STATE OF NORTH CAROLINA
LEASE
COUNTY OF MECKLENBURG
THIS LEASE AGREEMENT, made and entered into this 18th day of December,
1995, by and between CTHL PROPERTIES hereinafter called "Lessor"), and Xxxxxx
Xxxx Xxxxx Inc. an Iowa corporation, (hereinafter called "Lessee");
WITNESSETH:
1. Demise of Premises. Lessor leases unto Lessee the premises
(hereinafter called "Premises") located in Mecklenburg County, North Carolina,
and being a portion of the real property and improvements thereon known as 0000
Xxxxxx Xxxxxx. The premises consists of approximately 10,000 square feet.
2. Term. The term of this Lease Agreement shall be for a period of ten
years, to commence on the 1st day of January, 1996 and to terminate on the 31st
day of December, 2005.
3. Rentals. Lessee shall pay rentals to Lessor at the rate of $3,500.00
per month. The first such payment shall cover the first full calendar month of
the lease term and any fractional portion of the preceding month of the lease
term and shall be payable in advance prior to the commencement of such term. All
subsequent rental installments shall be paid on or before the first day of each
calendar month.
A late payment of two percent (2%) of the amount due will be assessed
Lessee for any rent payment not received within ten (10) days of due date.
4. Security Deposit. The Lessor acknowledges receipt of $7,000.00 paid
by the Lessee as a non-interest-bearing security deposit. Upon termination of
this lease by either party hereto, the Lessor will refund the said security
deposit to the Lessee subject to the following adjustments thereto:
(a) Lessor shall deduct any rent owed to the Lessor by the Lessee;
(b) Lessor shall deduct any funds expended by the Lessor during the
period of occupancy by the Lessee or after the termination of the Lessee's
occupancy to place or maintain the Premises in the condition it was in at the
initial date of occupancy by the Lessee, ordinary wear and tear expected.
(c) If the Lessee fails to occupy the premises for the full term of the
lease, the deposit
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will be forfeited in full.
5. Use of Premises. Lessee will use the Premises for Office/Warehouse.
Lessee agrees that the Premises will be used for no other purpose without
Lessor's consent in writing.
6. Acceptance of Premises. Lessee acknowledges that the act of taking
possession to the Premises shall constitute acceptance thereof and conclusive
evidence that Lessee has inspected and examined the entire Premises and utility
installations and that the same were, and are, in good and satisfactory
condition.
7. Assignment or Subletting. Lessee shall not have the right to assign
the within Lease or to sublet the Premises, in whole or in part, without the
prior written consent of Lessor which will not be unreasonably withheld. Passage
of control of any Lessee which is a corporation to parties other than those who
presently control Lessee shall constitute an assignment of this Lease. However,
so long as Lessee's current shareholders in the aggregate hold a majority of
Lessee's voting stock, as assignment shall not be deemed to occur under the
preceding sentence.
8. Compliance with Legal Requirements. Lessee shall comply with all
legal requirements of any governmental or quasi-governmental body including
City, County, State or Federal boards having jurisdiction thereof, respecting
any operation conducted or any equipment, installations, or other property
placed upon, in, or about the Premises. Lessee shall neither create nor permit
the creation of any nuisance upon, in, or about the Premises, and Lessee shall
not make any offensive use thereof.
9. Fire and Casualty Insurance. Lessor shall carry at Lessee's expense
fire insurance with extended coverage insuring Lessor against loss or damage to
the buildings or other improvements located on the Premises. Lessee's expense
shall be pro-rated to be 50 percent of the annual premium for this insurance
coverage. Lessee, at Lessee's own expense shall be responsible for procuring any
insurance coverage Lessee desires insuring Lessee against loss or damage to
Lessee's furnishings, fixtures, inventory, equipment, and other property
situated or placed upon, in, or about the Premises with companies and in amounts
acceptable to Lessor.
10. Taxes and Assessments. Lessee shall pay all city, county or other
ad valorem taxes or assessments levied upon the real property. The Lessee's
pro-rated share for this tax property shall be 50 percent of the annual tax
xxxx. Lessee shall pay any ad valorem taxes or assessments levied upon Lessee's
personal property installed or located on the premises.
11. Utilities. Lessee at its expense shall provide all utilities.
12. Additions, Alterations, Changes, and Improvements. Lessee shall not
make and shall not have the right to make any alterations, changes or
improvements, structural or otherwise, in or to the Premises without Lessor's
prior written consent, which will not be unreasonably withheld, provided that if
such consent is given, all such alterations, changes and improvements shall be
promptly made in a workmanlike manner, be promptly paid for allowing no liens to
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attach either to the Premises or to Lessee's interest therein and shall become
the property of Lessor at the termination of this Lease Agreement. Lessor shall
have the right to require Lessee to provide such assurances as Lessor shall
reasonably require (such as bonds, escrows, etc.) to protect Lessor against
unpaid work
13. Repairs. Lessor, at its own expense, shall repair, maintain, and
replace as necessary the exterior and structural portions of the Premises
(including without limitation foundation, building floors and supporting walls).
Lessee agrees that it will be responsible for all interior maintenance to the
Premises, including the mechanical, plumbing, heating, air conditioning,
ventilating and electrical equipment and systems, and all other fixtures and
grounds maintenance, and the roof. All repairs shall be performed in a prompt,
workmanlike manner, and no liens shall be allowed to attach either to the
Premises or lessee's interest therein.
14. Safe and Sanitary Condition. Lessee shall not permit, allow, or
cause any act or deed to be performed upon, in, or about the Premises which
shall cause or be likely to cause injury to any person or to the Premises, the
building or improvements located thereon, or to any adjoining property. Lessee
shall at all times keep the Premises in a neat and orderly condition and keep
the Premises and the entryways, parking areas, sidewalks, and delivery areas (if
any) adjoining the Premises clean and free from rubbish, dirt, snow, standing
water and ice.
15. Trade Fixtures. Lessee shall be permitted to install trade fixtures
on the Premises. In addition, Lessee shall be permitted to remove said trade
fixtures from the Premises upon the termination of this Lease Agreement,
provided that if Lessee does so remove such trade fixtures, Lessee shall return
the Premises to the same condition as existed at the time of original entry,
ordinary wear and tear expected. This provision is not intended to allow Lessee
to remove approved improvements made by Lessee to the premises. All such
improvements belong to Lessor at the termination hereof and shall not be removed
nor damaged by Lessee's removal of trade fixtures. If Lessee does not remove the
trade fixtures at termination, Lessor shall have the option either to declare
such fixtures abandoned and Lessor the owner thereof or to demand Lessee remove
same at Lessee's expense, returning the Premises to the condition required
herein.
16. Lessor Not Liable for Damages or Injuries. Lessor shall not be
responsible to Lessee or to any other person, firm, partnership, association, or
corporation for damages or injuries by virtue of or arising out of busted water
pipes, leaks from sprinkler or air conditioning systems, leaks from the roof, or
by virtue of earthquakes, riots, windstorms, overflow of water from surface
drainage, rains, water, fire, or by the elements or acts of God or by the
neglect of any person, firm, partnership, association, or corporation, except
that Lessor shall be responsible for, and shall indemnify Lessee from and
against any such damages or injuries caused by acts or omissions of Lessor or
Lessor's agents. Lessee shall indemnify and hold Lessor harmless from any and
all claims for damages to person or property to the full extent permitted by
law, except to the extent such damages are caused by acts or omissions of Lessor
or Lessor's agents.
17. Indemnification and Liability Insurance. Lessee covenants to
indemnify and hold Lessor harmless from the claims of any and all persons,
firms, partnerships, associations and
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corporations for personal injury or damage to property or both arising out of or
in connection with Lessee's use and/or occupancy of the Premises. In addition,
Lessee shall carry public liability insurance in the minimum amount of
$500,000.00 for death or bodily injury to one person and $1,000,000.00 for death
or injury to two or more persons plus $100,000.00 property damage per
occurrence, and Lessee shall deliver to Lessor memorandum policies of such
coverage with companies satisfactory to Lessor and naming Lessor as additional
insured therein, prior to the time of taking possession of the Premises.
18. Fire or Casualty. If the Premises shall be partially or completely
damaged or destroyed by fire or other casualty, Lessor or Lessee shall have the
right to terminate this Lease Agreement, if the damage cannot be reasonably
repaired within a period of one hundred twenty (120) days to substantially the
same condition as the same shall have enjoyed prior to such damage. Such right
of termination must be exercised within 30 days of damage occurrence. If said
option to terminate is not exercised by either party, Lessee shall, as soon as
reasonably possible, effect the required repairs and reconstruction of the
Premises to place them in substantially the same condition as existed
immediately prior to such damage or destruction but during such time as said
repairs or reconstruction are being made, the rentals hereinabove provided shall
not xxxxx.
19. Waiver of Subrogation. Neither Lessee nor anyone claiming by,
through, under, or in Lessee's behalf shall have any claim, right of action, or
right of subrogation against the Lessor for or based upon any loss or damage
caused by fire, explosion, or other casualty (not limited to the foregoing)
relating to the Premises or to any property upon, in, or about the Premises
whether such fire, explosion, or other casualty shall arise from the negligence
of Lessor, its agents, representatives or employees, or otherwise.
20. Condemnation. In the event that the whole or any part of the
Premises shall be taken (or transfer is made under threat of condemnation) by
any authority under the power of eminent domain, Lessor shall have the option to
terminate this Lease Agreement, but notwithstanding whether Lessor exercises
such option, the Term hereof shall terminate as to the part of the Premises
taken, effective as of the date of possession thereof shall be required to be
delivered pursuant to the final order, judgment, or decree entered in the
exercise of such power. All damages or awards for any taking of the Premises or
part thereof or of Lessee's interest therein or in this Lease or in any
leasehold improvements or fixtures shall be payable in full to Lessor and shall
be the property of Lessor. Interest therein shall be negotiated with the Lessee.
21. Subordination to Mortgages. This Lease Agreement and the rights of
Lessee are subordinate to and shall be subordinate to the lien of any mortgage
or deed of trust (hereinafter called "Mortgage"), whether such Mortgage is
currently a lien on the Premises or hereafter becomes a lien on the Premises and
no further agreements or documents shall be required to render this Lease and
the Lessee's rights subordinate to such Mortgage. At Lessee's request and at
Lessee's expense, Lessor shall endeavor to obtain for Lessee a non-disturbance
agreement in recordable form providing in substance that Lessee's tenancy shall
not be disturbed nor affected by any default under the Mortgage provided the
Lessee is not in default under any of the terms,
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conditions and covenants hereof. Lessee shall at all times upon request of
Lessor promptly furnish documents stating that this Lease is in full force and
effect, that no defaults of the Lessor exists, and such other matters as are
customarily contained in what is known as an "estoppel letter" or a
"good-standing letter". Should Lessee fail to deliver such documents within 10
days of Lessor's request therefor, Lessor shall be deemed Lessee's attorney in
fact for the purpose of executing such documents in the name of Lessee.
22. Inspection. Lessor shall have the right at all reasonable times to
enter and inspect the Premises.
23. Condition of Premises Upon Termination. Upon the termination of
this Lease Agreement, Lessee shall return the Premises to Lessor substantially
in the same condition as received, ordinary wear and tear and approved
improvements excepted.
24. Holding Over. In the event Lessee remains in possession after the
expiration of the Term without the execution of a new lease, Lessee shall not
acquire any right title, or interest in or to the Premises. In such event,
Lessee shall occupy the Premises as a tenant from month-to-month at double the
then current rent and shall otherwise be subject to all of the conditions,
provisions, and obligations of this Lease Agreement insofar as the same shall be
applicable.
25. Default.
(a) Any one and all of the following events shall constitute an Event
of Default:
(i) if Lessee files a petition in bankruptcy or insolvency
or for reorga nizatio n under any bankru ptcy act or
voluntarily takes advant age of any such act or makes
an assign ment for the benefit of creditors;
(ii) if voluntary proceedings under any bankruptcy law,
insolvency, receivership action shall be instituted
against Lessee, or if a receiver or trustee shall be
appointed for all or substantially all of the property
of Lessee and such proceedings are not dismissed or the
receivership or trusteeship vacated, within ten (10)
days after the institution or appointment;
(iii) if Lessee fails to pay any sum due from it in strict
accordance with the provisions of this Lease and does
not make the payment within ten (10) days after written
notice thereof. For the purpose hereof, all sums due
from Lessee shall constitute rentals whether
denominated as rentals or otherwise elsewhere herein;
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(iv) if Lessee fails to fully perform and comply with each
and every condition and covenant of this Lease
Agreement, and such failure of performance continues
for a period of ten (10) days after notice thereof;
(v) if Lessee vacates or abandons the Premises;
(vi) if the interest of Lessee is transferred, levied upon,
or assigned to any other person, firm, or corporation,
whether voluntarily or involuntarily, except as herein
permitted;
(vii) if Lessor, in any three months of any lease year, gives
any notice to Lessee pursuant to subparagraphs (iii) or
(iv) above, notwithstanding Lessee's cure of default
within the allowable period or periods.
(b) Upon the occurrence of any Event of Default as set forth above,
Lessor shall have the right, at its option, to utilize any one or
more of the following rights:
(i) to cancel and terminate this Lease Agreement and all
interest of the Lessee hereunder by giving notice of
such cancellation and termination not less than ten
(10) days prior to the effective date of such
termination. Upon the expiration of said ten (10) day
period the Lessee shall have no other rights under this
Lease Agreement (but such cancellation shall not serve
to release or discharge the damages Lessee owes ro
Lessor); and/or
(ii) to make any payment required of Lessee herein or
correct any condition required to be corrected by
Lessee, and Lessor shall have the right to enter the
Premises for the purpose of correcting any such
condition and to remain on the Premises until the
complete correction of such condition. However, no
expenditure by Lessor on behalf of Lessee shall be
deemed to waive or release Lessee's breach hereof and
Lessor shall retain all rights to proceed against
Lessee as set forth herein; and/or
(iii) to re-enter the Premises immediately with or without
order of court and without being guilty of trespass
remove the property and personnel of Lessee and store
such property in a public warehouse or such other
location selected by Lessor, all at the expense of
Lessee. However, the right of re-entry shall accrue
after the Lessee has provided a 10-day notice to cure
the default via certified mail. After such re-entry,
Lessor shall have the right to terminate this
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Lease Agreement by giving ten (10) days notice of
termination to Lessee, but without such notice, the
re-entry by Lessor shall not terminate this Lease
Agreement. On termination, Lessor may recover from
Lessee all damages resulting from Lessee's breach,
including the cost of recovery of the Premises and
placing them in satisfactory condition, the value of
the balance of this Lease over the reasonable rental
value of the Premises for the remainder of the Term,
all of which sums shall be immediately payable to
Lessor from Lessee; and/or
(iv) to relet the Premises or any part thereof for any term,
with or without terminating the Lease, and at such
rentals and on such other terms as Lessor may elect,
including the right to grant free rental, and to alter
and repair the Premises as Lessor deems necessary.
Should Lessor relet the Premises, Lessee shall pay all
expenses of reletting, including broker's or finders'
fees and such reasonable attorneys' fees as Lessor may
incur. Lessor shall apply the rent received from
reletting in the following order: (1) to expenses of
reletting; (2) to sums due from Lessee other than sums
denominated in Section 3 above as rentals; and (3) to
sums denominated as rental in Section 3 above
previously due; and (4) to sums which were to become
due in the future; and/or
(v) to accelerate the rentals with or without entry; and/or
(vi) all other rights and remedies provided by law to a
Lessor with a defaulting lessee, including all such
money damages as Lessor shall be entitled pursuant to
the law of damages.
(c) In the event of any conflict between any of the provisions hereof
regarding the amount of time that must elapse after notice before
the same constitutes an Event of Default whereby Lessor may
exercise its rights pursuant to Section 25(b), the provisions
establishing the least amount of time after notice shall prevail.
(d) Upon any breach hereof, regardless of whether such breach is, or
becomes, an Event of Default, Lessor shall be reimbursed by Lessee
for any reasonable attorney's fees incurred by Lessor in
connection with such breach.
26. Waiver. No failure by Lessor to exercise any rights hereunder to
which Lessor may be entitled shall be deemed a waiver of Lessor's right to
subsequently exercise same. Lessee shall gain no rights nor become vested with
any power to remain in default under the terms hereof by
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virtue of Lessor's failure to timely assert these rights. No acceleration of
rentals, regardless of how often occurring, which Lessor chooses to ignore by
thereafter accepting rental or other performance by Lessee shall constitute a
waiver of the right to thereafter accelerate rentals.
27. Law Applicable. This Lease is entered into in North Carolina and
shall be construed under the laws, statutes, and ordinances of such
jurisdiction.
28. Severability. The provisions hereof are independent covenants and
should any provision or provisions contained in this Lease be declared by a
court or other tribunal of competent jurisdiction to be void, unenforceable, or
illegal, then such provision or provisions shall be severable and the remaining
provisions hereof shall remain at Lessor's option in full force and effect.
29. Stamp Tax or Sales Tax on Lease. Should a governmental authority
having jurisdiction over the Premises declare or otherwise assess any tax or
leases or leaseholds, whether designated as a stamp tax, sales tax, or
otherwise, then in any such events, all taxes so declared or charged shall be
the obligation of the Lessee and shall be paid by Lessee to such authority or
shall be promptly paid to Lessor in reimbursement and as additional rental.
30. Easements, Restrictions, and Rights-of-Way. The Premises are
demised subject to all easements, restrictions, and rights-of-way legally
affecting the Premises.
31. Binding Effect and Complete Terms. The terms, covenants,
conditions, and agreements herein contained shall be binding upon and inure to
the benefit of and shall be enforceable by Lessor and Lessee and by their
respective heirs, successors and assigns. All negotiations and agreements of
Lessor and Lessee are merged herein. No modification hereof or other purported
agreement of the parties shall be enforceable unless the same is in writing and
signed by the Lessor and Lessee.
32. Notices and Written Consents. All notices and written consents
required under this Lease shall be in writing and shall only be deemed properly
served if mailed by certified United States Mail, postage prepaid return receipt
requested, addressed to the party to whom directed at the following address or
at such other address as may be from time to time designated in writing:
To Lessor: Xxxx X. Xxxxxx, Partner
CTHL PROPERTIES
Xxxx Xxxxxx Xxx 00000
Xxxxxxxxx, XX 00000
To Lessee: Xxxxxx Xxxx Xxxxx Inc.
000Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
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Notices shall be deemed served upon mailing.
33. Rental Payments. All rental payments, unless otherwise designated
in writing, shall be made to Lessor at the above address.
34. Lessor's Performance of Lessee's Covenants. Should Lessee, after
seven (7) days notice from the Lessor, fail to do any of the things required to
be done by it under the provisions of this Lease, Lessor, in addition to any and
all other rights and remedies, may (but shall not be required to) do the same or
cause the same to be done; and the reasonable amount of any money expended by
Lessor in connection therewith shall constitute additional rental due from
Lessee to Lessor and shall be payable as rental on the date for payment of
rentals immediately following such expenditure.
35. Covenant of Title and Quiet Environment. Lessor covenants and
warrants to Lessee that Lessor has full right and lawful authority to enter into
this lease for the Term hereof and that provided Lessee is not in default
hereunder, Lessee's quiet and peaceable enjoyment of the Premises shall not be
disturbed by anyone claiming through Lessor.
36. Lessor's Liability. Notwithstanding anything to the contrary
herein, Lessee agrees that it shall look solely to Lessor's interest in the
Premises and to any liability insurance coverage maintained by Lessor for the
collection or satisfaction of any judgment or other judicial process requiring
the payment of money by Lessor for any breach or default by Lessor of any of its
obligations under this Lease. No other assets of Lessor shall be subject to
levy, execution or other judicial process for the satisfaction of Lessee's
claim.
37. Interest. Any sums due to be paid by Lessee to or for the benefit
of Lessor which are not paid when due shall bear interest from the due date of
the date of payment at the highest rate allowed by law or if no such rate is
numerically defined, then at the rate of eighteen percent (18%) per annum.
38. Construction. This Lease shall not be construed more strictly
against either party regardless of which party is responsible for the
preparation of the same.
39. Memorandum. Promptly upon the request of either party, a memorandum
of this Lease shall be executed and recorded.
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IN WITNESS WHEREOF, Lessor and Lessee have signed and sealed this Lease
Agreement, the day and year first above written.
LESSOR:
Xxxx X. Xxxxxx, Partner
CTHL PROPERTIES
Xxxx Xxxxxx Xxx 00000
Xxxxxxxxx, XX 00000
/s/ Xxxx X. Xxxxxx (SEAL)
--------------------------------------
LESSEE:
Xxxxxx Xxxx Xxxxx Inc.
000 Xxxx xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxxx (SEAL)
--------------------------------------
WITNESS:
--------------------------------------
WITNESS:
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