Exhibit 10.13
NORTH CAROLINA
LEASE AGREEMENT
DAVIDSON COUNTY
THIS LEASE AGREEMENT, made and entered into as of this 3rd day of May,
1994, by and between XXXX G. B. XXXXXXX, JR., a resident of Guilford County,
North Carolina ("Landlord") and VES, INC., a Delaware corporation d/b/a VES
EXTRUSIONS, INC. in North Carolina ("Tenant").
W I T N E S S E T H:
Landlord owns a 26+ acre tract in the Welcome Business Center, Davidson
County, North Carolina more particularly shown on that plat recorded in Plat
Book 24, Page 30 (the "Development Site"). Landlord wishes to lease to Tenant a
portion of the Development Site on which Landlord is constructing an
approximately 33,750 square foot building, parking area and related amenities.
That portion of the Development Site being leased to Tenant is outlined in red
on Exhibit "A" attached hereto and incorporated herein by reference (the
"Premises").
In consideration of the rents, covenants and agreements hereinafter
reserved and contained on the part of Tenant to be performed, the Landlord
hereby grants, demises and leases to the Tenant, and the Tenant hereby takes and
hires from the Landlord, the Premises, together with the appurtenances, rights,
interests, easements and privileges in any way pertaining thereto.
This Lease is made upon the following terms and conditions:
ARTICLE I
TERM
SECTION 1.01. COMMENCEMENT DATE. The term of this Lease shall commence on
the date on which Landlord delivers to Tenant a Certificate of Occupancy or
Compliance permitting occupancy of the Premises for Tenant's use issued by the
appropriate authorities of the County of Davidson. When the Commencement Date is
thus determined, the Landlord and Tenant agree to execute a stipulation setting
forth the Commencement Date of the term as thus determined, which shall be
attached to the Lease and made a part hereof.
SECTION 1.02. LENGTH OF TERM. The term of this Lease shall be for a period
of ten (10) years following the Commencement Date provided in Section 1.01
hereof (the "Term").
SECTION 1.03. HOLDING OVER. If Tenant remains in possession of the
Premises after expiration of the Term, with or without Landlord's consent and
without any express written agreement, Tenant's occupancy shall be on a
month-to-month basis on the terms and conditions contained herein. There shall
be no renewal of the Lease by operation of law.
SECTION 1.04. RENTAL OBLIGATION. Tenant's rent and obligation to pay rent
shall commence on the Commencement Date defined in Section 1.01 above.
SECTION 1.05. EXCUSE OF LANDLORD'S PERFORMANCE. Anything in this Lease
notwithstanding, Landlord shall not be deemed to be in default with respect to
the performance of any of the terms, covenants, and conditions of this Lease if
such nonperformance is due to any strike, lockout, civil commotion, warlike
operation, rebellion, Act of God, or other cause beyond the control of the
Landlord. Landlord agrees to use its best efforts to cure or remedy any such
causes of delay.
ARTICLE II
CONSTRUCTION OF BUILDING
SECTION 2.01. PLANS AND SPECIFICATIONS. Landlord agrees to have
constructed on the Premises a 33,750 square foot facility in accordance with the
plans and specifications (the "Plans") prepared by Landmark Construction Co.
pursuant to that Design Build Contract dated April 20, 1994 and approved by
Landlord and Tenant. The Plans are incorporated herein by reference.
SECTION 2.02. CONSTRUCTION.
(a) Any changes, omissions or additions to the Plans shall be made only by
a written change order duly signed by Landlord and Tenant. The change order
shall specify the cost or cost savings of such changes, omissions or additions.
Any increase in cost shall be paid by Tenant to Landlord on the Commencement
Date and any cost savings due to such change order shall be paid by Landlord to
Tenant on the Commencement Date.
(b) Landlord shall furnish all of the materials and perform or have
performed all of the work shown and provided for in the Plans and any written
change orders thereto, in a good and workmanlike manner, using first quality
materials all in accordance with standard trade practices and in compliance with
all applicable laws, ordinances and regulations. Landlord will hold Tenant
harmless from all claims or mechanics' liens asserted in connection with the
cost of or payment for the improvements to be constructed by Landlord.
SECTION 2.03. ACCEPTANCE OF PREMISES. The failure by Tenant to give notice
within thirty (30) days of the delivery of possession of the Premises specifying
in detail any items of Landlord's work which are not then substantially
completed shall be deemed conclusive that Tenant has accepted the Premises with
all items of work substantially completed.
SECTION 2.04. INSTALLATION OF FIXTURES AND FINISHING OFFICES. Tenant may
enter upon the Premises for the purpose of installing fixtures and furnishings
during the construction period: provided, however, that such activity on the
part of the
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Tenant shall be done only in such manner as not to interfere with construction,
and shall take place only after the Premises are substantially complete. The
Landlord shall not be liable to Tenant for damage to or loss of such fixtures or
furnishings provided by Tenant.
ARTICLE III
RENT
SECTION 3.01. MINIMUM RENT. As rental for this Lease and for the use of
the Premises, Tenant shall pay to the Landlord at such address as Landlord may
from time to time designate, without demand and without deduction, abatement, or
setoff, the sum of ONE HUNDRED EIGHT THOUSAND AND NO/100 Dollars ($108,000.00)
per annum, payable in equal monthly installments of NINE THOUSAND AND 00/100
Dollars ($9,000.00) in advance on the first day of each calendar month during
the Term of this Lease (the "Minimum Rent"). Rental for the first and last
months of the term shall be prorated if the Term commences on other than the
first day of the month.
SECTION 3.02. ADJUSTED RENTAL. The Minimum Rent shall be subject to
adjustment every three years during the Term and any renewal Terms, to give
effect to increases, if any, in the cost of living. The first such adjustment
shall be made at the beginning of the fourth Lease Year, (a Lease Year being
defined as each period of twelve (12) consecutive months during the term of this
Lease beginning on the same day and month of each calendar year as the day and
month of the Commencement Date). For this purpose, the rental for each of the
following three Lease Years shall be computed by multiplying the Minimum Rent
provided for in Section 3.01 by a fraction, the numerator of which shall be the
Consumer Price Index for All Urban Consumers ("CPI-U") published by the United
States Department of Labor, Bureau of Labor Statistics for the second month
preceding the commencement of the then current Lease Year ("Comparison CPI-U")
or the most recent month available and the denominator of which shall be the
CPI-U for the month in which this Lease commences ("Base Index"). This same
procedure shall be repeated every three Lease Years during the Term or any
renewals.
If the Comparison CPI-U exceeds the Base Index, then the new rental
payable for each of the ensuing three Lease Years shall be the sum as computed
above. If the Comparison CPI-U is less than or equal to the Base Index, then the
rental payable for each of the ensuing three Lease Years will not be adjusted.
In the event the CPI-U shall no longer be published or its contents
changed so that it is no longer recognized as an accurate measure of the cost of
living, then another Index, generally recognized as being authoritative, shall
be substituted for purposes of the foregoing calculations.
Landlord shall give notice in writing to Tenant at least thirty (30) days
before the commencement date of each ensuing
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Lease Year of any adjustment in the rental to be made on account of this
section for said ensuing Lease Year.
SECTION 3.03. ADDITIONAL RENT. In addition to the Minimum Rent, Tenant
shall pay Landlord an amount equivalent to the sum charged by welcome Business
Center Association, Inc. for annual and special assessments attributable to the
Premises. The initial annual assessment will be $.03 per square foot of the APC
building. Tenant will reimburse Landlord all sums paid pursuant to the
Declaration of Covenants, Conditions and Restrictions for Welcome Business
Center within twenty (20) days after receipt from Landlord of written notice of
the sum due.
SECTION 3.04. LATE CHARGE. Tenant recognizes that late payment of any rent
or other sum due hereunder will result in administrative expense to Landlord,
the extent of which additional expense is extremely difficult and economically
impractical to ascertain. Tenant therefore agrees that if rent or any other sum
is due and payable pursuant to this Lease, and such amount remains due and
unpaid ten (10) days after said amount is due, such amount shall be increased by
a late charge in the amount of One Hundred and No/100 Dollars ($100.00). The
amount of the late charge shall be reassessed and added to Tenant's obligation
for each successive monthly period until paid. The provisions of this Section
shall not in any way affect Landlord's remedies for default pursuant to this
Lease.
ARTICLE IV
USE
SECTION 4.01. USE OF PREMISES. The Premises may be used for the extrusion
of vinyl lineals and related products and for no other use or purpose without
the prior written consent of the Landlord in each instance.
SECTION 4.02. SIGNS. Tenant shall not erect, display or affix any signs to
the exterior of the building on the Premises, or on the Premises, without the
prior written consent of the Landlord which shall not be unreasonably withheld.
SECTION 4.03. COMMON AREA USE AND MAINTENANCE. Landlord has leased the
remainder of the Development Site to The Xxxxxxx Company, Inc. ("Xxxxxxx Co.")
pursuant to a lease dated May 3, 1994. Landlord has reserved and hereby grants
to Tenant and Tenant's employees, agents, customers and invitees the
non-exclusive right, during the Term, to use, subject to the rights of
governmental authorities, easements, and restrictions of record, the Common
Areas located within the Development Site. The term "Common Areas' as used
herein shall mean the parking areas, roadways, sidewalks, loading docks,
delivery areas, green spaces and any other areas designated by Landlord for the
general use of Tenants of the Development Site, their agents, employees and
customers. The present Common Areas located on the Development Site are outlined
in yellow on Exhibit "A". Tenant
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shall reimburse Xxxxxxx Co. for Tenant's share of the cost and expense of
maintaining the Common Areas. For purposes of this paragraph, Tenant's share
shall be fifteen percent (15%) of the costs as certified by Xxxxxxx Co. in a
written statement to Tenant. Tenant shall reimburse Xxxxxxx Co. within thirty
(30) days after the receipt by Tenant of such written certification.
ARTICLE V
TAXES
SECTION 5.01. PERSONAL PROPERTY TAX. Tenant shall pay before delinquency,
all taxes, assessments, license fees and other charges that are levied against
Tenant's personal property installed or located in or on the Premises, and that
become payable during the term. On demand by Landlord, Tenant shall furnish
Landlord with satisfactory evidence of these payments.
SECTION 5.02. REAL PROPERTY TAX. Landlord shall pay all real property
taxes and assessments on the Premises.
ARTICLE VI
MAINTENANCE, REPAIRS AND ALTERATIONS
SECTION 6.01. LANDLORD'S RESPONSIBILITIES. Landlord shall maintain and
keep in good order and repair the roof, guttering and downspouts and the
structural walls and foundations (neither windows nor doors are regarded as
walls for the purpose of this paragraph), of the Premises, except that Tenant
shall reimburse Landlord for the cost of any repair occasioned by the act or
negligence of Tenant, its agents, employees, invitees or licensees. Landlord
shall not be required to make any other improvements or repairs of any kind upon
the Premises and appurtenances thereto. Landlord's sole liability shall be
limited to the cost of the repair. Landlord shall not be liable to Tenant for
any interruption of Tenant's business or inconvenience caused Tenant or Tenant's
assigns, sublessees, customers, invitees, employees, licensees or
concessionaires in the Premises on account of Landlord's performance of any
repair, maintenance or replacement in the Premises, or any other work therein
pursuant to Landlord's rights or obligations under this lease so long as such
work is being conducted by Landlord in accordance with the terms of the Lease
and without negligence or disregard for Tenant's business operations. There
shall be no abatement of rent and no liability of Landlord by reason of any
injury to or interference with Tenant's business arising from the making of any
repairs, alterations or improvements in or to any portion of the Premises or in
or to fixtures, appurtenances and equipment therein.
Any and all repairs for which Landlord is responsible shall be made within
a reasonable time after written notice of the necessity of such repairs has been
given by Tenant.
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SECTION 6.02. TENANT'S RESPONSIBILITIES. At the sole cost and expense of
Tenant and throughout the term, Tenant, shall keep and maintain the Premises in
good order, condition and repair, subject to ordinary wear and tear, in a clean,
sanitary, and safe condition in accordance with the laws of the state of North
Carolina, and in accordance with all applicable directions, rules, and
regulations of the health officer, fire marshal, building inspector, or any
other proper officer of the governmental agencies having jurisdiction over the
Premises. Without limiting the foregoing, Tenant shall be responsible for
maintenance, repair, and replacement as needed of the railroad spur serving the
Premises, all electrical, plumbing, heating and air-conditioning and utility
systems located on the Premises, all windows, window fittings and sashes, and
interior and exterior doors, all fixtures within the Premises, all interior
walls, floors and ceilings, and all of Tenant's improvements and trade fixtures.
Tenant shall keep and maintain the Premises in accordance with all requirements
of law concerning the manner, usage, and condition of the Premises and
appurtenances thereto, as the same shall be in effect from time to time. Tenant
shall permit no waste, damage, or injury to the Premises. If at any time and
from time to time during the term, and any renewal thereof, Tenant shall fail to
make any maintenance, repair or replacements in and to the Premises as required
in the Lease, after thirty (30) days' written notice to Tenant or to commence
and diligently complete repairs that cannot be completed within thirty (30)
days, Landlord shall have the right, but not the obligation, to enter the
Premises and to make the same for and on behalf of Tenant, and all sums so
expended by Landlord shall be deemed to be additional rent hereunder and payable
to Landlord upon demand.
Tenant agrees that it will not permit or suffer any lien to be placed
against the Premises for any work, labor, or materials furnished; and should
such lien be placed against the Premises, the Tenant shall promptly cause the
same to be removed. In the event that the Tenant does not promptly cause such
lien to be removed, the Landlord shall have the right, but shall not be bound,
to take such steps as may be necessary to remove such lien. The cost and expense
of removing such lien, including reasonable attorney's fees, shall be paid by
the Tenant within twenty (20) days after written demand by the Landlord.
At the expiration or other termination of the term, Tenant will surrender
the Premises in good order and condition, except for those maintenance
obligations which are the responsibility of Landlord pursuant to this Lease and
excepting also ordinary wear and tear, and casualty loss or damage.
SECTION 6.03. MAINTENANCE OF PARKING LOT LANDSCAPING, ETC. Tenant shall
maintain the Premises, including the grounds and parking areas, and the walks
adjacent thereto at all times in a neat, clean and sanitary condition, free from
snow and ice, waste or debris and shall neither commit nor permit any waste or
nuisance thereon. Tenant shall be responsible for repair of damage to curbs and
gutters due to snow and ice removal and other such causes.
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SECTION 6.04. ALTERATIONS. Upon the prior written consent of Landlord,
which consent shall not be unreasonably withheld, Tenant shall have the right
during the Term to make such interior alterations, changes and improvements to
the Premises as may be proper and necessary for the conduct of Tenant's business
and for the full beneficial use of the Premises, provided Tenant shall (a) pay
all costs and expense thereof, and (b) make such alterations, changes and
improvements in a good and workmanlike manner, with new materials of first-class
quality, and in accordance with all applicable laws and building regulations.
Any equipment, furnishings, nonpermanent improvements and trade fixtures
installed in the Premises by Tenant shall remain the property of Tenant and
shall be removed by Tenant upon the termination of this Lease (other than
termination due to Tenant's default), provided that Tenant shall repair any
damage occasioned by removal thereof.
SECTION 6.05. LANDLORD'S RIGHT OF ACCESS. Landlord and its agent shall
have free access to the Premises during all reasonable and regular business
hours for the purpose of examining the same, to ascertain if they are in good
repair, to make any repairs required to be made by Landlord pursuant to this
Lease and to exhibit the same to prospective purchasers or tenants.
ARTICLE VII
UTILITIES
SECTION 7.01. TENANT TO PROVIDE UTILITIES. Tenant shall pay all light,
power, gas, telephone, water, fuel and other utility charges and shall be
responsible for its own heat and air-conditioning. Landlord shall not be liable
for any interruption of gas, water, heat, air-conditioning, electricity or other
utility in the Premises.
ARTICLE VIII
SUBORDINATION AND ATTORNMENT
SECTION 8.01. SUBORDINATION OF LEASE. The Tenant agrees that this Lease,
shall be subordinate to any mortgages or deeds of trust presently or hereafter
placed upon the Premises, or any part thereof, and to any and all advances, past
or future, made thereunder. The subordination shall be automatic and shall not
require the execution of any additional subordination agreement. The Tenant
agrees, however, immediately upon the request of the Landlord, to execute a
subordination agreement in recordable form. The Tenant hereby irrevocably
appoints the Landlord as attorney-in-fact for the Tenant with full power and
authority to execute and deliver in the name of the Tenant a subordination
agreement subordinating this Lease to any mortgage
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or deed of trust if ten (10) days after the date of a written request by
Landlord to execute such agreement, the Tenant shall not have executed same.
SECTION 8.02. ATTORNMENT. Tenant shall, in the event any proceedings are
brought for the foreclosure of, or in the event of exercise of the power of sale
under any mortgage or deed of trust made by Landlord covering the Premises, if
requested by the purchaser, attorn to the purchaser upon any such foreclosure or
sale and recognize such purchaser as the Landlord under this Lease even though
this Lease is subordinate to such mortgage or deed of trust.
SECTION 8.03. QUIET ENJOYMENT. Landlord covenants that so long as Tenant
continues to pay rent and is otherwise in compliance with the terms of this
Lease, Tenant shall at all times during the Term, peaceably and quietly enjoy
the Premises without any disturbance from the Landlord or from any other person
claiming through Landlord.
ARTICLE IX
ASSIGNMENT AND SUBLETTING
SECTION 9.01. RESTRICTION. Tenant shall not cause or permit, by operation
of law or otherwise, any assignment, encumbrance or transfer of this Lease or
any estate or interest therein without the prior written consent of Landlord.
Tenant shall not sublet the Premises or any part thereof without the prior
written consent of Landlord. Landlord's consent to any such assignment, transfer
or subletting shall not constitute consent to any further assignment or
subletting. Landlord's consent shall not be unreasonably withheld.
ARTICLE X
INSURANCE
SECTION 10.01. LIABILITY INSURANCE. Tenant shall procure, keep in force,
and pay for comprehensive public liability insurance indemnifying Landlord and
Tenant against all claims and demands for injury to or death of persons or
damage to property which may be claimed to have occurred upon the Premises in
amounts which shall be not less than Five Hundred Thousand Dollars ($500,000.00)
for property damage, including plate glass coverage, One Million Dollars
($1,000,000.00) for injury or death of one person, and Two Million Dollars
($2,000,000.00) for injury or death of more than one person in a single
accident.
Such insurance shall be effected with insurers authorized to do business
in North Carolina, under valid and enforceable policies, and such policies shall
name Landlord and Tenant as the insured, as their respective interests appear.
Such insurance shall provide that it shall not be cancelled without at least
twenty (20) days prior written notice to each insured named therein. Original
copies of the policies issued by the
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respective insurers, or certificates of such policies setting forth in full the
provisions thereof and issued by such insurers, together with the evidence
satisfactory to Landlord of the payment of all premiums for such policies, shall
be delivered by Tenant to Landlord, and certificates as aforesaid of such
policies shall upon request of Landlord be delivered by Tenant to the holder of
any mortgage affecting the Premises.
SECTION 10.02. PROPERTY INSURANCE. Landlord shall obtain and keep in force
during the term of this Lease a policy or policies of insurance on the building
on the Premises in an amount reasonably determined by the Landlord, providing
protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, and covering such other perils
as Landlord shall from time to time elect.
Tenant shall obtain and keep in force during the term of this Lease a
policy or policies of insurance against all perils, in the names of Landlord and
Tenant, covering damage to the Tenant's fixtures, equipment, all interior
improvements and plate glass coverage.
SECTION 10.03. WAIVER OF SUBROGATION. Tenant and Landlord each hereby
agree (to the extent that such agreement does not invalidate coverage under any
policy of insurance) to mutually release and relieve the other from all claims
and liabilities arising from or caused by any hazard covered by insurance on the
Premises and/or the property of which the Premises are a part, or covered by
insurance in connection with property on or activities conducted in or about the
Premises, regardless of the cause of the damage or loss, provided that this
release shall apply only to the extent that such loss is covered by such
insurance.
ARTICLE XI
NOTICES
SECTION 11.01. PERSONAL DELIVERY OR REGISTERED MAIL. Any notice which,
under this Lease or under any law now or hereafter in force, is required to be
given may be given personally or by certified or registered mail, return receipt
requested or by a nationally recognized overnight service, by enclosing such
notice in a postpaid envelope directed as follows:
(a) To Landlord at:
Mr. John G. B. Xxxxxxx, Jr.
Post Office Box 29027
000 Xxxxx Xxxxxx Xx, Xxxx. 0, Xxxxx 000
Xxxxxxxxxx, XX 00000
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(b) To Tenant at:
RAF Industries, Inc.
0000 Xxx Xxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxx
or at such other address as Tenant or Landlord may designate in writing.
ARTICLE XII
ESTOPPEL CERTIFICATE
SECTION 12.01. TENANT TO PROVIDE ESTOPPEL CERTIFICATE. The Tenant agrees,
at any time and from time to time, to execute and deliver to Landlord a
statement in writing addressed to Landlord containing such certifications in
respect to the Lease as are reasonably requested by Landlord or Landlord's
lender.
ARTICLE XIII
MEMORANDUM OF LEASE
SECTION 13.01. RECORDING OF MEMORANDUM. Landlord and Tenant agree not to
record this Lease. Either party shall, at the request of the other, execute,
acknowledge and deliver at any time a Memorandum of Lease in due form proper for
recordation prepared by the requesting party.
ARTICLE XIV
DAMAGE OR DESTRUCTION OF PREMISES BY FIRE
OR OTHER CASUALTY
SECTION 14.01. REPAIR AFTER CASUALTY.
(a) If the Premises shall be destroyed or so injured, due to any cause, as
to be unfit, in whole or in part, for occupancy, and such destruction or injury
could reasonably be repaired or rebuilt within six (6) months from the date of
such damage or destruction, then Tenant shall not be entitled to surrender
possession of the Premises. In the case of any such destruction or injury,
Landlord shall repair or rebuild the Premises with all reasonable speed and
shall complete such repairs within six (6) months from the date of such
destruction or damage. If during such period Tenant shall be deprived of the use
of all or any portion of the Premises, a proportionate adjustment in the rent
shall be made corresponding to the time during which, and the portion of the
Premises of which, Tenant shall be so deprived.
(b) If such destruction or injury to the Premises cannot reasonably be
repaired within six (6) months from the date of such damage or destruction,
Landlord shall notify Tenant within
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thirty (30) days after the occurrence of such destruction or damage whether or
not Landlord will repair or rebuild. If Landlord elects not to repair or
rebuild, this Lease shall be terminated. If Landlord shall elect to repair or
rebuild, Landlord shall notify Tenant of the time within which such repairs or
reconstruction will be completed, and Tenant shall have the option, within
thirty (30) days after the receipt of such notice, to elect by written notice to
Landlord to either terminate this Lease or to continue hereunder. In the event
Tenant elects to continue under this Lease, Landlord shall restore the Premises
to their condition at the time of their initial delivery to Tenant within the
time specified in said notice, and Tenant shall not be liable to pay rent for
the period from the occurrence of such destruction or damage until the Premises
are restored by Landlord to the extent that Tenant regains use and enjoyment of
the same.
SECTION 14.02. RIGHT TO CANCEL DURING LAST TWO YEARS. In addition to all
rights to cancel or terminate this Lease given to the parties in Section 14.01
hereof, if the Premises are destroyed or damaged during the last two (2) years
of the Term to the extent of fifty percent (50%) or more of the total square
feet of floor area of the Premises, then Landlord or Tenant shall have the right
to cancel and terminate this Lease as of the date of such damage or destruction
by giving notice thereof within thirty (30) days after the date of said damage
or destruction. Landlord shall not exercise its option to terminate if Tenant
exercises its option to renew.
ARTICLE XV
DEFAULT
SECTION 15.01. EVENTS OF DEFAULT. The happening of any one or more of the
following listed events shall constitute a breach of this Lease on the part of
Tenant, namely:
(a) The commencement in any court or tribunal of any proceeding, voluntary
or involuntary, to declare Tenant or any guarantor of this Lease insolvent or
unable to pay its debts.
(b) The appointment by any court or under any law of a receiver, trustee
or other custodian of the property, assets or business of the Tenant or any
guarantor of this Lease.
(c) The levy of execution, attachment or taking of property, assets or the
leasehold interest of Tenant or any guarantor of this Lease by process of law or
otherwise in satisfaction of any judgment, debt or claim.
(d) The failure of Tenant to perform fully and promptly any act required
of it in the performance of this Lease or to comply otherwise with any term or
provision thereof other than those requiring the payment of rent or other
charges.
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(e) The failure of Tenant to pay any rent or other payment or charge
payable under this Lease for a period of ten (10) days after the same is due and
payable.
Upon the happening of any event of default described under the provisions
of paragraphs (a) through (d), both inclusive, of this Section 15.01, and the
failure of Tenant to cure or remove the same within thirty (30) days after
written notice of such default given to Tenant by Landlord, or upon the
happening of any one type of event of default described in paragraphs (a)
through (d), both inclusive, on two or more occasions in any period of twelve
(12) consecutive months during the term (regardless of whether said events of
default shall have been cured or removed) or upon the happening of an event of
default described in paragraph (e) of this Section 15.01, Landlord, if it shall
so elect, may (without prejudice to any other remedies which Landlord may have
as provided by law) terminate the Term hereof; and if Landlord shall exercise
such right of election, the same shall be effective as of the date of the event
of default upon written notice of Landlord's election given by Landlord to
Tenant at any time after the date of such event of default; or Landlord, if it
shall so elect, may terminate Tenant's right to possession or occupancy only,
without terminating the Term of the Lease.
Upon any termination of the Term hereof, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession or occupancy
of the Premises without terminating the term hereof, Tenant shall surrender
possession and vacate the Premises and deliver possession thereof to Landlord;
and Tenant hereby grants to Landlord full and free license to enter into and
upon the Premises in such event and with process of law to repossess the
Premises as of Landlord's former estate and to expel or remove Tenant and any
others who may be occupying the Premises and to remove therefrom any and all
property using for such purpose such force as may be necessary without being
guilty of or liable for trespass, eviction or forcible entry or detainer and
without relinquishing Landlord's right to rent or any other right given to
Landlord hereunder or by operation of law. Except as otherwise expressly
provided in this Lease, Tenant hereby expressly waives the service and demand
for the payment of rent or for possession of the Premises or to reenter the
Premises, including any and every form of demand and notice prescribed by any
statute or other law.
If Landlord shall elect to terminate Tenant's right to possession only as
above provided, without terminating the Term hereof, Landlord at its option may
enter into the Premises, remove Tenant's property and other evidences of tenancy
and take and hold possession thereof without such entry and possession
terminating the Term hereof or otherwise releasing Tenant in whole or in part
from its obligation to pay the rent herein reserved for the full Term. Upon and
after entry into possession without termination of the Term, Landlord may, but
need not, relet the Premises or any part for the account of Tenant to any
person, firm or corporation other than Tenant for such rent, for
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such time, and upon such terms as Landlord in its sole discretion shall
determine. If any rent collected by Landlord upon such reletting for Tenant's
account is not sufficient to pay monthly the full amount of the rent herein
reserved, and all other charges of every type which are in this Lease and not
theretofore paid by Tenant, together with the costs incurred by Landlord in
connection with the reletting of the Premises including advertising and broker's
commission as well as all costs of repairs, alterations, redecoration or
remodelling, Tenant shall pay to Landlord the amount of each monthly deficiency
upon demand; and if the rent so collected from such reletting is more than
sufficient to pay the full amount of the rent reserved hereunder, together with
the aforementioned costs, any balance then remaining shall belong to Landlord.
Any suit or proceeding brought to collect any deficiency or rent shall not
prejudice or preclude in any way the right of the Landlord to collect any
deficiencies thereafter arising by similar suit or proceeding.
In the event that the Tenant should default hereunder, the Landlord shall
be entitled to recover reasonable attorneys' fees and all other costs incurred
by the Landlord in enforcing its rights hereunder.
ARTICLE XVI
INDEMNITY
SECTION 16.01. TENANT'S INDEMNITY. Tenant shall indemnify and hold
harmless Landlord from and against any and all claims arising from (a) Tenant's
use of the Premises or the conduct of its business; (b) any act or omission
done, permitted or suffered by Tenant in or about the Premises; or (c) any
breach or default in the performance of any obligation of Tenant under the terms
of this Lease, which indemnity shall include reasonable court costs and
attorneys' fees; provided, however, that the foregoing shall not extend to any
claim arising, in whole or in part, out of the willful, reckless or negligent
acts or omission of, or breach of any provision of this Lease by Landlord, its
agents, officers, servants, employees or contractors. In any action or
proceeding brought against Landlord by reason of any claim indemnified
hereunder, Tenant shall have the right to participate in the defense thereof and
in the determination of the settlement or compromise of any such action or
proceeding.
ARTICLE XVII
CONDEMNATION
SECTION 17.01. EFFECT OF CONDEMNATION. If the whole of the Premises shall
be acquired or condemned by eminent domain for any public use or purpose, or if
part of the Premises is so taken and the part not so taken is insufficient for
the reasonable use of the Tenant, either Landlord or Tenant may elect to
terminate this Lease. If this Lease shall thus be terminated, rent shall be
payable up to the date that physical possession is taken by the
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condemning authority. All sums awarded or agreed upon between the Landlord and
the condemning authority for such taking shall be the property of the Landlord,
and the Tenant shall not be entitled to any part of the condemnation award or
purchase price, except for that portion separately awarded to Tenant for
Tenant's personal property.
ARTICLE XV1II
OPTION TO RENEW
SECTION 16.01. OPTION TO RENEW. Tenant is given three (3) options to
extend the term of this Lease for periods of five (5) years each. In the event
Tenant wishes to exercise its option to renew, it shall give Landlord written
notice at least six (6) months prior to the end of the then current Term. In the
event Tenant fails to give such notice, the Lease will terminate at the end of
the then current term. Tenant's right to exercise an option is conditional on
Tenant's performance of all the duties and obligations on its part to be
performed under this Lease so that, at the time of the exercise of said option,
Tenant shall not be in default hereunder. All the terms and conditions of the
Lease shall apply for the renewal term, including the CPI increase in the rental
rate.
ARTICLE XIX
ENVIRONMENTAL
SECTION 19.01. HAZARDOUS SUBSTANCES. Tenant shall not, without Landlord's
prior written consent, after full disclosure, use, store, manufacture, transport
or dispose of any Hazardous Material (as hereinafter defined) on or about the
Premises or the Development Site. Tenant shall not violate any applicable
Environmental Laws (as hereinafter defined) relating to or affecting the
Premises. Tenant shall comply with and ensure compliance by Tenant's agents,
contractors, employees, servants, lessees or concessionaires, with all
applicable Environmental Laws relating to or affecting the Premises and shall
keep the Premises free and clear of any liens imposed pursuant to any applicable
Environmental Laws. Tenant has obtained and will at all times continue to obtain
and/or maintain all licenses, permits and/or other governmental or regulatory
actions necessary to comply with Environmental Laws (the "Permits") and Tenant
is in full compliance with the terms and provisions of the Permits and will
continue to comply with the terms and provisions of the Permits. Tenant shall
immediately give Landlord oral and written notice in the event that Tenant
receives any notice from any governmental agency, entity, or any other party
with regard to Hazardous Materials on, from or affecting the Premises and shall
conduct and complete all investigations, sampling, and testing, and all
remedial, removal, and other actions necessary to clean up and remove all
Hazardous Materials on, from or affecting the Premises in accordance with all
applicable Environmental Laws.
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SECTION 19.02. TENANT'S ENVIRONMENTAL INDEMNITY. Tenant hereby agrees to
indemnify Landlord and hold Landlord harmless from and against any and all
losses, liabilities, damages, injuries (including, without limitation,
attorneys' fees and expenses) and claims of any and every kind whatsoever paid,
incurred or suffered by, or asserted against Landlord for, with respect to, or
as a direct or indirect result of (a) the presence on, or under, or the escape,
spillage, emission or release from the Premises of any Hazardous Material caused
by or within the control of Tenant, (b) the violation of any Environmental Laws
relating to or affecting the Premises or Development Site, caused by or within
the control of Tenant, (c) or the failure by Tenant to comply fully with the
terms and provisions of this paragraph. For purposes of this Lease, "Hazardous
Material" means and includes petroleum products, any flammable explosives,
radioactive materials, asbestos or any material containing asbestos, and/or any
hazardous, toxic or dangerous waste, substance or material defined as such in
(or for the purposes of) the Environmental Laws. For the purposes of this Lease,
"Environmental Laws" means the Comprehensive Environmental Response,
Compensation and Liability Act, the Hazardous Materials Transportation Act, the
Resource Conservation and Recovery Act, any "Super Fund" or "Super Lien" law, or
any other federal, state or local law, regulation, decree, regulating, relating
to or imposing liability or standards of conduct concerning any petroleum
products, any flammable explosives, radioactive materials, asbestos or any
material containing asbestos, and/or hazardous, toxic or dangerous waste,
substance or material, as may now or at any time hereafter be in effect. The
obligations and liabilities of Tenant under this Section shall survive this
Lease.
ARTICLE XX
CONDITION PRECEDENT
SECTION 20.01. ACQUISITION OF TITLE. The obligations of Landlord and
Tenant hereunder are contingent upon the acquisition by Landlord, prior to the
commencement date, of fee simple marketable title to the Premises, free and
clear of all encumbrances except ad valorem taxes for the current year, utility
easements and rights-of-way, and unviolated restrictive covenants, that do not
materially affect the value or intended use of the Premises and such other
encumbrances as may be approved by Landlord and Tenant and shown on Exhibit "B"
to be attached hereto. Tenant agrees to abide by the terms and conditions of all
restrictive covenants imposed on the Premises.
ARTICLE XXI
CONSTRUCTION OPERATION EFFECT
SECTION 21.01. GOVERNING LAW. This Lease shall be governed by and
construed in accordance with the laws of the State of North Carolina.
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SECTION 21.02. PARTIAL INVALIDITY. In the event that any term, covenant,
condition or provision of this Lease shall at any time or to any extent be
invalid or unenforceable, the remainder of this Lease shall not be affected
thereby, and each term, covenant, condition and provision of this Lease shall be
valid and enforceable to the fullest extent permitted by law.
SECTION 21.03. ENTIRE AGREEMENT. The parties hereby have made no prior
oral agreement affecting this Lease. This Lease supersedes and cancels any
prior negotiation, arrangement, agreement and understanding between the
parties affecting this Lease.
SECTION 21.04. BINDING EFFECT. This Lease shall inure to the benefit of,
and be binding upon, the parties hereto, and their heirs, executors,
administrators, successors and assigns. No rights, however, shall inure to the
benefit of any assignee of Tenant unless the assignment to such assignee has
been approved in writing by the Landlord and is provided elsewhere in this
Lease.
SECTION 21.05. HEADINGS. The headings or captions of Articles and Sections
are for identification purposes only and do not limit or construe the contents
of the Articles and Sections.
IN WITNESS WHEREOF, the parties hereto have executed this Lease and
affixed their seals, the day and year first above written.
TENANT: VES, INC. a Delaware corporation
d/b/a VES EXTRUSIONS, INC. in North
Carolina
(CORPORATE SEAL)
BY: /s/ [ILLEGIBLE]
--------------------------------
Co-Chairman
ATTEST:
/s/ [ILLEGIBLE]
----------------------------
Secretary
LANDLORD:
(SEAL)
----------------------------
Xxxx G. B. Xxxxxxx, Jr.
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EXHIBIT "A"
[GRAPHIC OMITTED]
Xxxxxxx Co. (APC) Property
Common Area
EXHIBIT "B"
a.) Declaration with Respect to Covenants and Restrictions affecting
Welcome Business Center recorded in Book 901, Page 1290, Davidson County
Registry.
b.) Twenty foot (20') private drainage easement across the northern
portion of the property as shown on Plat Book 24, Page 30, Davidson County
Registry.
c.) Easement granted to American Telephone and Telegraph Company recorded
in Book 108, Page 479 and subsequently assigned to Southern Xxxx Telephone and
Telegraph Company recorded in Book 534, Page 382, Davidson County Registry.
d.) Easement granted to Southern Public Utilities Company recorded in Book
113, Page 335, Davidson County Registry.
e.) General Permit granted to Lexington Telephone Company recorded in Book
306, Page 507 and in Book 426, Page 205, Davidson County Registry.
f.) Access only over Welcome Center Boulevard subject to the terms and
conditions of that certain Private Road Crossing Agreement recorded in Book 665,
Page 95 and re-recorded in Book 672, Page 155 and as amended by that Amendment
recorded in Book 683, Page 412; Assignment of Interest recorded in Book 683,
Page 413 and Assignment of Interest recorded in Book 901, Page 1326, all in the
Davidson County Registry.
g.) Statement of Dedication of Streets and Roads for Public Use recorded
in Book 901, Page 1273, Davidson County Registry.
h.) Deed of Trust dated April 28, 1994 executed by Xxxx G. B. Xxxxxxx, Jr.
and wife, Xxxx X. Xxxxxxx to X. Xxxxxxx Parks, Trustee for NationsBank of North
Carolina, N.A. securing a note in the face amount of $4,005,000.00 recorded May
3, 1994 in Book 902, Page 231, Davidson County Registry.
i.) Assignment of Lessor's Interest in Leases, Rents and Profits dated
April 28, 1994 executed by Xxxx G. B. Xxxxxxx, Jr. and wife, Xxxx X. Xxxxxxx,
"Assignor" to NationsBank of North Carolina, N.A., "Assignee" recorded May 3,
1994 in Book 902, Page 236, Davidson County Registry.
