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Exhibit 10.30
J.H. HEAFNER COMPANY, INC.
814 East Main Street
P.O. Box 837
Lincolnton, NC 28093-0837
(704) 735-3003
(800) 277-8473
July 23, 1998
Ann H. Gaither
841 Woodson Road
Newton, NC 28658
Re: Lease Dated August 1, 1988 by and between Ann H. Gaither and the J. H.
Heafner Company, Inc.
Dear Ms. Gaither:
As you know the above-referenced lease for the Winston-Salem
distribution center expires on August 1, 1998. Pursuant to paragraph 2 of the
lease, we would like to exercise another option term for a period of five years.
The expiration date of the lease is now August 1, 2003.
Sincerely,
/s/ THOMAS D. GIBSON
Thomas D. Gibson
Vice President of Operations
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[J.H.HEAFNER LETTERHEAD]
July 1, 1993
Ann H. Gaither
841 Woodson Road
Newton, NC 28658
RE: Lease dated August 1, 1988 by and between Ann H. Gaither and The J.H.
Heafner Company, Inc.
Dear Ms. Gaither:
As you know the above-referenced Lease for the Winston-Salem
Distribution Center expires on August 1. Pursuant to paragraph 2 of the lease,
the company would like to extend the term for five years. The expiration date of
the lease is now August 1, 1998.
Sincerely,
/s/ J. Michael Gaither
--------------------------------
J. Michael Gaither
Sr. Vice President & General Counsel
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STATE OF NORTH CAROLINA )
) LEASE
COUNTY OF FORSYTH )
THIS LEASE, made and entered into this the First day of August, 1988, by
and between ANN HEAFNER GAITHER, of Catawba County, North Carolina, hereinafter
called "Lessor" and THE J. H. HEAFNER COMPANY, INC., a North Carolina
Corporation, having its principal place of business in Lincoln County, North
Carolina, hereinafter called "Lessee";
WITNESSETH:
Subject to the terms and conditions hereinafter set forth said Lessor
does hereby let and lease unto said Lessee and said Lessee does hereby accept
from said Lessor a certain parcel of land together with buildings and other
improvements thereon situated, and lying and being in Forsyth County, North
Carolina and more particularly described on attached Schedule A.
The terms and conditions referred to are as follows:
1. This lease shall begin as of the First day of September, 1988, and
unless sooner terminated as herein provided, shall exist and continue until the
First day of August, 1993.
2. Provided all installments of rental theretofore due have been paid
and all other conditions of this lease have been properly complied with by the
Lessee may. The Lessee at its option, extend this lease for an additional three
(3) terms of five (5) years each by giving the Lessor written notice of its
intention to do so not later than sixty (60) days prior to the end of the
initial term and prior to the end of each extension thereafter. In the event of
such extension, all of the terms and conditions as herein set out shall continue
in full force and effect during said extension.
3. The Lessee shall pay the sum of Fifty-Five Thousand Two Hundred and
no/100 Dollars ($55,200.00) per year as rental for the demised premises which
rental shall be hereinafter referred to as "minimum rent" and shall be payable
in twelve equal and consecutive monthly installments of Four Thousand Six
Hundred and no/100 Dollars ($4,600.00) due and payable on the first day of each
calendar month, commencing with the First day of September, 1988. From and after
the first year of the lease, the rental shall be adjusted as follows:
The rental shall be the minimum rent plus a cost of living increase
thereon determined by multiplying the minimum rent by a fraction, the
denominator of which is the consumer price index for urban wage earners
and clerical workers in U.S. cities average, all items as published by
the Bureau of Labor Statistics, U.S. Department of Labor, for May 1987
and
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the numerator of which is the said consumer price index for the month
of May of the next succeeding annual lease period. The Lessor shall
notify the Lessee of the amount of the cost of living adjustment and
the total rent due for each annual lease period. Under no circumstances
shall the total rent be less than the minimum rent as set forth above.
All rents shall be absolutely net to the Lessor, so that this lease,
shall, except as hereinafter provided to the contrary, yield net to the Lessor
the rent to be paid in each year during the term of the lease. Accordingly, all
costs, expenses, and obligations of every kind or nature whatsoever, relating to
the demised premises, or any improvements thereon, which may arise or become due
during the term of this lease, shall be paid by the Lessee, and the Lessor shall
be indemnified and saved harmless by the Lessee from and against the same.
4. The Lessee shall pay, before any fine, penalty, interest, or costs
may be added, or become due or be imposed for nonpayment thereof, all taxes,
assessments, water and sewer rents, rates and charges, transit taxes, charges
for public utilities, excises, levies, licenses, and permit fees and other
governmental charges, general and special, ordinary and extraordinary,
unforeseen and foreseen, of any kind and nature, whatsoever, which at any time
during the term of this lease may be assessed, levied, confirmed, imposed upon,
or grow and become due and payable out of or in respect of, or become a lien on
the demised premises, or any improvements thereon, or any part thereof or any
appurtenances thereto, or otherwise arising out of the rent and income received
by the Lessees from subtenants, any use or occupation of the demised premises
and franchises as may be appurtenant to the use of the demised premises, or any
document (to which the Lessee is a party) creating or transferring an interest
or estate in the demised premises.
The Lessee shall pay the taxes and other charges as enumerated in this
article and should deliver official receipts evidencing such payment to the
Lessors, which payment of taxes shall be made and the receipts delivered at
least thirty (30) days before the tax, itself would become delinquent in
accordance with the law then in force governing the payment of such tax or
taxes. If however, the Lessee desires to contest the validity of any tax or tax
claim, the Lessee may do so without being in default hereunder, provided the
Lessee gives the Lessor notice of the Lessee's intention to do so and furnishes
the Lessor with a surety made by a surety company qualified to do business in
the State of Alabama. If the Lessee shall fail, refuse, or neglect to make any
of the payments required in this article, then the Lessor may pay the same, and
the amount or amounts of money so paid, including reasonable attorney fees and
expenses which might have been reasonably incurred because of or in connection
with those payments, together with interest on all such amounts, at the rate of
ten per cent (10%) per annum, shall be repaid by the Lessee to the Lessor, upon
the demand of the Lessor and the
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payment thereof may be collected or enforced by the Lessor in the same manner as
though such amount was an installment of rent specifically required by the term
of this lease to be paid by the Lessee to the Lessor, upon the day when the
Lessor demand repayment thereof or reimbursement therefore of and from the
Lessee; but the election of the Lessor to pay such taxes shall not waive the
default thus committed by the Lessees.
5. During the entire term of this lease, the Lessee will indemnify and
save harmless the Lessor against any and all claims, debts, demands, or
obligations which may be made against the Lessor or against the Lessor's title
and the premises, arising out of, or in connection with any alleged act or
admission of the Lessee or any person claiming under, by, or through the Lessee;
and if it becomes necessary for the Lessor to defend any actions seeking to
impose such liability, the Lessee will pay the Lessor all costs of court and
attorneys fees incurred by the Lessor in effecting such defense in addition to
any other sums which the Lessor may be called upon to pay by reason of the entry
of a Judgment against the Lessor in the litigation which such claim is asserted.
6. From and after the time when the lease commences, the Lessee will
keep insured all buildings and improvements upon said premises against all loss
or damage by fire and windstorm, together with extended coverage "which said
insurance will be maintained in an amount which will be sufficient to prevent
any party in interest from being or becoming a co-insurer on any part of the
risk which amounts shall not be less than eighty per cent (80%) of the full
insurable value, and all of such policies of insurance shall include the name of
the Lessor as one of the parties insured and shall fully protect both the Lessor
and the Lessee as their respective interests may appear. The Lessee shall
provide such coverage for the Lessor's interest that shall not fail, in any
case, below the sum of ($). The originals of all such policies
shall be delivered to the Lessor by the Lessee along with receipted bills
evidencing the fact that the premiums therefore are paid. The Lessor assumes no
obligation whatsoever to repair or replace any building on the demised premises
which is damaged or destroyed by fire or other casualty; but the Lessee may at
its own option and expense, cause said building to be insured and in case of
damage or destruction use all sums collected from such insurance in repairing or
replacing said buildings. This coverage shall be in addition to said coverage
for the Lessor as set forth above.
7. It is understood and agreed that the Lessee accepts said premises in
the physical condition in which the same now are and further that during the
continuance of this lease the Lessee will keep in good state of repair and in
first class condition any and all buildings, furnishings, fixtures and equipment
which are brought or constructed or placed upon the demised premises by the
Lessee nor will the Lessee sell or permit any strip, waste or
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neglect of any building or other property to be committed, and the Lessee will
repair or replace and renovate such property as often as it may be necessary to
keep the buildings and other property which is the subject matter of this lease
in first class repair and condition. Further, it is understood and agreed that
the Lessor shall be under no obligation whatsoever to make any repair or
replacement to said premises during the terms of this lease. In the event any
governing body should require alterations to the demised premises to comply with
Local, State, or Federal law or regulations, the Lessee shall see that such
alterations are made at its own expense holding Lessor harmless from such
expense. If, at anytime, activities by the Lessee shall place the demised
premises in violation of any Local, State, or Federal ordinance, statute, or
regulation then the Lessee shall take such steps to bring the use of the
premises into conformity within thirty (30) days of notification or be in
default under this lease.
8. If at any time a default should be made by the Lessee in the payment
of any rent upon any day such rent becomes due and payable, or if the Lessee
shall fail to perform any of the other covenants of this lease by it to be kept
and performed, then, in any such event, it shall be lawful for the Lessor, upon
election, to declare the lease term ended and to re-enter upon the premises and
the building or buildings and improvements situated thereon, or any part thereof
or thereon, either with or without process of law, the Lessee waiving any demand
for possession of such premises any and all buildings and improvements then
situated thereon, or the Lessor may have such other remedy as the law and this
instrument may afford. Upon the termination of the lease term, at such election
of the Lessor or in any other way, the Lessee shall surrender and deliver up the
demised premises and property (real and pursuable) peaceably to the Lessor, or
the agent or attorney of the Lessor, immediately upon the termination of the
lease term; and if the Lessee, its agent, attorney, tenants shall hold such
premises, or any part thereof, one day after the same shall be surrendered
according to the term of this lease, he shall be deemed guilty of forcible
detainer of the premises under the statutes and shall be subject to eviction or
removal, forcibly or otherwise, with or without process of law.
The relationship between the parties that of landlord and tenant, and
that the Lessee specifically acknowledges that all statutory proceedings to the
relationship of landlord and tenant respecting rent and the possession of the
premises accrued to the landlord.
Nothing herein shall be construed as authorizing the Lessor to declare
this lease in default, however, where the default consists in the non-payment of
rent, security, insurance premiums, or taxes until such non-payment, in
violation with the terms of this lease, shall continue for thirty (30) days
after the respective due dates for payment of such taxes, security, insurance
premiums, and rent, and where the alleged default
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consists of some violation other than non-payment of rent, security, insurance
premiums, or taxes, the Lessor may not declare this lease in default until such
violation shall have continued for thirty (30) days after the Lessor shall have
given the Lessee written notice of such violation, provided however, that
nothing contained herein shall be construed as precluding the Lessor from having
such remedy as be and become necessary in order to preserve the Lessor's right
and interest of the Lessor in the premises and this lease, even before the
expiration of the grace or notice periods provided for in this section; if,
under particular circumstances then existing the allowance of such grace, and
the giving of such notice will prejudice or endanger the rights of the estates
of the Lessor in this lease and in the demised premises. All default and grace
periods shall be deemed to run concurrently and not consecutively. Subject to
the rights of the holder of any first mortgage to which this lease has been
subordinated, the Lessee pledged with and assign to the Lessor, all of the
rents, issues, and profits which might otherwise accrue to the Lessee for the
use, enjoyment, and operation of the demised premises and in connection with
such pledging of the rents, the Lessee covenants and agrees with the Lessor that
if the Lessor upon default of the Lessee elects to file suit in chancery to
enforce the lease and protect the Lessor's rights, then the Lessor may, as
ancillary to such suit, apply to any court having jurisdiction thereof for the
appointment of a receiver of all and singular the demised premises, the
improvements, buildings located thereon; and, thereupon, it is expressly
covenanted and agreed that the court shall forthwith, appoint a receiver with
the usual powers and duties of the receivers in like cases, such appointments
shall be made by such court as a matter of strict right to the Lessor and
without reference to the adequacy or inadequacy of the value of the property
which is subject to the landlord's lien, or to the solvency of the Lessee and
without reference to the commission of waste. Nothing in this section shall be
construed as empowering the Lessor to collect rents accruing from the premises
unless or until the Lessee are in default. It is expressly agreed that if
anytime during the term of this lease the Lessee shall be adjudged bankrupt or
insolvent by any Federal or State Court or competent jurisdiction, the Lessor
may at its option declare the lease terminated and cancelled and take possession
of said premises.
9. The Lessee shall not assign this lease or sublet any part of the
demised premises without the written consent of the Lessor, which consent shall
not be unreasonably withheld.
10. At the termination of this lease the Lessee will peaceably and
quietly deliver possession of the premises and all improvements, including any
furnishings, fixtures, and equipment which the Lessee may have brought, placed
or constructed upon the premises pursuant to the provisions of this lease to the
Lessor.
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11. If, at any time, the Lessor is required to enforce this lease or to
defend any action arising out of the facts connecting with or caused by reason
of the ownership by the Lessee of this lease or the occupancy of the premises
pursuant hereto, the Lessee will owe and will pay to the Lessor all costs of
court and reasonable attorneys fees incurred or expended by them in conducting
such defense or enforcing the terms of this lease. The amount of such costs and
fees may, at the option of the Lessor, be collected just as though such amount
were an amount of rent maturing and coming due.
12. The Lessor covenants and agrees with the Lessee that so long as the
Lessee keeps and performs all of the covenants and conditions of this lease, the
Lessee shall have quiet, undisturbed and continued possession of the premises,
free from any claim against the Lessor and all persons claiming under by and
through the Lessor.
13. The Lessor and their agent shall have the right to enter upon the
premises at all reasonable times to examine the condition and use thereof,
provided only that such rights shall be exercised in such manner as not to
interfere with the Lessee in the conduct of the Lessee's business on such
premises; and if the premises are damaged by fire, windstorm, or by other
casualty which cause the premises to be exposed to the elements, then the Lessor
may enter upon the premises to make emergency repairs, such act or acts shall
not be deemed to excuse the Lessee from his obligations to keep the premises in
repair and the Lessee shall upon demand of the Lessor, immediately reimburse the
Lessor for the costs and expenses of such emergency repairs.
IN TESTIMONY WHEREOF, said Lessor has hereunto fixed his hand and seal
and said Lessee has caused these presents to be signed in its corporate name by
its President and attested by its Secretary and its corporate seal to be
hereunto affixed and the said Secretary has hereunto set his hand and seal; this
contract being executed in duplicate originals, one of which is retained by each
party.
/s/ Ann H. Gaither (SEAL)
- -----------------------
LESSOR
LESSEE:
By /s/ Ann H. Gaither
- -----------------------
PRESIDENT
ATTESTED:
/s/ J. Michael Gaither
- ------------------------
SECRETARY
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STATE OF NORTH CAROLINA
COUNTY OF LINCOLN
I, Judy S. Caldwell, a Notary Public, in and for said County and State, do
hereby certify that Ann Heafner Gaither personally appeared before me this day
and acknowledged the due execution of the foregoing Lease.
WITNESS my hand and notarial seal, this the 6th day of October, 1988.
/s/ Judy S. Caldwell
----------------------
NOTARY PUBLIC
My Commission Expires: 5/24/93
[SEAL]
STATE OF NORTH CAROLINA
COUNTY OF LINCOLN
I, Judy S. Caldwell, a Notary Public of the County and State aforesaid,
certify that J. Michael Gaither personally came before me this day and
acknowledged that he is Secretary of The J.H.Heafner Company, Inc., a North
Carolina corporation, and that by authority duly given and as the act of the
corporation, and that by authority duly given and as the act of the corporation
the foregoing instrument was signed by its President, sealed with its corporate
seal and attested by her/him as its Secretary.
WITNESS my hand and notarial seal, this the 6th day of October, 1988.
/s/ Judy S. Caldwell
----------------------
NOTARY PUBLIC
My Commission Expires: 5/24/93
[SEAL]