Exhibit 10.50
STATE OF NORTH CAROLINA
COUNTY OF WAKE
LEASE
AGREEMENT
THIS LEASE
AGREEMENT (the “Lease”), is
made and entered into this 16 th
day of
April, 2007, by and between BIG DECK PARKING, LLC, a North Carolina
limited liability company (“Landlord”), and RALEIGH
RESTAURANT CONCEPTS, INC., a North Carolina corporation
(“Tenant”).
WITNESSETH:
WHEREAS , Landlord owns certain real property adjacent
to an adult nightclub located at 3210 Yonkers Road, Raleigh, North
Carolina, said nightclub being sublet to Tenant pursuant to that
certain Agreement of Sublease by and between Regale, Inc. and
Tenant, dated as of the date hereof (the “Club
Sublease”); and
WHEREAS , Tenant desires to use said real property for
parking purposes (the “Intended Use”).
NOW THEREFORE
, for and in consideration of the
covenants and agreements hereinafter set out to be kept and
performed by Tenant, and other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged,
Landlord has agreed to demise and lease, and by these presents does
hereby demise and lease to Tenant, for the Intended Use only, upon
the conditions hereinafter set out, that certain parcel of land,
together with all improvements thereon, lying and being adjacent to
an adult nightclub located at 3210 Yonkers Road, Raleigh, North
Carolina in Wake County, North Carolina, and being more
particularly described on Exhibit A attached hereto and
incorporated herein by reference
(“Premises”).
TO HAVE AND TO HOLD
said Premises and privileges and
appurtenances thereunto belonging to Tenant, upon the following
terms and conditions:
1. TERM
. The
term of this Lease (the “Term”) shall commence as
of the later of (i) the date which is the first business day
after all parties hereto have executed this Lease (and Guarantor
has executed the Guaranty, as such terms are hereinafter defined),
or (ii) the 16 th
day of
April, 2007 (the “Commencement Date”), and, unless
extended pursuant to the express terms of this Section 1,
shall expire on the 31 st
day of
January, 2012 at 5:00 p.m. (the “Expiration Date”),
unless sooner terminated in accordance with the terms of this
Lease. This Lease shall create the relationship of landlord and
tenant only between Landlord and Tenant.
Provided that (i) Tenant is not
then in default under this Lease; and (ii) Regale, Inc. and
Tenant have similarly extended the term of the Club Sublease, then
the Term shall automatically be extended for successive periods of
five (5) years each, unless Landlord receives written notice
from Tenant of its intent not to extend the Term, such notice to be
received no less than twelve (12) months prior to the
expiration of the then-existing Term. Landlord shall not be
required to give Tenant any notice of its failure to timely
exercise its extension option for this Lease or the Club Sublease.
Notwithstanding
the foregoing,
Tenant shall not be entitled to extend the Term (and the Term shall
not automatically extend) beyond the 31 st
day of
January, 2062 (the “Outside Expiration Date”).
Additionally, Tenant acknowledges and agrees that Landlord shall
have the unilateral right to extend the Term: (i) to the same
extent that the Term of the Club Sublease is extended; or
(ii) in the event that Tenant (or any affiliated company)
acquires the interest of landlord under the Prime Lease (as such
term is defined in the Club Sublease), through the Outside
Expiration Date. Landlord shall be deemed to have exercised this
right and the Term shall be extended: (i) to be coterminous
with the Term of the Club Sublease; or (ii) through the
Outside Expiration Date (as applicable), unless Landlord provides
Tenant with express written notice to the contrary, no less than 30
days before the expiration of the then-current Term (or within 60
days of receipt of actual notice that Tenant has acquired the
interest of landlord under the Prime Lease).
2. RENT .
The “Rent Commencement
Date” shall be the Commencement Date. Commencing on the Rent
Commencement Date, Tenant shall pay base annual rent (“Base
Rent”) according to the following schedule:
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Rent Commencement Date –
1/31/10
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$
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237,000.00/yr.
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$
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19,750.00/mo.
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2/01/10 – 1/31/11
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$
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243,000.00/yr.
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$
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20,250.00/mo.
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2/01/11 – 1/31/12
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$
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249,000.00/yr.
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$
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20,750.00/mo.
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2/01/12 – 1/31/13
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$
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255,000.00/yr.
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$
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21,250.00/mo.
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2/01/13 – 1/31/14
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$
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261,000.00/yr.
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$
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21,750.00/mo.
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2/01/14 – 1/31/15
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$
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267,000.00/yr.
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$
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22,250.00/mo.
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2/01/15 – 1/31/16
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$
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273,000.00/yr.
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$
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22,750.00/mo.
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2/01/16 – 1/31/17
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$
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279,000.00/yr.
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$
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23,250.00/mo.
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2/01/17 – 1/31/18
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$
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285,000.00/yr.
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$
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23,750.00/mo.
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2/01/18 – 1/31/19
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$
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291,000.00/yr.
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$
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24,250.00/mo.
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2/01/19 – 1/31/20
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$
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297,000.00/yr.
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$
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24,750.00/mo.
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2/01/20 – 1/31/21
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$
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303,000.00/yr.
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$
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25,250.00/mo.
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2/01/21 – 1/31/22
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$
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309,000.00/yr.
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$
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25,750.00/mo.
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2/01/22 – 1/31/23
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$
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315,000.00/yr.
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$
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26,250.00/mo.
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2/01/23 – 1/31/24
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$
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321,000.00/yr.
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$
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26,750.00/mo.
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2/01/24 – 1/31/25
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$
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327,000.00/yr.
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$
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27,250.00/mo.
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2/01/25 – 1/31/26
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$
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333,000.00/yr.
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$
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27,750.00/mo.
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2/01/26 – 1/31/27
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$
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339,000.00/yr.
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$
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28,250.00/mo.
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2/01/27 – 1/31/28
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$
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345,000.00/yr.
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$
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28,750.00/mo.
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2/01/28 – 1/31/29
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$
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351,000.00/yr.
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$
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29,250.00/mo.
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2/01/29 – 1/31/30
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$
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357,000.00/yr.
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$
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29,750.00/mo.
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2/01/30 – 1/31/31
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$
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363,000.00/yr.
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$
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30,250.00/mo.
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2/01/31 – 1/31/32
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$
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369,000.00/yr.
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$
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30,750.00/mo.
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2/01/32 – 1/31/33
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$
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375,000.00/yr.
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$
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31,250.00/mo.
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2/01/33 – 1/31/34
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$
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381,000.00/yr.
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$
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31,750.00/mo.
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2/01/34 – 1/31/35
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$
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387,000.00/yr.
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$
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32,250.00/mo.
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2/01/35 – 1/31/36
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$
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393,000.00/yr.
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$
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32,750.00/mo.
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2/01/36 – 1/31/37
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$
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399,000.00/yr.
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$
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33,250.00/mo.
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2/01/37 – 1/31/38
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$
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405,000.00/yr.
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$
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33,750.00/mo.
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2/01/38 – 1/31/39
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$
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411,000.00/yr.
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$
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34,250.00/mo.
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2/01/39 – 1/31/40
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$
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417,000.00/yr.
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$
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34,750.00/mo.
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2/01/40 – 1/31/41
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$
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423,000.00/yr.
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$
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35,250.00/mo.
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2/01/41 – 1/31/42
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$
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429,000.00/yr.
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$
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35,750.00/mo.
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2/01/42 – 1/31/43
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$
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435,000.00/yr.
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$
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36,250.00/mo.
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2/01/43 – 1/31/44
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$
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441,000.00/yr.
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$
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36,750.00/mo.
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2/01/44 – 1/31/45
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$
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447,000.00/yr.
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$
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37,250.00/mo.
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2/01/45 – 1/31/46
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$
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453,000.00/yr.
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$
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37,750.00/mo.
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2/01/46 – 1/31/47
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$
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459,000.00/yr.
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$
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38,250.00/mo.
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2/01/47 – 1/31/48
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$
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465,000.00/yr.
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$
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38,750.00/mo.
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2/01/48 – 1/31/49
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$
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471,000.00/yr.
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$
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39,250.00/mo.
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2/01/49 – 1/31/50
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$
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477,000.00/yr.
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$
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39,750.00/mo.
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2/01/50 – 1/31/51
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$
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483,000.00/yr.
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$
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40,250.00/mo.
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2/01/51 – 1/31/52
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$
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489,000.00/yr.
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$
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40,750.00/mo.
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2/01/52 – 1/31/53
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$
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495,000.00/yr.
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$
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41,250.00/mo.
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2/01/53 – 1/31/54
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$
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501,000.00/yr.
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$
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41,750.00/mo.
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2/01/54 – 1/31/55
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$
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507,000.00/yr.
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$
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42,250.00/mo.
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2/01/55 – 1/31/56
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$
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513,000.00/yr.
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$
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42,750.00/mo.
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2/01/56 – 1/31/57
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$
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519,000.00/yr.
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$
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43,250.00/mo.
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2/01/57 – 1/31/58
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$
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525,000.00/yr.
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$
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43,750.00/mo.
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2/01/58 – 1/31/59
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$
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531,000.00/yr.
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$
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44,250.00/mo.
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2/01/59 – 1/31/60
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$
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537,000.00/yr.
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$
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44,750.00/mo.
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2/01/60 – 1/31/61
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$
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543,000.00/yr.
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$
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45,250.00/mo.
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2/01/61 – 1/31/62
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$
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549,000.00/yr.
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$
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45,750.00/mo.
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Base Rent due throughout the Term
shall be payable in equal monthly installments, in advance, on or
before the first day of each calendar month of the Term, except
that Tenant shall pay the first such monthly installment upon the
execution hereof. If the Rent Commencement Date is a date other
than the first day of the month, rent for the period commencing
with and including the Rent Commencement Date until the first day
of the following month shall be pro-rated at the rate of
one-thirtieth (1/30th) of the fixed monthly rental per day.
All rent and other amounts due under this Lease shall be paid
without demand or notice and without any setoff or deduction
whatsoever. All charges, costs and sums required to be paid by
Tenant to Landlord hereunder in addition to Base Rent shall be
deemed additional rent (“Additional Rent”), and Base
Rent and Additional Rent shall hereinafter be collectively called
“Rent.” Rent shall be paid to or upon the order of
Landlord at the following address: Post Office Box 17736, Raleigh,
North Carolina 27619, Attn: Barry Sandman. Landlord shall have the
right to change the Rent payment address by giving advance written
notice thereof to Tenant. All payments of Rent shall be made in
immediately available, lawful money of the United States. If any
Rent payment is not received by Landlord within five (5) days
after the Rent Due Date, Tenant shall pay Landlord, without notice
or demand, a late payment fee of five percent (5%) of the
unpaid Rent per occurrence, plus the Rent then due. Tenant shall
pay Landlord a $15.00 processing fee for each check of Tenant that
is returned by a financial institution because of insufficient
funds or because Tenant did not have an account at the financial
institution.
3. ASSIGNMENT .
Tenant shall not transfer, mortgage,
encumber, assign, or sublet all or any part of the Premises without
Landlord’s prior written consent, which may be given or
withheld in Landlord’s sole discretion.
4. TAXES/UTILITIES
. Before delinquency,
Tenant shall pay ad valorem property taxes assessed against the
Premises by any governmental authority having jurisdiction over the
Premises. Before delinquency, Tenant shall pay all other
assessments and/or taxes assessed by any government authority
having jurisdiction over the Premises, including but not limited
to, taxes levied upon any structure, facility, or personal property
of Tenant (or Tenant’s officers, directors, members, lot
owners, subtenants, employees or agents) located at or upon
the Premises. Tenant shall deliver proof of such tax
payment(s) to Landlord upon request. Tenant shall be
responsible for procuring and paying when due all charges for
utilities associated with the Premises.
5. USE/COMPLIANCE WITH
LAWS . Tenant shall
use the Premises exclusively for the Intended Use and for no other
purpose without Landlord’s prior written consent, which
consent Landlord may give or withhold in its sole discretion.
Tenant, at Tenant’s sole expense, shall comply with all laws,
ordinances, regulations and restrictive covenants applicable to
Tenant’s use and occupancy of the Premises. Tenant shall not
use the Premises for any unlawful purpose and shall not occupy said
Premises in such a way as to constitute a nuisance. Tenant shall
exercise due care and diligence to prevent any person from engaging
in any unlawful act on the Premises.
6. ALTERATIONS AND
IMPROVEMENTS . Tenant
shall not construct or otherwise establish any dwelling upon the
Premises. Subject to the terms and conditions herein, Tenant shall
not construct any structure of any nature whatsoever or make any
alteration, improvement, addition, removal, or utility installation
upon the Premises without Landlord’s prior written consent,
which may not be unreasonably withheld. In the event Landlord does
consent to any such improvements/alterations, Tenant shall (at its
sole cost and expense) be solely responsible for all related
permitting and shall comply with all laws, ordinances, regulations
and restrictive covenants applicable to any alteration/improvement
work. Tenant may not install or display any sign on the Premises
without Landlord’s prior written consent, which may not be
unreasonably withheld.
7. RIGHT OF ENTRY
. Tenant shall permit
Landlord and Landlord’s officers, agents, employees and
contractors to enter the Premises at any and all times for the
purpose of inspecting the Premises and Tenant’s compliance
with the terms and conditions of this Lease. Tenant shall permit
the tenant under any billboard lease with the access rights as
reasonably required or as otherwise provided in the relevant
billboard lease document (see Section 22 of this Lease). In
the event damage occurs to the Premises and Tenant fails to take
any assessment and remedial actions as required by this Lease,
Landlord may, but is not obligated to, enter the Premises and take
such actions. In such event, Tenant shall indemnify Landlord from
any and all costs incurred by Landlord as set forth in this Lease
and shall release Landlord from any and all claims arising from, or
related to, Landlord’s entry onto the Premises and completion
of such actions. Landlord has no obligation to make an inspection
of the Premises.
8. PROTECTION AGAINST
LIENS . Tenant shall
not permit any mechanics’, materialmen’s or other types
of liens whatsoever to be filed against all or any part of the
Premises, nor against Tenant’s leasehold interest in the
Premises, by reason of any claims made by, against, through or
under Tenant. If any such lien is filed against the Premises,
Tenant shall cause the same to be discharged of record within ten
(10) days after filing thereof. If Tenant shall fail to
discharge such lien within said ten (10) day period, then
Landlord may at its election, in addition to any other right or
remedy available to it, discharge the lien by paying the amount
claimed to be due or by procuring the discharge by giving security
or in such other manner as may be allowed by law. If Landlord acts
to discharge or secure the lien, then Tenant shall immediately
reimburse Landlord for all sums paid and all costs and expenses
(including reasonable attorneys’ fees) incurred by
Landlord involving such lien, together with interest on the total
expenses and costs at the rate of twelve percent (12%) per
annum. Tenant shall give Landlord written notice within three
(3) days of the filing of any such lien.
9. TRIPLE NET
LEASE . Tenant agrees
that this Lease is, except as otherwise expressly stated herein, a
100% “triple net lease” to Landlord, and that Landlord
is not responsible during the Term of this Lease for any costs,
charges, expenses, and outlays of any nature whatsoever (including,
without limitation, governmental assessments) arising from or
relating to the Premises or the use and occupancy thereof, or the
contents thereof or the business carried on therein. From and after
the Commencement Date, Tenant shall pay all charges, impositions,
costs, and expenses of every nature and kind relating to the
Premises and shall perform, at its sole expense, its obligations
under this Lease and any obligations required under any applicable
laws, ordinances, regulations and restrictive covenants, except as
expressly provided herein to the contrary.
10. MAINTENANCE AND REPAIR OF
PREMISES .
Tenant’s execution of this Lease is Tenant’s
representation to Landlord that Tenant has examined and inspected
the Premises, finds the Premises to be as represented by Landlord
and satisfactory to Tenant’s Intended Use and constitutes
Tenant’s acceptance “AS IS.” Landlord makes no
representation or warranty as to the condition of the Premises.
Tenant, at Tenant’s sole expense shall (i) maintain and keep
the Premises in a clean and safe condition; (ii) maintain and
repair any improvements or alterations to the Premises; (iii)
provide landscaping and grounds maintenance; (iv) be responsible
for all repairs whatsoever for damages to the Premises caused by,
or arising from Tenant’s use of the Premises or
Tenant’s (or their employees’, agents’,
contractors’ or invitees’) misconduct or negligence.
Repairs or maintenance required under this Section shall be made
within a reasonable time (depending on the nature of the repair or
maintenance needed) after having received notice or having actual
knowledge of the need for repair or maintenance. After a reasonable
time, if Tenant fails to perform any Tenant maintenance and repair
obligation hereunder, Landlord, may (but shall not be required)
after five (5) days’ written notice to Tenant, perform
Tenant’s maintenance and repair obligation hereunder. In such
event, Tenant promptly shall pay Landlord all costs in connection
therewith upon receipt of an itemized bill or similar statement of
costs from Landlord. Tenant shall keep the Premises in a clean and
safe condition and shall not cause, permit or allow any unsanitary
or unsafe condition thereon. Tenant shall dispose of all garbage,
refuse or other waste in a clean and safe manner and shall comply
with all applicable laws, rules and ordinances concerning disposal
and collection of such waste.
11. SUBORDINATION
. Tenant’s receipt
and exercise of rights and privileges hereunder shall be subject to
all matters of record and any mortgage, deed of trust, lien, or
hypothecation for security now or hereafter existing.
Landlord’s rights under this Lease shall inure to
Landlord’s successors and assigns.
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