EXHIBIT 00.xxx
THIS LEASE, dated as of this 30th day of August, 1986, by and between
Xxxxxx-Xxxxxxxx Investment Co.("Landlord")and Xxxxxx-Xxxxxx Company ("Tenant').
W I T N E S S E T H:
1. Landlord hereby leases to Tenant, subject to the terms and
conditions hereof, the following described property together with all
improvements thereon and appurtenances thereunto belonging (the "Premises"):
That certain described tract or parcel of land with all improvements
thereon and appurtenances thereunto belonging, lying and being in
Whiteville township, Columbus County, State of North Carolina bounded
and described as follows, to wit:
Beginning at an iron pin in the western edge of old U.S. Highway 701,
now a continuation of Madison Street in the town of Whiteville, said
beginning point being 180.65 feet southwardly from the southwestern
intersection of the western line of old U.S. Highway 701 and the
southern line of State N. C. Road No. 1949, thence from said point of
beginning southwardly along the western line of old U.S. route 701 (a
course of south 32(degree)m 49' west) a distance of 225.77 feet to a
concrete monument; thence north 60(degree) 37' west a distance of
300.45 feet to an iron pin; thence north 32(degree) 29' east a distance
of 243.6 feet to an iron pin; thence south 57(degree) 13' east a
distance of 301.34 feet to the point and place of beginning.
for a term of fifteen (15) years, commencing on August 1, 1986 and ending on
July 31, 2001 at 12:00 Midnight.
2. (a) Beginning with the commencement date, Tenant shall pay to
Landlord a monthly rental of Four thousand five hundred two and 08/100 dollars
($4,502.08) payable in advance on the first day of every month.
(b) The annual rental shall be changed every three (3) years to an
amount equal to four (4) percent of Tenant's net sales at the Premises for the
previous year. Previous year is defined as the last full fiscal year prior to
the anniversary date of this Lease. Net sales is defined as gross sales less
returned sales and sales taxes. Credit service charges, insurance and service
sales are not included in "Net Sales".
3. Tenant agrees that it shall:
(a) pay all charges for water, electricity, gas and other
utilities;
(b) Keep the interior ad exterior of the Premises, together with
all plumbing, heating, air conditioning, ventilating, electrical and mechanical
equipment in good order and repair (including termite control) at its own
expense; and upon termination of this Lease surrender the same in as good
condition as then received, expecting depreciation caused by ordinary wear and
tear and damage caused by fire, accident, casualty or act of God;
(c) Cause the Premises to be insured against loss by fire with
extended coverage in an amount sufficient for replacement of the Premises in the
event of total loss by facilities of the same size and quality as existed prior
to such loss;
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(d) Pay when due all ad valorem real estate taxes and assessments
against the Premises. (All real estate taxes payable by Tenant shall be prorated
as of the commencement date and to the termination date of this Lease. Landlord
shall promptly forward to Tenant all bills received by Landlord for taxes which
are to be paid be Tenant, and Tenant shall deliver promptly thereafter to
Landlord receipts evidencing payment of all such taxes. Tenant may file in the
name of Landlord all such protests or other instruments and institute and
prosecute proceedings for the purpose of contesting any of such taxes, but
shall, at the request of Landlord, furnish reasonable assurance to Landlord
indemnifying it against any loss or liability by reason of such contest. Tenant
shall not be deemed to be in default hereunder so long as Tenant shall in good
faith contest such tax. Nothing herein contained shall be construed to obligate
Tenant to pay any part of any income, estate or inheritance tax assessed any
governmental authority against the Landlord, its successors or assigns.);
(e) Tenant agrees, at its own expense, to promptly comply with all
requirements of any legally constituted public authority.
(f) Not use or permit the Premises to be used for any unlawful
or disorderly purpose; and
(g) Permit Landlord to post one "For Rent" sign to and to exhibit
the Premises to prospective tenants during the last six (6) months of the
Lease's duration provided that Landlord shall cause the least possible
disruption of Tenant's business.
4. Tenant shall have the right to:
(a) As its own expense make such alterations, changes and
improvements to the Premises (including installation of signs) as Tenant may
deem necessary; provided, however, that no structural alternations to the
Premises shall be made without Landlord's consent;
(b) Assign or sublet the Premises or any portion thereof without
consent; provided, however, that no such assignment or subletting shall relieve
Tenant of liability for the performance of the terms and conditions of this
Lease; and
(c) Remove any equipment, improvements or fixtures installed by
it, except that Tenant may elect to leave the same, in which event they shall
become the property of Landlord upon termination of this Lease.
5. Landlord agrees that it shall:
(a) Take no action (except at Tenant's request) which would cause
an increase in the taxes or insurance premiums assessable with respect to the
Premises;
(b) Reimburse Tenant for one half of the taxes and insurance
premiums paid with respect to the Premises; and
(c) Hold Tenant and its agents harmless for any and all claims and
demands resulting from acts or omissions of Landlord or its agents.
6. Landlord covenants, warrants and agrees:
(a) That Landlord has full and complete authority to make this
Lease and that so long as Tenant is not in default hereunder, Tenant shall have
quiet and peaceable possession and enjoyment of the Premises for the duration of
this Lease without hindrance on the part of Landlord or any other parties and
that Landlord shall warrant and defend Tenant in such possession against the
claim of al parties;
(b) That Landlord shall deliver to Tenant physical possession of
the Premises upon the commencement of the term, free and clear of all tenants
and occupants ad the rights of either, and of all encumbrances and violations of
laws relating to the use and occupancy of the Premises; and
(c) That the Premises and all plumbing, heating, air conditioning,
ventilating, electrical and mechanical equipment are in good condition and
operating order.
7. Landlord and Tenant hereby waive all claims against each other for
loss or damage caused by fire or perils capable of coverage by standard fire and
extended coverage insurance, regardless of the cause of such damage. Landlord
and Tenant will cause an appropriate waiver of subrogation provision to be
inserted in their policies of insurance on the Premises.
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8. (a) Tenant shall maintain at is expense, throughout the term,
insurance covering the building and other improvements now or hereafter existing
upon the property against loss or damage by fire or such other risk now or
hereafter embraced by the term "extended coverage" and by vandalism and
malicious mischief, in an amount not less than the full insurable value as
determined by Tenant's insurer. As used in this subsection, the term "full
insurable value" shall mean the actual replacement cost, excluding foundation an
excavation costs, without deduction for physical depreciation as such
replacement cost shall be adjusted by Tenant's insurer every year due to changes
in the cost of construction and other relevant factors.
(b) Tenant shall maintain at its expense, throughout the term,
insurance against loss or liability in connection with bodily injury, death,
property damage or destruction, occurring on or about the property or arising
out of the use thereof by Tenant or its agents, employees, officers or invitees,
visitors and guests, under on e or more policies of comprehensive public
liability insurance, including insurance against assumed or contractual
liability under this Lease, having such limits as to each as are reasonably
required by Landlord from time to time, but in any event of not less than Two
Million Five Hundred Thousand Dollars ($2,500,000.00) for bodily injury to or
death of all persons and for property damage or destruction in anyone
occurrence.
(c) Each policy referenced above shall (a) name as the insureds
thereunder Landlord and Tenant and, at landlord's request, any mortgagee of
Landlord holding a note secured by a deed of trust or other security instrument
encumbering the Property); except that for the policies described in subsection
8(b) Landlord shall be named as an additional insured (b) by its terms, not be
cancelable without at least thirty (3) days prior written notice to Landlord
(and, at Landlord's request, any mortgagee), and (c) be issued by an insurer of
recognized responsibility licensed to issue such policy in the state where the
Property is located. At least five (5) days before the commencement date, Tenant
shall deliver to Landlord each such policy or a certificate of insurance for
each such policy, and at least thirty (30) days before any such policy expires,
Tenant shall deliver to Landlord a replacement policy or certificate therefor.
(d) General. In the event that, at any time during the term of
this Agreement of Lease, the buildings and improvements portion of the property
(i) are destroyed or (ii) are damaged to the extent of fifty percent (50%) or
more of their Gross Leasable Area, then within sixty (60) days after such damage
or destruction, Tenant shall notify Landlord of its exercise of or its desire
not to exercise the hereby granted option to terminate this Agreement of Lease
not later than and effective on the end of such sixty (60) day period. Failure
to so exercise such option will obligate Tenant to repair and restore the
property as hereinafter rp4rovided. In all other events, Tenant shall repair and
restore the property as hereinafter provided.
(e) Repair and Rebuilding. In the event that Tenant does not
terminate this Agreement of Lease as provided for in Section 8 above and in all
other events, the Tenant, at its own cost and expense, shall, subject to the
other provisions of this Section 8, cause the same to be repaired, replaced or
rebuilt as nearly as possible to its condition immediately prior to the damage
or destruction subject to such alterations or changes as Tenant may elect to
make in conformity with Section 8 hereof within a period of time which, under
all prevailing circumstances, shall be reasonable. If Tenant shall exercise its
option to terminate this Lease, this Lease shall expire automatically as
provided in subsection 8(d) in which event Tenant shall be under no obligation
to repair, replace or rebuild the buildings and improvements on the property but
shall clear away the ruins and leave the Demised Premises in a clean, orderly
and slightly condition. In the event that (i) Tenant shall fail to give notice
of its exercise of its option to terminate within such period or (ii) if the
buildings and improvements on the demised Premises shall not be damaged to the
extent of more than fifty percent (505) of this gross leasable Area, then,
Tenant shall, subject to the other provisions of this Section 8, cause the same
to be repaired, replaced or rebuilt at its own cost and expense as herein
provided. If Tenant does not repair, replace or rebuild any damaged or destroyed
buildings or improvements, all insurance proceeds that are payable as a result
of the destruction or damage to such buildings or improvements plus the
deductible, if any, shall be paid to Landlord and this Agreement of Lease shall
terminate on the date of such payment.
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9. (a) If all or substantially all of the Property or such portion of
the improvements located on the property as to render the balance of such
improvements unsuitable in Landlord's and tenant's reasonable judgment for the
purposes of tenant is taken by the exercise of any power of eminent domain or is
conveyed to or at the direction of any governmental entity under a threat of any
such taking, Landlord shall be entitled to collect from such condemning
authority the entire amount of any award made in any such proceeding or as
consideration for such conveyance, without deduction therefrom for any leasehold
or other estate held by tenant under this lease, except as specifically provided
for herein this Lease shall terminate on the date that possession of the
property is taken by such condemning authority and all Rent, Taxes and other
charges payable hereunder will be apportioned and paid to such date.
(b) Tenant hereby (a) assigns to Landlord all of Tenant's right,
title and interest, if any, in any to any such award (b) waives any right that
it may otherwise have in connection with such condemnation, against Landlord or
such condemning authority, to any payment for (i) the value of the
then-unexpired portion of the Term, (ii) leasehold damages, and (iii) any damage
to or diminution of the value of Tenant's leasehold interest hereunder or any
portion of the Property not covered by such Condemnation, and (c) agrees to
execute any and all further documents which may be required to facilitate
Landlord's collection of any and all such awards; provided, however, that if
Tenant shall have made improvements or alterations to the property after the
date hereof and shall have not yet fully amortized its expenditures for such
improvements or alterations under generally accepted accounting procedures, then
Landlord shall, and hereby does, assign to Tenant out of any award paid to
Landlord a sum equal to the unamortized portion of any such expenditures
subject, in all events, (i) to all mortgagees of Landlord having been paid
amounts due to them form such award according to their loan documents and also
(ii) to their being available excess funds form the award to pay such amounts to
Tenant after all amounts due and owing to Landlord hereunder and its mortgagees
are paid from such award.
(c) Subject in all events to the operation and effect of the
foregoing provision of this Section, Tenant may seek a separate award on account
of any damages or costs incurred by Tenant as a result of such condemnation, so
long as such separate award in no way diminishes any award or payment which
Landlord would otherwise receive as a result of such Condemnation.
(d) Partial Condemnation. If a (i) portion of the Property that is
not improved by buildings or structures as of the date of this Lease or (ii) a
portion of the improvements portion of the property is so taken so that no
termination of this Lease occurs according to subsection 9(a), then Landlord is
entitled to collect form such condemning authority the entire amount of any
award in any such proceeding or as consideration for any such conveyance, this
Lease shall not terminate and Landlord shall, upon its receipt of such award in
condemnation, restore said building improvements to as complete a building as is
reasonable and practically possible in design, character and quality of the
conditions of the building immediately prior to the condemnation; provided
however, in any event, Landlord shall not be required to spend for any such
repair, restoration or alteration work an amount in excess of the amounts
received by Landlord as damage for the taking of such building improvements part
of the property and Tenant, at its own cost and expense shall make all necessary
repairs and alterations to its trade fixtures, decoration, signs, machinery and
contents. Base rent payable after any such taking will thereafter be reduced in
the same proportion as the gross leasable area of the improvement is reduced by
or as a consequence of such condemnation. There will be no reduction or
abatement of base rent or any other charges payable by Tenant hereunder in the
event Tenant is only temporarily deprived in whole or in part of the use of any
portion of the property, for a period not in excess of ninety (90) days.
(e) Liability Upon Condemnation. If there is a condemnation,
Landlord shall have no liability to Tenant on account of any (a) interruption of
tenant's business upon the property, (b) diminution in Tenant's ability to use
Th property, or (c) other injury or damage sustained by Tenant as a result of
such condemnation.
(f) Condemnation Proceedings. Except for any proceeding brought by
Tenant under the provisions of subsection 9(c), Landlord shall be entitled to
conduct any such condemnation proceeding and any settlement thereof free of
interference from Tenant, and Tenant hereby waives any right which it otherwise
has to participate therein.
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10. In the event Tenant shall default in the performance of any of the
terms herein contained and shall not remedy the same within thirty (30) days
after written notice thereof by Landlord or in the event Tenant cannot
reasonably remedy said default within thirty (30) days, if Tenant shall not
commence to cure within said thirty (30) day period and diligently pursue the
same to completion) or, if Tenant shall be adjudicated a bankrupt or shall make
a general assignment for the benefit of creditors, or if a receiver shall be
appointed for Tenant and not removed within sixty (60) days, Landlord shall have
the right to re-enter and take possession of the Premises and to remove any
property therein and to terminate this Lease. In he event of such termination,
Landlord may relet the Premises or any part thereof on such terms as it may
determine.
11. (a) All notices called hereunder shall be in writing and shall be
deemed to have been given when sent postage prepaid by registered of certified
mail, return receipt requested, to the address stated beside signature, or to
such other address as the party to receive such notice may hereafter direct by
written notice.
(b) This Lease sets forth the entire agreement of the parties
regarding the Premises, and there are no promises, agreement, conditions or
understandings, either oral or implied, other than as set forth herein. No
subsequent amendment or modification of this Lease shall be binding unless in
writing and signed by both parties.
(c) This Lease shall be binding upon and enure to the benefit of
the parties hereto, their heirs, successors, assigns, and legal representatives
WITNESS the following signatures and seals.:
TENANT:
XXXXXX-XXXXXX COMPANY
By: _____________________________
President
Address: 0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
(Corporate Seal)
ATTEST:
-------------------------------
Secretary
LANDLORD:
XXXXXX-XXXXXXXX INVESTMENT CO.
By: _____________________________
Partner
Address:
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