COMMERCIAL LEASE AGREEMENT
WITH OPTION TO PURCHASE
(YORK CARE CENTER)
THIS COMMERCIAL LEASE AGREEMENT ( "Lease" ) is
made and effective this 13th day of January, 1997,
by and between XXXXXX X. XXXXX, an individual
("Landlord ), and COLUMBIA HOUSE, L.L.C., a
Washington limited liability company ("Tenant"),
with reference to the following facts:
A. Landlord is the owner of certain improved
real property located at 40 and 00 Xxxx Xxxxxx
Xxxxxx, in the City of York, York County, South
Carolina, commonly known as the York Care Center
(the "Premises"), which Premises are more fully
described as follows:
"All that certain piece, parcel or tract of
land lying and being situated in the City of York,
York Township, York County, South Carolina,
containing TWO AND 321/1000 ( 2.321) ACRES, more
or less, according to survey drawn for Xxxxxxx X.
Xxxxxx by Xxx X. Xxxxx, RLS, January 9, 1991, and
being more particularly described according to
said plat as follows: BEGINNING at a point on
eastern edge of Xxxx Xxxxxx Street, joint corner
with other property of Xxxxxxx X. Xxxxxx, and
running thence S. 88- 08-45 E. 250.00 feet; thence
S. 1-51-15 W. 322.86 feet; thence S. 59-48-55 W.
107.89 feet; thence S. 57-14-25 W. 192.64 feet to
point on eastern edge xx Xxxx Xxxxxx Xxxxxx;
thence with said street N. 1-51-15 E. 489.53 feet
to point of beginning."
ALSO "All that certain piece, parcel or lot
of land lying and being situated at the
intersection of Xxxx Xxxxxx Street and S.C.
Highway 49 (Charlotte Highway), in the City of
York, York County, South Carolina, and being more
particularly described according to plat of
property of Xxxxxxx X. Xxxxxx, drawn by Xxx X.
Xxxxx, RLS, January 9, 1991, as follows: Beginning
at a point on eastern edge of Xxxx Xxxxxx Street,
joint corner with other property of Xxxxxxx X.
Xxxxxx, and running thence with edge of Xxxx
Xxxxxx Street N. 1-51-15 E. 205.00 feet to point
on southern edge of S.C. Highway 49; thence with
edge of S.C. Highway 49 N. 69-57-35 E. 180.00
feet; thence S. 20- 02-25 E. 222.53.feet; thence
S. 1-51-15 W. 65.65 feet; thence N. 88-08-45 W.
250.00 feet to point of beginning."
As used in this Lease, the term "Premises" shall
refer only to the land, improvements, and fixtures
constituting the York Care Center. The "Building"
shall refer to the improvements located on the
above-described real property.
B. Tenant desires to lease the Premises from
Landlord and to acquire an option to purchase the
Premises from Landlord, all according to the terms
set forth in this Lease.
NOW, THEREFORE, Landlord and Tenant agree as
follows:
l. LEASE OF PREMISES. Landlord hereby leases
the Premises to Tenant, and Tenant hereby leases
the Premises from Landlord, for the rent and term,
and subject to the terms set forth in this Lease.
2. TERM OF LEASE. The term of this Lease (the
"Term" ) shall commence on January l, 1997, or
such earlier date as may be agreed upon by the
parties (the "Commencement Date"), and shall
continue until December 31, 2001. Notwithstanding
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the foregoing, the Commencement Date shall be
deferred and the Term shall not commence until
Tenant has received all necessary licenses and
approvals required by applicable law to operate
the Premises as an assisted living facility.
3. RENT. Tenant ' s basic rental obligation
shall consist of the minimum monthly rent
described below. Additionally, Tenant's rental
obligation shall include all costs to be paid by
Tenant under this Lease in connection with
Tenant's occupancy of the Premises (such as taxes
and assessments, insurance premiums and
maintenance expenses).
3.1 MINIMUM MONTHLY RENT. Tenant shall pay to
Landlord as a minimum monthly rent, without
deduction, set-off, prior notice or demand, the
sum of Sixteen Thousand and No/100 Dollars
($16,000.00) per month in advance on the first day
of each calendar month, beginning on the
Commencement Date and continuing during the Term.
If, by' agreement of the parties, the Term
commences on a date other than the first day of a
calendar month, the first rental payment shall be
due on the Commencement Date and shall include
rent for the first full calendar month, plus
prorated rent for the first partial calendar
month. All rent shall be paid to Landlord in
lawful money of the United States, at such address
as may be designated by Landlord from time to
time.
3.2 DELINQUENT RENT. In the event of default
in the payment of rent under this Lease, which
default is not cured within ten (10) days after
Tenant's receipt of written notice of default,
Tenant agrees to pay a late charge equal to four
percent (4%) of such delinquent amount, which
charge shall become due immediately with the
delinquent rent. Such charge shall be deemed not a
penalty but a reasonable administrative charge for
the expense and inconvenience suffered by the
Landlord on account of the late payment.
4. OPTION TO PURCHASE. In consideration of
the sum o E Two Hundred Fifty Thousand and No/
l00ths ( $250, 000. 00) Dollars ( "Option
Consideration"), due and payable to Landlord by
Tenant on the effective date of this Lease,
Landlord hereby grants to Tenant an option to
purchase the Premises for the price and on the
terms and conditions set forth in Exhibit A
attached hereto and incorporated herein. Except as
specifically provided in Sections 12 and 13 below
with respect to casualty and condemnation, the
Option Consideration is not refundable by Landlord
under any circumstances, including termination of
this Lease for any reason prior to expiration of
its stated term, in which event the option to
purchase as herein provided terminates.
5. PERSONAL GUARANTY. On the effective date
of this Lease Tenant shall procure and deliver to
Landlord the personal guaranty of Tenant's
obligations hereunder on the terms and conditions
set forth on Exhibit B attached hereto and
incorporated herein.
6. USE OF PREMISES; OPERATIONS REPORTING.
Tenant shall use the Premises for the operation of
a full service retirement, convalescent apartment
facility, and/or assisted living facility.
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7. REAL PROPERTY TAXES AND
ASSESSMENTS/UTILITIES. Tenant shall pay all real
property taxes and general and special assessments
levied and assessed against the Premises, and
which pertain to the Term (prorated for any
partial tax year at the beginning and end of the
Term). Landlord cause the tax bills to be sent
directly to Tenant from the tax collector. If tax
bills are sent to Landlord, Landlord shall notify
Tenant of the real property taxes and immediately
upon receipt of the tax xxxx shall furnish Tenant
with a copy of the tax xxxx. Tenant shall pay the
real property taxes semiannually not later than
ten (10) days before the taxing authority's
delinquent date or ten (10) days after receipt of
the tax xxxx, whichever is later.
Tenant shall a for all utilities and services
furnished to or used by it, including without
limitation, gas, electricity, water, telephone
service television service, garbage collection,
and for all connection charges.
8. MAINTENANCE. Tenant, at its cost, shall
maintain the Premises, including structural (roof,
foundation, and bearing and non-bearing walls) as
well as nonstructural components thereof, and also
including without limitation, all plumbing,
heating, air conditioning, ventilating, electrical
and lighting facilities and equipment, fire safety
and life systems and alarms within the Premises,
all fixtures, interior walls, ceilings, windows,
doors, plate glass, either within or on the
Premises, and all sidewalks, landscaping,
driveways, parking lots, fences and signs either
in or on the Premises. All such elements shall be
maintained in good condition, reasonable wear and
tear excepted. Landlord shall have no
responsibility to maintain any portion of the
Premises.
Landlord hereby warrants and represents that the
Premises are in good condition and that all
building systems (e.g., heat, HVAC plumbing and
electrical) are in good operating condition.
9. ALTERATIONS AND IMPROVEMENTS.
9.1 TENANT'S ALTERATIONS AND IMPROVEMENTS.
Tenant shall not make any structural alterations
to the Premises without Landlord's prior written
consent. Any alterations made (other than trade
fixtures and personal property, which Tenant may
remove) shall remain on and be surrendered with
the Premises on expiration or termination of the
Term.
9.2 Tenant shall pay all costs for
construction done by it, or caused to be done by
it, and for all materials furnished to it, or
caused to be furnished to it, on the Premises as
permitted by this-Lease. Tenant shall keep the
Premises free and clear from any liens arising out
of construction done by or for Tenant or materials
furnished to or for Tenant.
Tenant shall have the right to contest the
correctness or the validity of any such lien if,
immediately on demand by Landlord, Tenant procures
a lien release bond meeting the requirements of
South Carolina law respecting the release of
mechanic's liens and providing for the payment of
any sum that the claimant may recover on the claim
(together with costs of suit, if the claimant
recovers in the action).
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10. INDEMNIFICATION.
10.1 INDEMNITY BY TENANT. Tenant shall
indemnify, defend and hold Landlord harmless from
and against all claims and liabilities arising out
of any damage to any person or property occurring
in, on, or about the Premises, except that
Landlord shall be liable for damage resulting from
the acts or omissions of Landlord or its
authorized representatives.
10.2 INDEMNITY BY LANDLORD. Landlord shall
indemnify, defend and hold Tenant harmless from
and against all claims and liabilities arising out
of any damage to any person or property occurring
as a result of the acts or omissions of Landlord
or its authorized representatives or as a result
of Landlord's breach of this Lease.
11. INSURANCE REQUIREMENTS.
11.1 TYPES OF INSURANCE. Landlord and Tenant
agree that Tenant shall, at its cost, maintain the
following insurance coverages with respect to the
Premises during the term of the Lease:
a. DAMAGE TO PREMISES. A policy or policies
of hazard insurance covering loss or damage to the
Premises, in the amount of the full replacement
value thereof, providing protection against all
perils included within the classification of fire,
extended coverage, vandalism, malicious mischief,
and special extended perils (all risk). The
insurance policy shall be issued in the names of
Landlord, Tenant, and Landlord's lender, as their
interests appear. In case this Lease is
terminated, the insurance policy and all rights
under it, or the insurance proceeds, shall be
assigned to Landlord at Landlord's election.
The "full replacement value" of the Premises
shall be determined by the company issuing the
insurance policy at the time the policy is
initially obtained. Not more frequently than once
every three (3) years, either party shall have the
right to notify the other party that it elects to
have the replacement value redetermined by the
insurance company. The redetermination shall be
made promptly and in accordance with the rules and
practices of the Board of Fire Underwriters, or a
like board recognized and generally accepted by
the insurance company, and each party shall be
promptly notified of the results of the company.
The insurance policy shall be adjusted according
to the redetermination.
b. PUBLIC LIABILITY AND PROPERTY DAMAGE.
Commercial general liability and property damage
insurance with a combined single limit of
liability of not less than $1,000,000 per
occurrence, insuring against all liability of
Tenant and its authorized representatives arising
out of and in connection with Tenant's use or
occupancy of the Premises.-. All such insurance
shall insure performance by Tenant of the
indemnity provisions of Paragraph 10.1 above. Both
parties shall be named as co-insureds, and the
policies shall contain cross liability
endorsements.
c. BUSINESS INTERRUPTION. A policy of
business interruption insurance covering the
Landlord for any loss or damage resulting from any
damages to the Premises for which there is
insurance providing protection against all perils
as identified in 11.1(a) above.
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11.2 WAIVER OF SUBROGATION. The parties
hereby release each other, and their respective
authorized representatives, from all claims and
liabilities for damage to any person or to the
Premises, to the extent of the insurance coverage
described in this Paragraph 11, that are caused by
or result from risks insured against under any
insurance policies carried by the parties and in
force at the time of any such damage. Each
insurance policy required under this Lease shall
provide that the insurance company either party in
connection with any damage covered by such policy.
11.3 MISCELLANEOUS INSURANCE PROVISIONS. All
insurance required under this Lease shall:
a. Be issued by insurance companies
authorized to do business in the State of South
Carolina.
b. Be issued as a primary policy;
c. Contain an endorsement requiring twenty
(20) days' written notice from the insurance
company to both parties and Landlord's lender
before expiration, cancellation or change in the
coverage, scope, or amount of any policy.
Each policy, or a certificate of the policy,
together with evidence of payment of premiums,
shall be deposited with Landlord at the
commencement of the Term, and on renewal of the
policy, not less than twenty (20) days before the
expiration of the term of the policy.
12. DAMAGE AND RESTORATION.
12.1 DAMAGE AND REPAIR. If the Building is
damaged by fire or any other cause to such extent
that the cost of restoration will equal or exceed
fifty percent (50%) of the replacement value of
the Building (exclusive of foundations) just prior
to the occurrence of the damage, then Landlord
may, no later than the sixtieth day following the
damage, give Tenant a notice of election to
terminate this Lease. In the event of such
election this Lease shall be deemed to terminate
on the third day after the giving of such notice,
the Option Consideration shall be. returned to
Tenant, Tenant shall surrender possession of the
Premises within a reasonable time thereafter, the
rent shall be apportioned as of the date of
Tenant's surrender and any rent paid for any
period beyond such date shall be repaid to Tenant.
If the cost of restoration as estimated by
Landlord shall amount to less than fifty percent
(50%) of said replacement value of the Building,
or if Landlord does not elect to terminate this
lease, Landlord shall promptly restore the
Building and the Premises (to the extent of the
improvement of the Premises originally provided by
Landlord hereunder),.subject to delays beyond
Landlord's control and delays in the making of
insurance adjustments by Landlord, provided that
if such restoration is reasonably estimated to
render the Premises unusable for 120 days or more,
Tenant may elect to terminate this Lease.
12.2 DESTRUCTION DURING LAST YEAR OF TERM. In
case the Building shall be substantially destroyed
by fire or other cause at any time during the last
Lease Year of this Lease, either Landlord or
Tenant may terminate this Lease upon written
notice to the other given within sixty (60) days
of the date of such destruction. In such event the
Option Consideration shall be returned to Tenant.
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13. CONDEMNATION.
13.1 DEFINITIONS.
a. "Condemnation" means (1) the exercise of
any governmental power by a condemnor to condemn
all or any portion of the Premises, whether by
legal proceedings or otherwise, or (2) a voluntary
sale or transfer by Landlord to any condemnor,
either under threat of condemnation or while legal
proceedings for condemnation are pending.
b. "Date of Taking" means the date the
condemnor has the right to possession of the
property being condemned.
c. "Award" means all compensation, sums, or
anything of value awarded, paid, or received on a
total or partial condemnation.
d. "Condemnor" means any public or quasi-
public authority, or private corporation or
individual, having the power of condemnation.
13.2 TOTAL TAKING. If the Premises are
substantially taken by condemnation, and thereby
rendered, totally untenantable, this Lease-shall
automatically terminate as of the date of taking
and the Option Consideration shall be returned to
Tenant.
13. 3 PARTIAL TAKING. If any portion (but not
all) of the Premises is taken by condemnation,
this Lease shall remain in effect, except that
Tenant may elect to terminate this Lease if any
part of the Premises shall be taken so as to
render the
remainder thereof unusable for the purposes for
which the Tenant leased the Premises. If Tenant
elects to terminate this Lease, Tenant must
exercise its right to terminate pursuant to this
Paragraph by giving notice to Landlord within
thirty (30) days after the nature and extent of
the taking have been finally determined. If Tenant
elects to terminate this Lease as provided in this
Paragraph, Tenant shall also notify Landlord of
the date of termination, which date shall not be
earlier than sixty (60) days, nor later than one
hundred twenty (120) days after Tenant has
notified Landlord of its election to terminate;
except that this Lease shall terminate on the date
of taking if the date of taking falls on a date
before the date of termination as designated by
Tenant. If this Lease is so terminated, the Option
Consideration shall be returned to Tenant. If
Tenant does not terminate this Lease within the 15-
day period, this Lease shall continue in full
force and effect.
13.4 RESTORATION OF PREMISES; ABATEMENT OR
REDUCTION OF RENT. If there is a partial taking of
the Premises and this Lease remains in full force
and effect pursuant to Paragraph 13.3, Tenant
shall at its cost accomplish all necessary
restoration. Rent shall be abated or reduced
during the period from the date of taking until
the completion of restoration, but all other
obligations of Tenant under this Lease shall
remain in full force and effect. The abatement or
reduction of rent shall be based on the extent to
which the restoration interferes with Tenant's use
of the Premises. Furthermore, and regardless of
abatement or reduction of rent during restoration,
the rent payable following the date of taking
shall be abated in proportion to the degree to
which Tenant's use of the Premises is impaired.
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13.5 AWARD. The award shall belong to and be
paid to Landlord, except that Tenant shall receive
from the award the greater of the cost of making
the necessary restorations or the value
specifically allocated by the condemnor to the
partial or total loss of the unexpired term of
this Lease. Additionally, Tenant shall have the
right to make a separate claim against the
condemnor for damages to Tenant as a result of the
taking, including compensation for the taking of
Tenant's property, damages to Tenant's business,
moving expenses, and the like.
14. ASSIGNMENT/ SUBROGATION.
14.1 VOLUNTARY ASSIGNMENT, SUBLETTING, AND
ENCUMBERING BY TENANT. Tenant shall not
voluntarily assign or encumber its interest in
this Lease or in the Premises, or sublease all or
any part of the Premises (except to Tenant's
clients), or allow any other person or entity to
occupy or use all or any part of the Premises
(except Tenant's clients), without first obtaining
Landlord's written consent. Any assignment,
encumbrance, or sublease without Landlord's prior
consent shall be voidable arid, at Landlord's
election, shall constitute a default. No consent
to any assignment, encumbrance, or sublease shall
constitute a further waiver of the provisions of
this Paragraph. Notwithstanding the foregoing,
Tenant may assign its interest under this Lease or
sublease all or part of the Premises without
Landlord's consent to a subsidiary or affiliate of
Tenant, or in connection with a merger or
consolidation involving Tenant.
14.2 ASSIGNMENT BY LANDLORD. Landlord shall
have the right to sell, assign, hypothecate,
pledge, or otherwise transfer or encumber
(collectively "transfer") all or any portion of
its interest in the Premises or this Lease,
without Tenant's consent, and Tenant shall, upon
notice of such transfer, execute a written
amendment to this Lease acknowledging and
consenting to such transfer. If the entire leased
Premises are transferred, and the transferee
assumes in writing all of Landlord's obligations
under this Lease, Tenant agrees that Landlord
shall be released from any further obligations
under this Lease.
15. TENANT ' S DEFAULT. The occurrence of any
of the following shall constitute a default by
Tenant: .
15.1 Failure to pay rent when due, if the
failure continues for ten (10) days after written
notice of the failure to pay.
15.2 Violation of or failure to perform any
other provision of this Lease, if the violation or
failure to perform is not cured within thirty (30)
days after written notice has been given to
Tenant. If the default cannot reasonably be cured
within thirty (30) days, Tenant shall not be in
default of this Lease if Tenant commences to cure
the default within the 30-day period and
diligently and in good faith continues to cure the
default. Notice as given under this Paragraph
shall specify the alleged default and the
applicable Lease provisions, and shall demand that
Tenant perform the provisions of this Lease within
the applicable period of time, or quit the
Premises. Such notice may serve both as a notice
of the default under this Paragraph and as any
statutory notice required as a condition precedent
to an action in unlawful detainer or for damages
or otherwise. No such notice shall be deemed a
forfeiture or a termination of this Lease unless
Landlord so elects in the notice.
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16. LANDLORD'S REMEDIES. Landlord shall have
the following remedies if Tenant commits a
default. These remedies are not exclusive; they
are cumulative in addition to any remedies now or
later allowed by law.
16.1 CONTINUATION OF LEASE. Landlord may
continue this Lease in full force and effect, and
the Lease will continue in effect as long as
Landlord does not terminate Tenant's right to
possession, and Landlord shall have the right to
collect rent when due. During the period Tenant is
in default, Landlord may enter the Premises and
relet them, or any part of them, to third parties
for Tenant's account. Tenant shall be liable
immediately to Landlord for all reasonable costs
Landlord incurs in reletting the Premises.
Reletting can be for a period shorter or longer
than the remaining term of this Lease. Tenant
shall pay to Landlord the rent due under this
Lease on the dates the rent is due, less the rent
Landlord receives from any reletting. No act by
Landlord allowed by this Paragraph shall terminate
this Lease unless Landlord notifies Tenant that
Landlord elects to terminate this Lease. After
Tenants default and for as long as Landlord does
not terminate Tenant's right to possession of the
Premises, if Tenant obtains Landlord's consent
Tenant shall have the right to assign or sublet
its interest in this Lease, but Tenant shall not
be released from liability.
16.2 TERMINATION OF LEASE. Landlord may
terminate Tenant ' s right to possession of the
Premises at any time. No act by Landlord other
than giving notice to Tenant shall terminate this
Lease. Acts of maintenance, efforts to relet the
Premises, or the appointment of a receiver on
Landlord's initiative to protect Landlord's
interest under this Lease shall not constitute a
termination of Tenant's right to possession. On
termination, Landlord has the right to recover
from Tenant all past due rent and the difference
between rent owing hereunder and rent received by
Landlord for the remainder of the Term.
17. LANDLORD ' S RIGHT OF ENTRY. Landlord
shall have the right to enter the Premises at all
reasonable times after reasonable prior notice in
order to inspect the Premises or to otherwise
insure compliance with the provisions of this
Lease; provided that any such inspection shall not
unreasonably interfere with the occupants of the
Premises or with Tenant's business operations on
the Premises.
18. SURRENDER OF PREMISES. Prior to
expiration or immediately upon termination of the
term, Tenant shall surrender to Landlord the
Premises and all Tenant's improvements and
alterations in good condition (except for ordinary
wear and tear and damage beyond Tenant's
reasonable control), except for alterations that
Tenant has the right to remove. Tenant shall
remove all its personal property within the above-
stated time. Tenant shall perform all restoration
made necessary by the removal of any alterations
or Tenant's personal property.
19. ESTOPPEL CERTIFICATES. Either party
shall, within ten (10) days after receipt of
written request from the other, execute and
deliver to the requesting party, in recordable
form, a certificate stating: (1) that this Lease
is unmodified and in full force and effect, or in
full force and effect as modified, and stating the
modifications ; and ( 2 ) that the requesting
party is not in default of the provisions of the
Lease, or stating the nature and extent of any
claimed default. The certificate also shall state
the amount of minimum monthly rent, the dates to
which the rent has been paid in advance, and the
amount of any prepaid rent. Failure to deliver the
certificate within the ten (10) days shall
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be conclusive for the benefit of the requesting
party that this Lease is in full force and effect
and has not been modified, and that the requesting
party is not in substantial default of the
provisions of this Lease, except as may be
represented by the requesting party.
20. SIGNS. Tenant, at its cost, shall have
the right to place, construct, and maintain an
exterior sign on the Premises, advertising its
business; provided, however, that the size, design
and construction of the sign shall first be
approved by Landlord and shall be in compliance
with local regulations and ordinances.
21. MISCELLANEOUS AND PROCEDURAL.
21.1 TIME OF ESSENCE. Time is of the essence
of each and every provision of this Agreement.'
21.2 ATTORNEY'S FEES. If legal action
(including, without limitation, litigation and/or
arbitration) is required or deemed necessary to
enforce or interpret any of the provisions of this
Agreement, the prevailing party shall be entitled
to recover its costs of suit, including reasonable
attorney's fees, incurred in connection therewith.
21. 3 CONSENT OF PARTIES. Whenever consent or
approval of either party to this Agreement is
required, such consent or approval shall not be
unreasonably withheld or delayed.
21.4 BINDING EFFECT. Subject to the
restrictions on assignment set forth above, this
Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective
successors and assignees.
21.5 CORPORATE AUTHORITY. Each corporate
party to this Agreement, and each individual
signing on behalf of a corporate party, hereby
agrees that, upon execution of this Agreement, a
certified copy of a resolution of such
corporation's Board of Directors authorizing the
execution of this Agreement by such individual.
21.6 GOVERNING LAW; VENUE AND JURISDICTION.
This Agreement shall be construed and interpreted
in accordance with the laws of the State of South
Carolina. Jurisdiction and venue in any action to
interpret or enforce any provisions of this
Agreement shall lie in Lancaster County, South
Carolina.
21.7 INTEGRATED AGREEMENT; MODIFICATION. This
Agreement, together with all exhibits hereto,
contains all agreements of the parties relating to
the Premises, and may not be amended or modified
except in writing by the party to be charged with
such amendment or modification. .
21.8 MEMORANDUM OF LEASE. A memorandum of
this Lease shall be executed, acknowledged, and
recorded with the official records of York County,
South Carolina.
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21.9 WAIVER. No delay or omission in the
exercise of any right or remedy of either party to
this Agreement on any default by the other party
shall impair such a right to remedy or be
construed as a waiver. Either party's consent to
or approval of any act by the other party
requiring such consent or approval shall not be
deemed to waive or render unnecessary the
requirement of consent or approval of any
subsequent act by either party.
21.10 NOTICE. Any notice, demand, request,
consent, approval, or communication that either
party desires or is required to give to the other
party or any other person shall be in writing and
either served personally or by facsimile
transmission (where a facsimile number is
available), or sent by prepaid, first-class mail,
according to the following delivery information:
If to Landlord: Xxxxxx X. Xxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000 (call first)
If to Tenant: Columbia House, L.L.C
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Either party may change its address or other
delivery information by delivering notice of the
change in the manner prescribed in this
subparagraph.
Any such notice shall be deemed delivered upon
personal delivery or upon confirmation of
facsimile transmission, or within forty-eight (48)
hours from the time of mailing if mailed as
provided in this subparagraph.
21.11 HOLDOVER. If Tenant, with Landlord's
consent, remains in possession of the Premises
after expiration or termination of the term,
including any extended term, or after the date in
any notice given by Landlord to Tenant terminating
this Lease as a result of Tenant ' s default, such
possession by Tenant shall be deemed to be a month-
to-month tenancy terminable by either party on
giving thirty (30) days' notice of termination to
the other party. All provisions of this Lease
except those pertaining to term, option to
purchase, and option to extend (and including the
adjustment of minimum rent) shall apply to the
month-to-month tenancy. If Tenant, without
Landlord's consent, remains in possession of the
Premises after expiration or termination of the
term, including any extended term, or after the
date in any notice given by Landlord to Tenant
terminating this Lease as a result of Tenant's
default, such possession by Tenant shall be deemed
to be at sufferance, terminable without notice.
Rent during any such unpermitted occupancy shall
accrue at 150% of the rate otherwise applicable,
and the Landlord's acceptance of such rent shall
not be deemed acknowledgment of right of Tenant to
occupy the Premises.
10
IN WITNESS WHEREOF, the parties hereto have
executed this Lease the day and year first above
written.
LANDLORD: /s/ Xxxxxx X. Xxxxx
---
--------------------------------------
Xxxxxx X. Xxxxx
TENANT: COLUMBIA HOUSE, L.L.C., a
Washington
limited liability company
By: /s/ X.X. Xxxxxxxxxx
------------------------------
-------------
Xxxxxxx X. Xxxxxxxxxx
Its: Manager
00
XXXXX XX XXXXX XXXXXXXX )
) ss.
COUNTY OF LANCASTER )
I certify that I know or have satisfactory
evidence that XXXXXX X. XXXXX is the person who
appeared before me, and said person acknowledged
that said person signed this instrument and
acknowledged it to be said person's free and
voluntary act for the uses and purposes mentioned
in the instrument.
Dated this 17th day of January, 1997,
/s/ Xxxxx X. Xxxxxx
--------------------------------------------------
--
(signature of Notary)
Xxxxx X. Xxxxxx
--------------------------------------------------
--
(Legibly Print or Stamp Name of Notary)
Notary public in and for the
state of
S. Carolina, residing at Lancaster
My appointment expires 12-22-
97
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory
evidence that Xxxxxxx X. Xxxxxxxxxx
is the person who appeared before me, and said
person acknowledged that said person signed this
instrument, on oath stated that said person was
authorized to execute the instrument and
acknowledged it as the Manager of COLUMBIA HOUSE,
.L. L. C. , a Washington limited liability
company, to be the free and voluntary act of such
limited liability company for the uses and
purposes mentioned in the instrument.
Dated this 13th day of January, 1997
/s/ Xxxx Xxxxx
--------------------------------------------------
--
(signature of Notary)
Xxxx Xxxxx
--------------------------------------------------
--
(Legibly Print or Stamp Name of Notary)
[SEAL] Notary public in and for
the state of
Washington, residing at Tacoma
My appointment expires 11-17-
00
12
EXHIBIT A
OPTION TO PURCHASE
GRANT OF EXCLUSIVE OPTION TO PURCHASE. The
following are the terms pursuant to which Landlord
grants Tenant an option to purchase the Premises.
1. GRANT OF OPTION; EXERCISE; TERMINATION.
1.1 ORIGINAL OPTION. In consideration of the
execution of the Lease, Landlord hereby grants to
Tenant an exclusive option to purchase the
Premises upon expiration of the term of this Lease
on the terms and conditions contained herein.
1. 2 EXERCISE OF OPTON AND CLOSING. Tenant
may exercise the option to purchase the Property
by delivering written notice of exercise of the
option ( "Exercise Notice" ) to Landlord at the
place and in the manner prescribed for notices to
Landlord under this Lease at least sixty (60) days
prior to the expiration of the term of the Lease
and closing shall occur within fifteen (15) days
before or after the expiration of the term of the
Lease.
2. PURCHASE PRICE AND PAYMENT. The purchase
price for the Premises shall be Two Million Three
Hundred Fifty-Seven Thousand Five Hundred Dollars
($2,357,500). The $250,000 Option Consideration
under the Lease shall be applied toward the
purchase price.
3. CONVEYANCE AND TITLE INSURANCE. At
closing, Landlord shall deliver title to the
Premises to Tenant by full warranty deed, free and
clear of all covenants, restrictions, rights,
rights-of-way, leases, easements, liens and
encumbrances, except for the following:
3.1 Liens for taxes and general and special
assessments;
3.2 Covenants, conditions, restrictions,
rights, rights-of-way, leases, easements, liens
and encumbrances of record or in view as of the
date of the Lease; provided that title shall be
clear of any monetary liens created by Landlord;
and
3.3 Any encumbrances arising out of Tenant's
activities on the Premises.
Tenant shall also have confirmed that it will
receive as soon as practicable after closing a
standard form policy of owner's title insurance
issued by a title company acceptable
to Tenant, in the amount of the purchase price,
and showing title vested in the name of Tenant, or
its nominee in the condition described in this
Paragraph 3.
4. CLOSING PROCEDURE AND POSSESSION. Prior to
closing, Seller and Purchaser shall execute and
deposit with the Landlord's attorney in Lancaster,
South Carolina, all documents reasonably required
by the Closing Agent and all funds necessary to
complete the sale in accordance with this option.
Closing shall be deemed to occur on the date of
recordation of the warranty Deed.
13
5. CLOSING COSTS AND PRORATIONS.
5.1 CLOSING COSTS. Tenant shall pay the
premium for Tenant's policy of title insurance.
Landlord shall pay all costs of placing title in
the condition described herein. The recording fee
(formerly deed documentary stamps) shall be paid
by Landlord. All other miscellaneous closing costs
shall be paid by Tenant and Landlord in accordance
with the usual closing practice of the area.
5.2 PRORATIONS. Rent required under the Lease
shall be prorated as of the date of closing. In
that the Tenant shall have occupied and operated
the Premises during the term of the Lease and
prior to closing on a
"triple-net" basis, there shall be no need to
prorate any other items of income or expense
pertaining to the Premises.
6. REMEDIES ON DEFAULT. If, following
delivery of the Exercise Notice, either party
defaults in its obligations hereunder, and if this
transaction fails to close as a result of such
default, either party may, at its election,
enforce this Agreement by specific performance,
recover damages based on the breach, or rescind
this Agreement.
7. NO BROKER'S COMMISSION. Landlord and
Tenant acknowledge that a commission shall have
been paid in connection with the negotiation and
execution of the Lease,. and that no further
commission shall be payable in connection with the
sale of the Premises. Landlord and Tenant hereby
warrant that, except for the broker(s) to whom the
leasing commission shall have been paid, they have
not discussed nor had any communications
concerning the Premises with any real estate agent
or broker prior to the execution of the Lease.
Should any claim for a commission or finder's fee
be asserted by any third party as a result of the
act or omission of either party, then the party
alleged to have agreed to pay such commission or
fee shall be solely responsible therefor,
and shall indemnify, defend, and hold the other
party harmless from any claim or liability
therefor.
SELLER: /s/ Xxxxxx Xxxxx
---
--------------------------------
Xxxxxx Xxxxx
PURCHASER: COLUMBIA HOUSE, L.L.C., a
Washington
limited liability company
By: /s/ X.X. Xxxxxxxxxx
------------------------------
------
Xxxxxxx X. Xxxxxxxxxx
Its: Manager
14
EXIBIT B
PERBONAL GUARANTY
THIS PERSONAL GUARANTY ("Guaranty") is made
and effective this 13th day of January, 1997, by
XXXXXX X. XXXX of 0000 Xxxxxxx, Xxxxx 000;
Xxxxxxx, XX 00000 ("Xxxx") to XXXXXX X. XXXXX of
000 Xxxxxxxxx Xxxx, Xxxx xx Xxxxxxxxx, Xxxxxx of
Lancaster, State of South Carolina, 29720
("Xxxxx").
l. STATE OF GUARANTY. In consideration of
executing and entering into a Commercial Lease
Agreement with Option to Purchase property located
at 40 and 00 Xxxx Xxxxxx Xxxxxx, Xxxx, Xxxxx
Xxxxxxxx (the "Lease") with Columbia House,
L.L.C., a Washington limited liability company,
("Tenant") Xxxx irrevocably and unconditionally
guarantees payment when due, whether by
acceleration or otherwise of the Lease and all the
obligations and liabilities due and to become due
to Xxxxx from Tenant under the Lease, together
with all attorney fees, costs, and expenses of
collection incurred by Xxxxx in enforcing any such
obligations and liabilities.
2. CONTINUING GUARANTY. Xxxx specifically
agrees that this Guaranty is and shall be an open
and continuing guaranty and all obligations and
liabilities to which it applies or may apply shall
be. conclusively presumed to have been created in
reliance hereon and shall continue in full force
and effect, notwithstanding any (a) change in
rentals or other obligations under the Lease, (b)
renewals, modifications, additions, or extensions
thereto or extensions of time to perform any of
the obligations thereunder.
Xxxx specifically waives notice of assignment
by Xxxxx and waives notice of any such changes,
renewals, modifications, additions, extensions, or
of any default by the Tenant.
Xxxx further agrees and consents to any
assignment of this Guaranty, in which event it
shall inure to the benefit of any such assignee
with the same force and effect as though the
assignee was specifically named in this Guaranty,
and waives any notice of any such assignment.
3. EFFECT OF INVALIDITY. No invalidity,
irregularity, or unenforceability of all or any
part of the obligations and liabilities hereby
guaranteed or of any security therefor shall
affect, impair, or be a defense to this Guaranty.
This Guaranty is a primary obligation of Xxxx.
4. GOVERNING LAW. This Guaranty shall be
governed according to the law of South Carolina.
As part of the consideration for Xxxxx'x
execution of the Lease, Xxxx agrees that any and
all actions or proceedings arising directly or
indirectly from this Guaranty shall be litigated
in courts having jurisdiction and venue in
Lancaster County, South Carolina.
5. BINDING EFFECT. This Guaranty shall bind
the respective heirs, executors, administrators,
successors, and assigns of the undersigned.
15
In witness whereof, this Guaranty is executed
the day and year first above written.
/s/ Xxxxxx X. Xxxx
------------------------
Xxxxxx X. Xxxx
16
