HomeMy WebLinkAbout1997 S Purchasing - Builders Supply lease agreement Return to : Geoff( E . Gledhill , P . O . Drawer 1529 ( llsborough , NC 27278
NORTH CAROLINA
ORANGE COUNTY
THIS LEASE AGREEMENT made and entered into as of • the 3rd
day of June 19 97 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 Michigan corporation having its principal office in
Fredrick , Maryland , 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 it.s
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 § 158 - 7 . 11
. . . . . . . . followa:.ng. ...publ. ication... . of . . .not .i. ce. . o .f. . . . 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 ;
20 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
occupancy of the Premises . Specifically , it will invest $ 2 . 14
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million in equipment and improvements to the Premises , $ 3 million
in in 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 : ( 1 ) 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 - pa-i: d . 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 ; Right 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
business is located in Orange County , North Carolina , and is
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presently leased by Georgia - Pacific Corporation , a Georgia
corporation , whose principal place of business Os is 133 Peachtree
Street , N . E . ; Atlanta , Georgia 30303 , pursuant to an unrecorded
Lease Assignment and Assumption Agreement , a copy of which is
Exhibit D .
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. . . . b-e . . . .deliver.ed .. .. .to. . . . Landlor. d. . . .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 , 2007 ,
subject for the provisions of this Lease including particularly
Paragraph .-. 11 hereof . This Lease shall , upon the expiration of
the originals term , be automatically renewed or extended for not
exceeding twos 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 Landlord and
Tenant . When used herein , the original term and the additional
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term or additional 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 RO.FR 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 Land-lord. . 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 . In the event that Tenant
fails to exercise this option as provided herein , and Landlord
does not close the sale of the Premises substantially in
accordance with the terms of the ROFR Notice , Tenant ' s right of
first 'refusal shall remain in effect and Landlord shall not sell
the Premises* wlthout again submitting the terms of the proposed
sale to Tenant for Tenant ' s acceptance or approval in accordance
with the terms of this paragraph . •
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
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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
amount in default shall have been fully paid , and Tenant agrees
to pay the same with interest thereon at NationsBank ' s prime rate
plus 1 % per annum until paid . Rent payments shall , be made to
Landlord and shall be received on the due date at the Office of
Purchasing and Central Services 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 , which capital improvements , when completed , will
be permanently affixed to the Premises or to structures that are
on the Premises and will thereafter become a part of the
Premises • . For example but not by way of limitation , 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 , and it may be
necessary or appropriate to remodel the offices and bathrooms ,
make railroad spur improvements and connect the sanitary sewer
facilities to the public service provided by the Town of
Hillsborough . 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 , OOO . set off in any one year ;
provided , if Tenant expends more than $ 50 , 000 in one year , the
excess may be carried over and set off against rent in the
following
year s ) in- - all - +ca,ses subject . . to the" . . 1.imi .tatJ .on . .. . .tha .t . . .not. . . . .
more than $ 50 , 000 will be set off on any single year nor more
than $ 150 , 000 in the aggregate and no set offs will be taken
after the initial five years of the term .
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 Leas.e ; 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
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are covenants and the failure of Tenant to comply and remain in
compliance with them constitutes an event of default under this
Lease .
( 1 ) Tenant is a corporation duly incorporated
under the laws of and is in good standing in the State of
Michigan , 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 .
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
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 use its best efforts to
achieve a level of• business which enables Tenant to hire and
employ - on the - -Premises approximately. . . 9 .0 . . .to. . . . 10. .0 . . emp. loye. es . . . wi. thin. .
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 . 11 per hour excluding salaried , managerial / supervisor
positions .
( vi ) Tenant will invest $ 2 . 14 million in equipment
and improvements to the Premises , and will use its best efforts
to achieve a: level of business which enables Tenant to invest in
and to 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
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the Premises and $ 400 , 000 by the conclusion of its third year of
occupancy oe 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 ) keep4the 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 it's 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
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 s
connection with any additions , modifications , improvements ,
repairs , renewals * or - replacements so . . ma-d.e . by . ...i..t . ;. . . . .p.rovided , . . . . ..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 . i
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
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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 § 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
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
-L- andlord.., . s . Tax _ Assessor i . . . . . . . . . ._ _ . . . . . . . . . . . . . . . . . .
Tenax} t may , at its expense , in good faith , contest any such
imilar charges or the valuation on
taxes , assessments and other s
which the same are based , 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 . In
the event it is determined by Tenant and Landlord or by the
tribunal which ordinarily had jurisdiction that such tribunal
does not have jurisdiction or is otherwise not permitted to act
as a forum in consequence of the fact that Tenant ' s liability for
the tax is contractual rather than imposed by law , then either
party may submit a challenge to a tax , assessment or other
similar charge or valuation to arbitration by an arbitration
panel made up of MAI qualified / certified appraisers . 4Landlord
shall select one appraiser ; Tenant shall select one appraiser ;
the appraiser selected by Landlord and Tenant shall select a
third appraiser and the decision of the arbitration panel shall
be binding on both parties . 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
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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 , determined on October 1 of
each year of the Lease Term , 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 , 4 in the minimum amount of a combined single limit of $ 1
million fer 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
e�tdencng such insurance sha ll 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
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
NationsBank ' s prime rate plus 1 % per annum from the date thereof ,
shall be paid by Tenant upon demand by Landlord .
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7 . Damaae , 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 ( 1 ) 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 ..... . alt era t ores .. . .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
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 Tenant , except rent loss insurance proceeds which shall
be payable to Landlord . "
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
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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 at Tenant ' s election by written notice from
Tenant given within ninety ( 90 ) days after the date of the
casualty , and if Tenant so terminates , then the proceeds of such
insurance shall be paid to Landlord , provided , any insurance
proceeds payable in respect of business interruption or for
damage to the equipment , trade fixtures or inventory of Tenant
shall be payable to Tenant .
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 .
_..... . . ... . .. . . . . . . . . ... .......... . . . .......... ..( ..i.l..) . .. ..._The.._._acqui sit i .on........... by... .._._.cons t.ru � _on.. .._or . . ... . . . .. . .. . .._. . ............ .. .... .. .. . . . . . . . . . _ _ .
otherwise , by Landlord of other improvements suitable for
Tenant ' s operations on or adjacent to the improvements taken by
eminent domain , which other i
e mprovements 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 ( 1 ) that the property forming a
part of the Premises that was taken by such condemnation
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 ( Ill
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 of4the ways specified herein
• 11
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 their
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 at Tenant ' s election and in
the event of termination 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 j
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-. . .. . .a .y.l..... .ar..... . .a. ... .p.or.tion.... .o.f . _ the .... .1 .e.a. s..eho.ld . . ...es_t..a.t.e. .. . . .of .. . . . `z' enan.t... . .. n. . . . . . . . . . . . . .. .
the Premises created by this Lease shall be paid and applied in
the manner provided herein .
S . 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
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 .
12
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 about 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 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 * Kevin P .
Bruce , President , 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
_....... .. ......... .. ....._. . . . . ,.. .. ... ... .. ... . . . . . .. . . . . .... . . ... Mm
Landlord , subject , however, to each of the following conditions .
( 1 ) 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
44
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 *4 ( 11 ) 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 .
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
the rights of Tenant under this Lease .
13
f
Landlord agrees that , except as set forth in this Paragraph
10 of this Lease , it will not 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 . Provided , however , Tenant shall
promptly make , at its sole expense , any and all repairs to the
Premises or to the structures on the Premises necessitated by the
removal by Tenant of any such machinery and equipment . The need
for repairs shall be those reasonably determined to be necessary
by Landlord . Tenant shall notify Landlord upon the removal of
any such machinery and equipment to enable Landlord to inspect
the Premises to make a determination of the repairs , if any , to
be made to the Premises . 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.... ..pr o.r... . .an.d..... . s- per or _ . . to. .. . . any . .. ...landlord ..I. s_... . . l _en. . .. .. .. _.. .. .. . . . . . . . . _ . . __
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 .
( 1 ) 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 .
( 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
14
{
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 , or if the
default be of a nature that it is not reasonably susceptible to
being cured within thirty ( 30 ) days , the time to cure may be
extended by Landlord so long as Tenant is diligently attempting
to cure such default . Landlord shall not unreasonably withhold
agreement to extend the time period to cure .
( ii. i ) 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
ls .... . .unab.le.... . n . ... who.le..._.or. . . . ..1.n... pa.r.t... .. ..t. o... . ca-rry. ._. out .. . . .t.s . . .. agr..e.emen.t.s ._. _.o.n-._-.i _ts. __... .. . . . . .. . . . . . . . . .. . .. . . ... .. . ..... . .. .._
part herein contained , other than the obligations on the part of
Tenant ' contained in Paragraphs 3 . a . , b . , and c . , 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
15
by acceding to the demands of the opposing party or parties when
such course is in the judgment of Tenant unfavorable to Tenant . .
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
to4be 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 collect-ed. -.. .pur"scant to action taken .-....under ..... t- -rs - _.._ . .__ . . . .... . . . . .. . ._... .. .... . - . _ .. ..
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
or4by 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
16
that it will on demand therefor pay to Landlord the reasonable
fee of such. - attorneys and such other expenses so incurred by
Landlord .
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 Orange County , North
Carolina , Office of Purchasing and Central Services , Post Office
Box 8181 , Hillsborough , North Carolina 27278 , Attention of
Purchasing Director , if to Tenant , at 7490 New Technology Way ,
Fredrick , Maryland 21701 , Attention of President . 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 . Bindina 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 . Severability . 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_ . ... . _. ..44._Pnend ments_ -_.. . Chancres..---and--- Moth f ic-a..t-i-ens- ..... ... ... ...Except-.._.. a-s..._._. ._.. _... .... . _ .. .. . . ... .. .. . . . . . . . . .. . . . .. . . ... _.. . . .. .:
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 .
17
a
1
OF ORANGE_, NORTH CAROLINA
By :
William L . Crowther , Chair
Board of , Commissioners
ATTEST •
[ SEAL ]
everly A Blythe , C1 rk to
the Board of Commissioners
BUILDERS ' SUPPLY & LUMBER COMPANY , INC .
By "
President
ATTEST :
[ SEAL ]
s r Secretary
NORTH CAROLINA
ORANGE COUNTY
I , a notary public of the County and State aforesaid ,
. certify..... tha.t..._...Beveriy_ -A. :_-Blythe. .._ pe-rsona-l--�y- . . came-.. .bef-or.e......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 mar hand and official stamp or seal , this the
day of r1 tl� 19 .
Notary . Public
My commission expires .
f � 'R Aq
It
STATE OF
COUNTY OF
I , a notary p lic 1 ?3, a fc said county and state do
certify that /L.r'Y161 �" ����� personally came
18
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
Presiden sealed with its corpora e seal , and attested by
as its �IAkI Secretary .
Witness my hand and notarial seal this the day of
19 „4
otary Public
My commission expires * NAINCY 144 Gu4'�I3' nop
Notary P;;t;ii; O !;;hard Coli,,t3, P,St
Commission Expires Oct s, 1999
lsg - 9
builder2 . lea
19