENFORCEMENT AND INTERPRETATION
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND AND APPLICABLE
UNITED STATES FEDERAL LAW EXCEPT ONLY TO THE EXTENT, IF ANY THAT THE LAWS
OF THE STATE IN WHICH THE PROPERTY IS LOCATED NECESSARILY CONTROL.
(e) The words "herein", "hereof", "hereunder" and other similar
compounds of the word "here" as used in this Agreement refer to this
entire Agreement and not to any particular section or provision.
(f) This Agreement may not be modified orally or in any manner other
than by an agreement in writing signed by the parties hereto or their
respective successors in interest.
(g) If any provision of the Agreement shall be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not apply to or affect any other provision hereof,
but this Agreement shall be construed as if such invalidity, illegality,
or unenforceability did not exist.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
ADDRESS OF MORTGAGEE: MORTGAGE:
10 Light Street NATIONSBANK, N.A.
Baltimore, Maryland 21202
Real Estate Finance Group By: /s/ Mindy Fang
Attention: Mindy Fang ------------------------------------
Name: Mindy Fang
Title: Vice President
ADDRESS OF TENANT: TENANT:
1910 PARK 100 DRIVE MOHAWK INDUSTRIES, INC.
GLEN BURNIE, MARYLAND 21061
Attention: LARRY MORRIS By: /s/ S.H. Sharpe
------------------------------------
Name: S.H. Sharpe
Title: Exec. V.P.
ADDRESS OF LANDLORD: LANDLORD:
c/o Opus East, L.L.C. Opus East, L.L.C.
6707 Democracy Boulevard
Suite 510 By: /s/ Joseph J. Rauenhorst
Bethesda, Maryland 20817 ------------------------------------
Attention: Joseph J. Rauenhorst Name: Joseph J. Rauenhorst
Title: PRESIDENT
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Page 4
<PAGE>
GUARANTOR'S CONSENT
_________________, guarantor of the Lease, signs below to express its
consent to the foregoing Agreement and its agreement that its guaranty of the
Lease is and shall remain in full force and effect.
--------------------------------------
By:
----------------------------------
Title:
-------------------------------
STATE OF MARYLAND
CITY OF BALTIMORE
This instrument was acknowledged before on March 21st, 1997, by Mindy Fang
of NationsBank, a national banking association, on behalf of said association.
/s/ Marcia L. Simpson
--------------------------------------
Notary Public, State of Maryland
My Commission Expires:
Aug. 3, 1998 Marcia L. Simpson
--------------------------------------
Printed Name of Notary Public
STATE OF GEORGIA
CITY OF WHITFIELD
This instrument was acknowledged before me on MARCH 14, 1997 by S.H.
Sharpe of [Tenant] Executive Vice President, on behalf of said MOHAWK INDUSTR.
/s/ Cheryl W. Lindsey
--------------------------------------
Notary Public, State of GEORGIA
My Commission Expires:
Notary Public, Whitfield County, Georgia
My Commission Expires January 19, 1998
Cheryl W. Lindsey
--------------------------------------
Printed Name of Notary Public
STATE OF MARYLAND
CITY OF MONTGOMERY
This instrument was acknowledged before me on THE 19TH OF MARCH, 1997, by
JOSEPH J. RAUENHORST of [Landlord] President, a _____________ on behalf of said
OPUS EAST, L.L.C.
/s/ Diane B. Defibaugh
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Notary Public, State of Maryland
My Commission Expires:
October 25, 1999
Diane B. Defibaugh
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Printed Name of Notary Public
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE LAND
Lot 2-R, as shown on Administrative Plat recorded in Plat Book 190 at pages 27
and 28, being formerly part of Lot 2 and Reserved Parcel 3, PARK 100 INDUSTRIAL
DEVELOPMENT, Section 1, as shown on plat recorded in Plat Book 135 at pages 47
and 48 among the land records of Anne Arundel County, Maryland, and
Lots 41, 42, 43, 44, 51, 52 and 53 Block L, as shown on Plat entitled "ARUNDEL
MANOR", as recorded among the land records of Anne Arundel County, Maryland, in
Plat Book 15, Page 3.
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
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STATE OF _______ ss.
ss.
COUNTY OF ______ ss.
This instrument was acknowledged before me on ____________, 19__, by
__________________________ of [Guarantor]____________, a ______________________,
on behalf of said _____________.
______________________________________
Notary Public, State of ______________
My Commission Expires:
______________________
______________________________________
Printed Name of Notary Public
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
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