Exhibit 10.8
L E A S E
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1400 WESTGATE ASSOCIATES,
L.L.C.
(Lessor)
and
BANK OF NORTH
CAROLINA
(Lessee)
TABLE OF
CONTENTS
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Paragraph
Number
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Subject
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Page
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1
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Construction of
Building and Tenant Improvements
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3
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2
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Lease
Term
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3
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3
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Rental
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4
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4
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Maintenance
Responsibilities
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5
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5
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Taxes &
Assessments
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5
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6
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Services by
Landlord
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5
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7
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Alterations
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6
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8
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Use and
Occupancy
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6
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9
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Insurance
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7
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10
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Fire or Other
Casualty
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8
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11
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Condemnation
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8
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12
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Condition at
Commencement and Termination
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9
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13
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Indemnity
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9
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14
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Quiet
Enjoyment
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9
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15
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Assignment and
Subletting
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10
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16
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Default
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10
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17
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Removal of
Lessee’s Property
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11
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18
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Notices
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12
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19
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No Identity of
Interest
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12
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20
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Entire
Understanding; Amendment
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12
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21
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Personal
Representatives, Successors and Assigns
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12
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22
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Law
Applicable
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12
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23
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Surrender of
Premises
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13
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24
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Holding
Over
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13
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25
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Right of
Entry
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13
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26
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Waiver
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13
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27
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Estoppels/Subordinations
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13
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28
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Bankruptcy
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14
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29
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Environmental
Compliance
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15
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30
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Force
Majeure
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16
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Exhibit A
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Property
Description
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Exhibit B
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Plans and
Specifications
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Exhibit C
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Janitorial
Standards
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Exhibit D
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Rules and
Regulations
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Bank of North Carolina - Lease -
06/01/2005
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Page 2 of 25
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STATE OF NORTH CAROLINA
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L E A S E
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COUNTY OF FORSYTH
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)
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This Lease, dated as of the
day of June
2005, by and between 1400 WESTGATE ASSOCIATES, L.L.C., a North
Carolina Limited Liability Company with offices at 16 South Main
Street; Post Office Box 1066; Lexington, North Carolina 27293-1066
(the “Lessor”) and Bank of North Carolina (the
“Lessee”).
RECITALS/STATEMENT OF PURPOSE
Lessor is the owner of Suite 90 in the office
building in Winston-Salem, North Carolina, at 1551 Westbrook Plaza
Drive and being known as GreenTree Centre II, said Suite containing
2,639 square feet, which includes both the Suite and the
proportionate share of undivided common area allocated thereto, all
as more particularly described on Exhibit “A” attached
hereto and made a part hereof (the “Leased Premises”).
Lessee wishes to lease from Lessor, and Lessor wishes to lease to
Lessee the Leased Premises, together with a non-exclusive right to
use the common areas of GreenTree Centre, upon the terms and
conditions set forth herein. The purpose of this instrument is to
set forth the terms and conditions upon which the parties will deal
with each other as a result of Lessee’s having leased the
Leased Premises from Lessor.
NOW, THEREFORE, in consideration of
the mutual promises contained herein, the Lessor hereby leases the
Leased Premises to Lessee and Lessee leases the Leased Premises
from Lessor upon the following terms and conditions:
1. UPFITTING. Lessor agrees that it
shall construct the upfit plan for Suite 90 substantially in
accordance with the Plans & Specifications attached hereto as
Exhibit B, which Plans & Specifications are hereby incorporated
herein by reference. Lessor warrants that the construction of the
Suite and other improvements shall be completed in good and
workman-like manner.
2. LEASE TERM.
(a) The initial term of this Lease
shall commence immediately and continue for a period of two (2)
Lease Years (as defined below) after the Rental Commencement Date.
The term “Lease Year” as referred to herein shall mean
the period beginning on the Rental Commencement Date and ending on
the day prior to the anniversary of such date in the next year, and
each such period thereafter during the term of this Lease. Lessor
will notify Lessee 30 days prior to the date that the Leased
Premises are expected to be ready for occupancy. Upon Substantial
Completion of the Leased Premises (as defined in Exhibit B
“Plans and Specifications” attached hereto) Lessor and
Lessee agree to execute a Certificate of Rental Commencement
reflecting the Rental Commencement Date.
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05/20/2005
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(b) Provided Lessee is not in
default hereunder, the term of this Lease may be extended at the
option of the Lessee for one (2) two-year period. Such option shall
be exercised by written notice to Lessor on or before six months
prior to the expiration of the initial term of this Lease. The
renewal shall be upon the same terms, covenants, and conditions as
the initial lease term, including the provisions for annual
adjustments to Base Rental. Any termination of this Lease during
the initial term shall automatically terminate this option to
renew.
3. RENTAL.
(a) The rental for the first Lease
Year shall be $43,543.50 per year (or $3,628.63 per month),
hereinafter referred to as the “Base Rental,” which
annual Base Rental shall be increased as hereinbelow provided in
Subparagraph 3(b). Base Rental shall be payable in equal monthly
installments in advance on the first day of every calendar month
during the term of this Lease and shall be increased from time to
time pursuant to the provisions of Subparagraph 3(b) below. The
first monthly payment of Base Rental shall be due on the Rental
Commencement Date.
(b) The Base Rental shall be
increased after the end of each Lease Year during the term of this
Lease in accordance with increases in the Consumer Price Index
(hereinafter called the “Price Index”). The Price Index
shall mean the “U.S. City Average for Urban Wage Earners and
Clerical Workers, all items, groups, subgroups and special groups
if items” as promulgated by the Bureau of Labor Statistics of
the U.S. Department of Labor, using the years 1982-1984 as a base
of 100.
The Base Rental shall be increased
in accordance with the following provisions:
(1) At the beginning of the second
Lease Year and of each Lease Year thereafter, the Base Rental shall
be increased by an amount determined by multiplying the Base Rental
for a previous Lease Year by the percentage increase in the Price
Index from the first month of the previous Lease Year to the first
month of the new Lease Year, provided that in no event shall the
increase provided for hereby be less than 3% per year nor more than
5% per year.
(2) The Lessor will notify the
Lessee as soon as computation of the adjusted Base Rental has been
made, which shall be no later than ninety (90) days after the
commencement of a Lease Year. The adjusted Base Rental shall be due
from the first month of the Lease Year in which it applies, and the
adjusted Base Rental for those months for which it was owed before
Lessee is notified of the amount thereof shall be paid with the
first Base Rental payment made after Lessee has received the notice
of the adjustment.
All dates and rents shall be
adjusted to reflect the beginning of the initial “Lease
Year” and will be incorporated into the Lease Modification
Agreement provided for in Section 2(a) of this Lease
Agreement.
The Lessee will pay the foregoing
rent to 1400 WESTGATE ASSOCIATES, L.L.C., Post Office Box 1066, 16
South Main Street, Lexington, North Carolina 27293-1066, or to such
other person or at such other place as the Lessor may designate in
writing.
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05/20/2005
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4. MAINTENANCE
RESPONSIBILITIES.
(a) Lessor Maintenance. As between
Lessor and Lessee, Lessor shall be responsible for maintenance of
the roof and structural portions of the Leased Premises; provided,
the Lessor shall not be responsible for any damage thereto caused
by the negligence of Lessee, its employees, agents, invitees,
subtenants, licensees, assignees, or contractors, in which event
such damage shall be promptly repaired by Lessee. Lessor shall
commence any repairs for which it is responsible promptly after
notification by Lessee and shall complete same
diligently.
(b) Additional Lessor Maintenance.
Lessor shall also be responsible for all maintenance, upkeep, and
repair of any kind and nature with respect to the Leased Premises,
such to be accomplished regularly and routinely by Lessor so as to
keep the Leased Premises at all times in first-class condition;
provided, the Lessor shall not be obligated to repair any damage to
the Leased Premises or perform any maintenance or upkeep of any
kind thereto caused or necessitated by the negligence of Lessee,
its employees, agents, invitees, subtenants, licensees, assignees,
or contractors, in which event such damage shall be promptly
repaired by Lessee. By way of example and not limitation, Lessor
shall keep and maintain all plumbing, heating, electrical, and air
conditioning systems in the Leased Premises in good working order.
Lessee shall not be entitled to any abatement of rent and Lessor
shall not be liable for any loss or damage occasioned by any
breakdown or interruption in the operation of such
systems.
5. TAXES & ASSESSMENTS. Lessor
shall pay when due all real property taxes and assessments which
are now or which may hereafter be imposed upon the Leased Premises,
and Lessee shall pay when due all taxes and assessments of any kind
or nature imposed or assessed upon Lessee’s improvements,
trade fixtures, equipment, merchandise or other property installed
in or brought onto the Leased Premises by or for Lessee. Upon
Lessor’s request, the Lessee shall furnish Lessor copies of
paid receipts for all said taxes and assessments forthwith after
payment of same.
6. SERVICES BY LANDLORD. Provided
that Tenant is not then in default, Landlord shall cause to be
furnished to the Building, or as applicable, the Leased Premises,
in common with other tenants, during business hours of 7:00 A.M. to
7:00 P.M. Monday through Friday (excluding National and State
holidays), the following services: janitorial services (five (5)
days a week after normal working hours, as more particularly set
forth on Exhibit C), water (if available from city mains) for
drinking, lavatory and toilet purposes, operatorless elevator
service, gas and heating and air conditioning for the reasonably
comfortable use and occupancy of the Leased Premises, provided
heating and cooling conforming to any governmental regulation
prescribing limitations thereon shall be deemed to comply with this
service. Landlord shall furnish the Leased Premises with
electricity for the maintenance of building standard fluorescent
lighting composed of 2’ x 4’ fixtures and keep such
lighting in good repair and replace bulbs as needed. Incandescent
fixtures, table lamps, all lighting other than the aforesaid
building standard fluorescent lighting, dimmers and all lighting
controls other than controls for the aforesaid building standard
fluorescent lighting shall be serviced, replaced and maintained at
Tenant’s expense. Landlord shall also furnish the Leased
Premises with electricity for lighting for the aforesaid building
standard fluorescent lighting and for the operation of general
office machines, such as electric typewriters, desk top computers,
word processing
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05/20/2005
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equipment, dictating equipment, adding machines
and calculators, telecommunication equipment and network servers
and office copy machines. Landlord shall provide electricity as
necessary for the normal operation of convenience outlets serving
the Leased Premises. After hours heating and air conditioning will
be available at a charge of fifty dollars ($50.00) per hour, or
part thereof, per floor, with a minimum charge of two (2) hours per
occurrence. All additional costs resulting from Tenant’s
extraordinary usage of heating, air conditioning or electricity
shall be paid by Tenant upon demand as Additional Rent for each
month or portion thereof, and Tenant shall not install equipment
with unusual demands for any of the foregoing without
Landlord’s prior written consent, which Landlord may withhold
if it determines that in its opinion such equipment may not be
safely used in the Leased Premises or that electrical service is
not adequate therefor. If heat generating machines or equipment
other than those contemplated by the foregoing language of this
Section 6 or other intensive activities shall be used or carried on
in the Leased Premises by Tenant which materially adversely affect
the temperature, the heating and air conditioning systems, or
utility usage thereof, Landlord shall have the right to install
supplemental air conditioning units in the Leased Premises and the
actual cost thereof, including the cost of engineering and
installation, and the actual cost of operation and maintenance
thereof, shall be paid by Tenant upon demand by
Landlord.
7. ALTERATIONS. Any alterations,
additions or improvements permitted herein except as otherwise
provided in Section1 and the Workletter shall be made at the
expense of the Lessee. The Lessee agrees that it will make no
alterations, additions or improvements to the Leased Premises
without the written consent of the Lessor. All alterations,
additions, improvements, cabinetry or other fixtures made or
attached to the Building or the Leased Premises by and for the
Lessee, including but not limited to, any and all subdividing
partitions, walls or railings of whatever type, material or height
(but excepting movable office furniture and equipment and modular
cabinetry paid for by Lessee and not permanently attached to the
Building, which may be removed by the Lessee at the end of the term
of this Lease, if such termination is not the result of Lessee
default hereunder) shall be the property of the Lessor and shall
remain upon and be surrendered with the Leased Premises as a part
thereof at the expiration or earlier termination of this Lease. The
Lessor, however, reserves the right to require the Lessee to remove
any paneling, decorations, partitions, walls or railings, floor
coverings, booths, or fixtures installed by or at the request of
the Lessee, by giving notice of such election to the Lessee at any
time prior to, or not later than ten (10) days after the expiration
or earlier termination of the Lease; in which event the Lessee, at
the Lessee’s sole cost and expense, shall remove the property
so specified on or before the date of expiration or earlier
termination of this Lease or a date five (5) days after the
receiving of such notice, whichever shall be the later, and shall
promptly restore the Leased Premises to their original condition,
reasonable wear and tear excepted; if Lessee fails to perform the
necessary restorations within ten days after removing the property,
or if Lessee is in default under this Lease, Lessor may undertake
the restoration of the Leased Premises to their original condition
after the removal of the specified property, in which event Lessee
shall promptly reimburse Lessor for the cost of such
restoration.
8. USE AND OCCUPANCY.
(a) The Lessee agrees that the
Leased Premises will be used only for general office use and for
the purpose of conducting Lessee’s business therefrom (the
“Permitted Use”); that no
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05/20/2005
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Page 6 of 25
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unlawful use of the Leased Premises will be
made; that no sign, name, legend, notice or advertisement of any
kind will be fixed, painted or displayed on any part of the Leased
Premises, except with the consent of Lessor, which consent shall
not be unreasonably withheld; and that upon the termination of this
Lease, Lessee will vacate and surrender possession of the Leased
Premises to the Lessor in as good condition as the Leased Premises
were at the commencement of this Lease, ordinary wear and tear
excepted.
(b) Lessee will use and operate the
Leased Premises and the common areas of the GreenTree Centre in
compliance with the rules and regulations attached hereto as
Exhibit D and any other rules established by Lessor and
approved by a majority of the tenants in the Building and with all
laws, rules and regulations of any agency having jurisdiction over
the Leased Premises. Lessee will not use, and will not permit or
suffer anyone else to use, the Leased Premises for the production,
storage or disposal of any hazardous substance, as now or hereafter
defined by any agency having jurisdiction over the premises, or any
petroleum product. Lessee hereby indemnifies and agrees to hold
harmless Lessor from any cost, obligation, fine, penalty, charge,
loss or damage, including attorney’s fees, arising out of the
use or operation of the leased Premises or the storage or disposal
of any material thereon, during the time that Lessee is in
possession of said premises.
9. INSURANCE.
(a) Lessor agrees that it will keep
the Leased Premises and the building in which the Leased Premises
are located insured against loss or damage by fire with extended
coverage to the full fair insurable value thereof. Lessee shall not
be liable to repair damage caused by accidental fire or other
casualty covered by such insurance. Lessee shall not use or permit
upon the premises anything that will invalidate or will increase
the rate of any policy of insurance now or hereafter carried on the
Leased Premises or the building(s) of which said Leased Premises
are a part.
Lessee agrees that it will keep its
trade fixtures, equipment, and other property of Lessee located in,
on or about the demised premises insured against loss or damage by
fire with extended coverage to the full fair insurable value
thereof. Lessee agrees that all personal property in, about or on
the demised premises shall be at the risk of Lessee only and that
Lessor shall not be liable for damage thereto or theft thereof
under any circumstances.
(b) The Lessor and the Lessee agree
that if the Leased Premises or any furniture, fixtures, machinery,
equipment or other personal property located therein are damaged or
destroyed by fire or other insured casualty, the rights, if any, of
either party against the other with respect to such damage or
destruction are hereby waived if and to the extent permitted by any
applicable insurance policies. The parties agree to use their best
efforts to insure that the policies of insurance obtained by them
permit such waivers of subrogation and shall furnish evidence of
such, each to the other.
(c) At all times subsequent to the
commencement of this Lease and during its full term, the Lessee, at
its sole cost and expense, shall provide general public liability
insurance for personal injury and property damage in an amount of
$1,000,000.00 per occurrence.
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05/20/2005
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(d) Lessor shall provide Lessee and
Lessee shall provide Lessor with certificates evidencing the
coverages hereinabove described. All such policies provided by
Lessee shall name Lessor and, with respect to insurance covering
the Leased Premises, any lender of Lessor which maintains a
mortgage on the Leased Premises, as additional insureds and shall
provide that Lessor and such lender must receive at least 20
days’ written notice before any cancellation or material
change in terms. Lessor shall name Lessee as additional named
insured with respect to the leased premises.
10. FIRE OR OTHER
CASUALTY.
(a) The Lessor agrees that if during
the first five years of the initial term of this Lease or the first
five years of the renewal term if this Lease is renewed, the Leased
Premises shall be damaged by fire or other casualty, to such an
extent that the cost of repairs will be less than 50% of the fair
market value thereof at the time of such casualty, provided
Lessor’s lender permits, Lessor will employ the proceeds of
insurance policies referred to in Section 9 to repair the Leased
Premises after a casualty with reasonable dispatch after notice to
Lessor of damage, due allowance to be made for delay resulting from
any cause beyond the Lessor’s reasonable control; provided,
however, that the Lessor shall not be required to expend funds in
excess of the insurance proceeds or repair or replace any property
which the Lessee may be entitled to remove or which the Lessor may
require the Lessee to remove from the Leased Premises upon the
termination or expiration of this Lease, and provided further, that
during the time that the Leased Premises are unfit for occupancy by
Lessee, the rent shall abate in proportion to the extent the
premises are unfit for occupancy, so long as the damage was not
occasioned by the act or omission of Lessee or Lessee’s
agents, servants, employees or invitees.
(b) If the Leased Premises are
damaged during the last two years of the initial Lease term or
renewal term or to such extent that the cost of repairs will be 50%
or more of the fair market value, as above described, then the
Lessor in his sole discretion may choose not to repair and restore
the Leased Premises, whereupon the Lessor may terminate this Lease
by notifying the Lessee in writing, within a reasonable time after
such damage, of the Lessor’s election to terminate this
Lease. In the event of the giving of such notice during the term of
this Lease, this Lease shall expire and all interests of the Lessee
in the Leased Premises shall terminate on the date specified in
such notice, and the rent shall be apportioned and paid up to the
time of such fire or other casualty if the Leased Premises are
damaged, or up to the specified date of termination.
(c) Any insurance proceeds from the
fire and extended coverage insurance furnished by the Lessee shall
be made payable to the Lessor to effect the required repairs.
Lessee will cooperate with and coordinate with Lessor in insuring
that such proceeds are at the Lessor’s disposal on a timely
basis in order that Lessor may proceed with the repairs with
reasonable dispatch.
11. CONDEMNATION. If the whole of
the Leased Premises or such part thereof as shall make the Leased
Premises unsuitable for the purpose leased shall be taken for any
public or any quasi-public use under any statute or by right of
eminent domain, or by private purchase by
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05/20/2005
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condemning authority in lieu thereof, then this
Lease shall automatically terminate as of the date the title shall
be taken, and the rent shall be apportioned as of that date. Such
termination shall be without prejudice to the rights of either
party to recover compensation from the condemning authority for any
loss or damage caused by the taking. Neither party shall have any
rights in or to any award made to the other by the condemning
authority.
12. CONDITION AT COMMENCEMENT AND
TERMINATION. The Lessor warrants that the Leased Premises and all
its systems including heating, plumbing, wiring, lighting, air
conditioning, water and sewer shall be in good working order at the
beginning of the term of this Lease. At the termination of this
Lease, Lessee shall deliver up possession of the Lease Premises to
Lessor in as good condition as the same are at the beginning of the
lease term, excepting only reasonable wear and tear.
13. INDEMNITY. The Lessee agrees to
defend, indemnify and save harmless the Lessor and the agents,
servants and employees of the Lessor against and from any and all
claims made or liability, loss, cost, damage and expenses
(including reasonable attorneys’ fees) assessed against
Lessor by or on behalf of any person, firm or corporation arising
by reason of injury to person or property occurring on the Leased
Premises, occasioned in whole or in part by any act or omission of
Lessee (including any acts or omission involving radioactive or
hazardous substance on the part of the Lessee or an employee
[whether or not acting within the scope of employment], agent,
visitor, assign or sub-tenant of the Lessee), or by reason of any
unlawful use of the Leased Premises or any breach, violation or
nonperformance of any covenant in this Lease on the part of the
Lessee to be observed or performed, and also for any matter or
thing growing out of the occupancy or use of the Leased Premises by
the Lessee or any one holding or claiming to hold through or under
the Lessee. Lessee agrees to pay for all damage to the Leased
Premises, as well as all damage to licensees or invitees thereof,
caused by Lessee’s misuse or neglect of the Leased Premises,
its apparatus or appurtenances. Lessor shall not be liable to
Lessee for any loss or damage incurred by Lessee as the result of
any act of negligence of any occupant of the Building (or such
occupant’s guests, invitees, contractors and/or employees) or
by any owner or occupant of property adjoining or contiguous to the
Land.
Lessor agrees to defend, indemnify,
and save harmless the Lessee, and the agents, servants, and
employees of the Lessee, against and from any and all claims made
or liability, loss, cost, damage, and expenses (including
reasonable attorneys’ fees) assessed against Lessee by or on
behalf of any person, firm, or corporation arising by reason of
injury to person or property occurring on the Leased Premises,
occasioned in whole or in part by any act or omission, including
any acts or omissions regarding radioactive or hazardous
substances, on the part of the Lessor or an employee or agent of
the Lessor.
14. QUIET ENJOYMENT. The Lessor
agrees that the Lessee on paying the stipulated rental and keeping
and performing the agreement and covenants herein contained, shall
hold and enjoy the Leased Premises for the term aforesaid, free
from interference by the Lessor or by any one claiming by, through
or under the Lessor, subject, however, to the terms of this
Lease.
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15. ASSIGNMENT AND SUBLETTING.
Except as set forth below, Lessee shall not assign or sublease the
Leased Premises without Lessor’s prior written consent, which
consent shall not be unreasonably withheld. Consent to any
assignment or sublease by Lessor shall not release the Lessee from
its obligations and liabilities hereunder. Notwithstanding the
above, Lessee may assign this Lease or sublease the Leased Premises
to any legal entity controlled by or under common control with the
Lessee without Lessor’s consent, provided that prior to any
such assignment Lessee must notify Lessor in writing of any such
assignment.
16. DEFAULT.
(a) In the event of default in the
payment of rent or any other sum payable hereunder for five days
after the due date, or in the event of three monetary defaults in
any Lease Year, the Lessor, without prejudice to any other rights
or remedies that it may have, shall have the right, immediately or
any time thereafter, to re-enter the Leased Premises and remove all
persons and property from the Leased Premises. In the event the
Lessee shall neglect to keep or perform any other covenant,
agreement or condition of this Lease, the Lessor shall give written
notice of such default to the Lessee; and in the event that such
default is not rectified within twenty (20) days from the date of
such notice, then the Lessor shall have the right to enter the
Leased Premises immediately or at any time thereafter and remove
the Lessee therefrom, without prejudice to any other remedies of
the Lessor. In the event of such re-entry, the Lessee hereby waives
all claims for damages which may be caused by the re-entry of the
Lessor and will save the Lessor harmless from any loss, cost or
damages occasioned Lessor thereby (including reasonable
attorneys’ fees and other expenses incurred by reason of such
re-entry), and no such re-entry shall be considered or construed to
be a forcible entry.
(b) The Lessor shall also have the
right, at its option, to cure any of Lessee’s defaults and
charge the cost of such cure to Lessee as additional
rent.
(c) Should the Lessor elect to
re-enter the Leased Premises as herein provided, or should he take
possession pursuant to legal proceedings, it may either terminate
this Lease or it may, from time to time, without terminating this
Lease, re-let the Leased Premises or any part thereof on
Lessee’s account for such time or times and at such rental or
rentals and upon such other terms and conditions as the Lessor in
its reasonable discretion may deem advisable, with the right to
make alterations and repairs to the Leased Premises, and the Lessee
shall pay the amount of rent due under this Lease to the date of
the beginning of payment or rent pursuant to any such re-letting,
together with the cost of such re-letting, including
attorneys’ fees occasioned by such re-letting, brokers
commissions, tenant improvement costs and the cost of any repairs
to the Leased Premises necessitated by damage caused by Lessee, and
the Lessee will thereafter pay m