HomeMy WebLinkAboutAgenda - 11-19-1996 - 8g T
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ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
MEETING DATE: November _, 1996
Action end�
Item # S—S
SUBJECT: Lease with Builders' Supply & Lumber Company, Inc.
DEPARTMENT: Economic Development PUBLIC HEARING: X Yes No
(Has been held)
ATTACffi�NT(S) : INFORMATION CONTACT:
April 1, 1996 Agenda Item Abstract Ted Abernathy (Ext.2326)
Minutes of April 1, 1996 Board meeting Geoffrey Gledhill (732-2196)
April 12, 1996 Letter to Builders'
Supply
Resolution including proposed TELEPHONE NUMBERS:
Lease Agreement Hillsborough - 732-8181
Durham - 699-7331
Mebane - (910) 227-2031
Chapel Hill - 967-9251/
968-4501
Purpose: To consider adopting a Resolution approving a lease
agreement between Orange County and Builders' Supply & Lumber
Company, Inc. for the property now occupied by Georgia-Pacific on
Valley Forge Road in Hillsborough commencing October 1, 1997 .
Background: On April 1, 1996 the Board of Commissioners held a
public hearing to receive public comment on a proposed long term
lease between Orange County and Builders' Supply & Lumber Company,
Inc. At the conclusion of the public hearing the Board of
Commissioners unanimously indicated the intent of Orange County to
enter into a long term lease agreement with Builders' Supply for
the Valley Forge Road industrial property that will be owned by the
County on October 1, 1997. The Resolution that accompanies this
Agenda Abstract confirms that decision. The Lease that is an
Exhibit to the Resolution recites - as covenants the economic and
other benefits to Orange County that provide the inducement to the
County to commit this property to Builders' Supply long term.
Recommendation: Approve the Resolution.
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ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
MEETING DATE: April 1, 1996
Action Agenda
Item # \/JX-A
SUBJECT: Lease of Georgia-Pacific facility, Hillsborough
DEPARTMENT: PUBLIC HEARING: Yes X No
Economic Development Comm. BUDGET AMENDMENT NEEDED: Yes_ No X
Purchasing Department
ATTACHMENT(S): INFORMATION CONTACT:
Ted Abernathy(ext. 2325)
Pam Jones(ext. 2652)
TELEPHONE NUMBERS:
Hillsborough - 732-8181
Durham - 699-7331
Mebane - (910) 227-2031
Chapel Hill - 967-9251/968-4501
Purpose: For the Board of Commissioners to receive public comment concerning a proposed
lease of the Georgia-Pacific facility on Valley Forge Road in Hillsborough.
Background: This facility is a 100,000 square foot, concrete industrial building, sitting on 12.9
acres of land at 401 Valley Forge Rd:in Hillsborough(near the intersection of I-85 and new NC
86). It was constructed in 1972 using bonds issued by an Industrial Development Corporation.
Once these bonds are retired next year, ownership of the building will revert to Orange County.
This should occur on Oct. 1, 1997.
A firm has already contacted Orange County about leasing this facility once it is controlled by the
County. The prospective tenant is Builders Supply&Lumber Co. of Elkwood, VA. This firm is
a subsidiary of Pulte Homes, one of the nation's largest residential builders, and would primarily
make windows, doors, and mouldings at this facility. The lease terms described below have been
proposed; a description of the firm's planned impact on the local economy is also included:
Lease Terms:
* Lease would begin on approx. Oct. 1, 1997, subject to Georgia-Pacific Corp. providing formal
notice of their intent not to renew their current lease agreement. Georgia-Pacific has the right to
renew their existing lease for additional 5-year periods. (They do not have an option to
purchase). However, they intend to vacate the building by January 1997, and it is unlikely
that they will choose to renew the lease.
* 10-year initial lease term, with 2 subsequent 5-year renewal options.
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* Annual lease paymentq of approximately $115,000. This could be structured to provide for a
separate payment equal to the amount of property taxes due to Orange County annually. These
payments will be subject to an annual escalation rate.
* Lease rate increase to be negotiated for any subsequent terms.
* Lease rate is net of all insurance, maintenance, utilities,janitorial, etc.. (These will all be
the responsibility of the tenant).
* Lease payment offsets are allowed for documented, permanent improvements to the facility&
grounds; up to $150,000 total over the first 5 years, with not more than $50,000 offset in any one
year. (examples: new roof, paving of gravel parking areas)
* Lessee gains first right of refusal regarding the sale of the facility& property.
Economic/Community Impact:
> Approximately 60-70 employees will be hired by the tenant during the first year of occupancy.
Approximately 90-100 employees at the facility within 2-3 years of occupancy.
> Wages ranging from roughly$7.50/hour to $12.00/hour. This firm currently has locations in
Raleigh and Charlotte, with-wages in this range.
> Total corporate investment of$7-10 million within the first 4 years.
Recommendation: Receive comments from the public;take action on the proposed lease as the
Board of Commissioners so dgsires. Q
PROCLAMATION 4
ORANGE COUNTY INFANT IMMUNIZATION WEEK
APRIL 21-27, 1996
WHEREAS, April 21-27 has'been proclaimed as National Infant Immunization Week; and
WHEREAS, during National Infant Immunization Week all immunization providers are encouraged to
work with their communities to vaccinate children by expanding clinic hours, increasing screening, and
distributing educational materials; and
WHEREAS, more than one-third of North Carolina two year olds are not age-appropriately immunized;
and
WHEREAS, North Carolina's goal is to achieve complete immunization of at least 90% of all-North
Carolina children by their second birthday; and
WHEREAS, in an effort to increase the immunization rate in Orange County, the Cooperative
Extension Service has organized the Orange County Coalition for Immunization, a group comprised of
representatives of public and private agencies, civic, community and church groups, and volunteers;
and
WHEREAS, the mission of the Orange County Coalition for Immunization is to coordinate and promote
free immunization clinics through Piedmont Health Services, Chapel Hill Home Health, and Orange
County Health Department, by providing financial assistance, outreach, transportation, and educational
efforts during National Infant Immunization Week April 21-27; and
WHEREAS, the continuing goal of the Orange County Coalition for Immunization is to develop
strategies for the year-round promotion of age-appropriate immunizations; and
WHEREAS, it is essential to raise public awareness of the importance of age-appropriate
immunizations and provide accessibility to immunizations through a collaborative community-based
effort.
NOW, THEREFORE, We, the Orange County Board of Commissioners, do hereby proclaim April 21-27
as Orange County Infant immunization Week, this the 1 st day of April, 1996.
VOTE: UNANIMOUS
D. PROCLAMATION OF FAIR HOUSING MONTH IN ORANGE COUNTY
Emily Condon, member of the Human Rights Commission, presented this proclamation
for the Board's consideration of approval.
A motion was made by Commissioner Crowther, seconded by Commissioner Halkiotis
to adopt the proclamation as presented and stated below:
FAIR HOUSING MONTH
WHEREAS, April, 1996 marks the twenty-eighth anniversary of Title VIII of the Civil Rights Act of 1968,
the Federal Fair Housing Act, which provided for equal opportunity for all Americans in the sale, rental
and financing of housing and prohibited housing discrimination on the basis of race, color, religion, sex,
age or national origin; and
WHEREAS, the Fair Housing Amendments Act of 1988 added familial status and handicap to those
classes protected by Title VII and added strong new rights, remedies, monetary penalties and judicial
and administrative enforcement procedures; and
WHEREAS, numerous studies have shown that housing discrimination is as pervasive, if not more so,
than in 1968, and far more insidious than ever before; and
WHEREAS, illegal barriers to equal opportunity in housing that diminish the rights of some of our
citizens, diminish the rights of all;
NOW, THEREFORE, do we the Commissioners of Orange County, proclaim the month of April, 1996
as FAIR HOUSING MONTH and commend this observance to all Orange County citizens.
VOTE: UNANIMOUS
VI. SPECIAL PRESENTATIONS - NONE
VII. PUBLIC HEARINGS
A. PUBLIC HEARING TO CONSIDER LEASING THE GEORGIA PACIFIC BUILDING
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Ted Abernathy, Director of Economic Development, made the presentation. He
said that this public hearing is for the purpose of receiving public comment concerning a proposed
lease of the Georgia-Pacific facility on Valley Forge Road in Hillsborough.
NOTE: No comments were made.
A motion was made by Commissioner Crowther, seconded by Commissioner Halkiotis to
approve the staff recommendation approving the lease with George Pacific contingent upon affirmative
findings that the proposal meets all required findings in the State Statutes 158-7.1 and Orange County
receiving a letter of confirmation from Georgia Pacific indicating their desire to not renew their option.
The final lease will be presented to the Board of County Commissioners for their consideration of
approval on May 14.
VOTE: UNANIMOUS
VIII. ITEMS FOR DECISION - CONSENT AGENDA
A motion was made by Commissioner Crowther, seconded by Commissioner Halkiotis
to approve those items on the Consent Agenda as stated below:
A. APPOINTMENTS
The Board approved the following appointments:
Nursing Home Community Advisory Committee - Ms. Constance Suprano and Mr. Victor
Recondo for their one year initial terms ending March 31, 1997.
Commission for Women - Theresa M. Sull for a term ending June 30, 1998 and Andrea
R. Lyn for a term ending June 30, 1997.
National Organization on Disabilities - Marty Ravellette and Timothy Miles
B. CONTRACT_ORANGE COUNTY SPEEDWAY
This item was removed and considered immediately after the Consent Agenda.
C. CONTRACT_ DURHAM TECHNICAL COMMUNITY COLLEGE - FIRE TRAINING
The Board approved and authorized the Chair to sign the renewal of a contract between
Durham Technical Community College and Orange County, Department of Emergency Management, to
provide administrative support for fire training in Orange County.
D. CP-1-96 HISTORIC PRESERVATION ELEMENT
The Board approved the Historic Preservation Element as part of the Comprehensive
Plan as presented in the agenda.
E. PROPOSED ZONING ORDINANCE TEXT AMENDMENT_ARTICLE 23•
VIOLATIONS, PENALTIES AND REMEDIES
The Board approved a Zoning Text Amendment which increases the maximum fine
resulting from criminal action in the courts from $50 to $500 as authorized by North Carolina General
Statute 14-4.
F. HOUSING REHABILITATION CONTRACT AWARDS
The Board approved the following two housing rehabilitation contracts for the HOME
Housing Rehabilittion Program:
DWELLING UNIT BID AMOUNT CONTRACTOR
#1 $ 29,735 Taylor Home Improvements
#3 $ 29,999 Taylor Home Improvements
G. FYI 995 CDBG HOUSING REHABILITATION STATUS REPORT
As a requirement of the County's plan for CDBG Program Administration for the FYI 995
Housing Rehabilitation Program, the Board received the quarterly status report on expenditures and
accomplishments as information.
H. CHANGE IN BOARD OF COUNTY COMMISSIONERS MEETING CALENDAR
The Board approved canceling the April 18, 1996 Joint Planning Area meeting because
no items were received for this meeting. A special meeting has been scheduled for April 18, 1996 at
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April 12, 1996
ORANGE COUNTY RFCE1V,L.J
Mr. Mike Turner ID . —ORROyy
The Jian Group P^ESE PV•I ION•P A OG It E SS.PE OPIf
11901 Bowman Drive, Ste. 101
Fredericksburg, VA 22408
RE: Proposed lease agreement with Builders' Supply & Lumber Co., Inc.
Georgia-Pacific facility - 401 Valley Forge Road, Hillsborough
Dear Mr. Turner:
This letter is directed to you and Mr. Jerry Thompson of Builders' Supply& Lumber Co., as a
summation of the Orange County Board of Commissioners' actions on April 1, 1996, indicating
their intent to enter into a long-term lease agreement with BS&L for the current Georgia-Pacific
property in Hillsborough. This commitment is contingent upon the conditions described below,
and upon the County's agreement to any final details of the lease.
By a unanimous (5-0)vote, the Board of County Commissioners voted on April 1 to direct staff
to prepare and negotiate with BS&L a final lease agreement, to begin on or about October 1,
1997, in accordance with the other terms listed below. Execution of this lease is contingent
upon the satisfactory resolution of these items:
1. Before the expiration of the current lease agreement dated October 1, 1972, the
current tenant(Georgia-Pacific Corp.) must decline to take advantage of the renewal
clause offered in the lease. Georgia-Pacific must provide the County with a written
statement declining the renewal option. This must be provided at least 30 days before
October 1, 1997. (Ownership of the Georgia-Pacific building and 12.9 acre grounds
will not revert to the County until that date.)
2. Final determination by the Board of County Commissioners that the lease agreement is
in compliance with Section 158-7.1 of the North Carolina General Statutes(the Local
Development Act of 1925), wherever it may be pertinent to this transaction. (Essentially,
this section of the Statutes states that the total consideration received by the County must
be at least equal to the fair market value of the lease interest.)
Following are general terms for the lease, and an understanding of the company's projected
impact on the local economy:
ORANGE COUN'T'Y ECONOMIC DEVELOPMENT COMMISSION
POST OFFICE BOX 1177 - HILLSBOROUGH,NORTH CAROLINA 27278
!0Iof7*Z')_QlQl rolofQAQ_ACAI 4`0101 !0191117_1nz1 _VAV1OIO14ed_2MQ _
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Lease Terms•
> Lease to begin on approx. Oct. 1, 1997, subject to the Georgia-Pacific Corp. giving the
County formal notice of their intent=to renew their current lease agreement.
�> 10-year initial lease term, with 2 subsequent 5-yr. renewal options.
> Annual lease payments to Orange County of$105,000.
> Lessee is responsible for all applicable taxes, insurance, maintenance, utilities,janitorial, and
other related costs.
> Lease rate increase to be negotiated for any terms after the initial 10-year term.
> Lease payment offsets: available for documented, permanent leaseholder improvements to the
facility & grounds; up to $150,000 total over the first 5 years, with not more than
$50,000 offset in any one year.
> Lessee gains first right of refusal regarding the sale of the building& property.
BS&L's Economic/Community Impact:
* Approx. 60-70 employees hired by BS&L during the first year of occupancy. Approx.
90-100 employees at the facility within 2-3 years of occupancy.
* Wages rates are projected to average $12.80/hour for all employees; $9.13/hour when
salaried managerial/supervisor positions are excluded.
* Total corporate investment of approx. $8.6 million locally within the first 3 years. This
includes $2.14 million in equipment and improvements; $3 million in inventory; and
$3.5 million in accounts receivable.
* Local (1%)sales tax revenue of approximately $220,000 projected for first year in
Hillsborough. Sales tax revenue projected to increase to $340,000 by second year,
and $400,000 by third year.
The Board of County Commissioners' action on April 1 means that the County will not be
entertaining other offers for the Georgia-Pacific building, unless for some reason we are not able
to complete an agreement with BS&L.
We hope that this letter is substantially in accord with your understanding of the status of this
proposed lease agreement. If so, we would greatly appreciate a written notice of confirmation.
Thank you again for your assistance and cooperation in this process.
Sincerely,
Ted Abernathy Pam Jones
EDC Executive Director Director of Purchasing
c: Jerry Thompson, VP-Operations, BS&L, 13234 Airpark Dr., I�lkwood, VA 22718
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RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE
COUNTY OF ORANGE, NORTH CAROLINA AND BUILDERS'
SUPPLY & LUMBER COMPANY, INC. , FOR THE BUILDING
AND PROPERTY AT 401 VALLEY FORGE ROAD, HILLSBOROUGH
WHEREAS, pursuant to and in satisfaction of the requirements
of Section 158-7 . 1 of the General Statutes of North Carolina, the
Board of Commissioners, following a public hearing, has
determined that if it leases the building and property located at
401 Valley Forge Road to Builders' Supply & Lumber Company, Inc.
per the Lease that is an exhibit to this Resolution, the
consideration to Orange County will be equal to or greater than
the value of the leasehold interest to be conveyed by Orange
County, and more specifically that: the value of the lease
payments made to Orange County, together with the value of the
real property, equipment, and sales taxes paid to Orange County
as the result of the Lease, will be equal to or greater than the
fair market value of the interest conveyed, as determined by a
market survey of similar facilities in this area; and
WHEREAS, pursuant to and in further satisfaction of Section
158-7 . 1 of the General Statutes, the Board of Commissioners
hereby determines that the leasing of this property to Builders'
Supply & Lumber Company, Inc. will stimulate the local economy,
promote business, and result in the creation of a substantial
number of jobs in the County at or above the "median average"
wage in Orange County. The median average wage projected to be
paid by Builders' Supply at this facility exceeds the median
average wage paid by all insured private industries in Orange
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County, according_ to the latest available data of the Employment
Security Commission of North Carolina.
NOW, THEREFORE, BE IT RESOLVED by the Board of Commissioners
for the County of Orange, North Carolina:
1 . that it hereby approves the Lease Agreement in
substantially the form as the Exhibit to this resolution;
2 . Officers and employees of the County are authorized and
directed (without limitation except as may be expressly set forth
herein) to make such changes to the Lease Agreement, to take such
other actions and to execute and deliver such other documents,
certificates, undertakings, agreements or other instruments as
they, with the advice of counsel, may deem necessary or
appropriate to effectuate the lease transaction contemplated by
the Lease Agreement.
Upon motion duly made and seconded, the foregoing resolution
was passed by the following votes:
Ayes: Commissioners
Noes:
I, Beverly A. Blythe, Clerk to the Board of Commissioners
for the County of Orange, North Carolina, DO HEREBY CERTIFY that
the foregoing has been carefully copied from the recorded minutes
of the Board of Commissioners for said County at a regular
meeting of said Board held on November , 1996, said record
having been made in the Minute Book of the minutes of said Board,
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and is a true copy of so much of said proceedings of said Board
as relates in any way to the passage of the resolution described
in said proceedings.
WITNESS my hand the corporate seal of said County, this
day of 1996.
Clerk to the Board of Commissioners
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NORTH CAROLINA
ORANGE COUNTY
THIS LEASE AGREEMENT made and entered into as of the
day of , 19 by and between the COUNTY OF ORANGE,
NORTH CAROLINA, a political subdivision of the State of North
Carolina, having its principal office at 208 South Cameron
Street, Hillsborough, North Carolina, hereinafter sometimes
referred to as "Landlord, " and BUILDERS' SUPPLY & LUMBER COMPANY,
INC. , a corporation having its principal office in
hereinafter referred to as
"Tenant; "
WHEREAS, on or about October 1, 1997, Landlord anticipates
becoming the owner of the property, including a building and
other structures and facilities located thereon, which is
described in Exhibit A attached hereto and made a part hereof
(which property is herein sometimes referred to as "the
Premises" ) , as provided in and explained in the DECLARATION which
is Exhibit B; and
WHEREAS, it is anticipated that the present tenant of the
Premises, Georgia-Pacific Corporation, will not exercise its
right to renew its lease beyond` October 1, 1997 and will vacate
the premises no later than October 1, 1997; and
WHEREAS, Tenant has expressed an interest in leasing the
Premises from Landlord on a long term basis; and
WHEREAS, on April 1, 1996, Landlord conducted a public
hearing pursuant to North Carolina General Statutes S 158-7 . 1,
following publication of notice of that public hearing at least
ten days before the hearing was held, for the purpose of
receiving public comment on a proposed long term lease between
Landlord and Tenant; and
WHEREAS, at that public hearing information was provided by
or on behalf of Tenant as follows:
1. approximately 60 to 70 employees will be hired by
Tenant and employed at the Premises during the first year of
occupancy by Tenant; approximately 90 to 100 employees will be
hired and employed at the Premises by Tenant within two to three
years following occupancy of the property by Tenant;
2 . wage rates for the employees of Tenant to be employed
at the Premises are projected to average $12 .80 per hour for all
employees and $9 . 13 per hour excluding salaried, managerial/
supervisor positions;
3. Tenant will invest approximately $8.6 million in the
local economy of Landlord within the first three years of its
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occupancy of the Premises . Specifically, it will invest $2 . 14
million in equipment and improvements to the Premises, $3 million
in inventory that will be located at the Premises and $3.5
million in accounts receivable;
4 . local ( 1%) sales tax revenues of approximately $220,000
are projected for the first year following occupancy by Tenant in
the Premises. Sales tax revenues are projected to increase to
$340,000 by the conclusion of the second year of occupancy and
$400,000 at the conclusion of the third year of occupancy; and
WHEREAS, Landlord, by resolution on November 19, 1996, made
the determinations that: (i) the value of the lease payments to
be made to Landlord together with the value of the real property,
equipment and sales taxes to be paid to Landlord as the result of
the proposed long term lease, will be equal to or greater than
the fair market value of the leasehold interest conveyed, as
determined by a market survey of similar facilities in the area,
and (ii) Landlord determined that the leasing of this property to
Tenant will stimulate the local economy, promote business, and
result in the creation of a substantial number of jobs in Orange
County at or above the "median average" wage in Orange County. A
copy of the November 19, 1996 resolution is attached hereto as
Exhibit C and made a part hereof; and
WHEREAS, the total lease payments to be paid to Landlord as
the result of the proposed long term lease between it and Tenant
together with the covenants of Tenant contained herein are
adequate consideration to Landlord for the proposed long term
lease of the Premises.
W I T N E S S E T H:
In consideration of the rents to be paid to Landlord by
Tenant, as hereinafter provided, and of the other covenants and
agreements upon the part of Landlord and Tenant to be kept and
performed, Landlord hereby demises and leases to Tenant, and
Tenant leases and takes from Landlord the Premises as defined
herein.
1. The Premises means the real estate and other rights
described in Exhibit A hereto and elsewhere in this Lease and any
lease supplementing this Lease, together with all additions
thereto and substitutions therefore less such real estate,
interest in real- estate and other rights as may be released
pursuant to Paragraph 8 of this Lease, or taken by the exercise
of the power of eminent domain as provided in Paragraph 7.b. of
this Lease.
2 . Term of Lease; Riaht of First Refusal.
a. The Premises is presently owned by the Industrial
Development Corporation in the County of Orange, North Carolina,
a North Carolina non-profit corporation, whose principal place of
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business is located in Orange County, North Carolina, and is
presently leased by Georgia-Pacific Corporation, a Georgia
corporation, whose principal place of business is 133 Peachtree
Street, N.E. , Atlanta, Georgia 30303, pursuant to an unrecorded
Lease Assignment and Assumption Agreement, a copy of which is
Exhibit C.
b. The lease between the Industrial Development
Corporation in the County of Orange and Georgia-Pacific
Corporation expires midnight October 1, 1997 or on a date sooner
than that if bonds issued by the Industrial Development
Corporation in the County of Orange, North Carolina are fully
paid and retired, in which event the lease expires on the date
they are fully paid and retired. Further, the lease between the
Industrial Development Corporation in the County of Orange, North
Carolina and Georgia-Pacific Corporation, upon its expiration, is
automatically renewed or extended for not exceeding five
additional terms of four years each unless notice is given in
writing by Georgia-Pacific Corporation at least 30 days before
the end of the expiration of the original term or any renewal or
expiration term thereof, of its intention to terminate the lease
at the end of such term, in which event the lease shall terminate
in accordance with such notice.
C . It is anticipated by Landlord and Tenant that
Georgia-Pacific Corporation will provide notice to the Industrial
Development Corporation in the County of Orange of its intention
to terminate the lease between them at the end of the original
term. Further, at the expiration of the original term of the
lease between the Industrial Development Corporation in the
County of Orange, North Carolina and Georgia-Pacific Corporation,
and contemporaneously with the bonds being fully paid and
retired, a Warranty Deed of the Premises, which warranty deed
names Landlord as the grantee, will be delivered to Landlord as
described in Exhibit B.
d. Provided Georgia-Pacific Corporation effectively
terminates the lease between it and the Industrial Development
Corporation in the County of Orange effective midnight October 1,
1997, the original term of this Lease shall commence on midnight,
October 1, 1997 and shall end at midnight on September 30, 2006,
subject to the provisions of this Lease including particularly
Paragraph 11 hereof. This Lease shall, upon the expiration of
the original term, be automatically renewed or extended for not
exceeding two additional terms of five years each unless and
until notice be given in writing by Tenant at least 30 days
before the end of the original term, or any renewal or extension
term thereof, of its intention to terminate the Lease at the end
of such term, in which event the Lease shall terminate in
accordance with such notice. All such renewal terms shall be
upon the terms and conditions herein specified or as otherwise
agreed upon by Landlord and Tenant except that the rental during
any such renewal term shall be in an amount equal to the fair
rental value of the property as agreed upon by Landlbrd and
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Tenant. When used herein, the original term and the additional
term or additionai terms, if any, are herein sometimes referred
to as the "Term" or the "Lease Term. "
e. Landlord agrees to deliver to Tenant sole and
exclusive possession of the Premises (subject to the right of
Landlord to enter thereon for inspection purposes and otherwise
as provided herein) at the commencement date of the original
term. And Tenant agrees to accept possession of the property
upon such delivery. Landlord covenants and agrees that it will
not take any action, other than pursuant to Paragraph 11 of this
Lease, to prevent Tenant from having quiet and peaceable
possession and enjoyment of the property during the Term and
will at the request of Tenant, and at the cost of Tenant,
cooperate with Tenant in order that Tenant may have quiet and
peaceable possession and enjoyment of the property.
f. Landlord hereby grants to Tenant a right of first
refusal to purchase the Premises, which must be exercised, if at
all, in the manner hereinafter set forth. In the event that
Landlord receives a bona fide offer to purchase the Premises on
price, terms and conditions which it is willing to accept, it
shall give prompt written notice of such offer to Tenant ( "ROFR
Notice" ) . The ROFR Notice shall include a copy of such offer,
provided that Landlord may delete the name of the prospective
purchaser. Within fourteen (14) calendar days from the date such
ROFR Notice is given, Tenant may exercise its right of first
refusal by executing and delivering to Landlord a written
contract containing the same price, terms and conditions as set
forth in the ROFR Notice, with no material additional terms or
conditions. Such contract shall be signed and accepted by
Landlord and the parties. shall proceed to close in accordance
with the terms thereof. In the event- that Tenant fails to
exercise this option as herein provided, and Landlord closes the
sale of the Premises substantially in accordance with the terms
of the ROFR Notice, Tenant's right of first refusal shall
terminate and shall not be exercisable as to any future sale by
Landlord, its successors or assigns.
3. Rent and Other Consideration.
a. Tenant shall pay to 'Landlord the sum of One
Hundred Five Thousand Dollars ($105,000) per annum during the
original term, payable in monthly installments of Eight Thousand
Seven Hundred Fifty Dollars ($8,750) each due on the first day of
each month, in advance, during the original term of this Lease
except that payment for the first such monthly installment shall
be made by Tenant contemporaneously with notice to Tenant from
Landlord of Landlord's receipt of notice from Georgia-Pacific
Corporation of Georgia-Pacific Corporation's intent not to renew
its lease of the Premises. In the event Tenant shall fail to
make any of the lease payments required, the payment so in
default shall continue as an obligation of Tenant until the
ardount in default shall have been fully paid, and Tenant agrees
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to pay the same with interest thereon at the rate of 10% per
annum until paid.- Rent payments shall be made to Landlord and
shall be received on the due date at the Finance Office of
Landlord or received electronically on the due date in an account
or accounts designated by Landlord.
b. Tenant has indicated its interest in making
certain capital improvements to the Premises upon its occupancy
of the Premises. Particularly, the roof to the building may need
to be replaced, doors to the building may need to be replaced and
the gravel parking areas may better serve Tenant's needs if some
or all of them are paved. Landlord agrees to a rent set-off for
any such capital improvements undertaken and completed by Tenant,
and upon Tenant's submitting proof of their cost to Landlord,
within the first five years of the original term up to a maximum
of $150,000, with no more than $50,000 set off in any one year.
C. The obligations of Tenant to make rent payments
required shall be absolute and unconditional and shall not be
subject to diminution by set-off, counterclaim, abatement or
otherwise during the Term except as expressly provided in this
Lease. Nothing contained in this subparagraph shall be construed
to release Landlord from the performance of any of the agreements
on its part contained in this Lease; and in the event Landlord
shall fail to perform any such agreement on its part, Tenant may
institute such action against Landlord as Tenant may deem
necessary to compel performance or recover its damages for non-
performance provided that no such action shall violate the
agreement on the part of Tenant to unconditionally make the rent
payments or diminish the amount of the rent payments.
d. Tenant makes the following representations as an
inducement to and the basis for its undertakings and Landlord's
agreement to lease the Premises to Tenant. These representations
are covenants and the failure of Tenant to comply and remain in
compliance with them constitutes an event of default under this
Lease:
(i) Tenant is a corporation duly incorporated
under the laws of and is in good standing in the State of
, is authorized to do business and is in
good standing in the State of North Carolina, has power to enter
into this Lease and by proper corporate action has been duly
authorized to execute and deliver this Lease.
(ii) Neither the execution and delivery of this
Lease, the consummation of the transactions contemplated hereby,
nor the fulfillment or compliance of the terms and conditions of
this Lease, conflict with or result in a breach of any of the
terms, conditions or provisions of any corporate restriction or
any agreement or instrument to which Tenant is now a party or by
which it is bound, or constitute a default under any of the
foregoing, or result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any of the '
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property or assets of Tenant under the terms of any instrument or
agreement.
(iii) Tenant intends to operate the Premises or to
cause the Premises to be operated to the expiration or sooner
termination of the Term as provided herein for the manufacture of
such products as Tenant may deem appropriate.
(iv) Tenant will hire and employ on the Premises
approximately 60 to 70 employees during the first year of its
occupancy of the Premises. Tenant will hire and employ on the
Premises approximately 90 to 100 employees within two to three
years of its occupancy of the premises.
(v) Tenant projects paying an average wage for
all employees that it employs on the Premises to be $12 .80 an
hour and $9 . 13 per hour excluding salaried, managerial/supervisor
positions.
(vi) Tenant will invest $2. 14 million in equipment
and improvements to the Premises, will invest in and maintain
approximately $3 million in inventory on the Premises and expects
to have invested approximately $3.5 million in accounts
receivable as the result of its operations on the Premises.
(vii) It is anticipated that local (1%) sales tax
revenue of approximately. $220,000 will be paid by Tenant by the
conclusion of the first year of its occupancy of the Premises and ,.
that these sales tax revenues paid are projected to increase to
$340,000 by the conclusion of the second year of its occupancy of
the Premises and $400,000 by the conclusion of its third year of
occupancy of the Premises.
4. Maintenance and Modifications.
a. Tenant agrees that during the Term it will, at its
own expense, except as to rent set-offs expressly provided for in
this Lease, (i) keep the Premises in reasonably safe condition
and (ii) keep the building and all other improvements forming a
part of the Premises in good repair and in good operating
condition, making from time to time all necessary repairs thereto
(including external and structural repairs) and renewals and
replacements thereof. Tenant may, also at its own expense, make
from time to time any additions, modifications or improvements to
the Premises it may deem desirable for its business purposes that
do not adversely affect the structural integrity of any buildings
or structures located on the Premises or substantially reduce the
value of the Premises; provided that all such additions,
modifications and improvements to the Premises shall be located
wholly within the boundary lines of the Premises. All such
additions, modifications and improvements so made by Tenant shall
become a part of the Premises; provided that any item of personal
property, machinery, equipment, furniture or fixture installed by
Tenant for its business purposes without expense to Landlord
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which does not constitute a part of the Premises, may be removed
by Tenant at any time and from time to time while Tenant is not
in default under this Lease; and provided further, that any
damage to the Premises occasioned by such removal shall be
repaired by Tenant at its own expense. Tenant will not permit
any mechanics' lien, security interest or other encumbrance to
remain against the Premises for labor or materials furnished in
connection with any additions, modifications, improvements,
repairs, renewals or replacements so made by it; provided, that
if Tenant shall first notify Landlord of its intention so to do,
Tenant may in good faith contest any mechanics' or other liens
filed or established against the Premises, and in such event may
permit the item so contested to remain undischarged and
unsatisfied during the period of such contest and any appeal
therefrom unless Landlord shall notify Tenant that, in the
opinion of independent counsel, by nonpayment of any such items,
Landlord's title to the Premises will be materially endangered or
the Premises or any part thereof will be subject to loss or
forfeiture, in which event Tenant shall promptly pay and cause to
be satisfied and discharge all such unpaid items. Landlord will,
at the expense of Tenant, cooperate fully with Tenant in any such
lien contest.
5. Taxes. Assessments and Utilities. Tenant will promptly
pay, as the same become due, all taxes and other government
charges of any kind whatsoever that may at any time be lawfully
assessed or levied against or with respect to the Premises or any
interest therein or any machinery, equipment or other property
installed or located on the Premises, including all ad valorem
taxes lawfully assessed. Tenant will promptly pay, as the same
become due, all utility and other charges incurred in the
operation, maintenance, use, occupancy and upkeep of the Premises
and all assessments and charges lawfully made by any governmental
body for public improvements that may be secured by lien on the
Premises; provided that with respect to special assessments or
other governmental charges that may be lawfully paid in
installments over a period of years, Tenant shall be obligated to
pay only such installments as are required to be paid during the
Term.
At the commencement of this Lease the Premises will be owned
by Landlord and will thereafter, on January 1, 1998, be exempt
from ad valorem property taxes as provided in Article V, Section
2(3) of the North Carolina Constitution and North Carolina
General Statutes- 5 105-278. 1. During the Term, Tenant agrees to
make payments to Landlord and to any municipality in which the
Premises .is located, in lieu of taxes, in amounts equivalent to
the amount of property tax that would be lawfully assessed if the
Premises were taxable -by Landlord and any municipality in which
the Premises is located. This agreement to make payments in lieu
of taxes in amounts equivalent to the amount of property tax that
would otherwise be lawfully assessed is to eliminate the
competitive advantage accruing to Tenant, a profit-making
° enterprise, from the use for profit of Landlord's tax exempt
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property. Payments in lieu of ad valorem taxes as provided
herein shall be made to Landlord and to any municipality in which
the Premises is located on or before December 31, 1998 and
December 31 of each year thereafter during the Term. Tenant
agrees that the valuation of the Premises shall be made by
Landlord's Tax Assessor according to the Schedule of Values
adopted by Landlord from time to time and that the determination
of the true value in money of the Premises shall be made by
Landlord's Tax Assessor.
Tenant may, at its expense, in good faith, contest any such
taxes, assessments and other charges and, in the event of any
such contest, may pay the taxes, assessments or other charges
under protest during the period of such contest and any appeal
therefrom. To the extent that enforcement of the payment of any
such taxes, assessments and other charges in the event of any
contest are legally stayed during the period of such contest,
such taxes, assessments and other charges may remain unpaid
during the period of such contest and any appeal therefrom.
6. Insurance Required. During the Term, Tenant shall keep
the Premises continuously insured against such risks as are
customarily insured against by businesses of like size and type,
paying as the same become due all premiums in respect thereto,
including but not necessarily limited to (i) insurance to the
extent of the full insurable value of any improvements located on
the Premises against loss thereto from or damaged by vandalism,
fire and flood, with the deductible amount not exceeding $25,000,
with uniform standard extended coverage endorsement limited only
as may be provided in the standard form of extended coverage
endorsement at the time in use in North Carolina, and (ii)
insurance against liability for injuries to or death of any
person or damage to or loss of property arising out of or in any
way relating to the condition of the Premises or any portion
thereof, in the minimum amount of a combined single limit of $1
million for death of or personal injury to any one person and for
all personal injuries and deaths resulting from any one accident
and for property damage in any one accident. Landlord, its
officers and employees, shall be named as additional insureds in
the insurance contracts providing for liability insurance.
In the event of a loss, the net proceeds of the extended
coverage insurance shall be received by Tenant and shall be paid
and applied as provided in Paragraph 7, relating to damage,
destruction and condemnation. All insurance required in this
Lease shall be taken out and maintained in generally recognized,
responsible insurance companies qualified to do business in the
State of North Carolina selected by Tenant. All policies
evidencing such insurance shall provide for payment to Tenant and
Landlord as their respective interests may appear. A certificate
or certificates of the insurers that such insurance is in force
and effect shall be delivered to Landlord. Prior to the
expiration of any such policy, Tenant shall furnish Landlord with
evidence satisfactory to Landlord that 'the policy has been
8
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renewed or replaced. The insurance herein required may be
contained in blanket policies now or hereafter maintained by
Tenant. In the event Tenant shall fail to maintain the full
insurance coverage required by this Lease or shall fail to keep
the Premises in as reasonably safe condition as its operating
condition will permit, or shall fail to keep the structures
located on the Premises in good repair and good operating
condition, Landlord may, but shall be under no obligation to,
take out the required policies of insurance and pay the premiums
or make the required repairs, renewals and replacements. All
amounts so advanced therefore by Landlord shall become additional
rent, which amounts, together with interest thereon at the rate
of ten percent ( 10%) per annum from the date thereof, shall be
paid by Tenant upon demand by Landlord.
7 . Damage, Destruction and Condemnation.
a. If any structure located on the Premises is
destroyed (in whole or in part) or is damaged by fire or other
casualty to such extent that the claim for loss, under the
insurance policies required to be carried by this Lease,
resulting from such destruction or damage is not greater than
$100,000, Tenant (i) will promptly repair, rebuild or restore the
property damaged or destroyed to substantially the same condition
as it existed prior to the event causing such damage or
destruction, with such changes, . alterations and modifications
(including the substitution and addition of other property) as
may be desired by Tenant and as will not impair operating unity
or productive capacity or the character of the Premises as a
manufacturing plant, and (ii) will apply for such purpose so much
as may be necessary of any Net Proceeds of insurance resulting
from such claims for losses, as well as any additional moneys of
Tenant necessary therefor. All Net Proceeds of insurance
resulting from such claims for losses not in excess of $100,000
shall be paid to Tenant.
If the Premises is destroyed (in whole or in part) or is
damaged by fire or other casualty to such extent that the claim
for loss under the insurance policies required to be carried by
this Lease hereof resulting from such destruction or damage is in
excess' of $100,000, Tenant shall promptly give written notice
thereof to Landlord. All Net Proceeds of insurance resulting
from such claims for losses in excess of $100,000 shall be
received by Tenant, in trust, and applied by Tenant promptly to
repair, rebuild or restore the portion of the Premises damaged or
destroyed to substantially the same condition as it existed prior
to the event causing such damage or destruction, with such
changes, alterations and modifications (including the
substitution and addition of other property) as may be desired by
Tenant and as will not impair operating unity or productive
capacity or the character of the Premises as a manufacturing
plant. In the event said Net Proceeds are not sufficient to pay
in full the costs of such repair, rebuilding or restoration,
Tenant will nonetheless complete the work thereof and will pay
9
21.
that portion of the costs thereof in excess of the amount of said
Net Proceeds. Any balance of such Net Proceeds remaining after
payment of all the costs of such repair, rebuilding or
restoration, upon concurrence of Landlord, that repair,
rebuilding or restoration complies with the requirements of this
paragraph, are released from the trust created here and shall be
paid to Landlord and Tenant as their interests shall appear.
If the structures on the Premises shall have been damaged or
destroyed (i) to such extent that, in the opinion of an
Independent Engineer expressed in a certificate filed with
Landlord, it cannot be reasonably restored within a period of six
consecutive months to. the condition thereof immediately preceding
such damage or destruction, or (ii) to such extent that, in the
opinion of an Independent Engineer expressed in a certificate
filed with Landlord, the Tenant is thereby prevented from
carrying on its normal operations for a period of six consecutive
months, or (iii) to such extent that the cost of restoration
thereof would exceed by $100,000 the Net Proceeds of insurance
carried thereon pursuant to the requirements of this Lease, this
Lease shall terminate and the proceeds of such insurance shall be
paid to Landlord- and Tenant as their interests shall appear.
b. In the event that title to, or the temporary use
of, the Premises or the leasehold estate of" Tenant in the
Premises created by this Lease or any part of either thereof
shall be taken under the .exercise of the power of eminent domain
by any governmental body or by any person, firm or corporation
acting under governmental authority, Tenant shall be obligated to
continue to make the rental and all other payments required by
this Lease. Landlord and Tenant will cause the Net Proceeds
received by them or either of them from any award made in such
eminent domain proceedings, to be paid to Landlord to be held by
Landlord in trust to be applied in one or more of the following
ways as shall be directed in writing by Tenant:
(i) The restoration of the improvements located
on the Premises to substantially the same condition as they
existed prior to the exercise of the said power of eminent
domain.
(ii) The acquisition, by construction or
otherwise, by Landlord of other improvements suitable for
Tenant's operations on or adjacent to the improvements taken by
eminent domain, which other improvements shall be deemed a part
of the Premises and available for use and occupancy by Tenant
without the payment of any rent other than as herein provided to
the same extent as if such other improvements were specifically
described herein and demised hereby.
(iii) Held in trust in the event that Tenant shall
furnish to Landlord a certificate of an Independent Engineer
acceptable to Landlord stating (i) that the property forming a
part of the Premises that was taken by such condemnation'
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proceedings is not essential to Tenant's use or occupancy of the
Premises, or (ii). that the Premises has been restored to a
condition substantially equivalent to its condition prior to the
taking by such condemnation proceedings or (iii) that
improvements have been acquired which are suitable for Tenant's
operations at the Premises as contemplated herein.
Within ninety days from the date of entry of a final order in any
eminent domain proceedings granting condemnation, Tenant shall
direct Landlord in writing as to which of the ways specified
herein Tenant elects to have the condemnation award applied. Any
balance of the Net Proceeds of the award in such eminent domain
proceedings shall be paid to Landlord and Tenant, as ther
interests may appear.
If title to, or the temporary use of, all or substantially
all the Premises shall have been taken under the exercise of the
power of eminent domain by any governmental authority, or person,
firm or corporation acting under governmental authority,
including such a taking or takings as results, in the opinion of
an Independent Engineer expressed in a certificate filed with
Landlord in Tenant being thereby prevented from carrying on its
normal operations therein for a period of four consecutive
months, this Lease shall terminate and the Net Proceeds of such
condemnation proceedings shall be paid to Landlord and Tenant as
their interests shall appear.
Landlord shall cooperate fully with Tenant in the handling
and conduct of any prospective or pending condemnation
proceedings with respect to the Premises or any part thereof and
will, to the extent it may lawfully do so, permit Tenant to
litigate in any such proceeding in the name and behalf of
Landlord. In no event will Landlord voluntarily settle, or
consent to the settlement of, any prospective or pending
condemnation proceeding with respect to the Premises or any part
thereof without the written consent of Tenant.
Tenant shall be entitled to the Net Proceeds of any
condemnation award or portion thereof made for damages to or
takings of its own property not included in the Premises,
provided that any Net Proceeds resulting from damages to or
taking of all or a portion of the leasehold estate of Tenant in
the Premises created by this Lease 'shall be paid and applied in
the manner provided herein.
8. Granting of Easements. If no event of default shall
have happened and be continuing, Tenant may at any time or times
grant easements, licenses, rights of way (including the
dedication of public highways) and other rights or privileges in
the nature of easements with respect to the Premises, or Tenant
may release existing easements, licenses, rights of way and other
rights or privileges with or without consideration, and Landlord
agrees that it shall execute and deliver any instrument necessary
or appropriate to confirm and grant or release any such easement,
license, right of way or other right or privilege upon receipt
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of: (i) a copy of the instrument of grant or release; (ii) a
written application signed by a vice president of Tenant
requesting such instrument; and (iii) a certificate executed by a
vice president of Tenant stating ( 1) that such grant or release
is not detrimental to the proper conduct of the business of
Tenant, and (2) that such grant or release will not impair the
effective use or interfere with the operation of, or adversely
affect the title of Landlord to, the Premises.
9 . Release and Indemnification Covenants. Tenant releases
Landlord from and covenants and agrees that Landlord shall not be
liable for, and to indemnify and hold Landlord harmless against,
any loss or damage to property or any injury to or death of any
person occurring on or .bout or resulting from any defect in the
Premises or improvements located on the Premises, provided, that
the indemnity provided in this sentence shall be effective only
to the extent of any loss that may be sustained by Landlord in
excess of the Net Proceeds received from any insurance required
in this Lease with respect to the loss sustained, and provided
further, that the indemnity shall not be effective for damages
that result from wanton negligence or intentional acts on the
part of Landlord: To this end, Tenant will provide for and
insure, in the public liability policies required in this Lease,
not only its own liability in respect of the matters there
mentioned but also the liability herein assumed.
Whenever under the provisions of this Lease the approval of
Tenant is required or Landlord is required to take some action at
the request of Tenant such approval or such request shall be made
by the Authorized Tenant Representative whose name is
, unless otherwise specified in this
Lease and Landlord shall be authorized to act on any such
approval or request and Tenant shall have no complaint against
Landlord as a result of any such action taken.
10. Assignment Subleasing, Mortgaging and Selling.
a. This Lease may be assigned in whole or in part,
and the Premises may be subleased as a whole or in part, by
Tenant without the necessity of obtaining the consent of
Landlord, subject, however, to each of the following conditions:
(i) no assignment shall relieve Tenant from primary liability for
any of its obligations hereunder, and in the event of any such
assignment Tenant shall continue to remain primarily liable for
payment of the rents specified herein and for performance and
observance of the other covenants, warranties, representations
and agreements on its part herein provided to be performed and
observed by it to. the same extent as though no assignment had
been made; (ii) the assignee or subtenant shall assume the
obligations of Tenant hereunder to the extent of the interest
assigned or subleased; (iii) Tenant shall, within thirty days
after the delivery thereof, furnish or cause to be furnished to
Landlord a true and complete copy of each such assignment,
assumption of obligations and sublease, as the case may be.
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b. Landlord may mortgage the Premises and may assign its
interest in this Lease and any moneys receivable under this Lease
as security for payment of the principal of and interest on any
installment debt or other debt of Landlord, subject, however, to
be rights of Tenant under this Lease.
Landlord agrees that, except as set forth in this Paragraph
10 of this Lease, it will sell, convey, mortgage, encumber or
otherwise dispose of any part of the Premises during the Lease
Term as provided in Paragraph 2 of this Lease.
C. Tenant may from time to time, in its sole discretion
and at its own expense, install machinery and equipment in the
structures or otherwise on the Premises. All machinery and
equipment so installed by Tenant shall remain the sole property
of Tenant. It may be modified or removed at any time while
Tenant is not in default hereunder and shall not be subject to
lien but all such machinery and equipment shall be subject to any
landlord's lien allowed by law. Nothing contained in this
Paragraph shall prevent Tenant from purchasing machinery and
equipment on conditional sale contract or lease sale contract, or
subject to vendor's lien or purchase money mortgage, as security
for the unpaid portion of the purchase price thereof, and each
such conditional sale contract, lease sale contract, vendor's
lien and purchase money mortgage made by Tenant with respect to
machinery and equipment purchased by it under the provisions of
this Paragraph shall, if . appropriate financing statements are
duly filed for record in the manner and places required by the
North Carolina Uniform Commercial Code simultaneously with or
prior to the installation at the Premises of the machinery and
equipment covered thereby, be prior and superior to any
landlord's lien. Tenant agrees to pay as due the purchase price
of and all costs and expenses with respect to the acquisition and
installation of any machinery and equipment installed by it
pursuant to this Paragraph.
11. Events of Default and Remedies.
a. The following shall be "events of default" under
this Lease and the terms "event of default" or "default" shall
mean, whenever they are used in this Lease, any one or more of
the following events:
(i) Failure by Tenant to pay the rents required
to be paid at the times specified and (1) continuation of said
failure for a period of five days after notice by mail given to
it by Landlord that the rent referred to in such notice has not
been received or (2) continuation of said failure for a period of
fifteen days.
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(ii) Failure by Tenant to observe and perform any
covenant, condition or agreement on its part to be observed or
performed, other than as referred to in subsection (i) of this
Paragraph, for a period of thirty days after written notice,
specifying such failure and requesting that it be remedied, given
to Tenant by Landlord, unless Landlord shall agree in writing to
an extension of such time prior to its expiration.
(iii) The dissolution or liquidation of Tenant or
the filing by Tenant of a voluntary petition in bankruptcy, or
failure by Tenant promptly to lift any execution, garnishment or
attachment of such consequence as will impair its ability to
carry on its operations at the Premises, or the commission by
Tenant of any act of bankruptcy, or adjudication of Tenant as a
bankrupt, or assignment by Tenant for the benefit of its
creditors, or the entry by Tenant into an agreement of
composition with its creditors, or the approval by a court of
competent jurisdiction of a petition applicable to Tenant in any
proceeding for its reorganization instituted under the provisions
of the Bankruptcy Act, as amended, or under any similar act which
may hereafter be enacted. The term "dissolution or liquidation
of Tenant, " as used in this subsection, shall not be construed to
include the cessation of the corporate existence of Tenant
resulting either from a merger or consolidation of Tenant into or
with another corporation or a dissolution or liquidation of
Tenant following a transfer of all or substantially all of its
assets as an entirety.
The foregoing provisions of this Paragraph are subject to
the following limitations: If by reason of force majeure Tenant
is unable in whole or in part to carry out its agreements on its
part herein contained, other than the obligations on the part of
Tenant contained in Paragraphs 3, 5, 6 and 9 hereof, Tenant shall
not be deemed in default during the continuance of such
inability. The term "force majeure" as used herein shall mean,
without limitation, the following: Acts of God, strikes,
lockouts or other industrial disturbances; acts of public
enemies; orders of any kind of the government of the United
States or of North Carolina or any of their departments,
agencies, or officials, or any civil or military authority;
insurrections; riots; epidemics; landslides; lightning;
earthquake; fire; hurricanes; storms; floods; washouts; droughts;
arrests; restraint of government and people; civil disturbances;
explosions; breakage or accident to machinery; transmission pipes
or canals; partial or entire failure of utilities; or any other
cause or event not reasonably within the control of Tenant.
Tenant agrees, however, to remedy with all reasonable dispatch
the cause or causes preventing Tenant from carrying out its
agreements; provided, that the settlement of strikes, lockouts
and other industrial disturbances shall be entirely within the
discretion of Tenant, and Tenant shall not be required to make
settlement of strikes, lockouts and other industrial disturbances
by acceding to the demands of the opposing party or parties when
such course is in the judgment of Tenant unfavorable to Tenant.
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b. Whenever any event of default referred to in this
Lease shall have happened and be subsisting, Landlord may take
any one or more of the following remedial steps:
(i) Landlord may, at its option, declare all
installments of rent payable for the remainder of the Lease Term
to be immediately due and payable, whereupon the same shall
become immediately due and payable.
(ii) Landlord may re-enter and take possession of
the Premises without terminating this Lease, and sublease the
Premises for the account of Tenant, holding Tenant liable for the
difference in the rent and other amounts payable by such
subtenant in such subleasing and the rents and other amounts
payable by Tenant hereunder.
(iii) Landlord may terminate the Lease Term,
exclude Tenant from possession of the Premises and use its best
efforts to lease the Premises to another for the account of
Tenant, holding Tenant liable for all rent and other payments due
up to the effective date of such leasing.
(iv) Landlord may take whatever action at law or
in equity may appear necessary or desirable to collect the rent
and any other amounts payable by Tenant hereunder, then due and
thereafter to become due, or to-enforce performance and
observance of any obligation, agreement or covenant of Tenant
under this Lease.
Any amounts collected pursuant to action taken under this
subparagraph shall be applied to the account of Tenant.
C. No remedy herein conferred upon or reserved to
Landlord is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given
under this Lease or now or hereafter existing at law or in equity
or by statute. No delay or omission to exercise any right or
power accruing upon any default shall impair any such right or
power or shall be construed to be a waiver thereof, but any such
right and power may be exercised from time to time and as often
as may be deemed expedient. In order to entitle Landlord to
exercise any remedy reserved to it, it shall not be necessary to
give any notice, other than such notice as may be herein
expressly required.
d. In the event Tenant should default under any of
the provisions of this Lease and Landlord should employ attorneys
or incur other expenses for the collection of rent or the
enforcement of performance or observance of any obligation or
agreement on the part of Tenant herein contained, Tenant agrees
that it will on demand therefor pay to Landlord the reasonable
fee of such attorneys and such other expenses so incurred by
Landlord.
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e. In the event any agreement contained in this Lease
should be breached by either party and thereafter waived by the
other party, such waiver shall be limited to the particular
breach so waived and shall not be deemed to waive any other
breach hereunder.
12 . Notices. All notices, certificates or other
communications hereunder shall be sufficiently given and shall be
deemed given when mailed by registered mail, postage prepaid,
addressed as follows: If to Landlord, at 200 S. Cameron Street,
Hillsborough, North Carolina 27278; if to Tenant, at
, Attention of
Landlord and Tenant may by notice given
hereunder, designate any further or different address to which
subsequent notices, certificates or other communications shall be
sent.
13 . Binding Effect. This Lease shall inure to the benefit
of and shall be binding upon Landlord, Tenant and their
respective successors and assigns, subject, however, to the
limitations contained herein.
14. Severabilitv. In the event any provision of this Lease
shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
15. Amendments, Changes and Modifications. Except as
otherwise provided in this Lease, it may not be effectively
amended, changed, modified, altered or terminated without the
written consent of Landlord and Tenant.
16 . Execution Counterparts. This Lease may be executed in
several counterparts, each of which shall be an original and all
of which shall constitute but one and the same instrument.
17 . Net Lease. This Lease shall be deemed and construed to
be a "net lease, " and Tenant shall pay absolutely net during the
Lease Term the rent and all other payments required hereunder,
free of any deductions, without abatement or set-off other than
those herein expressly provided.
IN WITNESS WHEREOF, Landlord and Tenant have caused this
Lease to be executed in their respective corporate names and
their respective corporate seals to be hereunto affixed and
attested by their duly authorized officers, all as of the date
first above written.
ORANGE OF ORANGE, NORTH CAROLINA
By:
Moses Carey, Jr. , Chair
Board of Commissioners
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ATTEST:
[SEAL]
Beverly A. Blythe, Clerk to
the Board of Commissioners
BUILDERS' SUPPLY & LUMBER COMPANY, INC.
By.
President
ATTEST:
[SEAL]
Secretary
NORTH CAROLINA
ORANGE COUNTY
I, a notary public of the County and State aforesaid,
certify that Beverly A. Blythe personally came before me this day
and acknowledged that she is Clerk to the Board of Commissioners
for Orange County and that by authority duly given and as the act .
of said County, the foregoing instrument was signed in its name
by the Chairman of said Board of Commissioners and attested by
her as Clerk to said Board of Commissioners.
Witness my hand and official stamp or seal, this the
day of , 1996 .
Notary Public
My commission expires:
STATE OF
COUNTY OF
I, a notary public in and for said county and state do
certify that personally came
before me this day and acknowledged that _he is the
secretary of BUILDERS' SUPPLY & LUMBER COMPANY, INC. , and that by
authority duly given and as the act of the corporation, the
foregoing instrument was signed in its name by its
President, sealed with its corporate seal, and attested by
as its Secretary.
17
29
Witness my hand and notarial seal this the day of
1996 .
Notary Public
My commission expires:
lsg-6
builders.lea
18
} .
30
Exhibit A
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- ##1
I
f
$'t
i
"�i.Isaorouen„_,_, Count oE..........Axaxx e..........._State of.....Ya=.th_Car.oU=a
L,ocatcd in the City or Town of y $.
3yGZ\,=G at a concrete monument on the East,right'of way line of Southern Railway'
Company (where said East right of way line intersects with the Norm right of,way line
of Interstate Highway #85), running thence with the East side of the Southern Railway
right of way 'orth ZI deg, 31 min. 30 sec. West 682,65 feet to an iron stake; thence
continuing with the Railroad right of way North 19 deg. 28 min. 10 sec. :Pest 334. 15 j
feet to an iron stake; thence North 9,deg. 32 min. 20 sec, East Z97.50 feet to an iron
• stake in Duke ?ower Company right of way; thence with said right of way South 62 deg, '
53 mia. 50 sec. East 325.53 feet to an iron stake; thence along the West side of Cates #
I Creek the Poll-owing courses and distances: South Z5 deg. 05 min. East 139.68 feet; i
South 35 deg. 44 min. East 371.77 feet; South 22 deg. 03 min. East 95.79 feet; South
46 deg. 04 .—.sin. East 1,20. 16 feet; South 58 deg. 47 min. East 120.59 feet; South ZZ
deg. 45 min. East 74.75.feet; Souuz 32 deg. 57 min. 40 sec. West 315.93 feet to an
.roa stake on :'re 'North right of way line of interstate highway 785; thence wita said'
interstate Highway 485 right of way South 73 deg. 35 min. West 350.60 feet to the place
and point o:aeg-.r%ing, .containing 12.90 acres, according to survey of Property of
Valley r'orge, Lnc., survey of Joan B. Pridgen, Jr., Registered Engineer, dated June
Z1. 1971.
\ 4j1;i� r�
Bom 238
31 ,
4 • tl
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Exhibit B
DECLARATION 451-1
RE:
B—rN r ICL4L INTEREST_ OF THE COUNTY OF ORANGE, NORTH CAROLINA
IN AN INDUSTRIAL PROS_CT
4
The undersigned, T L^IDUSTRIAL DEVELOPMENT CORPORATION I-1
TIM COUNTY OF ORANGE NORTH CAROLLVA a North Carolina. nonprofit
corporation (the "Corporation"), hereby makes the following declara-
tion in favor of the COUNTY OF ORANGE, NORTH CAROLINA (the "County")
for the purpose of giving public notice of the beneficial interest
of the County in an industrial project.
1. The Corporation is the owner in fee simple of the
real estate described in Ex_h±bit A attached hereto anal made a part
hereof (the "Land") ,
2. Concurrently with the execution and delivery of this '
Declaration the Corporation is issuing its First Mortgage Bonds
(the'"Bond's") for the purpose of financing the construction and
acquisition of an industrial project (the "Project") which is being
constructed on the Land. The Bonds are being issued under and
secured by a Mortgage and Indenture of Trust dated as of October i
1972 from the Corporation to State ciational Bank of
Aipbama , as Trustee. The rrojecZ pas Been leased to va ey
rorge orporatlon-under and pursuant to the terms of a Lease Agree-
ment dated October 1 , 1972 for rentals sufficient to Pay
the prir_cipa , interesT,--aln-T premium, if any, on the Bonds.
3. The Articles of Incorporation and the By-Laws of the
Corporation provide that after the Bonds are fully paid the Corpora-
tion shall tender the Land and the Project to the County by gift so
that the County may acquire the Land and the Project without any
consideration_ on its part and free and clear of liens thereon (except,
for the then existirg' rights of Valley Forge Corporation, or its
successors or assigns under the Lease Agreement).
4. Ln furtherance of the foregoing the Corporation is
delivering to the Bond Trustee concurrently herewith its duly executed
Warranty Deed to the County .covering the Land and the Project with
Irrevocable instructions to deliver such Deed to the County upon the
payment in full of the Bonds, at which time the conveyance of the
Land and the Project to the County shall become effective.
IN '+FITNESS ',.-MREOF THE INDUSTRLAL D_FVELOPNCNT CORPORATION
IN THE COUNTY OF ORA�7GEE, `tORTH'CAROLINA has caused this Declaration )
to be signed on its behalf, in its corporate name, by its President
or one of its Vice Presidents, and its corporate seal to be hereunto
affixed and such seal to be attested by its Secretary or an Assistant
Secretary, all as of this lsc day of October 1972,
4�' • ' ' '' B•^ THE INDUSTRIAL DEV'ELOPME21T CORPORATION
IN THE COUNTY OF ORANGE, NORTH CAROLINA 11
._ �. By
A,% eres-idenz.
'SEAL)
• Attea*,:
233
Secretary
16
F•'
32
STATE OF NORTH CAROLINA
SS =:
COUNTY OF ORANGE
This ZOLh. day of Nicvember , 1972, personally came
before me T .- ;l.,. 3, n,.-, , a c otary Public in and for said
State, duly commissions and sworn, Pau'_ R. .rho,
being by me duly sworn, says that he. ti-Ows tae coon sea_ o_ I._e
Industrial Development Corporation. 1—n the County of Ora*_ge, North
Carolina, and is acquainted with ; Gtz--� C_rL.'-erg Jr. who
is the president of said corporation, and that he, tae sal
is the secretary of the said corpora-
tion, and saw the said president sign. the foregoing instrument, and
that he, the said -d_' 3. :!:i:n9 , secretary as aforesaid,
affixed said seal to saiinstrument, and *hat he, the said
r n"! ;�i.;,.., , signed his name in attestation of the execution of said instrument in the i.rese nca of sai d president of
said corporation_.
Witness my hard and official seal, this the 2OLS, day
of November 1972.
NOTARY PUBLIC !j
X(3EAL);
� ;y�'�1 t+�jiT cosmi'asion expires: Apr+? 30, 1976
F
�• STATE OF NORTH CAROLINA—ORANGE COUNTY _
Lucille B. 4ay
• i THE FOREGOING CERTIFICATE�Xf Of FILED
A MOTARY aUB�IC Of THE OE51GNATEO GOVERN+n E N T A I UNITS It
S<t C_RTIf IEO TO
CORRECT /III
21stl'orenbe^ _z_,g?Z �'QYZS 2 :'► 7Z
THIS THE OAY Of
BETTY,UNE HAY ES,REGISTER OF OFEOS ®r: -GEi;Y;USE HAYcS
A --;oeFUrY REGISTEII GF DEEOS
Cr « C REGISTER OF OEEOS QIiAlIO: COUNTY,4.C.
j RETURN'
r
Exhibit C 33
This Instrument Prepared By:
L. Philip McClendon, Esquire
Georgia-Pacific Corporation
133 Peachtree Street, N.E.
Atlanta, Georgia 30303
LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT
This Lease Assignment and Assumption Agreement made this
4th day of January, 1988, between U.S. Plywood Corporation, a
Delaware corporation ("Assignor") and Georgia-Pacific Corporation,
a Georgia corporation ("Assignee") .
W I T N E S S E T H
WHEREAS, in a lease dated October 1, 1972, recorded in
Book 238, Page 2007, Orange County Registry ("Original Lease
Agreement") , The Industrial Development Corporation in the County
of Orange, North Carolina leased certain land, buildings,
machinery and equipment to Valley Forge Corporation, a Georgia
corporation ("VF") ;
WHEREAS, in an unrecorded Assignment of Lease, dated
October 24, 1973, VF assigned all its right, title and interest in
the Original Lease Agreement .to Lexington Homes, Inc. ("LH") ;
WHEREAS, the Original Lease Agreement was amended by a
First Supplemental Lease Agreement, recorded in Book 255, Page
1087, Orange County Registry and Second Supplemental Lease
Agreement which included an assignment, of the lease, as amended,
from LH and VF to Champion International Corporation, recorded in
Book 258, Page 1865, Orange County Registry (which hereinafter,
the Original Lease Agreement and all amendments thereto are
collectively referred to as the "Lease") ; and
WHEREAS, in an Assignment of Lease, dated August 28, 1985
and recorded in Book 537, Page 228, Orange County Registry,
Champion International Corporation and Champion Warehouse
Properties, Inc. assigned all its right, title and interest in the
Lease to Assignor.
WHEREAS, u. S. PLYWOOD CORPORATION, Assignor herein has
adopted a Plan of Complete Liquidation, has filed a statement of
intent to dissolve with the Secretary of State of Delaware, and is
in the process of winding up its business and affairs;
WHEREAS, Assignor is a wholly-owned subsidiary of
GEORGIA-PACIFIC- CORPORATION, Assignee; and
WHEREAS, The parties desire to liquidate and forever
discontinue the existence of Assignor as a separate entity and to
place the assets now standing in the name of the Assignor into the
name of the Assignee.
34
NOW, THEREFORE, for good and valuable consideration,
receipt of which is hereby acknowledged, Assignor does hereby
sell, assign, transfer and set over to Assignee all of Assignor's
rights, title and interest under and pursuant to the Lease.
Assignee hereby accepts the above assignment and
specifically assumes, effective as of the date hereof, the
obligations of the Assignor under the Lease and agrees to be bound
by the terms and provisions thereof to the same extent, as if the
Assignee had been made a party thereto in the place and stead of
the Assignor.
IN WITNESS WHEREOF, the parties hereto have entered into
this Lease Assignment as of the date set out above.
ASSIGNOR: U.S. !� D/�CORP•ORATION
BY� ,t�iLrn-rcc.f!
George A. MacConnell
Senior Vice President
ASSIGNEE: GEORG_Y ,PACI,FIC PRPORATION
George A. MacConnell
Senior Vice President
Building Products
Manufacturing Division
. i