Exhibit 10.4
STATE OF NORTH CAROLINA
COUNTY OF BUNCOMBE
LEASE AGREEMENT
This LEASE AGREEMENT, made and entered into and effective as of
the 8th day of July, 1996, by and between J. C. SWICEGOOD, JR.,
(herein "Lessor") and GENERAL PARCEL SERVICE, INC., (herein
"Lessee").
That Lessor, in consideration of the agreements and covenants
hereinafter mentioned and expressed, to be fulfilled and
performed by the Lessee, does hereby lease unto Lessee for the
term hereinafter specified, certain premises located in the
County of Buncombe, State of North Carolina, and which premises
are more particularly identified as follows:
The certain area commonly known as Suite A-1 and Suite A-2 and
the office appurtenant thereto containing a combined area of
8,455 square feet, more or less, Located on that, property
commonly known as 1262 Airport Road, Arden, NC.
Said Premises hereinafter referred to as the "Leased Premises"
or "Premises".
Furthermore, as an appurtenance to the Premises, the Lessor
expects to enter into a Easement Agreement with R. Dennis Weaver
and wife, Shirley W. Weaver as an additional means of access to
the Premises. At this time, no easement agreement has been
finalized. If and when an easement agreement is finalized, the
Lessee agrees to abide by the reasonable terms thereof in the
use of the potential alternate means of access.
TO HAVE AND TO HOLD said Leased Premises unto Lessee, upon the
following term and conditions:
Term:
(a) The term of this Lease shall be for a period of two (2)
years. and twenty-four (24) days and shall be deemed to have
commenced on the 8th day of July, 1996. The term of this Lease
shall end at midnight on the 31st day of July, 1998.
(b) Provided Lessee is not then in default hereunder and if this
Lease shall be in force and effect on the date for expiration of
the original term and the Lessee shall on that date have fully
complied with all notice provisions and all the other terms and
conditions contained herein, then Lessee shall have the option
to renew this Lease for one (1) additional one (1) year term
(herein "Renewal Term") beginning with the expiration of said
original term or renewal term. If Lessee elects to exercise
such option to renew, then Lessee shall provide to Lessor
written notice of Lessee's intent to renew this Lease at least
120 days prior to the expiration of the original term. The
terms of the Lease during each Renewal Term shall remain
unchanged except as hereinafter provided for rental. The rent
during any Renewal Term shall be determined according to rental
provided in Paragraph 2, Rental Adjustments and Renewal Rent,
subparagraph (b). This language shall not be construed as an
automatic renewal on a year to year basis.
(c) Wherever the designation "Term" appears, it shall include
any renewal term for which the aforesaid option to renewal has
been exercised. As used herein, the term "Lease Year,, shall
mean that twelve months period beginning on the first (1st) day
of August of one year and ending on the thirty-first (31st) day
of July of the following year.
2.
Rent
(a) The aggregate annual rent for said Premises during the first
and original lease term. year shall be Forty Thousand One
Hundred Sixty One and 25/100 Dollars ($40,161.25) . Lessee
covenants and agrees to pay said rent to Lessor in equal monthly
installments 6f Three Thousand Three Hundred Forty Six and
77/100 Dollars ($3,346.77) each payable on or before the first
(1st) day of each month beginning August, 1996 (herein "Basic
Rent"). The rental due from the effective date of this Lease
(July 8, 1996) through the beginning of the Lease Term year
(August 1, 1996) shall be prorated and paid as set forth below.
It is further agreed that during the original term and the
renewal term, it-shall not be necessary for Lessor to demand
payment of rent, but Lessee shall pay Lessor each and every
installment of rent as the same shall become due, and payment
shall be made at such place or places as Lessor may, from time
to time, designate. Each monthly rental installment shall be due
on the first (1st) day of each month, and the Lessee shall be in
default as herein provided if said monthly rental is not
received by the tenth (10th) day of each month, which default
shall empower Lessor to utilize all powers and remedies provided
in Paragraph 17 without further notice, written or otherwise.
If any rental payment is received after the tenth (10th) day of
any month during the Lease Term, then Lessor shall not be
obligated to accept said rental payment unless it is accompanied
by a late payment penalty of five percent (5%) of the rental
payment due.
Rental Adjustments and Renewal Rent
(b) The annual rent payable monthly commencing with the rentals
due as of the commencement of the lease year of any Renewal
Term, if elected, shall be the Basic Rent plus an additional
rental increase; which rental increase shall be equal to the
Basic Rent plus the sum of i) three percent (3%) of the Basic
Rent and ii) any additional pro rata increase in Buncombe County
Ad Valorem taxes and insurance. The result of this calculation
shall be the rent for the next ensuing Lease term year. The
rentals shall be calculated on an annualized basis with rental
being paid monthly as provided with the Basic Rent. As soon as
the monthly rent for the Lease term year of the Renewal Term is
set, then Lessor shall give Lessee notice of the amount of
increased monthly rent for the next ensuing Lease term year.
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(c) Contemporaneously with the execution of this Lease, Lessee
shall pay and deposit with Lessor the sum of Five Thousand Eight
Hundred one and 07/100 Dollars ($5,801.07) ; a portion of which
sum shall constitute additional security for the payment of
rental and the performance of Lessee's other obligations as set
forth herein. The deposit shall be applied as follows:
Partial Months Rental: $2,454.30
First Monthly Rental: $3,346.77
Security Deposit: $3,000.00
---------
Subtotal due: $8,801.07
Less funds held
in escrow: <$3.000.00>
---------
Due at Lease Execution: $5,801.07
=========
If Lessee shall not be in default of payment of rental and shall
have fully complied with all of the other terms and conditions
of this Lease, then the deposit of $3,000.00 shall be returned
to Lessee. However, if Lessee shall be in default under any
term or condition of this Lease, then the Lessor may use said
deposit as a whole or partial offset for the damages resulting
from such breach.
3.
Utilities:
The Lessee shall be responsible for the furnishing and payment
of air conditioning, heat, gas, electricity, light, power, water,
sewer and any other public utilities and janitorial services of
any kind. It understood that the Lessor shall pay for Lessee's
pro rata electricity and water usage; whereupon the Lessee shall
reimburse Lessor for the amounts so paid. Lessor shall not be
liable for failure of such services.
4.
Insurance and Taxes:
(a) The Lessee shall keep the Leased Premises insured throughout
the term of this Lease, and any renewal or extension hereof,
against the claims for personal injury or property damage under
a policy of general public liability insurance in an amount of
not less than $1,000,000.00 per occurrence covering claims
arising out of bodily injury and property damage and naming
Lessor as an additional insured therein.
(b) Lessor shall provide insurance for fire and extended
coverage on the buildings and improvements located upon the
Leased Premises, but Lessee shall have no claim or right to any
insurance proceeds derived or occasioned by policies procured by
Lessor. Lessor shall not be responsible or liable to apply any
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insurance proceeds collected toward the rebuilding of the
destroyed buildings or improvements of which the Leased Premises
is a portion, except as hereinafter provided in Paragraph 9.
Lessee may, at its sole option, procure insurance for fire and
extended coverage for its fixtures, furniture, equipment, trade
fixtures and other property of Lessee located in or an the
Leased Premises.
If, because of any act or omission of Lessee, the premium rate
for any insurance affecting the buildings and improvements shall
be raised, Lessee shall pay to Lessor on demand any premium
increase resulting from such act or omission. In addition,
Lessee shall remedy any condition causing a premium increase no
later than ten (10) days after demand by Lessor.
Within ten (10) days of the commencement of this Lease by the
signing of the parties hereto and at least thirty (30) days
prior to the expiration of any policy of insurance the Lessee is
obligated to carry under this Lease, the Lessee shall furnish
the Lessor a copy of said policy of insurance and such evidence
that the premiums for said insurance for the ensuing year of
coverage are paid as Lessor shall reasonably require.
(c) The Lessor shall timely list the Leased Premises for taxes
and pay all tax assessments of whatever kind or nature assessed
against the Premises, excluding however any tax assessed against
leasehold improvements made by Lessee. The Lessee shall
promptly pay all ad valorem taxes, assessments, and other
governmental levies against the personal property of Lessee and
the improvements occasioned or made by Lessee, whether said
governmental levies are ordinary or extraordinary, foreseen or
unforeseen, together with any interest or penalties thereon, all
of which are herein called "impositions." The Lessee in addition
shall promptly list the personal property and the improvements
occasioned or made by Lessee located on the Leased Premises with
the local governmental unit responsible for impositions.
Nothing contained in this Lease shall require the Lessee to pay
any franchise, corporate, estate, inheritance, succession,
capital levy or transfer tax of the Lessor or any income,
profits, or revenue tax, or any other tax, assessment, charge,
or levy upon the rent payable by the Lessee under this Lease;
provided, however, if at any time during the term of this Lease,
under the laws of the State of North Carolina, or any political
subdivision thereof, a tax on rents is assessed against the
Lessor or the rent, as a substitution in whole or in part for
taxes assessed by such capital estate or political subdivision
on land or buildings, such pro rata tax shall be deemed to he
included in the amount which the Lessee is required to pay under
this Paragraph.
(d) Within thirty (30) days after the date any imposition due
and payable by the Lessee, as provided in this Paragraph, the
Lessee shall furnish to the Lessor, for its inspection, official
receipts of the appropriate taxing authority or other proof
satisfactory to the Lessor evidencing payment. if any imposition
shall not have been paid within the required time, then in that
event the Lessor may, but shall not be required to, pay any such
assessment, and shall thereupon become entitled to repayment from
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the Lessee on demand of any amount so paid, together with
interest thereon at the rate of First Union National Bank of
North Carolina, N.A. prime commercial lending rate plus two
percent (2%), and the, amount thus due shall constitute
additional rent hereunder.
5.
Peaceable Possession by Lessee, Use of Premises by Lessee,
Inspection by Lessor, Environmental Condition of Property and
Indemnification
(a) Lessor covenants and agrees, but does not warrant, that
Lessee, during the term of this Lease, shall have full control
and use of the Leased Premises as a package and parcel
distribution center, or for any other lawful use provided such
use is approved. On advance by Lessor, but such approval shall
not be unreasonably withheld. The Lessee shall not use or allow
the Leased Premises or any part thereof to be used or occupied
for any unlawful purpose or in violation of any certificate of
occupancy or certificate of compliance covering or affecting the
use of the Leased Premises, and will not permit any act to be
done or any condition to exist on the Leased Premises or any
article to be brought thereon which may be dangerous, unless
safe-guarded as required by law, or which may in law constitute
a nuisance, public or private, or which may make void or
voidable any insurance then in force with respect to the Leased
Premises. The Lessee shall not permit the Leased Premises to be
used by the public, as such, with restriction or in such manner
as might reasonably tend to impair the Lessor's title to the
Leased Premises. The Lessee shall not use or permit the use of
the Leased Premises for any purpose which, in the reasonable
opinion of the Lessor, would adversely affect the then value or
character of the Leased Premises. It is understood and agreed
that Lessee shall possess the Leased Premises in its "As IS"
condition with no implied warranty of habitability or fitness
for a particular purpose or other express or implied warranties
being given. Lessor expressly undertakes no responsibility,
financial or otherwise, for failure of the Leased Premises to
comply with the Americans with Disabilities Act and Lessee
covenants and agrees to indemnify and save harmless the Lessor
against and from any and all claims, damages, costs and
expenses, including reasonable attorney's fees, sustained or
claimed to have been sustained on account of a violation of said
Act.
(b) To the extent of Lessee's use, occupancy, and maintenance of
the Premises, the following shall apply: Lessee warrants and
represents to Lessor after appropriate inquiry and investigation
that: (a) while Lessee has any interest in the Leased Premises
described herein said Leased Premises is and shall at all times
hereafter continue to be used by Lessee in full compliance with
all federal, state, and local environmental laws and
regulations, including but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
("CERCLA") , Public Law No. 96-510,94 Stat. 2767, 42 CSC 9601 et
seq., and the Superfund Amendments and Reauthorization Act of
1986 ("SARA") , Public Law No. 99-499, 100 Stat. 1613, and (b)
Lessee has fully disclosed to Lessor in writing the existence,
extent and nature of any such
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hazardous materials, substances, wastes or other environmentally
regulated substances (including without limitation, any
materials containing asbestos) which Lessee is legally
authorized and empowered to maintain on, in or under the Leased
Premises or use in connection therewith, and Lessee has obtained
and will maintain all licenses, permits, and approvals required
with respect thereto, and is in full compliance with all of the
terms, conditions, and requirements of such licenses, permits,
and approvals. Lessee further warrants and represents that it
will promptly notify Lessor of any change in the nature or
extent of any hazardous materials, substances or wastes
maintained on, in or under the Leased Premises or used in
connection therewith, and will transmit to Lessor copies of any
citations, orders, notices or other material governmental or
other communication received with respect to any other hazardous
materials, substances, wastes or other environmentally regulated
substances affecting the Leased Premises.
Lessee shall indemnify and hold Lessor harmless from and against
any and all damages, penalties, fines, claims, liens, suits,
liabilities, costs (including clean-up costs), judgments and
expenses (including attorneys'. consultants', or experts' fees
and expenses) of every kind and nature suffered by (or asserted
against Lessor as a direct or indirect result of any warranty or
representation made by Lessee in the preceding paragraph being
false or untrue in any material respect or any requirement under
any law, regulation or ordinance, local, state or federal, which
requires the elimination or removal of any hazardous materials,
substances, wastes or other environmentally regulated substances.
Lessee's obligations hereunder to Lessor shall not be limited to
any extent by the term of the Lease, and, as to any act or
occurrence prior to termination of said Lease which gives rise
to liability hereunder, but shall continue, survive and remain
in full force and effect notwithstanding termination of said
Lease.
(c) The Lessee agrees to permit the Lessor, or its authorized
representative, to enter the Leased Premises during normal hours
accompanied by a representative of the Lessee for the purpose of
inspecting the Leased Premises and for the purpose of receiving
assurances as to proper use by the Lessee.
6.
Responsibilities of Parties:
(a) Except where caused by the Lessor's affirmative acts of
negligence, the Lessor shall not be liable for any personal
injury to the Lessee, its invitees, agents and employees, or to
any other occupant or guest on any part of the Leased Premises
or for any damage of any property of the Lessee, its invitees,
agents or employees, or of any other occupant or guest on any
part of the Leased Premises.
(b) The Lessee covenants and agrees during the term of this
Lease to indemnify and save harmless the Lessor against and from
any and all claims, damages, costs and expenses, including
reasonable attorney fees sustained or claimed to have been
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sustained by any person or persons or property in, upon or about
the Leased Premises. The above language notwithstanding, the
Lessor shall remain liable for actionable acts of negligence on
its part, on the part of its agents or employees.
7.
Improvements, Additions, Up-Keep, Operations of Premises and
Signs:
(a) The Leased Premises is presented to Lessee with the
leasehold improvements as existing on the date of this Lease;
with the exception of painting of the A-1 and A-2 Bays and
general cleaning of the premises. Except for said painting and
general cleaning, the Lessee hereby accepts the Leased Premises
in its "as is" condition. The Lessor shall not be responsible
or liable for any additional improvements as may be required by
the needs of Lessee. Lessee shall be responsible at Lessee's
sole cost and expense for all initial additions, alterations,
improvements, partitions, or other installations to the Leased
Premises required to present the Leased Premises to Lessee, and
such work shall be made in a workmanlike manner; provided,
however, Lessee shall make no addition, alteration, improvement,
partition or other installation without first obtaining the
prior written approval of Lessor, which said approval shall not
be unreasonably withheld.
(b) Lessee shall be responsible for normal maintenance and
upkeep of the interior of the Leased Premises and Lessee shall
surrender the Leased Premises upon termination of this Lease in
the same condition as prepared by Lessor for occupancy,
reasonable wear and tear excepted.
(c) Together with Lessees responsibility for normal interior
maintenance and upkeep as provided above, Lessee agrees to be
responsible for all routine maintenance of all ventilating and
Air conditioning systems, doors, exterior plate glass, and all
other items which are related to the interior of the Leased
Premises and which are necessary to keep the Leased Premises in
good repair. Subject to the foregoing, Lessor agrees to
maintain the exterior of the improvements of which the Leased
Premises is a portion as well as all structural parts and the
roof which are an integral part of the improvements located of
which the Leased Premises is a portion. Lessee shall promptly
notify Lessor of defects or repairs needed to said structural
parts and/or roof. Lessee's failure to promptly notify Lessor
of defects or repairs needed to structural parts and/or roof
shall relieve Lessor of his responsibility to promptly effect a
cure for said defects or repairs and shall preclude Lessee from
claiming Lessor's default or breach under this Lease for failure
to promptly cure defects or effect repairs.
(d) Lessee covenants and agrees during the term of this Lease
to continually operate the Leased Premises as a distribution
/warehouse - package and parcel distribution center and any
other lawful use provided such use is approved in advance by
Lessor, so that the Leased Premises shall be opened during normal
business hours. Said normal business hours shall be shall be
determined at the Lessee's discretion. It is the express
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intention and purpose of this covenant to require the Lessee to
continuously operate the Leased Premises during normal business
hours so that the Leased Premises will enjoy a public reputation
as an active commercial site.
(e) Any signage to be located upon the Leased Premises must
comply with all requirements of any sign ordinance and must be
aesthetically pleasing in appearance. Lessor shall have the
right to approve said signage which approval shall not be
unreasonably withheld.
8.
Removal of Fixtures:
Lessee shall have the right at any time to remove from the
Leased Premises all furniture, equipment, trade fixtures and
other personal property owned and placed in or on said premises
by Lessee, provided the same are removed without damage to the
Leased Premises and are removed at or before the termination of
the term of this Lease, All additions and improvements made on
the Leased Premises by Lessee which have become affixed to the
Leased Premises, shall become and remain the property of Lessor
without liability on the part of Lessor to pay for the same, and
the Lessee shall not be entitled to remove from the Leased
Premises such fixed improvements and additions as made by Lessee
or Lessor.
9.
Damage or Destruction:
(a) Inasmuch as the Leased Premises as hereinbefore described
includes insured leasehold improvements, then in such event that
the improvements located thereon are destroyed by fire,
unavoidable accident or other casualty, without the fault of
Lessee, during the term of this Lease, then the Lessor shall be
obligated to repair any such damage with reasonable diligence,
upon receipt of written notice from Lessee describing the nature
of the damage and the repairs required, provided that if the
improvements of which the Leased Premises are a portion shall be
destroyed more than seventy-five-percent (75%) of the
replacement cost thereof as determined at Lessor's sole
discretion by fire or other casualty, then this Lease shall
terminate and any advanced rental shall be rebated to Lessee,
subject to rental proration based on the time of the Lessee's
occupancy of the Leased Premises to the time of the damage.
Rentals shall abate during any repair term in the ratio that
such improvements are untenable owing to such fire, unavoidable
accident or other casualty damage.
(b) The provisions as to rebuilding notwithstanding, Lessor
shall be obligated only to repair any damage or rebuild to the
extent of the improvements which existed at the commencement of
this Lease and NOT as improved by Lessee. In other words,
Lessor shall not be liable to repair or rebuild work which was
occasioned or done by Lessee to the improvements on the Leased
Premises.
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10.
Eminent Domain:
(a) If the whole of the Leased Premises hereby demised shall be
taken by any public or quasi-public authority under any
governmental law, ordinance or regulation or the power of
eminent domain, or by private purchase in lieu thereof, then the
term of the Lease shall cease as of the day possession is taken
or acquired by such public authority and all rentals shall be
paid up to that date. If only a part of the Leased Premises
shall be taken or acquired as hereinabove provided, this Lease
shall be terminated only as to that portion taken by right of
eminent domain or private purchase in lieu thereof, and, this
Lease shall continue in full force and effect as to the
remainder of said Leased Premises and the rent shall be reduced
in the proportion of area taken bears to the total area demised.
If the remainder of the Leased Premises cannot be made tenable
for the purposes for which Lessee has been using the Premises,
Lessee shall have the option, to be exercised within sixty (60)
days after the filing of such eminent domain action, of
canceling this Lease effective as of the date the authority
shall take or acquire possession; provided, however, that if
more than seventy-five percent (75%) of the area of the Leased
Premises shall be taken or acquired as hereinabove provided,
either party, by written notice to the other delivered on or
before the date of surrendering possession to the public
authority, may terminate this lease, effective as of such
surrender of possession. All compensation and damages of any
type whatsoever awarded for any taking, whole or partial, shall
belong to and be the property of the Lessor except as
hereinafter provided.
(b) Lessee shall have the right to claim and recover from the
condemning authority, but not from Lessor, such compensation as
may be separately awarded or recoverable by Lessee and Lessee's
own right on account of any and all damage to Lessee's leasehold
interest by reason of any condemnation and for or on account of
any cost or loss which Lessee might be put in removing Lessee's
furniture, equipment and other personal property, or in
reimbursing for expenses incurred by Lessee through improvements
to the Leased Premises.
Assignment or Subletting:
The Lessee shall not have the right to assign this Lease,
together with all of the rights of the Lessee hereunder, or to
sublease the Leased Premises without the Lessor's prior written
consent.
12.
Liquidated Damages:
If Lessee shall, at the expiration or termination of this
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Lease, fall to yield possession to Lessor, upon demand, Lessee
will pay as liquidated damages for each day possession is
withheld after demand, an amount equal to double the amount of
the daily rent computed on a three hundred sixty-five (365) day
year basis.
13.
Reimbursement of Expenses:
(a) In case suit shall be brought for recovery of possession of
the said Leased Premises, for the recovery of rent or any other
amount due under the provisions of this Lease, or because of the
breach of any other covenant herein contained on the part of
either party to this Lease, to be kept or performed and a breach
shall be established, the prevailing party shall receive all
expenses incurred therefore, including a reasonable attorney's
fee.
(b) If Lessee shall be in default in the performance of any of
its obligations hereunder, beyond the period allowed for curing
said default, Lessor may (but shall not be obligated), in
addition to any other rights it may have at law or equity, or
under the terms of this Lease, cure such default on behalf of
Lessee, and Lessee shall reimburse Lessor upon demand for any
sums paid or costs incurred by Lessor in curing said default,
including interest, at the rate of First Union National Bank of
North Carolina's prime commercial lending rate plus two per cent
(2%) per annum from the representative dates of Lessor's making
of the payments and incurring costs, on all sums advanced-by
Lessor as aforesaid, and the amount thus due shall constitute
additional rent hereunder.
14.
Waivers and Integration Clause:
(a) The waiver of either party of any breach, of any term,
covenant, or condition herein contained, shall not be deemed to
be a waiver of such term, covenant, or condition, or any
subsequent breach of the same, or 'any other term, covenant, or
condition therein contained. The subsequent acceptance by
Lessor of payment by Lessee for rent hereunder shall not be
deemed to be a waiver of any preceding breach by the other party
or any term, covenant, or condition of this Lease, other than
the failure of Lessee to pay the particular rental so accepted
regardless of Lessor's knowledge of such preceding breach at the
time of the acceptance of such rent.
(b) No payment by the Lessee or receipt by Lessor of a lesser
amount than the monthly rent herein stimulated shall be deemed
to be other than on account of the earliest stipulated rent, nor
shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord
and satisfaction and Lessor may accept such check or payment
without Prejudice to Lessor's right to recover the balance of
such rent or pursue any other remedy as provided in this Lease.
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(c) This Lease contains the entire agreement between the
parties, and any executory agreement hereafter made shall be
ineffective to change, modify, discharge, or effect An
abandonment of it, in whole or in part, unless such executory
agreement is in writing and signed by the parties against whom
enforcement of the change, modification, discharge or
abandonment is sought.
15.
Hold-Over:
Any holding over after the expiration of the term of this Lease,
with the consent of the Lessor, shall be construed to be a
tenancy from month to month at a monthly rental based on a
proration of the annual rent herein specified and shall
otherwise be on the terms and conditions herein specified, so
far as applicable.
16.
Default or Breach:
Each and every one and all of the following events shall
constitute a default or breach of this Lease by Lessee (herein
Event of Default):
(a) If Lessee, or any successor or assignee of Lessee while in
possession, shall file a petition in bankruptcy or insolvency
or for reorganization under any bankruptcy act, or shall
voluntarily take advantage of any such act by answer or
otherwise, or shall make an assignment for the benefit of
creditors;
(b) If involuntary proceedings under any bankruptcy law or
insolvency act shall be instituted against Lessee, or if a
receiver or trustee shall be appointed for all or substantially
all of the property of Lessee, and such proceedings are not
dismissed or the receivership or trusteeship vacated within ten
(10) days after the institution or appointment;
(c) If Lessee fails to pay Lessor any rent or other charges when
the rent or charges shall become due in strict accordance with
the provisions of this Lease, and shall not make the payment of
other charges within ten (10) days after notice thereof by
Lessor to Lessee, and shall not make payment of rent according
to the terms and conditions set forth in Paragraph 2. If Lessor
notifies Lessee of Lessee's failure to pay rent more than two
(2) times during the lease term (or renewal term, if elected)
then no further cure period shall be applicable and an Event of
Default without cure shall have occurred;
(d) If Lessee shall fail to perform or comply with any of the
conditions of this Lease and if the nonperformance shall
continue for a term of ten (10) days after notice thereof by
Lessor to Lessee, or, if the performance cannot be reasonably
had within the ten-day period, Lessee shall not in good faith
have commenced performance within the ten-day period and shall
not diligently
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Proceed to completion of performance;
(e) If Lessee shall vacate or abandon the Leased Premises;
(f) if this Lease or the estate of Lessee hereunder shall be
transferred to or shall pass to or devolve on any other person
or party, except in the manner herein permitted;
(g) If Lessee fails to take possession of the Leased Premises on
the term commencement date, or within ten (10) days after notice
that the Leased Premises are available for occupancy if the term
commencement date shall be deferred as herein provided.
17.
Effect of Default or Breach:
Upon the occurrence of any Event of default hereunder, as set
forth in Paragraph 16, then the Lessor shall have the right, at
its bole option, to utilize any one or more of the following
rights:
(a) Lessor shall have the right to cancel and terminate this
Lease, as well as all of the right, title and interest of Lessee
hereunder, by giving to Lessee not less than ten (10) days,
notice of the cancellation and termination. On expiration of
the time fixed in the notice, this Lease and the right, title
and interest of Lessee hereunder, shall terminate in the same
manner and with the same force and effect, except as to Lessee's
liability, as if the date fixed in the notice of cancellation
and terminate on were the end of the term herein originally
determined.
(b) Lessor may elect, but shall not be obligated, to make any
payment required of Lessee herein or comply with any agreement,
term or condition required hereby to be performed by Lessee, and
Lessor shall have the right to enter the Leased Premises for the
purpose of correcting or remedying any such default and to
remain until the default has been corrected or remedied.
However, no expenditure for such correction by Lessor shall be
deemed to waive or release Lessee's breach of this Lease or the
right of Lessor to take any action as may be otherwise
permissible hereunder in the case of any default.
(c) Lessor may re-enter the Leased Premises immediately, without
being guilty of trespass and remove the property and personnel
of Lessee, and store the property in a public warehouse or at a
place selected by Lessor, at the expense of Lessee. After
reentry, Lessor shall have the right to terminate the Lease by
giving ten (10) days written notice of termination to Lessee.
Without such notice, reentry by Lessor shall not terminate the
Lease. On termination, Lessor may recover from Lessee all
damages proximately resulting from Lessee's breach, including
the cost of recovering the Leased Premises, the sums expended
under subparagraph (b) above, and the value of the balance of
this Lease .over the reasonable rental value of the Leased
Premises for the remainder of the then current Lease term, all
of which sums shall be immediately due and payable to Lessor
from Lessee.
Page 12
(d) After re-entry, Lessor may relet the Leased Premises or,
any part thereof for any term without terminating the Lease, at
a rent and on the terms that Lessor may choose, but Lessee shall
have no responsibility to reimburse Lessor for amounts above and
beyond that which would be reasonably commensurate.
18.
Arbitration:
Any controversy which shall arise between the Lessor and the
Lessee regarding the rights, duties, or liabilities hereunder of
either party shall be settled by binding arbitration. Such
arbitration shall be before one disinterested arbitrator if one
can be agreed upon, otherwise before three disinterested
arbitrators, one named by the Lessor, one named by the Lessee,
and one by the two thus chosen. The arbitrator or arbitrators
shall determine the controversy in accordance with the laws of
the State of North Carolina as applied to the facts found by him
or them.
19.
Removal of Liens by Lessee-Lessor
Right on Default to Contest:
(a) The Lessor shall not be liable for any labor or materials
furnished or to be furnished to the Lessee upon credit, and no
mechanics, or other lien for any such labor or material shall
attach to or effect the reversion or other estate or interest of
the Lessor in and to the Leased Premises. Whenever any
mechanics' or materialmen's lien shall have been filed against
the Leased Premises, based upon any act or interest of the
Lessee or of anyone claiming through the Lessee, the Lessee
shall immediately take such action by bonding, deposit or
payment as will remove the lien.
(b) If the Lessee has not removed the lien within thirty (30)
days after notice to the Lessee, the Lessor may pay the amount
of such lien or security agreement, or discharge the same by
deposit, and the amount so paid or deposited, with interest
thereon, shall be deemed additional rent reserved under this
Lease, and shall be payable forthwith with interest at the rate
of First Union National Bank of North Carolina's prime
commercial lending rate plus two percent (2%) from the date of
such advance, and with the same remedies to the Lessor as in the
case of default in the payment of rent as herein provided.
(c) The above language notwithstanding, the Lessee shall have
the right to contest the validity of any lien or claim if the
Lessee shall first have posted a bond to insure that upon final
determination of the validity of such lien or claim, the Lessee
shall immediately pay any judgment rendered against it, with all
proper costs and charges, and shall have such lien released
without cost to the Lessor.
Page 13
20.
Subordination, Estoppel:
As allowable by law, this Lease is and shall be subordinate to
any encumbrance now of record and any encumbrance recorded after
the date of this Lease affecting the Leased Premises. However,
any purchaser or transferee under said encumbrance shall
continue to recognize the rights of the Lessee so long as said
Lessee continues to honor, abide by and perform all terms,
conditions and covenants of this Lease.
Lessee shall attorn to any purchaser from Lessor either
voluntarily or at any foreclosure sale, or to any grantee or
transferee designated in any Deed given in lieu of foreclosure.
Lessee shall execute the written agreement and any other
documents required by any lender or transferee from the Lessor
to a accomplish the purposes of this Paragraph.
Whenever notices under this Lease are required of, either party
and, either party is notified that a lender exists, then lender
shall be sent duplicate originals until such time as the
indebtedness secured by the Leased Premises is paid in full.
The procedure for serving notices required herein shall comply
with the provision for Notices herein.
21.
Notices and Time:
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 on the other, such notice or demand shall be given
in writing by registered or certified mail, postage prepaid, or
by a nationally recognized express/ove@night carrier, to the
respective addresses as hereinafter set forth. All notices or
demands provided under the terms of this Lease shall be
effective when actually received by either party or when
attempted to be delivered as authorized above. The addresses of
either party may be changed, from time to time, by either party
serving notice as above provided:
1. Lessor at: 1916 Hendersonville Road
Asheville, North Carolina 28803
2. Lessee at: ATTN: E. Hoke Smith, Jr., Pres. & CEO
8923 Western Way, Suite 150
Jacksonville, Florida 33256
It is understood and agreed by both parties to this Lease that
time is of the essence in all matters appertaining to notices
due and given, rental payments and terms.
Page 14
22.
Covenants to Run With the Land:
All covenants, agreements, stipulations, provisions, conditions
and obligations herein expressed and set forth shall extend to,
bind and inure to the benefit of, as the case may require, the
heirs, executors, administrators, successors and assigns of
Lessor and Lessee, respectively, or their successors in
interest, as fully as if such words were written wherever
reference to Lessor and Lessee occurs in this Lease Agreement.
23.
Force Majeure Clause:
In the event that either party hereto shall be delayed or
hindered in or prevented from the performance of any act
required hereunder by reason of strikes, lock-outs, labor
troubles, inability to procure materials, failure of power,
restrictive governmental, laws or regulations, riots,
insurrection, war, or other reason of a like nature not the
fault of the party delayed in performing work or doing acts
required under the terms of this Lease, then performance of such
acts shall be excused for the period of the delay and the period
equivalent to the period of such delay. It is understood,
however, that this provision shall not operate to excuse Lessee
from the prompt payment of rental or any other payments required
by the terms of this Lease.
24.
Waiver of Subrogation:
The parties release each other, and their respective authorized
representatives, to the extent of the releasing parties
insurance coverage, from any and all liability for any loss or
damage to any person or to the Leased Premises and to the
fixtures, personal property, Lessee's improvements, and
alterations of either-Lessor or Lessee in or on the Leased
Premises 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 party shall cause each insurance policy obtained by it to
provide that the insurance company waives all right of recovery
by way of subrogation against either party in connection with
any damage covered by any policy. Neither party shall be liable
to the other for any damage caused by fire or any of the risks
insured against under any insurance policy required by this
Lease.
Page 15
25.
Recording:
This Lease shall not be recorded but a memorandum hereof may he
prepared and recorded in the County where the Leased Premises
are located, at the expense of Lessee. The aforesaid memorandum
shall contain such information as is necessary to provide
adequate record notice of the existence of the Lease, including
the parties, the term, the property involved and whether options
to renew or purchase exist.
26.
RIGHT OF FIRST REFUSAL:
As partial consideration for this Lease, the Lessor does hereby
grant to the Lessee during the term of this Lease a Right of
First Refusal to lease Suite or Bay A-3 (herein "Refusal
Parcel") when such Refusal Parcel shall become available. This
Right of First Refusal to lease is subject to the following
terms and conditions:
(a) In the event the Lessor should receive a proposal to lease
the Refusal Parcel, then the Lessor shall furnish the Lessee
with a copy of said proposal. Upon the Lessee's receiving a
copy of said proposal, then the Lessee shall be given three (3)
business days after receiving the copy of said proposal in which
to meet the terms of said proposal and to exercise its right to
lease the Refusal Parcel.
(b) In the event the Lessee elects to exercise its Right of
First Refusal to lease the Refusal Parcel and meet the terms and
conditions of the proposal to lease, then Lessee shall be
allowed three (3) business days in which to execute the Lease
Agreement for the Refusal Parcel.
(c) The Lessee acknowledges that the Refusal Parcel is currently
under lease for an original term through May 31, 1997. The
current lessee of the Refusal Parcel has the option to renew
that lease for an additional one (1) year term.
(d) Should the Lessee exercise its right to lease the Refusal
Parcel, then the terms and conditions of the Lease Agreement for
the Refusal Parcel shall be the same as set forth herein except
as follows: i) the term of the lease for the Refusal Parcel
shall expire on the same date as set for Lessee's then remaining
current term under this Lease Agreement; ii) the rental for the
Refusal Parcel shall be equal to the then same rental rate as is
applicable to the Lessee's Leased Premises under this Lease
Agreement.
(e) As a pre-condition to the exercise of the Right of First
Refusal to lease as set forth herein, the Lessee
Page 16
must not be in breach or default under any term or condition of
this Lease.
27.
General:
The necessary grammatical changes required to make the
provisions of this Lease apply in the plural sense where there
is more than one Lessee and to either corporation, associations,
partnerships, or individuals, males or females, shall in all
instances be assumed as though in each case fully expressed.
The laws of the State of North Carolina shall govern the
validity, performance, and enforcement of this Lease.
The submission of this Lease for examination does not constitute
a reservation of or option for the Leased Premises and this
becomes effective as a Lease only upon the execution and
delivery thereof by Lessor and Lessee. The captions of the
several paragraphs contained herein are for convenience only and
do not define, limit, describe, or construe the contents of such
paragraphs.
IN WITNESS WHEREOF, the Lessor and Lessee have hereunto set
their hands and seals this the 24th day of July, 1996.
LESSOR:
(SEAL)(Signed)
J. C. Swicegood, JR.
LESSEE:
GENERAL PARCEL SERVICE, INC.
(SEAL)(Signed)
E. Hoke Smith, Jr.
President
ATTEST:
(Signed)
Wayne N. Nellums
Secretary
Page 17
July 16, 1996
EASEMENT AGREEMENT
The purpose of this document is to clarify the easement
agreement between R. Dennis Weaver and J.C. Swicegood. Swicegood
and Weaver own adjoining properties on Airport and Rockwood
Roads. Clarification Is needed to facilitate rental agreements
between Swicegood and his tenants.
The Swicegood property has problems of Ingress and egress
compounded by the widening of Airport road currently in
progress. As a goodwill gesture, Weaver wishes to alleviate the
problem by allowing Swicegood and his assigns the use of the
driveway on the Weaver property. The use of the drive is to be
limited to the traffic that is being inhibited by the
construction work on Airport Road. The open access to the drive
will cease upon completion of the current construction work
adjacent to the Swicegood property.
However, Weaver will permit use of the drive during inclement
weather and for tractor/traileir rigs who have difficulty in
negotiating the Swicegood drive. If such occasional use becomes
@ a frequent enough, in Weaver's opinion, to constitute
excessive wear and tear on t e drive, both Swicegood and Weaver
will negotiate terms of maintenance or resurfacing.
This agreement between Swicegood and Weaver will terminate if
either party should transfer ownership of their respective
properties on Airport and Rockwood Roads.
(Seal)(Signed) (Seal)(Signed)
R.E. Weaver J.G. Swicegood
7/17/96