Exhibit 10.4
NORTH CAROLINA )
) LEASE AGREEMENT
GUILFORD COUNTY )
THIS LEASE AGREEMENT, Made and entered into this 1st day of November,
1998, by and between MIRACLE HOLDINGS, LLC, a North Carolina Limited Liability
Company (hereinafter called the "Landlord"), and MARKET AMERICA, INC., a North
Carolina corporation (hereinafter called the "Tenant");
WITNESSETH:
That in consideration of the covenants, conditions and agreements
hereinafter contained, Landlord does hereby lease to Tenant, and Tenant does
hereby lease from Landlord, the premises more particularly described as follows:
FOR DESCRIPTION SEE EXHIBIT "A" ATTACHED HERETO
TO HAVE AND TO HOLD said land and premises, together with all
privileges and appurtenances thereunto belonging to Tenant, his successors and
assigns, for the term and under the conditions hereinafter set forth, to-wit:
1. Term. The term of this Lease shall be for a period commencing on the
first day Landlord gains possession of said property and ending on the thirtieth
day of the first full month thirty-three (33) years thereafter.
2. Renewal. If this Lease shall not have been canceled pursuant to the
provisions hereinafter set forth and if Tenant shall, during the original term
hereof, keep and perform each and every covenant, provision and agreement herein
contained, and provided that Tenant shall not be in default under any of the
terms, covenants or conditions of this Lease at the end of the term, then Tenant
may, at its option, renew this Lease for any additional term of thirty-three
(33) years.
If, during the first additional thirty-three (33) year term, this Lease
shall not have been canceled pursuant to the provisions hereinafter set forth
and if Tenant shall, during the first additional thirty-three (33) year term
hereof, keep and perform each and every covenant, provision and agreement herein
contained, and provided that Tenant shall not be in default under any of the
terms, covenants and conditions of this Lease at the end of said term, then
Tenant may, at its option, renew this Lease for an additional term of
thirty-three (33) years.
Unless Tenant gives written notice to Landlord of its intention not to
exercise its right to renew within sixty (60) days prior to the date of
termination of the original term or any subsequent renewal term, then this Lease
shall be terminated at the end of said period.
3. Rental. As rental for said premises, Tenant shall pay to Landlord or
Landlord's agent, without notice or demand therefor, as follows: Ten Thousand
Six Hundred Sixty-Six and No/100 ($10,666.00) (the "Base Rent") until
amortization of Landlord's loan on said land commences. Thereafter, said rent
shall be an amount equal to the Loan Amortization, but never less than the Base
Rent.
4. Late Charge. If Landlord does not receive the rental payment within
fifteen (15) days of its due date, Tenant shall pay to Landlord a late charge of
Five Percent (5%) of any outstanding balance, including previously unpaid
balances, of the payment due to cover costs of securing and processing any late
payments.
5. Taxes. Tenant shall pay all real property ad valorem taxes and
assessments which may be levied, assessed or charged against the demised
premises. Tenant shall pay all license, privilege or other taxes levied,
assessed or charged against it on account of the operation of its business or on
account of property belonging to Tenant, provided that Landlord and Tenant
respectively shall be entitled either prior to or subsequent to payment to
contest as improper, excessive or invalid any such taxes or assessments. Taxes
will be escrowed and Tenant will pay 1/12th of the annual taxes along with the
rent payment.
6. Utilities. Tenant shall pay all charges for electricity, fuel oil,
natural gas, water, and any other utilities consumed on the premises.
7. Repairs and Maintenance. Tenant shall, during the term of this
Lease, and any renewal or extension thereof, at its sole expense, keep the
interior of the leased premises in good order and repair, reasonable wear and
tear and damage by accidental fire or other casualty excepted. Tenant shall not
knowingly permit or willingly permit to be committed any act or thing contrary
to the rules and regulations prescribed from time to time by the Board of Health
or which shall be contrary to the rules and regulations of Federal, State or
Municipal authority.
Tenant's duty to repair and maintain shall include the replacement of
all light bulbs and broken glass in windows in those areas that it occupies as
the leased premises. Tenant shall maintain in good working order and repair all
plumbing, toilet facilities and other fixtures and equipment installed for the
general supply of hot water and cold water, heat, air conditioning and
electricity.
Tenant, during the term of this Lease, or any renewal or extension
thereof, shall keep the structural supports and exterior walls of the building,
including roof, in good order and repair, shall make repairs to the exterior
water, sewer, and utility services, to the point of entry to the building, and
to the air conditioning and heating systems, other than ordinary maintenance,
and all repairs or restorations necessitated by fire or other peril covered by
standard extended coverage endorsements on fire insurance policies.
8. Alterations and Additions.
A. Tenant shall have the right to make changes, improvements,
alterations or additions to the areas which it leases, subject to the
Landlord's reasonable approval.
1. No change, improvement, alteration or addition
shall at any time be made which shall impair or adversely
affect the structural soundness or diminish the value of any
improvement on the leased premises.
2. No change, improvement, alteration or addition
shall be undertaken until Tenant shall have procured and paid
for all required municipal or county building permits, and
shall have given Landlord prior notice and received Landlord's
approval of the plans for the alteration or addition.
3. All permanent changes, improvements, alterations,
or additions which become affixed to the building or land
shall become the property of the Landlord at the expiration of
the term of this Lease, or any renewal term, without payment
of any kind therefor by Landlord.
9. Insurance. Tenant shall maintain liability insurance of no less than
$1,000,000 and carry Landlord as an additional insured.
10. Indemnification. With the exception of claims arising out of acts
of negligence of Landlord, its agents or employees, Tenant covenants and agrees
that at its sole expense, it will protect Landlord and save Landlord harmless
from all claims of all persons whomsoever arising from or out of the use or
occupancy of the leased premises by Tenant or Tenant's agents or employees, or
subleases, including the reimbursement of Landlord of all reasonable expenses
incurred in defending such claim.
11. Condemnation. If at any time during the term hereof the whole of
the leased premises shall be taken by any public authority or by the right of
eminent domain, then in any such event when possession shall have been taken
thereunder by the condemning authority, the term hereof granted and all right
and liability of the Tenant hereunder shall immediately cease and terminate and
the rent shall be apportioned and paid to the time of such termination. The
Landlord shall be entitled to all award in condemnation for land and
improvements.
12. Fire or Other Casualty Loss. N/A.
13. Assignment and Subletting. Tenant may sublet or assign its rights
hereunder under the following conditions: Tenant shall first give Landlord at
least ninety (90) days prior written notice of its desire to assign or sublet
its rights under the Lease. For a period of ninety (90) days after receipt of
said notice, Landlord shall have the right to find its own Tenant for the Leased
Premises. If Landlord is able to find a Tenant for the Leased Premises then
Landlord shall notify Tenant and upon the execution of a Lease between Landlord
and a new Tenant, the Tenant shall execute a termination agreement for the
existing Lease and all rights, obligations and liabilities of the Tenant under
the existing Lease shall cease, provided, however, nothing herein contained
shall relieve Tenant of any obligations under this Lease during said 90-day
period.
If Landlord is not able to find a new Tenant within the 90-day period,
then Tenant shall be free to assign or sublet the premises, provided:
A. Tenant shall first obtain the prior written consent of
Landlord in each instance, which consent will not be unreasonably
withheld; provided, further, that the business of assignee or sublessee
shall not be hazardous, illegal, or disruptive and that Tenant shall
remain primarily liable for the payment of the rent herein reserved and
for the performance of all the other terms of this Lease required to be
performed by Tenant irrespective of the subletting or assignment;
B. At the time of such assignment or subletting, there shall
be no default under the terms of this Lease;
C. A duplicate original of said assignment or sublease, in
recordable form, shall be delivered by certified mail to Landlord
within thirty (30) days after execution of said assignment or sublease.
14. Right of Entry. Tenant agrees that Landlord, Landlord's agents or
other representatives, shall have the right without abatement or rent, to enter
upon the Leased Premises, or any part thereof, during regular business hours for
the purpose of examining same or making such repairs or alterations to the
Leased Premises as may be necessary for the safety and preservation thereof;
provided, however, that such examinations, repairs or alterations (unless of an
emergency nature) shall be made as to cause a minimum of interference to the
operation of Tenant's business conducted in or on the Leased Premises.
15. Default. The happening of one or both (A or B) of the following
listed events shall constitute a breach of this Lease Agreement on the part of
the Tenant, namely:
A. The failure of Tenant to pay rent due under this Lease
within ten (10) days following written notice from Landlord of failure
to pay the full monthly rental on the first day of any rental month.
After such notice has been given to Tenant a total of three times, no
further notice shall be required if Tenant subsequently defaults in
payment of any monthly rental payment next due thereafter.
B. The failure of Tenant to fully and promptly perform any act
required under this Lease or to otherwise comply with any terms or
provisions hereof for thirty (30) days or more after written notice is
given to Tenant by Landlord notifying it of said default. In all
matters in this Agreement, time is of the essence.
C. For the purposes of Section B of this Paragraph 17, if the
default complained of be a default other than one which may be cured by
the payment of money, no default on the part of the Tenant in the
performance of work required to be performed or acts to be done or
conditions to be met shall be deemed to exist if steps shall have been
commenced in good faith by the Tenant within the 30-day grace period to
rectify same and shall be prosecuted to completion with diligence and
continuity.
Upon the happening of any event of default by Tenant,
Landlord, if Landlord shall so elect, may either (1) terminate the
terms of this Lease Agreement, or (2) terminate Tenant's right to
possession or occupancy of the premises without terminating the term of
this Lease Agreement, and, in the event Landlord shall exercise such
second right of election, the same shall be effective as of twenty (20)
days after the date of such event of default.
If Landlord shall elect to terminate the terms of this Lease
Agreement, Landlord, upon such termination, shall be entitled to
recover of Tenant all accrued rent due and payable at the time of such
default, plus any rents paid in advance, which shall be applied to any
balance due Landlord, of whatever kind, or in the alternative, as
liquidated damages forfeited to Landlord without waiver of any other
rights or remedies of Landlord. If Landlord shall elect to terminate
the terms of the Lease Agreement after all accrued rents and any funds
owed to Landlord on account of any other terms of this Lease are paid,
then Tenant's obligations and liability under this Lease shall
terminate.
If Landlord shall elect to terminate Tenant's right to
possession only without terminating the terms of this Lease, Landlord,
at Landlord's option, may enter upon the premises, remove Tenant's
property, and hold possession of and sell the same and apply the
proceeds first to the cost of sale, second to rents and damages due
Landlord, and the surplus, if any, shall be paid to Tenant, without any
such possession or sale terminating the terms of this Lease or
otherwise releasing Tenant in full or in part from its obligation to
pay the rent herein reserved for the full term hereof, and in such
case, Tenant shall remain liable to Landlord for all rents due under
this Lease. However, Landlord will make reasonable efforts to relet the
premises, or any part thereof, at a reasonable rent to any person, firm
or corporation other than Tenant. If any rent collected by Landlord
upon such re-letting is not sufficient to pay monthly the full amount
theretofore paid by Tenant, Tenant shall pay to Landlord the amount of
each monthly deficiency upon demand, and, if the rent so collected from
such re-letting is more than sufficient to pay the full amount of the
rent reserved hereunto, Landlord shall, at the end of the stated term
hereof, apply any surplus to the extent thereof to the discharge of any
obligation for Tenant under the terms of this Lease, and any remaining
surplus shall be paid to Tenant. However, nothing herein shall render
Tenant liable for any greater sum than would be payable if Tenant were
not in default under the Lease.
16. Bankruptcy. In the event Tenant shall be adjudicated a bankrupt, or
a temporary or permanent receiver is appointed for the Tenant in any Federal or
State Court, or petition in insolvency or liquidation proceedings is filed
against Tenant which shall not be dismissed within ninety (90) days, Landlord
shall have the right at his option, to immediately declare this Lease null and
void and resume possession of the property. In addition, Landlord shall be
entitled to recover reasonable attorneys fees incurred by the Landlord in any
proceeding protecting its rights under this paragraph.
17. Subordination - Attornment. This Lease shall be deemed subject and
subordinate to any mortgage which may heretofore or hereafter be executed by
Landlord covering the land, unless the mortgagee requests that this Lease be
superior to its mortgage. In the event any proceedings are brought for
foreclosure of any mortgage on the land, Tenant will attorn to the purchaser at
a foreclosure sale and recognize such purchaser as Landlord, provided purchaser
or Trustee agrees not to disturb Tenant's possession as long as it is not in
default under the terms of this Lease. Provided that Lender executes a
non-disturbance agreement with Tenant, Tenant shall execute at Landlord's
request, and within five (5) days thereof, instruments evidencing the
subordinate position of this Lease, 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 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 Landlord, 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 certificate.
18. Signs. Tenant may not erect or display any sign upon the demised
premises without the prior written consent of Landlord, which consent shall not
be unreasonably withheld. If Landlord has given prior written consent to Tenant
for a particular sign, Landlord shall cooperate with Tenant in obtaining any
permit required to install or erect the sign.
19. Quiet Enjoyment. If Tenant promptly and punctually complies with
each of its obligations hereunder, it shall have and enjoy the peaceful and
quiet possession of the demised premises during the term hereof, providing that
no action of Landlord in work shall be deemed a breach of this covenant, or give
Tenant any right to modify this Lease, either as to term, rent payable or other
obligations to perform.
20. Relationship Between Parties. This Lease shall not be construed to
create a partnership, joint venture, or agency relationship between the parties
hereto.
21. Notices. Wherever it is provided in the Lease that either the
Landlord or Tenant may or shall give written notice to the other party, such
notice shall be deemed sufficiently given and effective if mailed by certified
mail, return receipt requested.
22. Lease Binding Upon Heirs. The terms, covenants, conditions,
provisions and undertakings in this Lease shall extend to and be binding upon
the heirs, personal representatives, executors, administrators, successors and
assigns of such party, as if in each and every case so expressed.
24. Renovations. All renovations and modifications to the property will
be paid by Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have each executed this Lease
Agreement for the purposes and uses herein stated, in duplicate originals on the
day and year first above written.
LANDLORD:
MIRACLE HOLDINGS, LLC
BY: /s/ Loren A. Ridinger
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Member/Manager
TENANT:
MARKET AMERICA, INC.
BY: /s/ James H. Ridinger
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CEO and President, James H. Ridinger
NORTH CAROLINA
GUILFORD COUNTY
I, _________________________, a Notary Public in and for said state and
county, do hereby certify that __________________________ personally appeared
before me this date and acknowledged that (s)he is the ___________________ of
Miracle Holdings, LLC and that as such (s)he is authorized to sign the foregoing
instrument.
WITNESS my hand and seal, this the ____ day of _____________, 1998.
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Notary Public
My commission expires: ______________
NORTH CAROLINA
GUILFORD COUNTY
I, _________________________, a Notary Public in and for said state and
county, do hereby certify that __________________________ personally appeared
before me this date and acknowledged that (s)he is the ___________________ of
Market America, Inc. and that as such (s)he is authorized to sign the foregoing
instrument.
WITNESS my hand and seal, this the ____ day of _____________, 1998.
------------------------------------
Notary Public
My commission expires: ______________