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EXHIBIT 10.13
LEASE AGREEMENT
BY AND BETWEEN
X. X. XXXXXXXX INVESTMENT BUILDERS, INC.,
Landlord,
and
UP-RIGHT, INC.,
Tenant
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into this ____ day of
___________, 1990, by and between X.X. XXXXXXXX INVESTMENT BUILDERS, INC., a
North Carolina Corporation, hereinafter called "Landlord"; and UP-RIGHT, INC., a
California Corporation with principal office in Oakland, California, hereinafter
called "Tenant":
W I T N E S S E T H:
ARTICLE I.
DEMISED PREMISES AND USE
Section 1.01. Landlord, in consideration of the covenants, conditions,
agreements and stipulations of the Tenant hereinafter expressed does hereby
demise and lease unto the Tenant, and the Tenant does hereby rent and let from
the Landlord, upon the terms and conditions hereinafter expressed, those certain
premises (hereinafter called "demised premises") being:
situated in the State of North Carolina, County of Mecklenburg, City of
Charlotte, containing approximately 1.84 acres with two approximately
5,000 square foot masonry buildings and known as 4151-A and 0000-X
Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 and as shown on
Mecklenburg County Tax Assessor's Map Book 000, Xxxxx 000, Xxxxxx 1.
Section 1.02. For purposes of this Lease, "Common Areas" shall mean all
areas, improvements, equipment and special services in, on or at the Building
and Land provided by Landlord for the common use and benefit of Tenant, its
employees, agents, customers and other invitees.
Provided Tenant is not in default under this Lease, Tenant shall be
entitled to use in common with others entitled thereto, the Common Areas as may
be described from time to time by Landlord, subject, however, to terms and
conditions of this Lease and to rules and regulations and use thereof as may be
prescribed from time to time by Landlord.
Section 1.03. During the term of this Lease, or any renewal or
extension thereof, the use of the Common Areas by the Tenant, its employees,
agents, customers and other invitees shall not unreasonably interfere with the
use of the Common Areas by other Tenants, if any, their employees, agents,
customers or other invitees.
Section 1.04. The demised premises shall be used and occupied by Tenant
as general offices, showroom and work and storage areas and for no other
purpose. The Tenant shall make no unlawful or offensive use of the demised
premises, and will not cause or permit a nuisance to be created or maintained
thereon. The Tenant shall not keep or store upon the demised premises any
flammable articles which are prohibited by any local, state or federal
authority, and will comply with all assessments and restrictions of record,
zoning ordinances and other applicable laws, ordinances, rules and regulations
of the local, state and federal governments, and any other public authority
having jurisdiction which may affect the demised premises and the Tenant's use
thereof.
ARTICLE II.
TERM
To have and to hold the demised premises for a term of approximately
five (5) years commencing on July 1, 1990 (hereinafter called the "Commencement
Date") and ending at 12:00 o'clock midnight on March 31, 1995 (hereinafter
called the "Expiration Date"). The Commencement Date and Expiration Date are
subject to extension as provided in Article VIII hereof.
ARTICLE III.
RENTAL
In consideration of the demise and leasing of the premises aforesaid by
Landlord, the Tenant covenants and agrees to pay to the Landlord an annual
rental of SEE ADDENDUM A ATTACHED HERETO AS PART OF THIS LEASE AGREEMENT,
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in twelve equal monthly installments of ___________ each, which rental shall be
payable in advance, without notice or demand therefore, on or before the first
day of each month, beginning on April 1, 1990, provided, however, that if the
Commencement Date of the term of this Lease shall not be the first day of the
month, the monthly base rental for the period of time between the Commencement
Date and the end of the month during which such date occurs shall be prorated on
a daily basis, and shall be paid along with the monthly base rental payment
payable on the first day of the following month.
ARTICLE IV.
RENTAL PAYMENTS
All rental payments to be paid by Tenant as herein provided shall be
paid to X.X. XXXXXXXX INVESTMENT BUILDERS, INC., at its offices in Charlotte,
North Carolina, until notice to the contrary is given by the Landlord.
ARTICLE V.
HOLD-OVER
Section 5.01. Tenant shall pay Landlord double the rental then
applicable for each month or portion thereof Tenant retains possession of the
demised premises, or any portion thereof, after the expiration or earlier
termination of the term of this Lease, and also shall pay all damages sustained
by Landlord by reason of such retention of possession. The provisions of this
Section 5.01 shall not constitute a waiver by Landlord of any re-entry rights of
Landlord herein or by law provided. Tenant's retention of possession shall not
constitute a renewal of the term of this Lease and Tenant shall be a tenant at
will. [Illegible] prior to such term, and to any hold-over, renewal or extension
of such term, except as may herein otherwise be provided, and as may be
hereinafter amended in compliance with the terms and conditions of this Lease.
ARTICLE VI.
PROPERTY TAXES
Section 6.01. The Landlord shall pay all real estate taxes on the
demised premises. Provided, however, that if for any calendar year during the
term of this Lease (as renewed) the amount of real estate taxes levied or
assessed against the land and/or buildings of which the demised premises form a
part shall exceed the amount of such taxes for the calendar year 1990, then and
in that event, Tenant covenants and agrees to pay to the Landlord, upon demand,
as additional rental, within thirty (30) days of such demand ONE HUNDRED percent
(100%) of the amount of the excess over the amount of the taxes payable for the
year 1990, provided, however, that additional rents payable by Tenant or
co-Tenants or other occupants of the building, if any, under the provisions of
Section 6.03 hereunder shall not contribute to or be a portion of the additional
rents provided for in this Section 6.01.
Section 6.02. If, during any calendar year, the Tenant shall occupy the
demised premises under the terms hereof for less than a full one-year period,
then for that year the Tenant shall be required to pay only a pro rata portion
of the amount of any increase in real estate taxes chargeable to the Tenant
under the provisions of Section 6.01 above, which portion shall be proportionate
to the length of the Tenant's occupancy during the year as compared to a full
one-year period.
Section 6.03. The Tenant shall, for each calendar year falling
completely or partially within the term hereof, and for any renewal or extension
thereof, pay as additional rental to the Landlord the amount of any increase in
real estate taxes for the demised premises resulting from the assessment of any
property upon said premises which was not a part thereof at the beginning of the
term hereof, and which was placed thereon by, or at the direction or under the
control of the Tenant, including, but not limited to, any trade fixtures,
leasehold improvements, furniture, merchandise supplies, and other personal
property situated within the demised premises.
Section 6.04. Tenant shall promptly pay all taxes levied against
Tenant's stock or merchandise, furniture, equipment, fixtures, supplies and
other personal property situated within the demised premises.
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ARTICLE VII.
OWNERSHIP, POSSESSION, WARRANTY
The Landlord covenants that it is lawfully seized of the demised
premises and has a good right and lawful authority to enter into this Lease for
the full term aforesaid; that the Landlord will put the Tenant in actual
possession of the demised premises at the beginning of the term aforesaid,
subject to the provisions of Section 8.02.d below; and that Tenant, upon paying
the rental and performing the conditions herein agreed by it to be performed,
shall and may peaceably and quietly have, hold and enjoy the demised premises
for said term.
ARTICLE VIII.
IMPROVEMENTS AND EXTENSION OF COMMENCEMENT DATE
Section 8.01. If the demised premises are leased to the Tenant with the
existing improvements thereon, Tenant warrants that it has inspected the said
demised premises and that no representations or warranties, whether express or
implied, have been made with respect to the same, except as is herein expressly
set forth.
Section 8.02.a. In the event this Lease involves the construction of
space for Tenant by Landlord, the Landlord, prior to the commencement of the
term of this Lease, at Tenant's sole cost and expense for items in excess of
those shown on Exhibit(s) A attached hereto and incorporated herein by
reference, shall alter and "up-fit" the demised premises for occupancy by Tenant
in accordance with said Exhibit(s) A. All work to be done by Landlord shall be
completed in a good and workmanlike manner, and shall be in compliance with
state, federal and local laws, and shall include delivery by the Landlord of a
temporary certificate of occupancy issued by the appropriate governmental agency
stating that the demised premises may be lawfully occupied for the uses
permitted by this Lease.
Section 8.02.b. In the event this Lease requires upfitting by the
Landlord in accordance with the provisions of 8.02.a. above, and said upfitting
exceeds the work to be done by Landlord as real property improvements as shown
on Exhibit(s) A, then and in that event, the Tenant shall pay to the Landlord at
the time of the execution of this Lease, fifty percent (50%) of the anticipated
excess, with the balance being due on or before the date on which the Tenant
takes possession of the demised premises.
Section 8.02.c. Any changes in the upfitting or alterations of the
demised premises, other than in compliance with Exhibit(s) A attached hereto,
shall only be done with the prior written consent of the Landlord and upon the
execution by both parties of the Landlord's standard "change order" form. Upon
the execution of said standard "change order" form, such change order shall then
become a part of this Lease as if specifically set forth herein, including
without limitation any provisions set forth in said change order form relating
to the Commencement Date of this Lease.
Section 8.02.d. In the event the Lease involves construction of space
for the Tenant by Landlord, the Commencement Date shall be as specified in
Article II hereinabove, or if said construction is delayed, the Commencement
Date shall be postponed to the date upon which improvements constituting the
demised premises have been substantially completed in accordance with the agreed
upon plans and specifications therefor and the said temporary certificate of
occupancy is delivered by Landlord. The form of the Lease and the Expiration
Date shall be extended to the last day of the ONE HUNDRED & TWENTIETH full
calendar month following the new Commencement Date.
Landlord shall notify Tenant of such completion not less than five (5)
days prior to the Commencement Date. The taking of possession by Tenant shall
conclusively establish that said improvements have been completed in accordance
with Exhibit(s) A attached hereto and that the demised premises are in good and
satisfactory condition at the time possession is taken.
ARTICLE IX.
PERSONAL PROPERTY
Section 9.01. Any trade fixtures, equipment and other personal property
installed in or attached to the demised premises by and at the expense of the
Tenant shall remain the property of the Tenant and the Tenant shall have the
right, at any time and from time to time, provided it is not in default
hereunder, to remove any and all such trade fixtures, equipment, signs and other
personal property which it may have stored in or installed upon the demised
premises; provided, however, that in such event, Tenant shall restore the
demised premises to substantially the same condition in which they were at the
time Tenant took possession.
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Section 9.02. All personal property (including, but not limited to,
inventory), placed in the demised premises by Tenant shall be at the risk of the
Tenant, and the Landlord shall not be liable for any loss or damage to said
personal property, or to Tenant, unless such damage results from the gross
negligence or willful misconduct of the Landlord.
Section 9.03. Tenant shall maintain its own insurance coverage on the
upfittings and alterations of the premises which exceed the Landlord's standard
improvements.
ARTICLE X.
LANDLORD'S COVENANT TO MAINTAIN
Except as hereinafter provided, the Landlord covenants and agrees that
it will, at its own expense, during the term of this Lease, keep and maintain in
good order and repair the roof, principal structural members and exterior
masonry walls of the improvements which are located upon and included as a part
of the demised premises at the beginning of the term hereof; provided, however,
that Landlord shall not be responsible for or required to make any repairs which
may have been necessitated by the negligence or willfulness of the Tenant, its
agents or employees, or as a result of excessive wear and tear. Tenant shall
promptly notify the Landlord of any need for repairs for which Landlord is
responsible hereunder.
ARTICLE XI.
TENANT'S COVENANT TO MAINTAIN
Section 11.01. Tenant covenants and agrees that it will, at its own
expense, keep and maintain in good repair the entire interior of the
improvements located upon the demised premises from the time of the beginning of
the term hereof, including, without limitation, all plate and window glass,
plumbing systems, wiring and electrical systems, doors, interior walls, heating
and air conditioning systems, and all equipment associated therewith, and will
maintain landscaping and grassed areas, and keep parking lots, gutters and
downspouts free from litter and obstructions to their normal functions.
Section 11.02. Tenant further covenants that it will, at its own
expense, repair any damage to the improvements located upon the demised premises
which is occasioned by the negligence or willfulness of its agents, invitees,
customers or employees, or by vandalism, breaking and entering or any acts of
persons not a party to this Lease.
Section 11.03. Tenant further covenants and agrees to keep the demised
premises in a clean and orderly condition, and not to cause, allow or create
upon the demised premises or common areas any condition which may constitute
unsightliness, litter or a nuisance or danger to the general public or to other
occupants of the land and building containing the demised premises, if any, or
adjoining or neighboring properties.
Section 11.04. Tenant further covenants that it will make no structural
changes or major alterations without the prior written consent of the Landlord;
that it will not injure or deface said demised premises, or any part thereof;
and that it will return said demised premises peaceably and promptly to the
Landlord at the end of the term of this Lease, or any earlier termination
thereof in full compliance with Article XII of this Lease.
Section 11.05. Tenant further covenants that it will, under no
circumstances, except with the prior written consent of the Landlord, paint any
surfaces, or portions thereof, which have not been previously painted,
including, but not limited to, concrete floor, interior and exterior masonry
walls, naturally finished stained or unstained wood, or ceilings in offices or
other areas.
ARTICLE XII.
SURRENDER OF PREMISES
Upon the expiration or other termination of the term of this Lease,
Tenant shall quit, surrender and deliver to the Landlord the demised premises in
good order and repair, reasonable wear and tear and damage by accidental fire or
other casualty alone excepted (which exception, however, shall not include, in
any case, damage or injury caused by moving Tenant's property into or out of the
demised premises, or by the installation or removal of furniture, fixtures or
any other property of Tenant), and Tenant shall remove all of its property.
Tenant's obligation to observe or perform this covenant shall survive such
expiration or other termination.
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ARTICLE XIII.
UTILITIES
During the term of this Lease, the Tenant shall be responsible for and
shall promptly pay, when due, all charges for utilities used upon the demised
premises, including, but not limited to, gas and electricity, whether such
charges arise from actual consumption, a minimum billing, a demand billing, or a
combination thereof.
ARTICLE XIV.
INDEMNIFICATION
Section 14.01. The Tenant hereby indemnifies and holds the Landlord
harmless from any and all liabilities, claims, cause of action, obligations of
every kind and nature arising out of or in any manner related to the Tenant's
use or occupancy of the demised premises, or from any claims by third persons
arising out of such use or occupancy, including, but not limited to, all
expenses, legal fees, claims of every kind and nature relating thereto, unless
such claims are the result of the gross negligence or willful misconduct of the
Landlord.
Section 14.02. Neither Landlord nor any of its agents or employees
shall be liable to Tenant, its agents, invitees, employees or contractors, for
any damage by or from any act or negligence of any co-tenant or other occupant
of the building, if any, any owner or occupant of adjoining or contiguous
property, or any of their respective agents, contractors, invitees or employees.
ARTICLE XV.
INSURANCE AND WAIVER OF SUBROGATION
Section 15.01. From and after the date of this Lease, the Landlord, at
its sole cost and expense, will keep and maintain policies of insurance on the
improvements against loss or damage by fire and loss or damage by other risks or
casualties now embraced by the so-called "extended coverage endorsement", in
amounts at all times sufficient to prevent the Landlord from becoming a
co-insurer under the terms of the applicable policy, said insurance being for
Landlord's sole protection.
Section 15.02. Tenant covenants and agrees that it will not use the
demised premises for such purposes or in such a manner as to preclude or prevent
the Landlord from obtaining, through normal, usual and responsible efforts on
its part, such insurance coverage as is herein required of the Landlord, and in
no event will store any items, or undertake any activities, which would cause
the improvements to be rated by fire insurance companies as extra hazardous. The
Tenant agrees promptly to pay to Landlord such excess insurance premium cost, as
may be from time to time determined. Further, if during the term of this Lease,
the demised premises are used by the Tenant for any purposes or in any manner
which causes the improvements to be rated by fire insurance companies as extra
hazardous or which causes the cancellation or threatened cancellation of
Landlord's hazard insurance, the Tenant, upon notification by the Landlord, will
immediately cease such activities or storage, in order to remove the extra
hazardous rating or the threat of cancellation of Landlord's hazard insurance.
Section 15.03. In addition to the preceding Section 15.02, the Tenant
shall pay to the Landlord during each policy year falling partially or
completely within the form of this Lease, and any renewals or extensions
thereof, ONE HUNDRED PERCENT (100%) of any increase in the insurance premium
resulting from an increase in the combined rate for fire and extended coverage
insurance on said improvements in excess of the premium paid on this insurance
during the year 1990. If the Tenant shall occupy the demised premises under the
term hereof for less than a full one-year period, then for that policy year, the
Tenant shall be required to pay only a pro rata portion of any additional
insurance premium chargeable to the Tenant under the provisions of the above
paragraph. Any additional sums due Landlord pursuant to this Article shall be
due after the premiums for said policies have been paid, and the Landlord has
given Tenant written notice of such additional sum due, such sum being due and
payable within thirty (30) days after the date of such notice.
Section 15.04. From and after the date of this Lease, Tenant will, at
its own cost and expense, keep and maintain policies of general public liability
insurance protecting and indemnifying the Tenant and the Landlord against any
and all claims for damages to persons or property, or for loss of life or
property occurring upon, in or about the demised premises. Such insurance shall
afford immediate protection to the limit of not less than $500,000.00 in respect
of bodily injury or death to any one person; and to the limit of not less than
$1,000,000.00 in respect to any one accident or occurrence; and to the limit of
not less than $250,000.00 to property damage, with not more than $5,000.00
deductible.
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Section 15.05. All insurance provided for in this Article shall be
effected under standard form policies issued by insurers of recognized
responsibility and authorized to do business in the State of North Carolina, and
which are well rated by national rating organizations.
Section 15.06. Upon the commencement of the term of this Lease, and
thereafter no less than thirty (30) days prior to the expiration dates which are
therefore furnished pursuant to this Article, Tenant shall provide Landlord with
certificates of insurance evidencing that the insurance required is in effect,
and that the premiums therefore have been paid. Each policy delivered hereunder
shall, to the extent obtainable, contain an agreement by the insurer that the
policy shall not be cancelled without at least ten (10) days' prior written
notice to the Landlord.
Section 15.07. The Landlord and Tenant, for their respective heirs,
successors and assigns, hereby waive all rights, claims and causes of action
which they may hereafter acquire against the other, as the case may be, to
recover damage from the other for any act or actions committed by them or by
persons or entities for which they are then responsible, arising out of any
damage or loss sustained by the Landlord or Tenant to their respective property,
or upon any cause of action against either party which the other party hereto
may be primarily or secondarily liable, when such loss, damage, claim or cause
of action is insured by either Landlord or Tenant against such loss, damage,
claim or cause of action through any policy of insurance issued to Landlord or
Tenant at such time, and the insurance carrier of such party is liable to pay
for such loss, damage, claim or cause of action.
ARTICLE XVI.
SIGNS
During the term of this Lease, Tenant shall install, at its sole cost
and expense, only those signs which have been approved in writing by the
Landlord and are in compliance with all codes and ordinances and are in
accordance with the rules and regulations. Tenant shall install at its expense
such approve signs on the demised premises in the location approved by the
Landlord. The care and maintenance of such signs shall be the duty of the
Tenant. Tenant shall remove all such signs at its expense at the end of the
Lease term.
ARTICLE XVII.
INSPECTION AND "FOR RENT and "FOR SALE" SIGNS
The Landlord or its authorized agent shall have access to the demised
premises at reasonable and convenient times during normal business hours for
purposes of making such inspections as it deems necessary for the proper
enforcement of any covenant, condition, or obligation under this Lease. The
Landlord or its authorized agents may exhibit the premises to prospective
tenants at reasonable times and post "For Rent" or "For Sale" signs within three
(3) months prior to the termination of this Lease, or any renewal or extension
thereof.
ARTICLE XVIII.
TENANT'S DEFAULT
Section 18.01. If Tenant shall fail to pay any installment of rent
promptly on the day the same is due and payable hereunder, and shall continue in
such default for a period of ten (10) days after written notice thereof has been
served by the Landlord, or if Tenant shall fail to promptly keep and perform any
other covenants of this Lease, strictly in accordance with the terms of this
Lease, and, other than as provided in Article I, Section 1.03 and Article XV,
Section 15.02, shall continue in default for a period of thirty (30) days after
written notice thereof has been served by Landlord of default and demand of
performance, of if the leasehold interest of Tenant shall be taken on execution
or other process of law, or if the Tenant shall petition to be or be declared
bankrupt or insolvent according to law or make any conveyance or general
assignment for the benefit of creditors, or if a receiver be appointed for such
Tenant's property, and such appointment be not vacated and set aside within
thirty (30) days from the date of such appointment, or if proceedings for
reorganization or for composition with creditors be instituted by or against the
Tenant, then and in any of said events, the Landlord may immediately, or at any
time thereafter, and without further notice or demand, either terminate this
Lease or enter into and upon said premises, or any part thereof, and take
absolute possession of the same, fully and absolutely, and without such re-entry
working as a forfeiture of the rents to be paid and the covenants to be
performed by the Tenant for the full term of the Lease, and may, at the
Landlord's election, lease or sublet such premises, or any part thereof, on such
terms and conditions and for such [illegible], and for such time as the Landlord
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may elect; and, collect from the tenant any balance remaining [illegible] under
this Lease, Landlord shall have such additional rights and remedies as may be
provided by then applicable law.
ARTICLE XIX.
ASSIGNING AND SUBLETTING
The Tenant may not assign this Lease, nor sublet the whole or any part
of the demised premises, without the prior written consent of the Landlord, it
being understood and agreed that such consent will not be unreasonably withheld.
ARTICLE XX.
SUBORDINATION AND NON-DISTURBANCE
Section 20.01. Tenant agrees that this Lease is and shall remain
subject and subordinate to, and may be assigned as security to, any present and
all future ground leases or underlying leases of the land, any improvements
thereon or any part thereof, and to and for all mortgages or deeds of trust
which may now or hereafter affect such leases or the land, any improvements
thereon or any parts thereof, and to and for all renewals, modifications,
consolidations, replacements and extensions thereof. This clause shall be
self-operative and no further instructions shall be necessary to effect
subordination; however, Tenant shall execute promptly and deliver to Landlord
any such certificates in writing as Landlord may request evidencing the
subordinate of this Lease, or the assignment of this Lease as additional
security for, such ground leases, underlying leases, mortgages or deeds of
trust, and Tenant hereby constitutes and appoints Landlord as Tenant's
attorney-in-fact, coupled with an interest, to execute any such certificates or
assignment on Tenant's behalf in default of such execution by Tenant.
Section 20.02. Landlord agrees to exercise its best efforts to arrange
with the lender or holder of the mortgage, an agreement that if, by disposition,
foreclosure or otherwise, such holder or any successor in interest shall become
the owner of the demised premises, or take the rights of the Landlord in the
demised premises. It will not disturb the possession, use or enjoyment of the
leased premises by the Tenant, its successors or assigns, nor disaffirm the
Lease or Tenant's rights or estate hereunder, so long as all of the obligations
of the Tenant are fully performed in accordance with this Lease.
ARTICLE XXI.
DAMAGE OR DESTRUCTION BY FIRE
Section 21.01. Tenant shall give immediate written notice to Landlord
of any damage caused to the demised premises by fire or other casualty, and if
Landlord does not elect to terminate this Lease, as hereinafter provided,
Landlord shall proceed with reasonable diligence, at Landlord's expense, to
build and repair the premises. If the buildings or improvements located on the
premises shall: (a) be destroyed or substantially damaged so that the demised
premises cannot be repaired within ninety (90) days for the purposes for which
the demised premises was herein leased; or (b) if there is less than one (1)
year remaining under the term of this Lease, than in either of said events,
Landlord or Tenant may elect to terminate this Lease by giving thirty (30) days
written notice to the other party of such termination, without any further duty
of either party to rebuild or repair the demised premises.
Section 21.02. In the event there is no termination, as provided
herein, the Landlord will repair and rebuild the demised premises as promptly as
is practical to substantially the same condition which existed prior to the
occurrence of said damage or casualty; provided, however, that in no event will
Landlord be required in making such repairs to expend in excess of the fire and
extended coverage insurance proceeds actually received as a result of the said
casualty or damage. If the damage and repairing thereof shall render the demised
premises untenable, in whole or in part, a proportionate abatement of the rent
shall be allowed from the date the damage first occurred until the completion of
the repairs, as herein provided.
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ARTICLE XXII.
EMINENT DOMAIN
Section 22.01. In the event, during the term of this Lease, that the
entire demised premises are acquired by the exercise of the power of eminent
domain, this Lease shall terminate at the time possession must be surrendered,
and the Tenant shall be relieved of all future payments provided for herein.
Section 22.02. In the event, during the term of this Lease, that only a
portion of the demised premises is acquired by the exercise of the power of
eminent domain, and the demised premises as thus affected cannot be reasonably
used by the Tenant, then this Lease shall be terminable by the Tenant by serving
written notice upon the Landlord, and when so terminated, the Tenant shall be
relieved of all future rental payments provided for herein.
Section 22.03. In either of said events, Landlord shall be entitled to
the proceeds arising out of any such acquisition of the demised premises, or
portion thereof, under the power of eminent domain; provided, however, that
nothing herein contained shall be construed so as to prevent the Tenant from
making a claim for a separate award for any relocation expense, or for such
losses as it may sustain in connection with any items belonging to the Tenant
and not a part of the demised premises; and provided, further, that Tenant shall
be entitled to any amount specifically designated for such losses which it may
sustain in either of said events, whether such amount shall be a separate award
in itself, or shall be only a part of an award.
ARTICLE XXIII.
MISCELLANEOUS PROVISIONS
Section 23.01. It is expressly understood and agreed by and between the
parties hereto that this Lease sets forth all of the promises, agreements,
conditions and understandings between the Tenant and Landlord relative to the
demised premises, and that there no promises, agreements, conditions or
understandings, either oral or written, between them, other than as are herein
set forth. It is further understood and agreed that, except as herein otherwise
provided, no subsequent alterations, amendments, changes or additions to this
Lease shall be binding upon Landlord or Tenant, unless reduced to writing and
signed by both parties.
Section 23.02. If any base rental, additional rent or any other sum due
Landlord, in accordance with the provisions of this Lease shall not be paid when
due, the same shall bear interest at the rate of eighteen (18%) per cent per
annum, (or, if less, the highest rate allowed by law) from such due date until
such sum and interest accrued thereon shall have been paid. Interest accrued as
aforesaid shall be deemed to be additional rental hereunder, due on demand, and
if not paid, shall constitute an event of default.
Section 23.03. It is further understood and agreed that no waiver by
either party, or its successors and assigns, of any breach of any of the
covenants or conditions herein contained to be performed by the other party,
shall be construed as a waiver of any succeeding breach of the same or any other
covenant or condition.
Section 23.04. It is further understood and agreed that if any of the
terms and conditions of this Lease, or the application thereof, shall to any
extent by invalid or unenforceable, the remaining terms and conditions of this
Lease, other than any held to be invalid or unenforceable, shall not be affected
thereby, shall be and remain valid, and shall continue to be binding upon the
parties hereto to the fullest extent permitted by law.
Section 23.05. It is further understood and agreed that the execution
of this Lease, and the performance of any act pursuant to the terms and
conditions hereof, shall not be deemed or construed to have the effect of
creating between Landlord and Tenant the relationship of principal and agent, or
partnership or of joint venture, and the relationship between them shall be that
of Landlord and Tenant only.
Section 23.06. This Lease shall be governed by and construed in
accordance with the laws of the State of North Carolina.
Section 23.07. The parties will, at the opinion of the Landlord,
execute and deliver a Memorandum of Lease for the purpose of recording, and both
parties agree that only such short form lease shall be recorded.
Section 23.08. Whenever in this Lease it shall be required or permitted
that notice or demand be given or served by either party to this Lease to or
upon the other, such notice or demand shall be given or served, and shall not be
deemed to have been given or served unless in writing, and forwarded by
certified or registered mail, return receipt, addressed as follows:
-8-
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To the Landlord: With Copy To:
--------------------------------------------------------------------------------
X.X. Xxxxxxxx Investment Builders, Inc. Xxxxx X. Xxxxxxxxx Realty, Inc.
--------------------------------------------------------------------------------
0000 X. Xxxxxxxxxxxx Xxxxxxxxx 0000-X Xxxxxx Xxxxxx Boulevard
--------------------------------------------------------------------------------
Charlotte, North Carolina 28205 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
--------------------------------------------------------------------------------
To the Tenant: With Copy to:
--------------------------------------------------------------------------------
Up-Right, Inc. Up-Right, Inc.
--------------------------------------------------------------------------------
000 Xxxxxx Xxx Xxxx Xxxxxx Xxx 00000
--------------------------------------------------------------------------------
Xxxxxxx, Xxxxxxxxxx 00000 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
--------------------------------------------------------------------------------
Such addressee may be changed from time to time by either party by serving
notice of such change as provided above.
Section 23.09. If any rent owing under this Lease is collected by or
through an attorney-at-law, or in the event eviction proceedings are brought by
or through an attorney-at-law to obtain possession of the demised premises or
any action is brought by the Landlord for breach of any provisions of this Lease
by Tenant, Tenant agrees to pay to the Landlord as attorney's fees an amount
equal to fifteen percent (15%) (or if the statutes or other laws of the State of
North Carolina in effect at the time of such collection or eviction proceedings
limit the amount recoverable as attorney's fees, then the maximum percentage
allowed by such statute or law) of the amount so collected, or of the amount of
rent past-due, whichever is greater.
Section 23.10. Subject to the restrictions on assigning and subletting
hereinbefore contained, this Lease shall be binding upon and inure to the
benefit of the parties hereto, their successors, assigns, heirs and legal
representatives [illegible] governmental restrictions, scarcity of labor or
materials, strikes, fire or any other reason beyond its control, the performance
of such act shall be excused for the period of delay, and the period for the
performance of any such act shall be extended for the period necessary to
complete the performance after the end of the period of such delay.
Section 23.14. Option to Extend Term. See Addendum A attached hereto
and made part of this Lease Agreement.
Section 23.15. The parties hereto hereby agree that the Lease Agreement
on this property between the parties hereto dated October 26, 1988 and extended
and Modified by Agreement dated August 23, 1989 is hereby superseded and
replaced by this Lease Agreement.
Section 23.16. Right of First Offer: See Addendum A attached hereto and
made part of this Lease Agreement.
Section 23.12. Tenant further covenants and agrees that consistent with
and in addition to those covenants and agreements contained in Articles XI and
XIII hereinabove, it will, as its own expense, keep and maintain the landscaping
and grassed areas and keep parking lots, gutters and downspouts free from litter
and other obstructions to their normal functions and will be responsible for and
pay, when due, all water and sewer charges incurred on the demised premises.
In Witness Whereof, the parties hereto have duly executed this Lease
Agreement under seal as of the day and year above written.
LANDLORD, X.X. XXXXXXXX INVESTMENT BUILDERS, INC.
By: /s/ Xxx X. Xxxxxxxx, President (Seal)
----------------------------------------------
Xxx X. Xxxxxxxx
Attest: /s/ Xxxxxxxx Xxxxxxxxxx, Secretary
----------------------------------------------
Tenant: UP-RIGHT, INC.
(Corporate Seal) By: /s/ [illegible] V.P. Marketing
----------------------------------------------
(Vice) President
Attest:
/s/ Xxxxx X. Xxxxxx
----------------------
(Assistant) Secretary
-9-
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STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
I,_______________________, a notary public for said county and state,
do hereby certify that _________________________________________________________
--------------------------------------------------------------------------------
_________________________________ personally appeared before me this day and
acknowledged the execution of the foregoing instrument.
WITNESS my hand and notarial seal, this the _______ day of
_________________________________, 19__________.
--------------------------------------
Notary Public
My Commissions Expires ___________
(Notarial Seal)
STATE OF ______________
COUNTY OF _____________
This the _______day of ____________________________________19______,
personally appeared before
me______________________________________________________ [illegible] he is the
(vice) president of
___________________________________________________________________ and that the
seal affixed to the foregoing instrument in writing is the corporate seal of
said corporation, and that the said writing was signed and sealed by him, in
behalf of the corporation, by its authority duly given. And the said
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
acknowledged the said writing to be the act and deed of said corporation.
----------------------------------------
Notary Public
My Commission Expires:______________
(Notarial Seal)
-10-
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Addendum A to Lease Agreement
between X.X. Xxxxxxxx Investment Builders, Inc., Landlord
and
Up-Right, Inc. Tenant
dated __________________, 1990
Article III. continued:
Rental during the term shall be as follows:
First thirty six months: $4,069 per month
Next twenty four months: $4,476 per month
Article 23.14: Option to Extend Term continued:
Provided Tenant is not in default of any of the terms and conditions of
this Lease Agreement, Landlord hereby grants Tenant one option to renew this
Lease for five (5 ) years at an annual rental of *SEE BELOW*. Tenant must give
Landlord written notice of its intent six (6) months prior to the expiration of
the term of this lease. All other terms and conditions of the Lease shall remain
in full force and effect.
*Annual rental during the option period shall be the higher of Fifty
Three Thousand and Seven Hundred and Twelve ($53,712.00) Dollars or an amount
computed by multiplying Fifty Three Thousand and Seven Hundred and Twelve
($53,712.00) Dollars by the quotient obtained by dividing the level of the
Consumer Price Index (for urban wage earners and clerical workers: U.S. city
average, by expenditure category and commodity and service group, 1982-84 = 100)
of the United States Bureau of Labor Statistics at the beginning date of said
option period by the level of the Consumer Price Index (for urban wage earners
and clerical workers: U.S. city average, by expenditure category and commodity
and service group, 1982-84 = 100 of the United States Bureau of Labor Statistics
at the beginning date of the term of this Lease.
Article 23.16 Right of First Offer continued:
Right of First Offer: Provided Tenant is not in default of the Lease,
if Landlord desires to offer the Demised Premises for sale at any time during
the term of this Lease (as such term may be extended at any time during the term
of this Lease (as such term may be extended or renewed), then Landlord shall
give tenant written notice of the terms and conditions on which Landlord is
willing [illegible] days after receipt of such notice from Landlord to purchase
the Demised Premises on the terms and conditions set forth in Landlord's notice.
Failure to respond within said 15-day period or variation of the terms and
conditions offered by Landlord shall be deemed a rejection of Landlord's offer.
Upon expiration of said 15-day period or other rejection by Tenant of Landlord's
offer, Landlord shall have the right to offer the Demised Premises for sale to
others on terms and conditions no less favorable than those offered to Tenant.
If Landlord does not close the sale of the Demised Premises within 365 days
after initially offering the Demised Premises on terms and conditions more
favorable to Tenant than those offered to Tenant, then Landlord shall not sell
the Demised Premises without having re-offered the Demised Premises for sale in
writing to Tenant, which offer will be in accordance with such more favorable
terms and conditions, if applicable. Tenant shall have five (5) days after
receipt of such notice to accept Landlord's offer. Closing and terms of payment
shall be in accordance with the terms and conditions of Landlord's offer.
-11-
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Attached To And Made Part Of
Lease Dated April 27, 1990
Made Between
Horizon High Reach, Inc., a Delaware Corporation
and
JMA, Ltd., a North Carolina Limited Partnership
***********************
SUPPLEMENTAL AGREEMENT
To the Lease Dated as of the 27th day of April, 1990, made by and
between JMA, Ltd., a North Carolina Limited Partnership as the successor
Landlord, and Horizon High Reach, Inc., as the successor Tenant.
By this Supplemental Agreement dated as of the 30th day of September,
1994, the parties to the Lease agree as follows with respect to the demised
premises located at 0000 X xxx X Xxxxxxxxx Xxxxx, Xxxxxxxxx, X.X. and as
otherwise described in the Lease.
1. Landlord shall cause to be constructed the work within the premises
described as Base Bid and Alternate No. 1 in Xxxxxx Xxxxx, Inc.,
General Contractor, Bid Letter dated December 13, 1994, attached hereto
as Exhibit "A", on or before March 10, 1995. Provided, however, all
four windows in the interior walls shall be eliminated and a
twenty-four inch by thirty inch glass insert shall be installed in door
"E".
2. Tenant hereby exercises its option to renew this Lease for a period
of five years from April 1, 1995 through March 31, 2000 under Article
24.14 and Landlord concurs and accepts such renewal.
3. The annual rental throughout the renewal period shall be Fifty Nine
Thousand and Forty ($59,040.00) Dollars in monthly installments of
$4,920.00 in accordance with the terms and conditions of the Lease.
Except as hereby supplemented or amended, the Lease shall remain in
full force and effect and is hereby ratified and confirmed.
IN WITNESS WHEREOF, this instrument has been duly executed by the
parties hereto as of September 30, 1994.
Attest Tenant: Horizon High Reach, Inc.
By:
-----------------------------------------
Asst. Secretary Title: (Vice) President
-12-
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(CORPORATE SEAL)
Witness Landlord: JMA, Ltd. a North Carolina Limited Partnership
By:
----------------------------------
-13-
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ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE (this "Assignment") is made and entered into
as of June , 1994, by and between Up-Right, Inc., a California corporation
("Assignor"), and Horizon High Reach, Inc., a Delaware corporation ("Assignee").
RECITALS:
A. Assignor is the tenant under that certain Lease Agreement, dated
April 27, 1990, and Assignment of Lease, dated June 18, 1990 (collectively
referred to as the "Lease," a copy of which Lease, including amendments and
modifications thereto, is attached hereto as EXHIBIT "A"), between Assignor and
X.X. Xxxxxxxx Investment Builders, Inc. (whose interest was assigned to JMA,
Ltd. pursuant to an Assignment of Lease dated June 18, 1990 (herein,
"Landlord")), for the premises (the "Premises") located in the City of
Charlotte, State of North Carolina, as described more particularly in the Lease.
B. Pursuant to that certain Asset Contribution Agreement (the "Asset
Contribution Agreement") dated June , 1994, Assignor has agreed to transfer, and
Assignee has agreed to acquire, certain of Assignor's assets.
C. In accordance with the Asset Contribution Agreement, Assignor
desires to assign all rights and delegate to Assignee all obligations arising
under the Lease, and Assignee desires to accept such assignment and delegation
on the terms and conditions set forth below.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenant and agreements
contained herein and other good and valuable consideration, the parties agree as
follows:
1. Assignment. Effective upon the Closing (as defined in the Asset
Contribution Agreement) and, to the extent required under the Lease, Lessor's
written consent hereto (such later date herein referred to as the "Effective
Date"), Assignor assigns and transfers to Assignee all of Assignor's right,
title and interest in, and delegates to Assignee all obligations arising under,
the Lease.
2. Assumption. From and after the Effective Date, Assignee assumes all
the obligations of Assignor under the Lease to be performed by Assignor as the
tenant under the Lease and, agrees to be bound by all the terms, covenants,
conditions, and provisions of the Lease. Assignee hereby agrees to indemnify and
hold Assignor harmless from and against any and all costs, expenses (including,
without limitation, attorneys' fees) and liability arising from the breach or
default by Assignee of any of the terms, covenants, conditions, and provisions
of the Lease occurring from and after the Effective Date.
3. Representations and Warranties. Assignor hereby represents and
warrants to Assignee that the documents attached hereto as EXHIBIT A comprise
the entire agreement between Assignor and Landlord respecting the Premises.
4. Governing Law. This Assignment and the rights and obligations of the
parties hereunder shall in all respects be governed by, and interpreted in
accordance with, the laws of the State of California.
5. Interpretation. This Assignment shall be interpreted in accordance
with the common meaning of its terms and shall not be interpreted strictly for
or against either party, provided that in the event of any conflict with the
terms or conditions of the Asset Contribution Agreement, the terms and
conditions of the Asset Contribution Agreement shall control.
-1-
16
6. Counterparts. This Assignment may be executed in any number of
counterparts, each of which shall be deemed an original, and when taken together
they shall constitute one and the same agreement.
7. Successors. This Assignment shall be binding upon and shall inure to
the benefit of Assignor, Assignee, and their respective successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
as of the date first written above.
"ASSIGNOR" "ASSIGNEE"
UP-RIGHT, INC. HORIZON HIGH REACH, INC.
a California corporation a Delaware corporation
By: By:
------------------------------ ---------------------------------
-2-
17
CONSENT TO ASSIGNMENT
The undersigned ("Landlord") hereby consents to the assignment of
rights and delegation of duties under the Lease to Assignee, as described in
pages one and two above and initialed by Landlord for identification, on the
condition that Assignor remain primarily liable for the performance of all of
its obligations under the Lease. Landlord's consent is strictly limited to the
transaction described above, and any future assignment of the Lease, or sublease
of the premises, by Assignee shall require the prior written consent of
Landlord, as specified in the Lease. Landlord hereby represents and warrants to
Assignee and agrees that (i) as of the Effective Date, the Lease is in full
force and effect and no default or breach (or no event has occurred that, with
the passage of time, the giving of notice by Landlord, or both, otherwise would
constitute a default or breach) exists under the Lease; (ii) the Lease attached
hereto as EXHIBIT "A" constitutes the entire agreement of Assignor and Landlord
with respect to the subject matter thereof; (iii) Assignor has paid or been
credited with the deposits (whether in the nature of a security deposit or
otherwise) specified in the Lease, and from and after the Effective Date
Landlord shall hold and apply such deposits for Assignee's account in accordance
with the Lease; and (iv) the term of the Lease commenced on July 1, 1990 and
shall expire on March 31, 1995.
IN WITNESS WHEREOF, Landlord has executed this Consent to Assignment as
of July 15, 1994.
JMA, Ltd.
a North Carolina Limited Partnership
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Its: General Partner
-------------------------------------
-3-
18
STATE OF NORTH CAROLINA
ASSIGNMENT OF LEASE
COUNTY OF MECKLENBURG
THIS ASSIGNMENT OF LEASE dated June 18, 1990, is made by and between
X.X. XXXXXXXX INVESTMENT BUILDERS, INC., a North Carolina corporation
("Assignor"); and JMA, LTD., A NORTH CAROLINA LIMITED PARTNERSHIP ("Assignee").
Background Statement
Assignor has entered into a Lease dated April 27, 1990 ("Lease"),
pursuant to which Assignor leased to UpRight, Inc. ("Tenant") premises located
in Mecklenburg County, North Carolina, on real property more particularly
described in Exhibit A ("Demised Premises"). Assignor wishes to assign all its
right, title and interest in the Lease to Assignee, effective as of June 18,
1990 ("Effective Date").
Assignment
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
I. Assignor assigns to Assignee, as of the Effective Date, all of
Assignor's right, title and interest, as landlord, in the Lease. Assignor
warrants and represents to Assignee that it has full and lawful authority to
execute this Assignment of Lease.
II. Assignor agrees to indemnify, defend and hold Assignee harmless
from and against any and all liabilities, claims, demands, costs and expenses of
every kind and nature (including attorneys' fees and court costs) resulting from
the failure of Assignor to perform its obligation under, or observe the
covenants and conditions in, the Lease accruing prior to the Effective Date.
III. Assignee agrees to assume all the obligations of Assignor under
the Lease arising from and after the Effective Date, and to perform and observe
all the covenants and conditions to be performed or observed by Assignor in the
Lease accruing from and after the Effective Date. Assignee agrees to indemnify,
defend and hold Assignor harmless from and against all liabilities, claims,
demands, costs and expenses of every kind and nature (including attorneys' fees
and court costs) resulting from the failure of Assignee to perform its
obligations under, or observe the covenants and conditions in, the Lease
accruing on or after the Effective Date.
-1-
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IV. This Assignment of Lease may not be modified, discharged or
terminated orally or in any manner other than by an agreement in writing signed
by the parties hereto or their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment of
Lease under seal as of the day and year first written above.
ASSIGNOR:
X.X. XXXXXXXX BUILDERS, INC.
[CORPORATE SEAL] By: /s/ Xxx Xxxxxxxx
-------------------------------------
Title: President
Attest:
/s/ Xxxxxxxx Xxxxxxxxxx
------------------------------
Secretary
ASSIGNEE:
JMA LTD., A NORTH CAROLINA
LIMITED PARTNERSHIP
By: /s/ Xxxxx X. Xxxxxxxxx (SEAL)
-------------------------------------
Xxxxx X. Xxxxxxxxx, General Partner
-2-
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STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
This 15th day of October, 1990, personally came before me Xxx X.
Xxxxxxxx, who, being by me duly sworn, says that he is the President of
X.X. XXXXXXXX INVESTMENT BUILDERS, INC. and that the seal affixed to the
foregoing instrument in writing is the corporate seal of the company, and that
said writing was signed and sealed by him, in behalf of said corporation, by its
authority duly given. And the said Xxx X. Xxxxxxxx acknowledged the said writing
to be the act and deed of said corporation.
/s/ Xxxxxxxxx X. Link
-------------------------------------
Notary Public
My commissions expires:
8-28-91
-----------------------
[NOTARIAL SEAL]
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
This 11th day of October, 1990, personally came before me XXXXX X.
XXXXXXXXX, who, being by me duly sworn, says that he is a general partner of
JMA, LTD., A NORTH CAROLINA LIMITED PARTNERSHIP, and acknowledged the due
execution of the foregoing instrument on behalf of said partnership.
/s/ Xxxxxxxxx X. Link
-------------------------------------
Notary Public
My commissions expires:
8-28-91
-----------------------
[NOTARIAL SEAL]
-3-
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EXHIBIT A
BEGINNING at a point which is located in the southerly margin of the
right-of-way of Xxxxxxxxx Drive (60 foot right-of-way) which point is located at
the northerly corner of the property of Suzy Realty of North Carolina (now or
formerly) as described in Deed recorded in Book 3694 at Page 328 of the
Mecklenburg Public Registry; thence, continuing with said margin of Xxxxxxxxx
Drive in a northeasterly direction along the arc of a circular curve to the left
having a radius of 746.20 feet an arc distance of 60.00 feet to a point which is
located in the westerly corner of the property of Halifax Realty (now or
formerly) as described in Deed recorded in Book 4056 at page 797 of the
Mecklenburg Public Registry; thence, continuing with the southwesterly boundary
of said Halifax Realty Company property the following two (2) courses and
distances: 1) S 48-29-04 E. 139.61 feet to a point; and 2) S 71-18-58 E (passing
a new iron pin at 132.13 feet) a total distance of 281.11 feet to a point which
is located in the rear line of Parcel B-4 as shown on a map of Xxxxxxxx
Industrial Park recorded in Map Book 19 at Page 449 of the Mecklenburg Public
Registry; thence, continuing in part with said rear line of Parcel B-4 S
40-44-36 W 377.48 feet to an existing iron pipe located in the easterly line of
the aforesaid Suzy Realty Company; thence, continuing with said boundary of said
Suzy Realty Company property N 21-20-10 W 456.82 feet to the point and place of
BEGINNING, all as shown on that survey dated June 3, 1980, as revised October
30, 1980 and prepared by H.E. XxXxxxxx.
BEING part of the property conveyed to Xxxxxx Development Company by
deed recorded in Book 1723 at Page 141 of the Mecklenburg Public Registry.
Xxxxxx Development Company was merged into X.X. Xxxxxxxx Investment Builders,
Inc., by Articles of Merger recorded on Roll 17 at Frame 655 among the corporate
records in the Mecklenburg Public Registry.
