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EXHIBIT 10.8.2
STATE OF NORTH CAROLINA
LEASE AGREEMENT
COUNTY OF XXXXXX
This LEASE AGREEMENT ("the Lease") is made as of this 4th day of April,
1997, by and between Golden Realty Company, a general partnership (the
"Landlord"), and Xxxxxx Xxxxxx Industrial Inc., a Delaware corporation (the
"Tenant").
FOR AND IN CONSIDERATION of the mutual agreements contained herein,
Landlord and Tenant agree as follows
1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord upon the terms and conditions and for the purposes set
forth in this Lease, approximately 4.40 acres known as Golden Needles Plant#7
located in the City of Wilkesboro, State of North Carolina and described in
Exhibit A attached hereto and incorporated herein by reference (the "Leased
Premises").
2. TERM.
a. This Lease shall be for a period of three years beginning
April 4, 1997 (the "Commencement Date") (being the effective date of
that certain Asset Purchase Agreement among Golden Needles Knitting,
Inc., Xxx Thumb Glove Co., Inc., Monte Glove Co., Inc., Medical Glove
Devices, Inc., Landlord, Tenant, Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx,
Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx), and ending at midnight April
30, 2000, unless modified or earlier terminated pursuant to the terms
hereof (the "Initial Term").
b. Provided Tenant is not in default hereunder, at the expiration
of the Initial Term, Tenant shall have the option to renew this Lease
for one (1) additional three (3) year period (collectively, the
"Renewal Term") on all of the same terms and conditions as are
contained in this Lease including, without limitation, Rent (as later
defined). The Renewal Term shall commence as of the end of the Initial
Term or the preceding Renewal Term, as applicable. If Tenant desires to
exercise the Renewal Term, Tenant shall give Landlord written notice of
such desire not less than sixty (60) days prior to the expiration of
the Initial Term or the preceding Renewal Term, as applicable. If
Tenant does not provide such notice to Landlord, Tenant shall
conclusively be deemed to have elected not to renew this Lease
(collectively, the Initial Term and the Renewal Term, if exercised,
shall be referred to hereinafter as the "Lease Term").
3. RENTAL.
a. Tenant shall pay monthly rental equal to Eleven Thousand Two
Hundred Fifty Dollars ($11,250.00), payable in advance, on or before
the first (1st) day of each calendar month during the Lease Term
without notice, deduction, demand or set off (the "Rent"). The Rent for
any partial month shall be paid in advance and prorated daily from such
date to the first (1st) day of the next calendar month. The first
(1st) payment of Rent shall be due and payable on or before the
Commencement Date.
b. Except as otherwise mutually agreed upon by Landlord and
Tenant, Rent shall be payable by checks made payable to Landlord and
mailed or delivered to the address set forth in Section 28 below or
such other address as Landlord may designate to Tenant in writing. To
defray administrative and handling expenses, Tenant agrees to pay an
additional charge of Ten and No/100 Dollars ($10) for each returned
check. All Rent shall bear interest at the rate of ten percent (10%)
per annum if not received by Landlord by the tenth (10th) day of the
month.
4. TAXES AND ASSESSMENTS. Commencing on the Commencement Date, Tenant
shall be responsible for, and covenant to pay directly to the applicable taxing
authority, on or before the date delinquent all
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Taxes (as defined below). As used herein, "Taxes" shall mean all real estate
taxes and assessments, special or otherwise, levied or assessed upon or with
respect to the Leased Premises and accruing during the term of the Lease. Should
the State of North Carolina, or any political subdivision thereof, or any other
governmental authority having jurisdiction over the Leased Premises (a) impose a
tax, assessment, charge or fee, which Landlord shall be required to pay, by way
of supplement to or substitution for such real estate taxes, or (b) impose an
income or franchise tax or a tax on rents in substitution for or as a supplement
to a tax levied against the Leased Premises, all such taxes, assessments, fees
or charges (hereinafter defined as "in lieu of taxes") shall be deemed to
constitute Taxes hereunder. Except as hereinabove provided with regard to "in
lieu of taxes", Taxes shall not include any inheritance, estate, succession,
transfer, gift, franchise, net income or capital stock tax. In determining the
amount of Taxes for any year, the amount of special assessments to be included
shall be limited to the amount of the installment (plus any interest payable
thereon) of such special assessment required to be paid during such year as if
Landlord had elected to have such special assessment paid over the maximum
period of time permitted by law.
5. UTILITIES. Tenant shall arrange and promptly pay, as and when due,
directly to the utility company all utility charges on or to the Leased Premises
during the term of this Lease, including but not limited to electric, gas, storm
water, sewage and water. Landlord shall not be responsible for the stoppage or
interruption of any utility services.
6. USE OF THE LEASED PREMISES. Tenant shall use the Leased Premises
only as a warehouse and distribution facility and for no other purpose without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld or delayed.
7. COMPLIANCE WITH LAWS. Tenant shall not permit the Leased Premises
or any portion thereof to be used in any unlawful manner or in any manner that
may create a nuisance. Tenant shall comply with any and all laws, ordinances,
orders or regulations, now in force or which hereinafter may be enacted or
promulgated by any lawful authority having jurisdiction over the Leased Premises
or the use thereof, including but not limited to, compliance with the
requirements of all policies of insurance at any time in force with respect to
the Leased Premises. Notwithstanding the foregoing, in no event shall Tenant be
required to make any capital expenditures, nor shall Tenant be responsible or
required to replace or make other than ordinary day-to-day modifications or
repairs and reasonable preventative maintenance of a type ordinarily conducted
by prudent owners of properties similar to the Leased Premises, to the building
systems, structural components or roof of the Leased Premises to satisfy its
obligations under this Section 7, nor shall Tenant assume any responsibilities
for those matters contemplated by Section 23e hereof.
8. ENTRY. Upon reasonable advance notice, Landlord, its agents or
representatives, may enter the Leased Premises at all reasonable times during
usual business hours, for any purpose, including but not limited to exhibiting
the Leased Premises to prospective buyers and tenants. Any such entry by
Landlord shall not unreasonably interfere with Tenant's business.
9. SIGNAGE. Tenant may install an identification sign on the Leased
Premises upon prior written approval by Landlord which shall not be unreasonably
withheld or delayed; provided any such signage shall comply with all laws,
ordinances and regulations.
10. ASSIGNMENT AND SUBLETTING. Tenant shall not assign this Lease nor
sublet or otherwise transfer any or all of the Leased Premises without
Landlord's prior written consent, which consent shall not be unreasonably
withheld or delayed. If Landlord consents to any such assignment, sublet or
transfer, Tenant shall not be released from the obligations under this Lease.
Tenant may, however, assign the lease to an Affiliate (as hereinafter defined)
of Tenant without the prior written consent of Landlord. For the purposes of
this Section, "Affiliate" shall mean any person or entity which controls, is
controlled by or is under common control with Tenant and "control" means
ownership of more than fifty percent (50%) of the total voting power of the
outstanding stock of a corporation or of the outstanding ownership of a
non-corporate entity. The acceptance of Rent or other amounts due hereunder
shall not be deemed to be a consent by Landlord to any such assignment, sublet
or other transfer, nor shall the same be deemed a waiver of any right or remedy
of Landlord under this Lease.
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11. ALTERATIONS. Tenant shall have the right at any time and from
time to time during the term of the Lease to make at Tenant's sole expense such
alterations, additions or improvements to any portion of the Leased Premises,
either inside or outside, as Tenant may deem necessary or desirable, provided
that Tenant shall have obtained Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed. If Landlord consents to any such
alteration, addition or improvement, Landlord may require plans and
specifications to be submitted and approved by Landlord. All alterations,
additions or improvements approved by Landlord shall, at Landlord's option,
become a part of the Leased Premises and Landlord's property upon the expiration
or earlier termination of this Lease. All work done pursuant to this Section 11
shall be done in a good and workmanlike fashion and Tenant shall pay before
delinquency all of the costs thereof.
12. MAINTENANCE.
(a) Tenant covenants, at its sole cost and expense, to keep the
Leased Premises and all fixtures located therein in the same condition
and repair they are in as of the date hereof,, ordinary wear and tear
excepted, and shall promptly repair and maintain the Leased Premises at
its sole cost and expense; provided, however, with the exception of
ordinary day-to-day maintenance, in no event shall Tenant be
responsible for the cost of roof repairs (or replacement) or repair or
replacement of structural components of the Leased Premises or any
building system, or any other item which would constitute a capital
expenditure or capitalized expense under generally accepted accounting
principles.
(b) Landlord covenants, at its sole cost and expense, to keep and
maintain (and replace, if necessary), the roof and any of the
structural components of the Leased Premises in the same condition and
repair they are in as of the date hereof, ordinary wear and tear
excepted; provided, however, ordinary day-to-day maintenance of such
items shall be the responsibility of Tenant hereunder. Subject to
Tenant's obligation to perform ordinary day-to-day maintenance as
aforesaid, Landlord further covenants, at its sole cost and expense, to
perform any and all extraordinary repairs within the Leased Premises,
replace any building systems and/or make any capital improvements, all
to the extent necessary to keep the Leased Premises and all fixtures
located thereon in the same condition and repair they are in as of the
date hereof, ordinary wear and tear excepted. If Landlord fails to
perform its maintenance obligations hereunder, Tenant shall have the
right, after providing Landlord with thirty (30) days' written notice
and opportunity to perform the necessary repairs, to perform such
repairs (and replacements, if necessary) on Landlord's behalf and at
Tenant's option (a) set-off the costs thereof against all Rent then
next coming due; and/or (b) submit an invoice to Landlord for all such
costs, which invoice shall be paid by Landlord within thirty (30) days.
(c) All work performed and all repairs made hereunder by Landlord
or Tenant as appropriate, shall be done in a good and workmanlike
manner which shall be consistent with industry standards, using only
materials and labor of reasonable quality and in compliance with all
applicable buildings and zoning laws and with all other laws,
ordinances, orders, rules, regulations, and requirements of all
federal, state, and municipal governments and the appropriate
departments, commissions, boards, and officers thereof.
13. Intentionally Deleted.
14. CASUALTY.
(a) if the Leased Premises shall be damaged by fire or other
casualty and if such damage does not render all or a substantial
portion of the Leased Premises untenantable then, subject to this
Section 14, Landlord shall proceed with all appropriate diligence to
repair and restore the Leased Premises so as to render the Leased
Premises tenantable and return it to the condition it was in prior to
such casualty. If any such damage renders all or a portion of the
Leased Premises untenantable, Landlord shall, within thirty (30) days
after the occurrence of such damage, estimate the length of time that
will be required to substantially complete the repair and restoration
of the Leased Premises, necessitated by such damage and shall by notice
advise Tenant of such estimate. If it is so estimated that the amount
of time required to
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substantially complete such repair and restoration will extend beyond the
expiration date of this Lease or exceed ninety (90) days from the date such
damage occurred, then either Landlord or Tenant shall have the right to
terminate this Lease as of the date of such damage by giving notice to the other
at any time within twenty (20) days after Landlord gives Tenant the notice
containing said estimate (it being understood that Landlord may, if it elects to
do so, also give such notice of termination together with the notice containing
said estimate). Unless this Lease is terminated as provided in the preceding
sentence, Landlord shall, subject to this Section 14, proceed with all diligence
as aforesaid. If the amount of time actually required by Landlord to complete
the necessary repair or restoration exceeds one hundred eighty (180) days,
Tenant may, at any time after the expiration of such time period, elect to
terminate this Lease upon written notice to Landlord.
If any such fire or casualty damage renders any portion of the
Leased Premises untenantable and if this Lease shall not be terminated (or until
such time as this Lease is terminated) pursuant to the foregoing provisions of
this Section 14 by reason of such damage, and provided that such fire or
casualty was not caused as a result of the negligence of Tenant, its employees
and/or agents, then a percentage portion of Rent corresponding to the percentage
portion of the Leased Premises that was rendered untenantable shall xxxxx during
the period beginning with the date of such damage and ending with the date when
Landlord substantially completes its repair or restoration required hereunder.
If this Lease is terminated pursuant to this Section 14, Rent shall be
apportioned on a per diem basis and be paid to the date of damage.
b. The insurance proceeds shall be payable to Landlord. The
proceeds received by Landlord on account of such damage or destruction, less the
cost, if any, of such recovery, shall be applied by Landlord to the payment of
the cost, of such restoration, repair, replacement, rebuilding or alteration,
(hereinafter referred to as the "Work"), including expenditures made for
temporary repairs or for the protection of property pending the completion of
permanent restoration, repair, replacement, rebuilding or alteration to the
Leased Premises. If the insurance proceeds in the hands of Landlord exceeds the
amount required to pay the cost of the Work, Landlord shall be entitled to
retain such excess amount. If the insurance proceeds are insufficient, and
Tenant shall have fulfilled its obligations under this Lease, Landlord shall
still be fully responsible for satisfying its obligations hereunder.
c. Notwithstanding any provisions to the contrary in this
paragraph, Landlord shall not be required to rebuild the Leased Premises if
Tenant is in default in the performance of any term in this Lease.
15. INSURANCE.
a. Throughout the Lease Term, Tenant shall maintain, at its
expense, the following:
i. comprehensive general public liability insurance, which
shall include coverage for personal liability, contractual liability,
Tenant's legal liability, bodily injury (including death) and property
damage all on an occurrence basis with respect to the business carried
on or from the Leased Premises and Tenant's use and occupancy of the
Leased Premises and
ii fire, all-hazard risk and extended coverage insurance
on Landlord's interest in the property and Building constituting the
Leased Premises and on Tenant's property in the Leased Premises.
b. All liability insurance shall be in such amounts and against
such hazards and contingencies as may be customarily obtained by
prudent property owners of buildings such as the Leased Premises. The
casualty insurance shall be in an amount equal to the replacement value
of such property. All such insurance policies shall name Landlord and
Landlord's designee as an additional insureds and shall provide that
they shall not be canceled without thirty (30) days prior written
notice to Landlord and Landlord's designee. Tenant shall deliver, upon
the reasonable request of Landlord, certificates of the
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required insurance. All such insurance policies shall be issued by an
insurance company authorized to do business in the State of North
Carolina and approved by Landlord.
C. Tenant shall have the option to self-insure a deductible of
up to $200,000 on each of the hazard insurance and the public liability
insurance policies.
16. INDEMNIFICATION. Subject to the provisions of this Lease,
Landlord and Tenant each (in either case the "Indemnitor") agree to hold
harmless and indemnify the other, and the other's respective beneficiaries,
mortgagees of the Leased Premises, or any portion thereof, agents, partners,
officers, servants and employees (collectively, the "Indemnitees") against
claims and liabilities, including, without limitation, reasonable attorneys'
fees, for death or injury to third parties including, without limitation, claims
and liabilities attributable to injury or death to any of Tenant's employees and
damage to or theft or misappropriation or loss of property that may arise from
or be caused directly or indirectly by any breach by the Indemnitor of any
provision of this Lease or any negligent act or omission or any willful
misconduct of the Indemnitor or any of the Indemnitor's respective agents,
beneficiaries, partners or employees. Such third parties shall not be deemed
third party beneficiaries of this Lease. If any action or proceedings is brought
against any of the Indemnitees by reason of any such act of Indemnitor or any of
the Indemnitor's respective beneficiaries, or their respective agents, partners
or employees, then the Indemnitor will, at the Indemnitor's expense, upon the
written request of the Indemnitees, defend such action or proceeding by counsel
reasonably satisfactory to the Indemnitees
17. DEFAULT.
a. If Tenant should fail to perform or observe any term of this
Lease, including, but not limited to, the following:
i. failure in the payment of any Rent, additional rental
or other sum due hereunder within ten (10) days after the day
due;
ii. failure to perform any covenant or condition of this
Lease, other than those specified in another subsection of this
Section 17, and the failure to cure the same within this (30)
days of receipt of notice thereof (provided, however, that if
such failure does not involve the payment of money and is not by
its nature susceptible to a cure within thirty (30) days, Tenant
shall have such additional time (up to ninety (90) additional
days) as may be reasonably necessary so long as Tenant at all
times diligently and continuously prosecutes the cure to
completion);
iii. Tenant's voluntary assignment for the benefit of
creditors, or
iv. Tenant files a petition for relief of any kind
under the provisions of Title 11 of the United States Code, as
amended (the "Bankruptcy Code") or an involuntary petition under
the Bankruptcy Code is filed against Tenant or a receiver or
trustee is appointed for Tenant's property, and such involuntary
petition is not dismissed within sixty (60) days.
b. then, in addition to any other rights and remedies under
this Lease, in law or equity, and with or without terminating this
Lease, Landlord, its agents and representatives may in accordance with
applicable legal process, re-enter and repossess the Leased Premises
without prior notice, and exercise any of the following rights:
i. correct or repair any condition which constitutes
such default and recover from Tenant any amount expended by
Landlord to cure such default;
ii. demand Tenant vacate the Leased Premises and remove
all of Tenant's property thereon;
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iii. accelerate the Rent, with such amount calculated
on a present value basis at 8% per annum, or
iv. relet the Leased Premises on Tenant's behalf, and
recover from Tenant any deficiency between the amount received
as rent, less all costs of reletting, and the amounts due under
this Lease.
c. If any amount owing to Landlord under this Lease is
collected through an attorney, Tenant agrees to pay an additional amount equal
to the amount of the reasonable attorney's fees (determined without reference to
any statutory presumption).
d. Landlord shall take reasonable efforts to relet the Leased
Premises to mitigate its damages upon a termination of the Lease. Landlord shall
not be entitled to consequential, punitive or incidental damages.
18. SURRENDER.
a. Upon expiration or earlier termination of this Lease, Tenant
shall perform each of the following:
i. quit and surrender the Leased Premises to Landlord in
the same order, condition and repair as of the Commencement Date,
ordinary wear and tear excepted; and
ii. remove from the Leased Premises all of Tenant's
property and repair any damage caused by such removal.
b. If Tenant fails to vacate the Leased Premises, upon the
expiration or earlier termination of this Lease, Landlord may remove
and/or store Tenant's property at Tenant's expense without liability to
Tenant for any loss or damage thereto. If Tenant does not claim and
take delivery of any of Tenant's property that remains on the Leased
Premises or in storage for more than twenty (20) days after the
termination or expiration of this Lease, as well as pay Landlord all
amounts due under this Lease, including costs of removal and storage,
Landlord may sell all or any portion of such property at a public or
private sale after having given Tenant ten (10) days prior written
notice.
c. Landlord may apply the proceeds of such sale to the costs of
removal, storage and sale of the property, and then to payment of all
amounts due Landlord under this Lease. Any amount remaining shall be
paid to Tenant upon Tenant's written demand, without interest.
d. Notwithstanding the foregoing, Tenant shall retain all
right, title and interest in the trade fixtures, furniture, equipment
and non-fixture personalty owned by Tenant, located on the Leased
Premises and used in the operation of its business.
19. HOLDING OVER. If Tenant holds over and remains in possession of
the Leased Premises beyond the expiration of the Lease Term or other termination
of this Lease, such holding over shall not be deemed or construed to be a
renewal of this Lease but shall constitute the creation of a month-to-month
tenancy or a tenancy at sufferance which may be terminated by Landlord upon
thirty (30) days prior written notice to Tenant. By such holding over, Tenant
shall be deemed to have agreed to be bound by the terms and conditions of this
Lease, except during such month-to-month tenancy, Tenant shall pay a monthly
rental rate equal to one hundred fifty percent (150%) of the Rent herein
provided for the preceding month.
20. SUBORDINATION.
a. Subject to the provisions of Section 20.b. below, Tenant's
interest under this Lease and in the Leased Premises is and shall
remain subordinate to the lien of every present and future mortgage,
deed
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of trust or other security instrument applicable to the Leased Premises
and any extensions or renewals thereof, and to all advances made
thereunder. This provision is self-operative. Upon Landlord's request,
Tenant agrees to execute any additional documents as may be required by
any third party to evidence this subordination. If a new owner acquires
the Leased Premises, Tenant agrees to attorn to such new owner as
Tenant's landlord and to continue to perform all of Tenant's
obligations under this Lease for such new owner.
b. As a precondition to Section 20.a., Landlord shall obtain a
written agreement from any mortgagee or holder of any deed of trust as
to the Premises, upon terms and conditions reasonably acceptable to
Tenant which provides, substantially, that as long as Tenant performs
its obligations under this Lease and no default exists hereunder, the
Tenant's possession of the Premises shall not be disturbed as a result
of any foreclosure, deed in lieu of foreclosure or sale under the
encumbrance.
21. EMINENT DOMAIN.
(a) If the Leased Promises should be the subject of a Total
Taking, or a Partial Taking, then this Lease shall terminate as of the
date when physical possession of the Leased Premises is taken by the
condemning authority, As used herein, a "Total Taking" shall mean a
total taking (or condemnation of title) of (a) the fee interest in all
or substantially all of the Leased Premises or (b) such title to or
casement in, over, under or such rights to occupy and use any parts of
the Leased Premises to the exclusion of Landlord and Tenant as shall
have the effect, in the reasonable judgment of Landlord and Tenant, of
rendering the portion of the Leased Premises remaining unsuitable for
Tenant's continued use. Less than a Total Taking but a taking which in
the reasonable judgment of Tenant renders the Leased Premises unfit or
undesirable for Tenant's use is referred to herein as a "Partial
Taking".
(b) All proceeds payable in respect of a taking shall be the
property of Landlord. Tenant hereby assigns to Landlord all rights of
Tenant in or to such proceeds, provided that Tenant shall be entitled
to separately petition the condemning authority for a separate award
for its moving expenses and trade fixtures only.
(c) Upon a Partial Taking, in which the Lease is not terminated,
then the percentage portion of Rent corresponding to the percentage
portion of the buildings comprising a portion of the Leased Premises
that was taken shall xxxxx commencing with the date of such taking and
continuing through the expiration of the term.
22. SALE BY LANDLORD. In the event Landlord sells or transfers the
Leased Premises during the Lease Term, the purchaser shall purchase the Leased
Premises subject to this Lease and Tenant hereby acknowledges that after such
sale, Tenant shall look solely to such third party purchaser as Landlord under
this Lease. Landlord shall be released from all future obligations hereunder,
and Tenant's remedies for any future breach of this Lease shall be solely
against the new owner.
23. ENVIRONMENTAL MATTERS.
a. following definitions shall apply herein:
"Environmental Law" means any federal, state or local
law, ordinance, rule, regulation or common law related to or
addressing protection of human health and safety or the
environment.
"Hazardous Material" means any waste, pollutant,
material, hazardous or toxic substance or waste, petroleum,
petroleum-based substance or waste, special waste, or any
constituent of any such substance or waste, the exposure to,
presence, use, generation, treatment, storage, release,
disposal, handling, cleanup or remediation of which is
regulated by or under any Environmental Law.
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"Liabilities" means any and all liabilities, expenses,
demands, damages, punitive or exemplary damages,
consequential damages, costs, cleanup costs, response costs,
losses, causes of action, claims for relief, attorneys' and
other legal fees, consultants' fees, other professional
fees, penalties, fines, assessments and charges.
b. Throughout the Lease Term, Tenant shall not cause, permit or
allow any Hazardous Materials to be handled, placed, stored, dumped,
dispensed, released, discharged, deposited, manufactured, generated,
treated, processed, used, transported or located in, on, under or about
the Leased Premises without Landlord's prior written consent; provided,
however, that Tenant may handle, store or use without Landlord's prior
written consent Hazardous Materials which are directly related to
Tenant's ordinary business operations on the Leased Premises under the
terms of the Lease, if Tenant engages in such permitted activity in a
safe and lawful manner and in full compliance with any and all
applicable Environmental Laws, which compliance shall be at Tenant's
sole expense. Upon the expiration or earlier termination of this Lease,
Tenant, at Tenant's expense, shall remove all Hazardous Materials from
the Leased Premises,
c. Tenant shall give Landlord immediate written notice of any
spill, discharge, disposal, release or threatened release of any
Hazardous Materials in, on, under or about the leased premises during
the Lease term. Tenant shall promptly provide to Landlord a description
of actions proposed to be taken by Tenant to contain, remove, clean up
and remediate such Hazardous Materials and any resultant damage to or
impact on property, persons and/or the environment (including, without
limitation soil, surface water, groundwater and other media) on, under
or about the Leased Premises or any adjoining premises. Tenant shall
not take any such actions without Landlord's prior written consent;
provided, however, that nothing herein shall prevent Tenant from
complying with applicable Environmental Laws regarding the immediate
response to or containment of releases of Hazardous Materials. Upon
Landlord's approval and at Tenant's expense, Tenant shall promptly take
all actions necessary to contain, remove, clean up and remediate such
Hazardous Materials and any resultant damage to or impact on property,
persons and/or the environment (including, without limitation, soil,
surface water, groundwater and other media) on, under or about the
Leased Premises or any surrounding premises, in complete compliance
with all applicable Environmental Laws.
d. Tenant shall indemnify, release and hold Landlord harmless
from and against any and all Liabilities suffered by, incurred by or
assessed against Landlord, its officers, directors, shareholders,
partners, employees, agents, representatives, heirs, successors and
assigns related to or as a result of (i) any actual or alleged
violation of any Environmental Law by Tenant related to Tenant's use,
occupation or operation of the Leased Premises, or (ii) the presence,
discharge, release, removal, remediation or cleanup of any Hazardous
Materials in, on, under or about the Leased Premises or any
improvements thereon arising out of Tenant's use, occupation or
operation of the Leased Premises after the date hereof, including
without limitation any migration of any such Hazardous Materials onto
any surrounding premises; provided, however, that this indemnification
obligation shall not apply to any Hazardous Materials released or
discharged in, on, under or about the Leased Premises before the date
hereof, including any Hazardous Materials that have been discharged
from underground storage tanks located on the Leased Premises prior to
the date hereof.
e. Landlord shall indemnify, release and hold Tenant harmless
from and against all Liabilities suffered by, incurred by or assessed
against Tenant, its officers, directors, shareholders, partners,
employees, agents, representatives, heirs, successors and assigns
related to or as a result of action taken by any governmental entity or
agency or by any third party claimant as a result of the presence,
disturbance, discharge, release, removal or cleanup of any Hazardous
Materials in, on, under or about the Leased Premises or any
improvements thereon prior to the date hereof, including any migration
of any such Hazardous Materials onto any surrounding premises, and
including any Hazardous Materials that have been discharged from
underground storage tanks located on the Leased Premises prior to the
date hereof.
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f. The obligations in this Section shall survive the
expiration or earlier termination of this Lease.
24. QUIET ENJOYMENT. Landlord covenants and agrees that Tenant, upon
paying all charges herein provided for and observing and keeping the covenants,
agreements, and conditions of this Lease on its part to be kept, shall lawfully
and quietly hold, occupy, and enjoy said Leased Premises during the term of this
Lease without hindrance or molestation of Landlord or any person or persons
claiming under Landlord.
25. INTENTIONALLY DELETED.
26. LIENS. Tenant shall keep the Leased Premises and Tenant's
leasehold estate free from any liens arising out of any work performed,
material furnished or obligations incurred with respect to the Leased Premises.
In the event any such lien is filed against the Leased Premises, Tenant shall
cause such lien to be discharged by payment or bonding within thirty (30) days
of the filing of the lien.
27. ESTOPPEL. Tenant shall, from time to time, upon ten (10) days
prior notice, deliver to Landlord or its designee, a written statement
certifying the following:
a. this Lease is unmodified and in full force and effect;
b. the amount of Rent then payable under this Lease and the
date to which Rent has been paid;
c. to the best of Tenant's knowledge, there are no defaults
under this Lease or a detailed description of such default; and
d. Tenant is in possession of the Leased Premises.
28. NOTICES. All notices required to be given by the terms of this
Lease shall be in writing, and deemed given when sent by: a) registered or
certified mail, postage prepaid, return receipt requested, b) prepaid telex or
telecopier or c) national overnight delivery service to the addresses and
numbers set forth below:
Tenant: 0000 Xxxxxx Xx.
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
Attn: Xx. Xxxxxxx X. Xxxx
Fax: 000-000-0000
With a copy to: Xxxxxxx, Carton & Xxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
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Landlord: Xxxxxx X. Xxxxxxxx
00 Xxx Xxxx Xxxxx
Xxxxx 0000X
Xxxxxx, XX 00000
and
Xxxxxxx X. Xxxxxx
00 Xxx Xxxx Xxxxx
Xxxx 00
Xxxxxx, XX 00000
With copies to: Vannoy, Colvard, Xxxxxxxx, XxXxxxx & Xxxxxx
000 X Xxxxxx
X.X. Xxx 0000
Xxxxx Xxxxxxxxxx, XX 00000
Xxx, Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
and
Xxxxx X. Xxxxxxxxxxxx & Associates, P.C.
00000 Xxxxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Either party may designate a different address by written notice given to the
other
29. MISCELLANEOUS.
a. SUCCESSORS AND ASSIGNS. This Lease shall be binding upon
the parties hereto and their respective successors and assigns.
b. ENTIRE AGREEMENT. This Lease represents the entire agreement
and all prior and contemporaneous discussions and documents are
superseded by the Lease. Any statement or representation not contained
herein shall not be binding on either party All subsequent amendments
hereto must be in writing and signed by the parties hereto.
c. INVALIDITY. The invalidity or unenforceability of any term
herein shall not affect the validity or enforceability of any other
term.
d. GOVERNING LAW. This Lease shall be construed and enforced
in accordance with the laws of the State of North Carolina.
e. WAIVER. No right or remedy under this Lease shall be waived
unless the waiver is in writing and signed by the party claimed to
have made the waiver, and waiver will not be interpreted as a
continuing waiver.
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f. COUNTERPARTS. This Lease may be executed in two (2) or more
counterparts with all being deemed collectively as one lease.
g. BROKERS. Landlord and Tenant each represent and warrant to
the other that they have not dealt with any real estate agent or broker
in connection with this transaction, whose commission shall be payable
by Landlord. Landlord and Tenant each hereby indemnify and save the
other harmless from and against all loss, cost and expense incurred by
reason of a breach of such representation or warranty.
h. ATTORNEY FEES. If any action is taken to enforce any
provision of this Lease, the prevailing party shall be entitled to
recover from the other party its reasonable attorneys' fees and all
costs incurred in such enforcement.
i. OPTION TO PURCHASE.
Tenant shall have the option to purchase the Leased Premises (the
"Option") as hereinafter provided and subject to the conditions and
limitations hereinafter provided:
(a) Tenant shall have the option to purchase the Leased Premises
at an option price ("Option Price") equal to $1,500,000.00; provided,
however, on each successive anniversary of the Commencement Date, the
Option Price shall be adjusted by the amount of the percentage increase
in the CPI (as defined below) over a base year of 1997 (being the year
of the Commencement Date); provided, however, that in no event shall
the Option Price be less than $1,500,000.00.
(b) Tenant may only exercise the Option if the Lease is in full
force and effect, and no default, or circumstance which would
constitute a default but for the passage of time or giving of notice or
both on the part of Tenant hereunder exists, at the time Tenant
notifies Landlord of the exercise of the Option and at the time set for
closing of the Option.
(c) Tenant shall signify its intent to exercise the Option, if
at all, by delivering to Landlord, not later than one hundred eighty
(180) days prior to the expiration of the Term (or Renewal Term, if
applicable), its irrevocable written notice of its exercise of the
Option (the "Notice"). Delivery of this notice shall create a binding
agreement on the part of Tenant and Landlord to sell/buy the Leased
Premises as set forth in this Section 29i.
(d) Tenant shall within thirty (30) days after receipt of the
Notice, furnish to Landlord a copy of Tenant's commitment for an
owner's policy of title insurance (the "Commitment") issued by Chicago
Title Insurance Company (the "Title Insurer") showing title to the
Leased Premises in Landlord, which may be subject only to the
exceptions set forth on Exhibit B attached hereto (the "Permitted
Exceptions"). Tenant shall pay all costs of issuance of the Commitment
and any policy issued in connection therewith. In addition, Tenant may,
at its sole cost and expense, obtain an update of the survey previously
prepared for the Property prior to the closing under the Asset Purchase
Agreement (the "Survey"), showing no additional encroachments,
exceptions or survey defects of any kind which do not constitute
Permitted Exceptions. Tenant shall be allowed ten (10) days after
receipt of the Commitment, all underlying title documents and the
Survey for examination and the making of objections to any title or
survey matter that is not a Permitted Exception (the "Unpermitted
Exceptions"). Said objections shall be made in writing or deemed to be
waived. If any objections are so made, Landlord shall be allowed thirty
(30) days to cause the Title Insurer to remove or endorse over any
Unpermitted Exception.
If any Unpermitted Exceptions are not removed or endorsed over
within thirty (30) days from the date of written objection thereto, as
above provided, any agreement of purchase resulting from the exercise
of the Option shall, at the written election of Tenant, be null and
void. In such event neither party shall be liable for damages to the
other party, and this Lease shall continue in full force and effect.
Tenant shall exercise its election by declaring any such resulting
purchase agreement null and void by delivering to Landlord a written
notice to such effect within three (3) days after the expiration of the
aforesaid thirty (30)
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day period. Failure by Tenant to deliver to Landlord, in writing, the
aforesaid election to declare the resulting purchase agreement null and
void within the time period prescribed herein shall constitute an
election by Tenant to take title to the Leased Premises as it then is
(with the right to deduct from the Option Price liens and encumbrances
of a definite and ascertainable amount if created by Landlord or any
party claiming by, through or under Landlord).
(e) Subject to the performance by Tenant, Landlord agrees to
execute and deliver a special warranty deed, conveying title to the
Leased Premises to Tenant or as Tenant may designate, subject only to
the Permitted Exceptions.
(f) Closing of the Option shall occur within forty-five (45)
days from receipt by Landlord of the Notice or such other date as may
be mutually agreed upon by Landlord and Tenant, or as such date may be
extended by reason of delays occasioned by operation of (d) hereof. All
rents and other charges payable by Tenant in respect of the Leased
Premises and all other obligations of Tenant hereunder accruing prior
to closing of the Option shall be paid, performed and complied with
until such time as closing of the Option shall occur and the full
Option Price has been paid to Landlord. Notwithstanding any provision
to the contrary herein contained, if the date of closing of the Option
shall extend beyond the term of the Lease, the Lease and all rights and
obligations as therein contained shall be extended to the date of
closing of the Option on the same terms as set forth in the Lease.
Closing shall occur through an escrow with the escrow department
of the Title Insurer ("Escrowee"), in accordance with the general
provisions of the Escrowee's usual form of deed and money escrow
agreement with special provisions inserted in the escrow agreement as
may be required to conform to this Section 29i and subject to the terms
of a separate money lender's escrow, if any, and with provision for a
"New York" style closing. Upon the creation of such escrow payment of
the Option Price and delivery of the warranty deed shall be made
through the escrow. This Section 29i shall not be merged into nor in
any manner superseded by the escrow agreement.
The Option Price shall be paid to Landlord by Tenant by wire
transfer of "good funds" on the date of closing of the Option.
The parties agree that the adjustments for rent and other matters
shall be made as of the date of closing of the Option. The parties
further agree that all title and survey charges (other than for the
cost of endorsements necessary to insure over any Unpermitted
Exceptions) shall be paid by Tenant and all charges for the state,
county and local transfer taxes and recording fees shall be paid by
Landlord. All escrow fees shall be divided equally between Landlord and
Tenant.
(g) Time shall be of the essence in the performance of the terms
and conditions of the Option.
(h) At closing of the Option, Tenant shall deliver to Landlord
and Landlord shall deliver to Tenant an agreement canceling and
terminating this Lease and releasing each party from its obligations to
the other party under this Lease accruing subsequent to Closing.
(i) For purposes of this Section 29i the "CPI" shall mean the
"Revised Consumer Price Index-All Cities (1984 = 100)" published by the
Bureau of Labor Statistics of the United States Department of Labor,
or, in case such index is no longer published, such other index as is
then customarily used for this purpose.
j. Time is of the Essence. Time is of the essence of this Lease
and all of its provisions.
k. Landlord's Authority. Landlord represents and warrants that
it has full and complete authority to enter into this Lease under all
of the terms, conditions and provisions set forth herein.
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1. Tenant's Authority. Tenant represents and warrants that it
has full and complete authority to enter into this Lease under all of
the terms, conditions and provisions set forth herein.
m. Landlord's Title. Landlord represents and warrants that as
of the Commencement Date, it has marketable fee simple title to the
Leased Premises subject only to the Permitted Exceptions,
n. Memorandum of Lease. On the Commencement Date, Landlord and
Tenant shall enter into, and record, a "short form" or Memorandum of
Lease in recordable form attached hereto as Exhibit C and made a part
hereof, which shall set forth the parties, the legal description, the
Commencement Date and Expiration Date of the term of the Lease, the
renewal option, and the option to purchase.
IN WITNESS WHEREOF, Tenant and Landlord duly execute this Lease under
seal as of the day and year first above written.
LANDLORD:
Golden Realty Company, a general partnership (SEAL)
By: /s/ Xxxxxxx X. Xxxxxx (SEAL)
------------------------------------------
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx (SEAL)
------------------------------------------
General Partner
Attest: TENANT:
By: Xxxxxx Xxxxxx Industrial, Inc., a Delaware corporation
--------------------------
Title: Secretary By: /s/ Xxxxxxx X. Xxxx
---------- ------------------------------------------------
[CORPORATE SEAL] Title: President
---------
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EXHIBIT A
TO
LEASE AGREEMENT
BEGINNING on a railroad spike (found) in the Northern Right of Way of Hwy 268
(Right of Way described in Deed Book 659 at Page 510), said iron being the West
lien of Deed Book 493 at Page 551 of the Xxxxxx County Registry and also being
located North 62 degrees 30' 03" West 1,615.58 feet from Grid Monument "Xxxxx";
THENCE with same Right of Way, South 72 degrees 17' 54" West 46.36 feet to a
N.C. D.O.T. Right of Way disc; THENCE South 23 degrees 27' 14" East 16.13 feet
to a point in a drop inlet; THENCE South 35 degrees 56' 41" West 57.01 feet to a
N.C. D.O.T. Right of Way disc; THENCE South 88 degrees 04' 11" West 134.93 feet
to a N.C. D.O.T. Right of way disc; THENCE North 41 degrees 30' 47" West 15.69
feet to a N.C. D.O.T. Right of Way disc; THENCE South 88 degrees 04' 11" West
41.07 feet to an iron; THENCE leaving said Right of Way, North 03 degrees 05'
48" West 158.18 feet to a spike (found); THENCE North 77 degrees 15' 54" West
7.65 feet to a spike (found); THENCE North 03 degrees 04' 19" West 231.25 feet
to a spike (found); THENCE North 07 degrees 43' 48" East 65.95 feet to a spike
(found), said being the Southeast corner of Deed Book 647 at Page 101 of the
Xxxxxx County Registry; THENCE continuing North 07 degrees 43' 48" East 82.00
feet to a spike (found); THENCE North 03 degrees 21' 19" West 267.03 feet to an
iron (found); THENCE with the Town of Wilkesboro's line, North 87 degrees 31'08"
East 179.34 feet to a P.K. Nail; THENCE with same, North 87 degrees 3 1' 08"
East 44.99 feet to an iron; THENCE South 03 degrees 00' 56" East 275.15 feet to
an iron; THENCE South 03 degrees 00' 56" East 155.81 feet to an iron (found),
said iron being located North 86 degrees 52' 05" East 44.99 feet from a spike
(found), the Southwest corner of Deed Book 601 at page 145; THENCE South 03
degrees 00' 56" East 251.92 feet to a REBAR (found); THENCE South 15 degrees 06'
21 " East 33.23 feet to a REBAR (found); THENCE South 23 degrees 10' 05" East
32.86 feet to the BEGINNING.
CONTAINING 4.40 acres more or less by Coordinate Computation. For further
reference see Deed Book 503 at Page 127, Deed Book 640 at Page 708 and Deed Book
601 at Page 145 of the Xxxxxx County Registry.
ALSO included in the above is a 25 foot Easement along the Western Boundary of
the above described 4.40 acre tract, said Easement extends to the center of the
river and serving Xxxxx Xxxxxxxx'x 0.42 acre lot.
15
EXHIBIT B
1. Ordinances, building codes, subdivision ordinances, subdivision
regulations, zoning ordinances, restrictions, prohibitions and other
requirements imposed by a governmental authority.
2. Right of way Agreement in favor of Xxxxx Xxxxxx Xxxx, Xx., et al.
recorded in Book 691, page 739.
3. Reservation of easement contained in deed recorded in Book 671, page 577.
4. Right of way agreements to Travelers Inns of North Wilkesboro, Inc.
recorded in Book 601, pages 146 and 147.
5. Right of way to Duke Power Company recorded in Book 516, page 330.
6. Water easements to Town of Wilkesboro recorded in Book 656, page 531 and
Book 456, page 183.
7. Floating easement to Town of Wilkesboro recorded in Book 656, page 530.
8. Right of way to Department of Transportation recorded in Book 577, page
20.
9. Right of way to State Highway Commission recorded in Book 435, page 24.
10. Sewer line easement to Town of Wilkesboro recorded in Book 634, page 581.
11. Easement to Town of Wilkesboro for water line and pumping station
recorded in Book 407, page 53.
12. Right of North collegiate Drive recorded in Book 694, page 825.
13 All matters shown on the survey by Xxxxx Xxxxxx, R.S., dated June 13,
1991 and revised March 20, 1997.
14. Rights of other in and to appurtenant easement for driveway as contained
in instrument recorded in Book 691, page 790.
15. Taxes, dues and assessments for the year the purchase option is
exercised, not yet due and payable.
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EXHIBIT C
STATE OF NORTH CAROLINA
MEMORANDUM OF LEASE
COUNTY OF XXXXXX
This MEMORANDUM OF LEASE is made effective as of April __, 1997, pursuant
to the terms of the Lease Agreement dated of even date herewith (the "Lease")
by and between Golden Realty Company, a general partnership with an address of
0000 Xxxxxxx Xx., Xxxxxxxxxx, XX 00000 ("Landlord"), and Xxxxxx Xxxxxx
Industrial Inc., a Delaware corporations, with an address of 0000 Xxxxxx Xx.,
X.X. Xxx 0000, Xxxxxxxxx, XX 00000-0000 ("Tenant").
Landlord is the owner of certain real property located in Xxxxxx County,
North Carolina, which is more particularly described on Exhibit A, attached
hereto and incorporated herein by reference (the "Land"), which Land contains a
building and other improvements (the Land, building and other improvements are
collectively called the "Premises").
Landlord has leased to Tenant and Tenant has leased from Landlord the
Premises for a term of three (3) years beginning on April __, 1997, and
expiring on April __, 2000.
The Lease contains an option for renewal for an additional term of three
(3) years as more particularly described in the Lease.
The Lease contains an option to purchase the Premises for terms as more
particularly described in the Lease.
All of the provisions set forth in the Lease are hereby incorporated into
and made a part of this Memorandum. To the extent that any provision hereof
conflicts with any provision of the Lease, the Lease shall control. Copies of
the Lease are on file in the offices of Landlord and Tenant at the addresses
set forth above.
[SIGNATURES ON THE FOLLOWING PAGE]
DRAWN BY AND MAIL TO:
Xxxxxx Xxx Xxxxx & Xxxxxxxxx L.L.P. (GEG)
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
17
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this
Memorandum of Lease effective as of the date first above written.
LANDLORD:
Golden Realty Company, a general partnership
(SEAL)
By: (SEAL)
---------------------------------
General Partner
By: (SEAL)
---------------------------------
General Partner
TENANT:
Xxxxxx Xxxxxx Industrial, Inc., a Delaware
corporation
By:
---------------------------------
_____ President
ATTEST:
-------------------------
________ Secretary
[CORPORATE SEAL]
2
18
STATE OF _____________
COUNTY OF _____________
I, __________________________, a Notary Public of the County and State
aforesaid, certify that ________________________, a general partner of GOLDEN
REALTY COMPANY, a general partnership, personally appeared before me this day
and acknowledged the execution of the foregoing instrument as general partner
on behalf of Golden Realty Company.
Witness my hand and official stamp or seal this ___ day of April, 1997.
My Commission Expires: --------------------------------
Notary Public
-----------------------------
[NOTARY SEAL]
STATE OF _____________
COUNTY OF _____________
I, __________________________, a Notary Public of the County and State
aforesaid, certify that ________________________, a general partner of GOLDEN
REALTY COMPANY, a general partnership, personally appeared before me this day
and acknowledged the execution of the foregoing instrument as general partner
on behalf of Golden Realty Company.
Witness my hand and official stamp or seal this ___ day of April, 1997.
My Commission Expires: --------------------------------
Notary Public
-----------------------------
[NOTARY SEAL]
STATE OF _____________
COUNTY OF _____________
I, __________________________, a Notary Public for the above State and
County, hereby certify that ________________________ personally came before me
this day and acknowledged that she/he is __________________ Secretary of Xxxxxx
Xxxxxx Industrial Inc., a Delaware corporation, and that by authority duly given
and as the acts of said corporation, the foregoing instrument was signed in its
name by its President, sealed with its corporate seal and attested by him/her as
its ________________ Secretary.
Witness my hand and official seal, this the ___ day of April, 1997.
My Commission Expires: --------------------------------
Notary Public
-----------------------------
[NOTARY SEAL]
3
19
EXHIBIT A
BEGINNING on a railroad spike (found) in the Northern Right of Way of Hwy 253
(Right of Way described in Deed Book 659 at Page 510), said iron being the West
lien of Deed Book 493 at Page 551 of the Xxxxxx County Registry and also being
located North 62 degrees 30' 03" West 1,615.58 feet from Grid Monument
"Xxxxx"; THENCE with same Right of Way, South 72 degrees 17' 54" West 46.36
feet to a N.C.D.O.T. Right of Way disc; THENCE South 23 degrees 27' 14" East
16.13 feet to a point in a drop inlet; THENCE South 35 degrees 56' 41" West
57.01 feet to a N.C.D.O.T. Right of Way disc; THENCE South 88 degrees 04' 11"
West 134.93 feet to a N.C.D.O.T. Right of way disc; THENCE North 41 degrees 50'
47" West 15.69 feet to a N.C.D.O.T. Right of Way disc; THENCE South 88 degrees
04' 11" West 41.07 feet to an iron; THENCE leaving said Right of Way, North 03
degrees 05' 48" West 158.18 feet to a spike (found); THENCE North 77 degrees
15' 54" West 7.65 feet to a spike (found); THENCE North 03 degrees 04' 19" West
231.25 feet to a spike (found); THENCE North 07 degrees 43' 48" East 65.95 feet
to a spike (found), said being the Southeast corner of Deed Book 647 at Page
101 of the Xxxxxx County Registry; THENCE continuing North 07 degrees 43' 48"
East 82.00 feet to a spike (found); THENCE North 03 degrees 21' 19" West 267.03
feet to an iron (found); THENCE with the Town of Wilkesboro's line, North 87
degrees 31' 08" East 179.34 feet to a P.K. Nail; THENCE with same, North 87
degrees 31' 08" East 44.99 feet to an iron; THENCE South 03 degrees 00' 56"
East 275.15 feet to an iron; THENCE South 03 degrees 00' 56" East 155.81 feet
to an iron (found), said iron being located North 86 degrees 52' 06" East 44.99
feet from a spike (found), the Southwest corner of Deed Book 601 at Page 145;
THENCE South 03 degrees 00' 56" East 251.92 feet to a REBAR (found); THENCE
South 15 degrees 06' 21" East 33.23 feet to a REBAR (found); THENCE South 23
degrees 10' 05" East 32.86 feet to the BEGINNING.
CONTAINING 4.40 acres more or less by Coordinate Computation. For further
reference see Deed Book 503 at Page 127, Deed Book 640 at Page 708 and Deed
Book 601 at Page 145 of the Xxxxxx County Registry.
TOGETHER WITH a non-exclusive 20 foot easement for ingress, egress and regress
created by the right-of-way agreement recorded in Deed Book 691, Page 790.
ALSO included in the above is a 25 foot Easement along the Western Boundary of
the above described 4.40 acre tract, said Easement extends to the center of the
river and serving Xxxxx Xxxxxxxx'x 0.42 acre lot.
4
