Exhibit 10.34
FIRST LEASE
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MODIFICATION AGREEMENT
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For
X. X. Food Service, Inc.
000-X Xxxxxxx Xxxxxxx Xxxx
Vandora Shopping Center
Xxxxxx, Xxxxx Xxxxxxxx 00000
LESSOR:
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Sample Properties
Xxxx Xxxxxx Xxx 000
Xxxxxx, Xxxxx Xxxxxxxx 00000-0000
LESSEE:
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X. X. Food Service, Inc.
00000 Xxxxxxxxx Xxxxxxx, Xxxxx #000
Xxxxxxxxxx, Xxxxxxxx 00000
STATE OF NORTH CAROLINA
COUNTY OF WAKE
FIRST LEASE MODIFICATION AGREEMENT
THIS FIRST LEASE MODIFICATION AGREEMENT is made and entered into this 7th
day of November, 1997, by and between SAMPLE PROPERTIES, hereinafter known
"Lessor", and X. X. FOOD SERVICE, INC., a Kentucky Corporation, hereinafter
known as "Lessee".
W I T N E S S E T H:
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WHEREAS, Lessor and Lessee have entered into a Lease Agreement dated May
14, 1993, for premises situated at 000-X Xxxxxxx Xxxxxxx Xxxx, Xxxxxx, Xxxx
Xxxxxx, Xxxxx Xxxxxxxx [with the legal description of said property attached to
this Agreement and made part of it with its inclusion as Exhibit ~C"], said
space being a 23,000-square-foot portion of a 26,750-square-foot masonry
building; and
WHEREAS, the Lessee now desires to lease the adjacent and contiguous space
currently occupied by Xxx Xxxxx Discount Drugs on an "as is, where is" basis,
said space containing 3,750 square feet, said property identified as 000-X
Xxxxxxx Xxxxxxx Xxxx, Xxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxxxx; and
WHEREAS, the parties hereto now desire to amend and modify the Lease
Agreement as hereinafter set forth:
NOW, THEREFORE, by mutual agreement of the parties and in consideration of
the promises and obligations hereinafter set forth, said Lease Agreement is
hereby amended and modified as follows:
1. Paragraph #2 is amended to extend the Lease Agreement for a period of
three [3] years and two [2] months commencing sixty [60] days after the date
Lessor turns possession of the Xxx Xxxxx space over to Lessee for fit-up plus
any time remaining to the end of the month. The total space being leased by
Lessor to Lessee shall be approximately 26,750 square feet.
2. Paragraph #3 is amended to set the new rental rate for the combined
space at Three 11/100 Dollars [$3.11] per square foot which is Eighty-Three
Thousand One Hundred Ninety-Two 50/100 Dollars [$83,192.50] annually or Six
Thousand Nine Hundred Thirty-Two 71/100 Dollars [$6,932.71] per month during the
first year of the lease period, each monthly payment of which shall be due and
payable without setoff or demand to Lessor in advance by the first [1st] day of
each calendar month during the term of this Lease. Beginning on the first day of
the month following the anniversary of this First Lease Modification Agreement
and on each subsequent anniversary date, the rentals due under the modified
Lease Agreement may be increased annually by an amount not to exceed three
percent [3%].
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Rentals shall be paid to Sample Properties, and mailed to Xxxx Xxxxxx Xxx 000,
Xxxxxx, Xxxxx Xxxxxxxx 00000-0000. Checks resumed to Lessor by a Bank or other
such financial institution shall accrue a return-check charge of Fifty 00/100
Dollars [$50.00]. Lessor's Taxpayer Identification Number [TIN] is 00-0000000.
3. Paragraph 8-E is amended to reflect the increased square footage, and
Common Area Maintenance is expanded to include the regular maintenance of
parking, common areas, service areas and landscaped areas all of which includes
regular maintenance, mowing grassed areas, vacuuming parking areas, picking up
trash, and maintenance and rehabilitation of landscaped areas, and for which
Lessee agrees to pay monthly to Lessor an additional amount of Fifteen Cents
[$.15] per square foot per year which is Three Hundred Thirty-Four 38/100
Dollars [$334.38] per month as additional rental. At the time this Lease
Amendment becomes effective, Lessor agrees to commence being responsible for the
electricity for area parking lights for all common areas of Xxxxxxx Shopping
Center, and Lessee agrees to reimburse Lessor for its pro-rata number of the
parking lot lights directly attributable to Lessee's commissary operations, that
number being [N] of a total number of [O] lights, with [N] being the numerator
and [O] being the denominator to determine the percentage of common area
electrical use chargeable to Lessee, and which Lessee shall pay each month to
Lessor as additional rental. Beginning with the first anniversary of this Lease
Modification Agreement, the CAM charge [not including the common area light
usage], may increase on an annual basis by an amount not to exceed Three percent
[3%].
4. A new paragraph #34 with the heading "Lessor's Indemnity" is added with
the following language: Lessor shall be responsible for and shall indemnify
Lessee and hold it harmless from any and all liability for loss, damage or
injury to person or property caused by the negligence of Lessee, its agents or
employees. Lessor's obligation to indemnify Lessee hereunder shall include the
duty to pay any judgments or settlements, and al1 reasonable costs, fees and
expenses, including reasonable attorneys' fees, incurred in connection
therewith.
5. A new paragraph #35 with the heading "Lessee's Indemnity" is added with
the following language: Lessee shall be responsible for and shall indemnify
Lessor and hold it harmless from any and all liability for loss, damage or
injury to person or property caused by the negligence of Lessee, its agents or
employees and in any product liability actions brought against Lessor by a
customer, directly or indirectly, of Lessee. Lessee's obligation to indemnify
Lessor hereunder shall include the duty to pay any judgments or settlements, and
all reasonable costs, fees and expenses, including reasonable attorneys'' fees,
incurred in connection therewith.
6. Paragraph #22 is amended to add the following language: Lessee shall
execute at Lessor's request, and within five [s] business days thereof,
instruments evidencing the subordinate position of this Lease Agreement, and as
often as requested, shall sign estoppel certificates setting forth the date it
accepted possession, that it occupies the premises, the termination date of its
lease, the date to which rent has been paid, and the amount of monthly rent that
has been paid and the amount of monthly rent in effect as of such certification,
whether or not it has any defense or offset to the enforcement of the Lease, any
knowledge it has of any default or breach by Lessor, and that the Lease is in
full force and effect except as to modifications, agreements or amendments
thereto, copies of each of which shall be attached to the
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certificate. Any sale of the real estate upon which the Premises are situated
shall be subject to the Lessee's interest and Lessor shall provide Lessee with a
written document acknowledging that its interest will be subject to this lease
Agreement. Lessee also agrees to sign within five [5] business days and as often
as requested by Lessor or his financial institution to sign Attornment,
Subordination and Non-Disturbance Agreements.
7. A new paragraph #36 labeled "Force Majeure" is added with the following
language: Neither Lessor nor Lessee shall be liable to the other for any breach
or violation of this Lease Agreement resulting from any occurrence or event,
including any Act of God, strikes, lockouts, property damage or other casualty
or occurrence beyond the reasonable control of a party hereto.
8. A new paragraph #37 entitled "Environmental" is added with the following
language: Lessor represents, covenants and warrants to Tenant that there are no
hazardous or toxic substances either under, about, on or in the Premises to the
best of its knowledge.
Lessor shall indemnify Lessee and hold it harmless for any and all costs,
expenses, attorneys' fees, loss, damage or injury to person or property,
including any legal action brought against Lessor or Lessee by any federal,
state or local governmental agency, or subdivision thereof, or by any other
third party claimant, caused by any water, soil or other contamination in, under
or around the Premises resulting from the prior use of such Premises or any
surrounding areas by the Lessor or any prior owner or tenant, which
contamination was not caused by Lessee or which preceded the date of this Lease.
Lessee shall indemnify Lessor and hold it harmless for any similar
environmental contamination to the extent such contamination is caused by Lessee
and occurs exclusively during the period hereof, including any renewals.
9. A new paragraph #38 entitled "End of Lease Obligation" is added with the
following language: At the final termination of the initial lease term or, if
applicable, lease extension[s], Lessee shall remove all of his personal
property and de-identify the property by removing advertising signs and any
other decor or decorations which would identify Lessee's business. In
removing inventory, furniture, fixtures, advertising signs, equipment, personal
property and other miscellaneous items. Lessee shall not damage or destroy
Lessor's property and Lessee shall broom clean the premises and repair all
damage caused to the building by the removal of the above-identified items.
Lessee shall be responsible for damage to any HVAC, plumbing or electrical
equipment, structural portions of the building or common areas caused by the
moving out process. If Lessor must repair said damage, Lessee agrees to
reimburse Lessor for such damage within fifteen [15] days from invoice plus
reasonable attorney's fees and other costs of collection, if necessary.
A new exhibit shall be added to the Lease Agreement and marked as "Exhibit C"
which is identified as the legal description of the property and is attached and
made part of this Modification Agreement.
Except as hereby amended, all other terms and conditions of the original Lease
Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the Lessor and Lessee have caused this First Lease
Modification Agreement [consisting of six (6) pages and one (1) exhibit] to be
duly executed the day and year first above written.
LANDLORD:
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SAMPLE PROPERTIES
/s/ Xxxxxx X. Sample [SEAL]
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by: Xxxxxx X. Sample
TENANT:
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X. X. FOOD SERVICE, INC.
/s/ Xxxxxx Xxxxxx 11-4-97 [SEAL]
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by: Xxxxxx Xxxxxx, President
X. X. Food Service
ATTEST:
[Corporate Seal]
/s/ Xxxxxxxxx X. Xxxxxxxx
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By Asst Corporate Secretary
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STATE OF NORTH CAROLINA
COUNTY OF WAKE
I, M. Xxxx Xxxxx, a Notary Public in and for the aforesaid State and
County, do hereby certify that Xxxxxx X. Sample personally appeared before me
this day and acknowledged the due execution of the foregoing instrument. Witness
my hand and official stamp or seal, this 7 day of November, 1997.
M. Xxxx Xxxxx
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Notary Public
My commission expires: 02-06-2002
COMMONWEALTH OF KENTUCKY
COUNTY OF JEFFERSON
I, Xxxxxx X. Xxxx, a Notary Public for said County and State, do hereby
certify that Xxxxxx Xxxxxx personally came before me and, who being by me duly
sworn, says that he is President of X. X. Food Service, Inc., a Kentucky
Corporation, and that the seal affixed for the foregoing instrument in writing
is the corporate seal of said X. X. Food Service, Inc., and that said writing
was signed and sealed by him in behalf of said corporation by its authority duly
given and duly attested by the Corporate Secretary. The said President
acknowledged the said writing to be the act and deed of the corporation. Witness
my hand and notarial seal this 5th day of November, 1997.
Xxxxxx X. Xxxx
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Notary Public
My Commission Expires: 3/22/2001
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EXHIBIT "C"
LEGAL DESCRIPTION
BEGINNING at the Southeast intersection of Aversboro Road and New Xxxxxxx
Springs Road; runs thence along the South side of New Xxxxxxx Springs Road North
60 degrees 45 minutes East 381.92 feet to a point in the North Carolina Railroad
right of way; runs thence with the North Carolina Railroad right of way South 60
degrees 50 minutes East 213.55 feet to a point on the West side of Oak Circle;
runs thence with Oak Circle the following courses and distances: South 16
degrees West 213.2 feet, South 18 degrees 25 minutes West 50 feet, South 20
degrees 15 minutes West 25 feet, South 24 degrees 40 minutes West 25 feet,
South 31 degrees 58 minutes West 25 feet, South 40 degrees 46 minutes West 25
feet, South 56 degrees 51 minutes West 25 feet, South 67 degrees 51 minutes West
25 feet, South 76 degrees 38 minutes West 25 feet, South 84 degrees 30 minutes
West 25 feet, South 87 degrees 28 minutes West 25 feet, North 89 degrees 07
minutes West 82 feet, and North 86 degrees 53 minutes West 143.85 feet to the
point on the East side of Aversboro Road, thence North 10 degrees 42 minutes
West 284.5 feet to the point and place of BEGINNING, according to a survey
entitled "Property of Xxxxxxx Shopping Center, Inc." dated 5/21/79, by Xxxxxxx
X. Xxxx, Registered Surveyors.
Wake County Revenue Department Property Identification Number 1711.14 24 7127
000
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