This Instrument Prepared By:
Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, PLLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
LEASE
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This lease ("Lease") is made and entered into effective as of January
1, 1999 (the "Effective Date") by and between Xxxxxxx Corporation, a Tennessee
corporation, hereafter referred to as "Landlord," and Coca-Cola Bottling Co.
Consolidated, a Delaware corporation, hereinafter referred to as "Tenant";
W I T N E S S E T H:
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1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, the premises in Nashville, Davidson County, Tennessee, comprised
of two lots described in the survey descriptions (the "Land") attached hereto as
Exhibit A, along with all improvements now located or hereafter constructed on
said real property (the "Improvements"), collectively, the Land and the
Improvements are referred to hereafter as the "Premises," together with all
easements, appurtenances, rights, and privileges belonging or pertaining
thereto. The survey descriptions contain:
(a) An outline of the demised Premises;
(b) A legal description of the demised Premises,
including a seventeen (17) foot strip along the southeasterly margin subject
to exception;
(c) All easements and rights-of-way.
2. TERM AND RENEWALS. (a) The term of this Lease shall be ten (10)
years commencing on January 1, 1999 and terminating on December 31, 2009, (the
"Original Term").
(b) Tenant may renew this Lease as to the entire Premises for
two (2) additional, consecutive terms of five (5) years each (each a "Renewal
Term"; together, the "Renewal Terms") by giving written notice to Landlord of
its exercise of the renewal option at any time prior to one (1) year before the
end of the then current term. Rents for the renewal term(s) shall be determined
under Section 5 of this Lease. Other than the rents applicable during the
Renewal Term(s), all other terms and provisions in this Lease shall be fully
applicable during any Renewal Term(s) exercised by Tenant.
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3. TITLE. Landlord covenants and warrants that it is the legal owner of
the Premises.
4. ENJOYMENT. Landlord further covenants that, at the time it executes
this instrument, there is no mortgage on the Premises and it has full right and
power and authority to enter into this Lease and warrants to Tenant that quiet
and peaceful possession of the Premises during the whole term of this Lease, and
any renewals thereof, so long as Tenant is not in default hereunder beyond any
applicable cure period set forth herein.
5. RENTAL. (a) The "Base Annual Rent" for this Lease is $375,000.00
(Net/Net). On the Effective Date and continuing from month to month for the
first sixty (60) months of the Original Term, Tenant shall pay directly to
Landlord monthly installments of the Base Annual Rent in the amount of
Thirty-one Thousand Two Hundred Fifty ($31,250) Dollars, in advance on or before
the first day of each calendar month.
(b) On January 1, 2004, the Base Annual Rent shall be
increased by seventy-five percent (75%) of the percentage increase in the
Consumer Price Index during the preceding sixty (60) months and Tenant's payment
of monthly installments of the Base Annual Rent shall be increased accordingly.
On the effective date of any Renewal Term under this Lease, the Base Annual Rent
and Tenant's payment of monthly installments of the annual rent shall likewise
be increased by seventy-five percent (75%) of the increase in the Consumer Price
Index during the preceding sixty (60) months.
(c) "Consumer Price Index" means the Consumer Price Index for
Urban Consumers, All Cities Average (1982-84 = 100) published by the United
States Department of Labor, Bureau of Labor Statistics or, in the absence of
such Index, such other comparable index published by the United States
Government or agencies thereof as may be mutually agreed upon by the parties,
which agreement shall not be unreasonably withheld.
6. TENANT'S OBLIGATIONS. From and after Effective Date, Tenant shall be
responsible for the payment of all real estate taxes and assessments, all
utility charges, the cost of liability and fire and extended coverage insurance
and all operational expenses, including specifically maintenance and repairs to
the Premises, including the roofs (unless such repairs or maintenance are
required as a result of the gross negligence, misconduct or intentional acts or
omissions of Landlord, its agent(s), contractor(s), employee(s), or
subcontractor(s), in which event, Landlord shall be responsible for each
repair). Tenant shall also be responsible for the following:
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(a) Tenant shall maintain liability insurance in amounts not
less than One Million ($1,000,000) Dollars for one person and Five Million
($5,000,000) Dollars for any one accident, with Landlord named as an additional
insured, and shall indemnify and hold Landlord harmless against claims of all
those who may sustain injuries or damages upon the Premises as the result of
Tenant's use and occupancy of the Premises during the term of this Lease (unless
such injuries or damages occur as a result of the gross negligence, misconduct,
intentional acts or omissions of Landlord, its agent(s), contractor(s),
employee(s) or subcontractor(s), in which event, Landlord shall be solely
responsible).
(b) Fire and extended coverage insurance shall be carried in
an amount equal to at least eighty (80%) percent of the replacement value of the
Premises, including buildings, fixtures and other improvements. Such coverage
shall name Landlord as an additional insured.
(c) All insurance required herein shall be carried with
companies licensed to do business in Tennessee and approved by Landlord, but
such approval shall not be unreasonably withheld.
(d) Tenant shall maintain the Premises in as good condition
and repair as they are in on the Effective Date of this Lease and shall, upon
termination, surrender the Premises in as good condition and repair, ordinary
wear and tear excepted.
(e) Tenant shall make no alterations which will adversely
effect the aesthetic conformity of the exterior of the Improvements without
Landlord's approval but may make interior changes without such approval,
provided such changes meet the requirements of all local building codes and any
other applicable government regulations.
(f) The Premises shall not be used for any illegal purpose nor
in violation of any valid regulation of any governmental body nor in any manner
to create a nuisance or trespass or in any manner to vitiate the insurance on
the Premises.
(g) Tenant shall have the right to contest, in Landlord's name
but at Tenant's expense, the amount or validity of any tax assessment or levy
and shall not be required to pay such tax until the amount or validity is
finally determined.
7. TRADE FIXTURES AND EQUIPMENT. Any trade fixtures installed in the
Premises at Tenant's expense shall remain Tenant's personal property
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and Tenant shall have the right at any time during the term of the Lease to
remove such trade fixtures. Upon removal of any trade fixtures, Tenant shall
restore any damage or alteration of the Premises caused by removal of trade
fixtures to a reasonably acceptable tentable condition. Tenant shall be
responsible for the cost of removing its trade fixtures upon termination or
expiration of this Lease. The obligations of Tenant under this Section shall
survive the expiration or termination, for any reason, of this Lease.
8. CASUALTY. (a) If the Premises are damaged or destroyed by fire or
other casualty, Tenant, using the proceeds of the insurance specified in Section
6, will repair and replace the Improvements either to their condition at the
time of the casualty or in a manner more suitable for Tenant's business (at
Tenant's option), and any part of the insurance proceeds not so used shall be
paid to Landlord except for that portion attributable to improvements made by
Tenant.
(b) Notwithstanding the above, if the repair and replacement
of the Improvements will reasonably take more than 180 days to complete or if
the casualty occurs during the last two (2) years of the Original Term or
Renewed Term, the Tenant may elect not to rebuild or restore the Premises. If
Tenant elects not to rebuild, the entire proceeds from said insurance shall be
paid to Landlord. In the event the Tenant elects not to rebuild, this Lease
shall terminate as of the date of the casualty. If Tenant elects to rebuild or
restore the Premises, the rental due hereunder shall wholly xxxxx while such
Premises are unoccupied and shall proportionately xxxxx while Tenant occupies
any portion thereof.
9. INDEMNITY AND NON-LIABILITY. Tenant shall indemnify and save
Landlord harmless from and against any and all liability for any injury to or
death of any person or persons or any damage to property in any way arising out
of or connected with the condition, use or occupancy of the Premises, that in
any way result from Tenant's activities on the Premises or that of its agents,
employees, licensees, contractors or invitees and from all costs, expenses and
liabilities, including, but not limited to, court costs and reasonable
attorney's fees, incurred by Landlord in connection therewith, excepting
however, liability caused by Landlord's willful misconduct or gross negligence.
Tenant covenants and agrees that Landlord shall not be liable to Tenant
for any injury to or death of any person or persons or for damage to any
property of Tenant, or any person claiming through Tenant, arising out of any
accident or occurrence on the Premises including, without limiting the
generality of the foregoing, injury, death or damage caused by the Premises
becoming out of repair or caused by any defect in or failure of equipment,
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pipes, or wiring, or caused by broken glass, or caused by the backing up of
drains, or caused by gas, water, steam, electricity, or oil leaking, escaping or
flowing into the Premises, or caused by fire or smoke, or caused by the acts or
omissions of Tenant's agents, employees, contractors or invitees, excepting
however, liability caused by Landlord's gross negligence or willful misconduct.
Landlord shall not be responsible or liable at any time for any loss or
damage to Tenant's merchandise, equipment, fixtures or other personal property
or to Tenant's business; and Landlord shall not be responsible or liable for any
defect, latent or otherwise, in the Premises or in any building on the Premises
or in any of the equipment, machinery, utilities, appliances or apparatus
therein, excepting, however, loss caused by Landlord's gross negligence or
willful misconduct.
10. ENVIRONMENTAL COVENANTS.
(a) Tenant hereby covenants and agrees that (i) Tenant will
not conduct or permit to be conducted on the Premises any activity that will use
or generate any "Hazardous Materials" (as hereinafter defined), except for those
activities that are part of the ordinary course of Tenant's soft drink bottling
and distribution business (the "Permitted Activities"); (ii) all Permitted
Activities will be conducted in accordance with all "Applicable Environmental
Laws" (as hereinafter defined) and will have been approved in advance in writing
(if required by applicable law) by the appropriate regulatory authority; (iii)
the Premises will not be used for the storage of any Hazardous Materials except
for the storage of such materials used or generated in the ordinary course of
Tenant's business; (iv) the storage of Hazardous Materials will be conducted in
accordance with all Applicable Environmental Laws in temporary storage areas on
the Premises approved in writing by the appropriate regulatory authority (if
required by applicable law) and Landlord; (v) only the Hazardous Materials used
or generated by Tenant with respect to Permitted Activities, (the "Permitted
Materials"), will be generated, used or stored on the Premises and no other
Hazardous Materials will be generated, used or temporarily stored on the
Premises without the prior written approval of the appropriate regulatory
authority (if required by applicable law) and Landlord; (vi) no portion of the
Premises will be used as a landfill or dump; (vii) Tenant will not install or
allow to be installed any underground tanks of any type without Landlord's prior
written consent; (viii) Tenant will not knowingly allow any surface or
subsurface conditions to exist or come into existence on the Premises that
constitutes, or with the passage of time may constitute, a public or private
nuisance; (ix) Tenant will not knowingly permit any Hazardous Materials to be
brought onto the Premises, except for the Permitted Materials described above,
and if so found located thereon, Tenant will immediately remove such
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Hazardous Materials from the Premises, with proper packaging, labeling,
transportation, and disposal, and all required cleanup and remediation
procedures will be diligently undertaken by Tenant and at Tenant's sole cost and
expense pursuant to all Applicable Environmental Laws. If the presence of any
Hazardous Materials brought, kept, stored, generated or used on, in, under or
about the Premises by Tenant, its agents, employees, contractors or invitees
results in any contamination of the Premises or in any release of any such
Hazardous Materials on, in, under, about or from the Premises or into the air,
soil, surface water or ground water, (a "Tenant Release") Tenant shall promptly
take all actions, at its sole cost and expense, as are necessary to return the
affected area to the condition existing prior to the Tenant Release, including,
without limitation, any investigation or monitoring of site conditions and any
clean up, remediation, response, removal, encapsulation, containment or
restoration work required because of the Tenant Release (collectively, the
"Tenant's Remedial Work"). Tenant shall obtain all necessary licenses,
manifests, permits and approvals to perform Tenant's Remedial Work. Tenant shall
perform all of Tenant's Remedial Work and the disposal of all waste generated by
the Tenant's Remedial Work in accordance with all Applicable Environmental Laws.
If Tenant fails to comply with any of the covenants and agreements set forth
above, Landlord, at Tenant's sole cost and expense, may, with reasonable prior
notice to Tenant, enter upon the Premises and undertake to restore the
environmental condition of Premises to the condition existing immediately prior
to Tenant's occupation of the Premises. Tenant shall immediately give Landlord
written notice of any contamination or suspected contamination of the Premises,
of any release, suspected release or threat of release of any Hazardous
Materials on, in, under, about or from the Premises, of any breach or suspected
breach of this paragraph or of the receipt of any notice from a governmental
agency pertaining to the presence, release or threat of release or the suspected
presence, release or threat of release of any Hazardous Materials on, in, under,
about or from the Premises or pertaining to any violation of Applicable
Environmental Laws.
(b) Tenant shall indemnify, save harmless and defend Landlord
from and against any and all claims (including, without limitation, third party
claims for personal injury or real or personal Premises damage), actions,
administrative proceedings (including informal proceedings), judgments, damages,
punitive damages, penalties, fines, costs, liabilities, interest or losses
(including, without limitation, diminution in value of the Premises, reasonable
attorneys' fees, consultant fees, expert fees and any fees and expenses incurred
in enforcing its rights under Section 10 of this Lease) incurred by, sought from
or asserted directly or indirectly against Landlord during or after the term of
this Lease as a result of (i) the presence, release or threat of release or the
suspected presence, release or threat of release of any Hazardous Materials on,
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in, under, about or from the Premises, which Hazardous Materials were brought,
kept, stored or used on, in, under or about the Premises by Tenant, its agents,
employees, contractors or invitees, (ii) any violation of Applicable
Environmental Laws by Tenant, its agents, employees, contractors or invitees,
(iii) any activities conducted by Tenant on the Premises, including, without
limitation, any Permitted Activities, (iv) the generation, use, storage,
handling or disposal by Tenant of any Hazardous Materials, including, without
limitation, any Permitted Materials, and/or (v) any breach by Tenant of its
obligations and/or covenants under this Section.
(c) "Hazardous Materials" shall mean and include any
substance, material, waste, contaminant or pollutant that is now or hereafter
listed, defined, characterized or regulated as hazardous, toxic or dangerous
under or pursuant to any federal, state, regional, county or local governmental
authority having jurisdiction over the Premises or its use or operation,
including, without limitation, (i) any substance, material, element, compound,
mixture, solution, waste, chemical or pollutant listed, defined, characterized
or regulated as hazardous, toxic, or dangerous under any Applicable
Environmental Law, (ii) petroleum, petroleum derivatives or by-products and
other hydrocarbons, (iii) polychlorinated biphenyls (pcb's), (iv) asbestos, (v)
urea formaldehyde, (vi) radioactive substances, materials or waste, and (vii)
any other substance or material, the investigation, removal or remediation of
which is required or the generation, use, handling or disposal of which is
restricted, prohibited, regulated or penalized by any Applicable Environmental
Law.
(d) "Applicable Environmental Law" shall mean and include (i)
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C.ss.ss.9601 et seq. ("CERCLA"); (ii) the Resource Conservation and Recovery
Act, 42 U.S.C.ss.ss.6901 et seq. ("RCRA"); (iii) the Federal Water Pollution
Control Act, 33 U.S.C.ss.ss.1251 et seq.; (iv) the Clean Air Act, 42
U.S.C.ss.ss.7401 et seq.; (v) the Hazardous Materials Transportation Act, 49
U.S.C.ss.ss.1471 et seq.; (vi) the Toxic Substances Control Act, 15
U.S.C.ss.ss.2601 et seq.; (vii) the Emergency Planning and Community
Right-to-Know Act, 42 U.S.C.ss.ss.11001 et seq.; (viii) the National
Environmental Policy Act, 42 U.S.C.ss.ss.4321 et seq.; (ix) the Rivers and
Harbours Act of 1899, 33 U.S.C.ss.ss.401 et seq.; (x) the Occupational Safety
and Health Act, 29 U.S.C.ss.ss.651 et seq.; (xi) the Safe Drinking Water Act, 42
U.S.C.ss.ss.300(f) et seq.; (xii) any amendments to the foregoing Acts as
adopted from time to time; (xiii) any rule, regulation, order, injunction,
judgment, declaration or decree implementing or interpreting any of the
foregoing Acts, as amended; (xiv) any other federal, state, regional and local
statute, law, ordinance, rule, regulation, order or decree, regulating, relating
to, interpreting or imposing liability or standards of conduct concerning any
hazardous, toxic or dangerous substance, material, waste,
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chemical or pollutant now or hereafter in effect; and (xv) any permit, license,
certificate, consent, approval or authorization issued by any federal, state or
local government agency under any of the foregoing regarding the Premises or the
operations thereon.
(e) Notwithstanding the foregoing, Landlord shall be
responsible for indemnifying Tenant from and against any release of Hazardous
Materials prior to the commencement of the Prior Lease (as defined in Section 24
herein), and any release by Landlord, its agents or employees.
(f) Notwithstanding anything set forth herein to the contrary,
the obligations of Tenant under this Section shall survive the expiration or
termination, for any reason, of this Lease.
11. CONDEMNATION.
(a) Total Condemnation of Leased Premises. If the whole of the
Premises shall be acquired or condemned by eminent domain or by private sale in
lieu of condemnation for any public or quasi public use, then the term of this
Lease shall cease and terminate as of the date of title vesting in such
proceeding.
(b) Partial Condemnation. If any part of the Premises shall be
acquired or condemned by eminent domain or by private sale in lieu of
condemnation, as aforesaid, and in the event that such partial taking or
condemnation shall render the leased Premises, in Tenant's reasonable
discretion, unsuitable for the business of the Tenant, or, if the restoration
and repair required to restore the Premises cannot be completed within one
hundred eighty (180) days of such condemnation, then Tenant shall have the right
to terminate this Lease effective as of the date of title vesting in such
proceeding by providing Landlord with written notice of Tenant's intent to
terminate within thirty (30) days of such proceeding. In the event of a partial
taking or condemnation which, in Tenant's reasonable discretion, is not
extensive enough to render the Premises unsuitable for the business of the
Tenant, then Landlord, at Landlord's sole expense, shall promptly restore the
leased Premises to a condition comparable to its condition at the time of such
condemnation less the portion lost in the taking, and this Lease shall continue
in full force and effect with reduction or abatement of rent.
(c) In the event of any such condemnation or sale in lieu of
condemnation, the award or the proceeds of sale shall be distributed between
Landlord and Tenant in accordance with their respective interests, provided,
Landlord shall not have any interest in a separate award made to Tenant for
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loss of business, moving expenses or the taking of Tenant's trade fixtures and
equipment. The provisions of this paragraph shall survive the termination of the
Lease.
12. ASSIGNMENT. Tenant shall not assign this Lease or sublet all or any
part of the Premises without Landlord's written consent, which consent shall not
be unreasonably conditioned, withheld or delayed. Tenant may assign this Lease,
however, or sublet all or part of the Premises to its affiliates, subsidiaries
or parent corporation without Landlord's approval. Notwithstanding any
assignment or subletting, Tenant will at all times remain liable for the
performance of all terms and conditions which it is required to perform under
this Lease.
13. DEFAULT. The occurrence of any of the following events shall be
deemed to be events of default by Tenant (or Landlord, as the case may be) under
this Lease:
(a) Tenant's failure to pay any of the monthly rentals herein
provided and such failure shall continue for a period of ten (10) days after
receipt by Tenant of written notice thereof from Landlord.
(b) Failure by either party to comply with any provision of
this Lease (other than the payment of rent), if not remedied within a period of
thirty (30) days after receipt of written notice of such failure from the other
party, or, if such default cannot be remedied within such period, such party
does not, within thirty (30) days after receipt of such written notice, commence
such act or acts as shall be necessary to remedy the default and shall not
thereafter complete such act or acts within a reasonable time, not to exceed
sixty (60) days.
(c) Tenant's insolvency or Tenant making an assignment for the
benefit of its creditors.
(d) Tenant's filing of a petition under the laws of the United
States relating to bankruptcy (11 U.S.C. ss. _____) or under any similar law of
any state; or Tenant shall be adjudged bankrupt or insolvent in proceedings
filed thereunder.
(e) The appointment of a receiver or trustee for Tenant's
property and such appointment is not vacated or set aside within sixty (60)
days.
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14. REMEDIES. Upon the occurrence of an event of default, Landlord may
pursue any one or more of the following remedies:
(a) Terminate this Lease upon thirty (30) days prior written
notice sent by certified mail, overnight courier or hand-delivered to Tenant and
thereupon re-enter and take possession of the Premises holding Tenant liable for
damages resulting from such termination, including the loss of rents occasioned
by Landlord's inability, despite its reasonable efforts, to relet the Premises
upon satisfactory terms, or otherwise.
(b) Upon notice by certified mail, overnight courier or
hand-delivered to Tenant, re-enter and take possession of the Premises and relet
the Premises or any part thereof and receive the rent therefor and hold Tenant
liable for any deficiency which may result from such reletting.
(c) Enter upon the Premises and do whatever Tenant is
obligated to do under this Lease and hold Tenant liable for any expenses thus
incurred.
(d) Pursuit of any one of such remedies shall not preclude
pursuit of any of the other remedies herein provided or any other remedies
provided by law. Failure of Landlord to enforce one or more of such remedies
upon default shall not constitute a waiver of the default or of any other breach
of any of the terms of this Lease.
15. FORCE MAJEURE. Neither Landlord nor Tenant shall be deemed to be in
default under this Lease because of any failure to perform or any delay in
performance caused by force majeure, i.e. fire, earthquake, flood, explosion,
casualty, strike, unavoidable accident, riot, insurrection, civil disturbance,
act of the public enemy, embargo, war, act of God, inability to obtain labor,
materials or supplies or any other similar cause beyond the control of the party
in question.
16. ATTORNEY'S FEES. If, on account of any breach or default by either
party to this Lease, it shall become necessary for the other party to employ an
attorney to enforce or defend any of such party's rights or remedies hereunder,
the defaulting party agrees to pay any reasonable attorney's fees incurred by
the other party in such connection, including appellate costs.
17. HOLD OVER. Should Tenant, or any of his successors in interest,
hold over the leased Premises, or any part thereof, after the expiration of this
Lease and any Renewal Term, unless otherwise agreed in writing, such holding
over shall be deemed a tenancy from month-to-month only, at a monthly rental
equal to the rent paid for the last month of the lease or renewal term.
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18. LIENS. Neither Tenant nor Landlord shall permit any mechanic's or
materialman's or other lien to stand against the leased Premises for any labor
or material furnished either of them in connection with work of any character
performed on said Premises by or at their direction. Either Landlord or Tenant,
however, shall have the right to contest the validity or amount of any such
lien; provided that, upon final determination of such questions, the party whose
actions gave rise to such lien shall immediately pay any judgment rendered with
all proper costs and charges and shall have the lien released at its own
expense.
19. SUBORDINATION AND NON-DISTURBANCE. (a) This Lease and all rights of
Tenant hereunder are and shall be subject and subordinate to the lien of any
first priority mortgage, deed to secure debt, deed of trust, or other instrument
in the nature thereof which may now or hereafter affect Landlord's fee title to
the Premises or Landlord's interest hereunder and to any modifications,
renewals, consolidations, extensions, or replacements of any of the foregoing,
subject, however, in each case to the condition that the holder of the mortgage
or deed of trust shall agree that this Lease shall not be divested by
foreclosure or other default proceedings thereunder so long as Tenant is not in
default under the terms of this Lease beyond any applicable cure period set
forth herein.
This clause shall be self-operative and no further instrument of
subordination shall be required by any mortgagee. In confirmation of such
subordination, Tenant, shall, upon demand at any time or times, execute, seal
and deliver to Landlord, without expense to Landlord, any and all instruments in
recordable form that may be requested by Landlord to evidence the subordination
of this Lease and all rights hereunder to the lien of any such mortgage, deed to
secure debt, deed of trust or other instrument in the nature thereof, and each
renewal, modification, consolidation, replacement, and extension thereof.
In addition, Tenant shall, upon Landlord's request, at any time or times,
execute, seal and deliver to Landlord without expense to Landlord, any and all
instruments that may be necessary to make this Lease superior to the lien of any
such mortgage, deed to secure debt, deed of trust, or other instrument in the
nature thereof, and each renewal, modification, consolidation, replacement, and
extension thereof, and, if Tenant shall fail at any time to execute, seal and
deliver such instrument, Landlord in addition to any other remedies available to
it in consequence thereof, may execute, seal and deliver the same as the
attorney in fact of Tenant and in Tenant's name, place and stead, and Tenant
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hereby irrevocably makes, constitutes, and appoints Landlord, its successors and
assigns, such attorney in fact for that purpose.
If the holder of any mortgage, deed to secure debt, deed of trust, or
other instrument in the nature thereof shall hereafter succeed to the rights of
Landlord under this Lease, whether through possession or foreclosure action or
delivery of a new Lease, then Tenant shall attorn to and recognize such
successor as Tenant's Landlord under this Lease, and shall promptly execute and
deliver any instrument that may be necessary to evidence such attornment. Upon
the attornment provided for herein, this Lease shall continue in full force and
effect as a direct lease between such successor Landlord and Tenant, subject to
all the terms, covenants, and conditions of this Lease.
(b) Landlord shall, upon Tenant's reasonable request, deliver
to Tenant an agreement from the mortgagee or trustee, if any, of any existing
mortgage or deed of trust, that said mortgagee or trustee shall not bring action
against the Tenant for the purpose of terminating Tenant's interest or estate in
the demised Premises, provided Tenant is not then in default.
20. COMMISSION. The Landlord shall have no responsibility for any
broker fees or commissions in connection with this Lease and Tenant shall hold
Landlord harmless from same.
21. NOTICES. Any notice allowed or required by this Lease shall be
deemed to have been sufficiently delivered if the same shall be in writing and
placed in the United States Mail, via certified mail or registered mail, return
receipt requested, with proper postage prepaid. Notices required or permitted to
be given under this Lease shall be addressed as follows:
(a) If to Landlord:
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Xxxxxxx Corporation
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
With a copy to:
--------------
Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, PLLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
(b) If to Tenant:
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Coca-Cola Bottling Co. Consolidated
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P. O. Xxx 00000
Xxxxxxxxx, X.X. 00000-0000
Attn: Director, Facility Management
and
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. XxXxxx, Esq.
Or such other address(es) as the parties may specify by notice given pursuant to
this Section.
22. ENTIRE CONTRACT. This Lease embodies the entire contract between
the parties and it shall not be altered, amended or modified in any respect
except by an instrument of equal dignity.
23. SHORT FORM MEMORANDUM. Upon the request of either party, the
parties shall execute a short form memorandum of this Lease, in recordable form,
which may be placed of record in lieu of recording this Lease.
24. PRIOR LEASE. The parties agree to terminate that certain lease of
the Premises which is of record at Book 4883, Page 57, Register's Office of
Davidson County, Tennessee (the "Prior Lease"), and that such termination shall
occur, following the execution and delivery of this Lease, as the Effective Date
hereof.
25. BINDING CONTRACT. The terms, provisions and covenants and
conditions contained in this Lease shall apply to, inure to the benefit of, and
be binding upon the parties signatory hereto and their respective successors in
interest, except as otherwise herein expressly provided.
26. EVIDENCE OF AUTHORITY. If requested by the other party, each party
hereto shall furnish appropriate legal documentation evidencing the valid
existence and good standing of such party and the authority of any parties
signing this Lease to act for such party.
27. SEVERABILITY. If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it
13
is held invalid or unenforceable, shall not be affected thereby, and each term
and provision of this Lease shall be valid and enforced to the fullest extent
permitted by law notwithstanding the invalidity of any other term or provision
hereof.
IN WITNESS WHEREOF, the parties have executed this Lease in triplicate
as of the Effective Date.
XXXXXXX CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxxxxx X. Xxxxxxxx
President and CEO
COCA-COLA BOTTLING CO.
CONSOLIDATED
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Title: Dir. of Facility Mgmt.
------------------------------
STATE OF TENNESSEE )
)
COUNTY OF DAVIDSON )
Before me, Xxxxx X. Xxxxxxx, a Notary Public of the State and County
aforesaid, personally appeared Xxxxxxxxx X. Xxxxxxxx, with whom I am personally
acquainted, and who, upon oath, acknowledged herself to be President and Chief
Executive Officer of the Xxxxxxx Corporation, the within named bargainor, a
corporation, and that she as such officer, being authorized so to do, executed
the forgoing instrument for the purpose therein contained, by signing the name
of the corporation by herself as President and Chief Executive Officer.
Witness my hand and seal, at office in Nashville, Tn.,
this 1st day of March, 1999.
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/s/ Xxxxx X. Xxxxxxx
--------------------------------
NOTARY PUBLIC
Commission Expires: 9-29-2001
-------------------------------------------
STATE OF North Carolina )
-----------------------------------
)
COUNTY OF Union )
--------------------------
Before me, XxXxxxx X. Xxxx, a Notary Public of the State and County
aforesaid, personally appeared Xxxxxxx X. Xxxxxxxx, with whom I am personally
acquainted, and who, upon oath, acknowledged himself to be Director of Facility
Management, of the Coca-Cola Bottling Co. Consolidated, the within named
bargainor, a corporation, and that____ he as such Director, Facility Mgmt
being authorized so to do, executed the forgoing instrument for the purpose
therein contained, by signing the name of the corporation by himself
as Director of Facility Management .
Witness my hand and seal, at Corporate office in Charlotte, NC,
this 23rd day of February, 1999.
/s/ XxXxxxx X. Xxxx
--------------------------------
NOTARY PUBLIC
Commission Expires: My Commission Expires February 20, 2002
-------------------------------------------
15
