EXHIBIT 10.9
STATE OF NORTH CAROLINA
COUNTY OF XXXXXX
CONTRACT AND LEASE
THIS CONTRACT AND LEASE, made and entered into this the 1st day of
January, 1999, by and between XXXXXX PROPERTIES (hereinafter referred to as
"Lessor"); and THE BEACON COMPANY, INC. (hereinafter referred to as "Lessee");
W I T N E S S E T H
WHEREAS, Lessor and Lessee desire to establish the terms and conditions
of a Lease and execute this Contract and lease to so establish such terms.
NOW, THEREFORE, for and in consideration of the Premises, the mutual
promises, and the covenants and considerations contained herein, the parties
hereby do agree as follows:
1. PREMISES. Lessor hereby does let and demise to Lessee the following
Premises: Suite D-15 Xxxxxx Square, 0000 X. Xxxxxxxxxx Xxxx, Xxx Xxxx, XX 00000.
2. TERM. The term of this Lease shall begin on the 1st day of February,
2000, and shall end (unless sooner terminated as hereinafter provided) at
midnight on the 31st day of January, 2002.
3. RENT. During the term of this lease, Lessee shall pay to Lessor as
rent the sum of $650.00 (Six hundred fifty and 00/100 dollars) each month. Such
rent is to be paid on or before the 1st day of each month to Lessor at such
place as Lessor may direct. Rent moneys received after the 7th day of the month
will be assessed a late fee of ten percent (10%).
4. USE OF PREMISES. During the term of this Lease and any extension or
extensions thereof, the Premises shall be used and occupied solely for the
purpose of Office Space and Lessee shall not permit the same to be used for any
other purpose without the prior written consent of Lessor.
5. PARKING. Lessee shall have a nonexclusive right to use the several
common areas provided by Lessor and appurtenant to the Premises, including
walks, ramps, driveways and parking areas. The public parking areas provided by
Lessor in and about the premises are acknowledged as being intended primarily
for use by customers on Lessee's Premises and other Premises in the same
building. Lessor shall have the authority to assign parking for Lessee and
Lessee's employees as deemed necessary by Lessor. It is provided, however, that
Lessor from time to time may construct improvements within the parking areas
currently existing for the Premises. Accordingly, the right of use grantee in
this paragraph is limited to those parking areas as from time to time located on
the Premises belonging to Lessor.
6. RESTRICTIVE COVENANTS AND HOMEOWNERS ASSOCIATION. The Premises being
leased are conveyed subject to restrictive covenants of record, if any, and
Lessor
and Lessee hereby agree to abide by any and all restrictions, conditions,
easements and covenants contained in the aforesaid restrictive covenants. The
Premises also being leased are conveyed subject to the Homeowners Association
Rules and Regulations. (Copy attached which becomes part of this Lease.)
7. DAMAGE TO OTHERS. Lessee shall not permit, allow or cause any act or
deed to be performed or any practice to be adopted or followed in and about the
Premises which shall cause injury or damage to any person or to said Premises,
building, sidewalks, walkways and parking lots which adjoin the Premises. Lessee
shall comply with all rules and regulations governing the use of common areas in
and about the Premises which may from time to time be adopted by Lessor.
8. MAINTENANCE. Lessor, at its sole cost and expense, shall maintain
and keep in good repair the roof, exterior and supporting walls, electrical,
heat/air conditioning unit and plumbing fixtures (with the exclusion of general
maintenance such as changing of light bulbs and air filters), and common areas
such as parking and grassed areas of the Premises. Provided, however, that the
cost of any repairs required as a result of negligence or any willful act by
Lessees, its licensees, agents, servants, employees or invitees, shall be paid
solely by Lessee. Lessee shall be responsible for all glass repair.
9. UTILITIES. Lessee shall be responsible for paying for all utility
services to the Premises and for providing for such utility services in the name
of Lessee.
10. ASSOCIATION FEES. Lessor shall pay monthly Association Fees in the
amount of $50.00 (Fifty and 00/100 dollars). The fees cover common area cost
including insurance, common area lighting, common area maintenance including
ground care. The fees are subject to yearly increases based on previous years
expenses. Lessee shall be responsible for the payment of any such increases in
association fees.
11. STRUCTURAL CHANGES: Lessee shall not make any structural changes or
alterations in or to any part of the building in which the Premises are located
or in the Premises except upon the prior written consent of Lessor. All
furnishing, fixtures and equipment installed by Lessee on the Premises may be
removed from the Premises at any time during the term of this Lease. This right
of removal of Lessee shall be contingent upon the Lessee repairing and replacing
any and all damage to the Premises resulting from the removal of such furniture,
fixtures and equipment.
12. LESSEE'S PERSONAL PROPERTY. All of the personal property placed or
installed on the Premises by Lessee shall be at the risk of Lessee, and Lessor
shall not be liable for any damage to or for the destruction of said personal
property, or to the Lessee, however occurring, including, but not limited to,
the bursting or leaking of water or steam pipes or from any willful act or
negligence of any other Lessee on the Premises or occupant of the building in
which the Premises are located, or by any other person or cause whatsoever.
13. TAXES. Lessee shall be responsible for the payment of all ad
valorem taxes assessed by any lawful taxing authority of the personal property
of Lessee located on the Premises.
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14. SIGNS. Lessee shall arrange for sign announcing Lessee's services
on the exterior of Premises through Custom Signs, New Bern, NC. (Sign subject to
Lessor's approval.)
15. NO ASSIGNMENT OR SUBLETTING. Lessee shall not have the right to
assign this Lease or to sublet the Premises or any part thereof without the
prior written consent of Lessor.
16. DAMAGE TO PREMISES. In the event the Premises are damaged by fire,
the elements, unavoidable accidents or other casualty, but are not thereby
rendered untenantable either in whole or in part, Lessor, at it's sole expense,
shall cause such damage to be repaired and the rent shall not be abated.
If by reason of any such occurrence the Premises shall be rendered
wholly or partly untenantable, Lessor, at it's option, shall have the right to
either (a) terminate this Lease as of the date of such destruction by giving
written notice to Lessee within thirty (30) days of such date, or (b) repair and
restore the Premises to as good a condition or a better condition as that
existing immediately prior to said occurrence and this Lease shall not
terminate, except that the rent shall xxxxx for that period of time when
Premises are untenantable for the purpose of this Lease. In the event Lessor
elects to repair the Premises pursuant to Subparagraph (b) above, such repairs
shall be completed within ninety (90) days of the date of such occurrence. In
the event such repairs are not so completed, Lessee may terminate this Lease.
17. CONDEMNATION. If the whole or any part of the demised Premises
shall be appropriated and taken by virtue of any condemnation proceeding for any
public or quasi-public use of purpose so as to render the remaining portion
untenantable for the uses and purposes contemplated by the parties, then this
Lease immediately shall terminate on the date possession thereof shall be so
obtained. All or any part thereof, shall become the sole and absolute property
of Lessor, regardless of whether such damages are awarded as compensation for
the diminution in the value of the leasehold or the loss of the fee. The
provisions of this paragraph apply only to the actual Premises demised herein
and shall not be operative to terminate this Lease in the event that said
condemnation or eminent domain proceedings affects only common areas or other
portions of the building in which the Premises are located.
18. INSPECTION. Lessor or its authorized agents or representatives
shall have the right to enter the Premises during all reasonable hours in order
to examine the Premises and shall be allowed to exhibit the Premises to any
prospective lessee at any time with prior notification within one hundred eighty
(180) days prior to the expiration of this Lease as the same may be extended for
time to time.
19. SUBORDINATION. This Lease is subject to and subordinate to all
security liens, mortgages or deeds of trust which may now or hereinafter affect
the Premises or the building in which situated, or the real property upon which
said building is located, and to all renewals, modifications, consolidations,
replacements and extensions thereof. Lessee shall execute promptly any
certificate or any other instrument in confirmation of such subordination that
Lessor from time to time may request.
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20. INSURANCE. Lessee shall be responsible at its sole cost and expense
of insuring all items of personal property belonging to Lessee kept on the
Premises against any casualty whatsoever.
Lessee, during the entire term of this Lease, shall keep in full force
and effect a policy of general liability insurance protecting Lessor and Lessee
against any claim or claims for damage arising by reason of injury, death or
damage occasioned in, upon or adjacent to the Premises, such insurance to
protect Lessor and Lessee jointly and severally to the combined single limit of
One Million and No/100 Dollars ($1,000,000.00) for injury to or death of any one
(1) or more persons by the same accident and or damage to property of other
persons. The policy shall name Lessor, any person, firm or corporation
designated by Lessor and Lessee as the insured, and shall contain a clause which
provides that the insurer shall not cancel or change the insurance without first
giving the Lessor ten (10) days prior written notice of such change or
cancellation. Such insurance shall be with an insurance company approved by
Lessor and a copy of the policy shall be delivered to Lessor together with
evidence satisfactory to Lessor of the payment from time to time of all required
premiums.
21. INDEMNITY. Lessee shall indemnify and hold Lessor harmless from any
and all liability for any damage or injury to any occupant of the building in
which the Premises are contained or to any other person, or to any property,
occasioned by or resulting from the willful, negligent or improper conduct or
omission on the part of Lessee, its agents or employees, from or in or about the
Premises; provided, however, that Lessee shall not be required to indemnify and
hold harmless the Lessor from negligent or improper conduct, acts or omissions
of Lessor's agents, servants or employees.
22. DEFAULT. In the event of any failure of Lessee:
(a) to pay any rent reserved hereunder within fifteen (15) days
after the same shall be due; or
(b) to perform any other of the terms, covenants or conditions
contained in this Lease to be observed or performed by Lessee, and such default
shall continue for more than thirty (30) days after written notice thereof shall
have been mailed to Lessee; or
(c) if Lessee shall become bankrupt or insolvent, or file any
debtor proceeding, or have taken against Lessee in any court pursuant to any
statute either of the United States or of any State a petition in bankruptcy or
insolvency or for reorganization or for appointment to a receiver or trustee of
all or any portion of Lessee's property, or if Lessee makes an assignment for
the benefit of creditors, petitions for or enters into an arrangement, or if
Lessee shall abandon the Premises or suffer the Lease to be taken under any
right of execution, then Lessor, without excluding other rights and remedies
that it may have, shall have the immediate right of re-entry and may remove all
persons and property from the Premises and such property may be removed and
stored in a public warehouse or elsewhere at the cost of and for the account of
Lessee, all without resort to legal process and without being deemed guilty of
trespass, or becoming liable for any loss or damage which may be occasioned
thereby. If Lessor should elect to re-enter as herein provided, or should take
possession pursuant to legal proceedings, it may terminate this Lease or it may
from time to time without terminating this Lease make such
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alterations, and repairs as may be necessary in order to relet the Premises, and
relet said Premises for such term and at such rentals as Lessor may deem
advisable In the event of any such reletting, all rentals received by Lessor
shall be applied first to the payment of any indebtedness other than rent due
hereunder from Lessee to Lessor; second, to the payment of any costs and
expenses of such reletting, including the expense of alteration and repair;
third, to the payment of rent due and unpaid hereunder, and the residue, if any,
shall be applied by Lessor in payment of future rent due and unpaid hereunder.
If such reletting shall yield rentals insufficient for any month to pay the rent
due by Lessee hereunder for that month, Lessee shall be liable to Lessor for the
deficiency and the same shall be paid monthly. No such re-entry or taking
possession of Premises by Lessor shall be construed as an election to terminate
this Lease unless a written notice of such intention be given to Lessee by
Lessor at the time of such re-entry. Notwithstanding such re-entry and reletting
without termination, Lessor may at any time thereafter elect to terminate this
Lease for such previous breach, in which event it may recover from Lessee
damages incurred by reason of such breach, including the cost of recovering the
Premises and the difference in value between the rent reserved hereunder for the
remainder of the term and the reasonable rental value of the Premises for the
remainder of the term.
23. HOLDOVER. In the event Lessee remains in possession of the Premises
after the expiration of the term of this Lease without the execution of a new
Lease or an extension as hereinabove provided, Lessee shall occupy the Premises
under a month-to-month tenancy, subject to all of the conditions of this Lease
insofar as same are consistent with such tenancy.
24. NO PARTNERS. The execution of this Lease or the performance of any
act pursuant to the provisions hereof shall not be deemed or construed to have
the effect of creating between the Lessor and the Lessee the relationship of
principal and agent, partnership, or joint venture.
25. NOTICE. Any notice required hereunder shall be deemed sufficient
notice and service thereof completed upon receipt of refusal of same if same
shall be in writing addressed to the addressee at his last known post office
address, mailed certified or registered, postage prepaid, with return receipt
requested.
26. OTHER TERMS. Lessee will return the unit to the original floor
plan, unless otherwise instructed in writing by the Lessor. Lease is contingent
upon Lessor's approval of restored floor plan.
27. ENTIRE AGREEMENT. Lessor and Lessee agree that no representations
or inducements have been made other than those expressed herein and that this
Agreement contains the entire agreement between all of the parties hereto.
28. ADDRESS. The address of Lessee to which all notices herein provided
shall be sent is:
Suite D-15 Xxxxxx Square
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxx Xxxx XX 00000
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29. ADDRESS. The address of Lessor to which all notices herein provided
shall be sent is:
Xxxxxx Properties
X X Xxx 00000
Xxx Xxxx XX 00000
30. REFERENCES/PARAGRAPH HEADINGS/NEGOTIATIONS. Throughout this
Contract and Lease, the masculine gender shall be deemed to include the neuter
and the feminine; the singular, the plural; the plural, the singular; the
corporate, the individual; and the individual, the corporate.
31. RENEWAL. This agreement may be renewed at the expiration of the
initial term by the Lessee, when written notice is given to the Lessor 60 days
before the end of each term, for one two-year term renewal with a rent increase
of six per cent (6%) for the renewal term if all lease terms and conditions are
satisfied by the Lessee.
32. DUPLICATES. There are duplicate originals hereof.
TESTIMONY WHEREOF, Lessor is an individual and has hereunto set his
hand and adopted as his seal the typewritten word "SEAL" appearing beside his
name.
If Lessee is an individual, Lessee has hereunto set his hand and
adopted as his seal the typewritten word "SEAL" appearing beside his name.
If Lessee is a corporation, Lessee has caused this instrument to be
executed in its corporate name by its _____ President, attested by its ______
Secretary, and its corporate seal to be hereto affixed, all by order of its
Board of Directors first duly given;
And, if Lessee is a partnership, Lessee has caused this instrument to
be executed in its partnership name by a general partner who has adopted as his
seal and the seal of the partnership the typewritten word "SEAL" appearing
beside both names, all done this the day and year first above written.
INDIVIDUAL LESSOR: By /s/ J. Xxxxx Xxxxxx (SEAL)
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INDIVIDUAL LESSEE: (SEAL)
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(SEAL)
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CORPORATE LEASEE: /s/ J. Xxxxxx Xxxxxxx
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By
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President
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(CORPORATE SEAL)
Attest:
By
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Secretary
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PARTNERSHIP LESSEE: (SEAL)
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By (SEAL)
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A General Partner
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