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OUTPARCEL GROUND LEASE

Lease Agreement

OUTPARCEL GROUND LEASE | Document Parties: OAK RIDGE FINANCIAL SERVICES, INC. | Bank of Oak Ridge | JPC MONROE, LLC You are currently viewing:
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OAK RIDGE FINANCIAL SERVICES, INC. | Bank of Oak Ridge | JPC MONROE, LLC

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Title: OUTPARCEL GROUND LEASE
Governing Law: North Carolina     Date: 3/28/2008
Industry: Regional Banks     Sector: Financial

OUTPARCEL GROUND LEASE, Parties: oak ridge financial services  inc. , bank of oak ridge , jpc monroe  llc
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EXHIBIT (10)(IV)

OUTPARCEL GROUND LEASE

between

JPC MONROE, LLC, Landlord

and

BANK OF OAK RIDGE, Tenant

Dated: June 1, 2002

 

 


TABLE OF CONTENTS

 

     Page No.

ARTICLE 1 -

   PREMISES AND COMMON AREAS    2

1.1

   Premises    2

1.2

   Common Areas    2

ARTICLE 2-

   TERM    5

2.1

   Term    5

2.2

   Options to Extend Term    5

ARTICLE 3 -

   RENT    5

3.1

   Minimum Monthly Rent    5

3.2

   Security Deposit    7

3.3

   Late Charge    7

3.4

   Rent Independent    7

ARTICLE 4 -

   TAXES; UTILITIES; DECLARATION; MONUMENT SIGN    8

4.1

   Real Property Taxes and Assessments    8

4.2

   Utilities    8

4.3

   Personal Property Taxes    9

4.4

   Assessment    9

4.5

   Proration    10

4.6

   Contest    10

ARTICLE 5 -

   USE OF PREMISES    10

5.1

   Permitted Use    10

5.2

   Landlord’s Recapture Right    11

5.3

   Exclusive Use    11

ARTICLE 6 -

   CONSTRUCTION OF IMPROVEMENTS; REPAIRS AND MAINTENANCE; ALTERATIONS AND IMPROVEMENTS    12

6.1

   Construction of Improvements    12

6.2

   Repairs and Maintenance    13

6.3

   Alterations and Improvements    13

6.4

   Maximum Size of Improvements    13

6.5

   Title to Improvements    13

6.6

   Landlord Improvements    13

ARTICLE 7-

   LIENS    14

ARTICLE 8 -

   LIABILITY INSURANCE    14

 

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TABLE OF CONTENTS

 

          Page No.

8.1

   Tenant’s Insurance    14

8.2

   Exculpation of Landlord    14

8.3

   Tenant’s Indemnification of Landlord    15

8.4

   Landlord’s Indemnification of Tenant    15

8.5

   Tenant’s Property    15

ARTICLE 9 -

   PROPERTY INSURANCE    16

9.1

   Tenant to Obtain “All Risk” Insurance    16

9.2

   Blanket Policy    16

ARTICLE 10 -

   DAMAGE AND DESTRUCTION    16

10.1

   No Abatement of Rent    16

10.2

   Restoration of Improvements    16

ARTICLE 11 -

   CONDEMNATION    17

11.1

   Complete Taking    17

11.2

   Partial Taking    17

11.3

   Allocation of Condemnation Award    17

11.4

   Rent Reduction in Case of Partial Taking; Restoration    18

ARTICLE 12 -

   BANKRUPTCY    18

ARTICLE 13 -

   ASSIGNMENT AND SUBLETTING    18

13.1

   Assignment and Subletting    18

ARTICLE 14 -

   REMEDIES IN THE EVENT OF DEFAULT    19

14.1

   Events of Default    19

14.2

   Remedies    19

14.3

   Limitation on Landlord’s Liability    21

ARTICLE 15 -

   SURRENDER OF THE PREMISES    21

ARTICLE 16 -

   QUIET ENJOYMENT AND TITLE    21

16.1

   Covenant of Quiet Enjoyment    21

16.2

   Right to Possession    21

16.3

   Ownership; Authority; Restrictions    22

ARTICLE 17 -

   TRADE FIXTURES    22

ARTICLE 18 -

   SUBORDINATION AND LEASEHOLD MORTGAGE    22

18.1

   Subordination    22

 

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TABLE OF CONTENTS

 

          Page No.

18.2

   Leasehold Mortgage    23

ARTICLE 19 -

   HAZARDOUS SUBSTANCE OR WASTE    24

19.1

   Landlord’s Liability    24

19.2

   Tenant’s Liability    24

19.3

   Hazardous Material    24

ARTICLE 20 -

   REAL ESTATE COMMISSIONS    25

ARTICLE 21 -

   NOTICES AND DEMANDS    25

ARTICLE 22 -

   ATTORNEY’S FEES    26

ARTICLE 23 -

   TENANT REPRESENTATIONS AND WARRANTIES    26

ARTICLE 24 -

   LEASE CONTINGENCIES    26

ARTICLE 25 -

   GENERAL PROVISIONS    27

25.1

   Binding on Successors    27

25.2

   Severability    27

25.3

   Entire Agreement    27

25.4

   Lien of Landlord for Rent, Taxes and Other Sums    27

25.5

   Captions    27

25.6

   Gender and Number    28

25.7

   “Affiliate” Defined    28

25.8

   Approvals    28

25.9

   No Waiver    28

25.10

   Holdover    28

25.11

   Time of Essence    28

25.12

   Governing Law    28

25.13

   Counterparts    28

25.14

   No Third Party Rights    28

25.15

   Unexecuted Lease    28

25.16

   Landlord’s Right of Entry    28

25.17

   Short Form Lease    29

25.18

   Estoppel Certificates    29

25.19

   Due Authorization    29

25.20

   Relationship of Parties    29

25.21

   Incorporation of Exhibits    29

 

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TABLE OF CONTENTS

 

          Page No.

EXHIBIT A

   Legal Description of the Land   

EXHIBIT B

   Shopping Center Site Plan   

EXHIBIT B-l

   Legal Description of Parcel   

EXHIBIT C

   Declaration   

EXHIBIT D

   Procedure for Construction of Improvements   

EXHIBIT E

   Landlord's Rules and Regulations   

EXHIBIT F

   Title Insurance Policy   

 

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GROUND LEASE

T HIS G ROUND L EASE , dated this 1 day of June, 2002, by and between JPC M ONROE , LLC, a North Carolina limited liability company (“Landlord”), and Bank of Oak Ridge, a North Carolina banking corporation (“Tenant”).

RECITALS:

A. Landlord is the owner of that certain tract of land located at the northwest corner of the intersection of N.C. Hwy. 150 and N.C. Hwy. 68, in the Town of Oak Ridge, Oakridge Township, Guilford County, North Carolina, which is more particularly described on Exhibit A attached hereto (the “Land”), upon which is situated the shopping center known as “Oak Ridge Commons” (the “Shopping Center”). A site plan of the Shopping Center dated ( undated ) is attached hereto as Exhibit B .

B. Landlord and Tenant desire: (1) for Landlord to lease to Tenant an outparcel that is a portion of the Shopping Center and is hereinafter more particularly described; (2) for Landlord to lease to Tenant the Premises, as hereinafter defined, and to permit Tenant to construct improvements thereon pursuant to the Landlord-approved Plans and Specifications (as such term is hereinafter defined); and (3) to provide Tenant with certain appurtenant rights and easements with respect to the use and enjoyment of the Premises, including, without limitation, (a) certain non-exclusive parking rights, (b) access easements over the all driveways and drive aisles accessing the Shopping Center and the Premises, (c) easements for all utilities which may be necessary for the use and enjoyment of the Premises, (d) the right to use all common areas of the Shopping Center which are used by the tenants of the Shopping Center, and (e) to provide such other rights, privileges and easements as is hereinafter set forth. The Easements are hereinafter defined and described in detail on Exhibit C attached hereto.

NOW, THEREFORE, in consideration of the Premises, the rent to be paid, the mutual covenants and agreements herein contained and of other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged by the parties hereto, Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord the Premises, together with the Easements, as such terms are defined and described on Exhibit C attached hereto. Tenant hereby accepts this Lease and the Premises upon the covenants and conditions set forth herein and subject to any encumbrances, covenants, conditions, restrictions and other matters of record as of the date hereof (the “Permitted Encumbrances”) and all applicable zoning, municipal, county, state and federal laws, ordinances and regulations governing and regulating the use of the Premises.

TO HAVE AND TO HOLD THE SAME for an initial term of 20 years commencing on the Rent Start Date, as hereinafter defined, subject to the terms and conditions set forth herein.

 


ARTICLE 1 - PREMISES AND COMMON AREAS

1.1 Premises . For and in consideration of the rents, taxes and insurance and other charges and expenses to be paid by Tenant, and in consideration of the performance by Tenant of the covenants set forth herein, Landlord does hereby demise and lease to Tenant all that certain real property consisting of approximately 52,272 square feet of land, located at the Shopping Center, in the Town of Oak Ridge, Guilford County, North Carolina, shown as Parcel D (the “Premises”) on the plat attached hereto as Exhibit B , and more particularly defined in Exhibit B-1 , together with the Improvements, as hereinafter defined, to be constructed thereon pursuant to the terms of this Lease and together with all the rights and easements appurtenant thereto as described in the Declaration recorded in Book 5483, Page 1142, Guilford County Registry, a copy of which is attached hereto as Exhibit C (the “Declaration”). The description of the Premises as shown on Exhibit B and described in Exhibit B-1 controls over the description in the site plan attached as an exhibit to the Declaration.

1.2 Common Areas .

a. Definition of Common Areas . Landlord shall make available within the Shopping Center such common areas, including, but not limited to, parking areas, driveways, truckways, delivery passages, loading docks, pedestrian sidewalks and ramps, access and egress roads, and other facilities, as Landlord in its sole discretion shall deem appropriate (“Common Area” or “Common Areas”). It is hereby expressly understood and agreed by Landlord and Tenant that Landlord shall operate, manage, equip, light, repair and maintain said Common Areas such that the Common Areas are reasonably fit for their intended purposes in such manner as Landlord in its sole discretion shall determine, and Landlord reserves the right to change from time to time the size, location, nature and use of any Common Area, to sell or lease any portion thereof, and to make additional installations therein and to move and remove the same. The community well and spray irrigation field do not constitute Common Area. The outparcels do not constitute Common Areas. For purposes of this Lease, “outparcel” shall have the meaning provided in the Declaration.

b. Use of Common Areas . Tenant and its concessionaires, officers, employees, agents, customers and invitees shall have the non-exclusive right in common with Landlord and all others to whom Landlord has or may hereafter grant rights, to use the Common Areas as designated from time to time by Landlord, subject to such reasonable rules and regulations as Landlord may from time to time impose, as more particularly described in Section 5.1. Tenant agrees after notice thereof to abide by such rules and regulations and to use its best efforts to cause its concessionaires, officers, employees, agents, customers and invitees to conform thereto. Landlord may at any time close temporarily any Common Area to make repairs or changes, to prevent the acquisition of public rights in such area or to discourage non-customer parking; and Landlord may do such other acts in and to the Common Areas as in its judgment may be desirable to improve the convenience thereof. Landlord may designate specific areas in which automobiles owned by Tenant, its concessionaires, officers, employees and agents must be parked. Tenant shall, upon request, furnish to Landlord the license numbers of the cars operated by Tenant and its concessionaires, officers,

 

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employees and agents. Tenant shall not at any time interfere with the rights of Landlord and other tenants, its and their concessionaires, officers, employees, agents, customers and invitees, to use any part of the parking areas and other Common Areas. Tenant and Tenant’s concessionaires, officers, employees or agents shall not solicit business in the parking or other Common Areas; shall not distribute any flyers, pamphlets, brochures, handbills or other advertising matter in the parking or other Common Areas; and shall not place any flyers, pamphlets, brochures, handbills or other advertising matter in or on any automobiles parked therein without Landlord’s written consent.

Landlord reserves the right to grant to third persons the non-exclusive right to cross over and use in common with Landlord and all tenants of the Shopping Center the Common Areas as designated from time to time by Landlord.

c. Management Agreements for Common Areas . At any time hereafter, Landlord shall have the right to employ any person, firm or corporation to manage, operate and maintain the Common Areas or any part or parts thereof or any particular function or functions operated in connection therewith, on such terms and conditions and for such time as Landlord shall, in its sole judgment, deem reasonable and proper.

d. Contributions to Costs of Maintaining and Operating the Common Areas.

(i) Determination of Cost . Tenant shall pay to Landlord, in addition to all other payments to be made by Tenant to Landlord under this Lease, Tenant’s pro rata share of the cost of managing, maintaining and operating the Common Areas. Tenant’s share will be determined by multiplying the total cost of managing, maintaining and operating the Common Areas by a fraction the numerator of which is the total number of square feet in the Premises (not the Improvements) and the denominator of which is the total square footage of the Land. Tenant’s share of such costs shall be paid as set forth in subsection (d)(ii) below and shall be Additional Rent. The term “cost of managing, maintaining and operating the Common Areas” shall mean the actual gross costs and expenses of every kind incurred by Landlord by reason of Landlord’s ownership or operation of the Common Areas, plus a charge of fifteen percent (15%) of such gross costs and expenses, which latter amount shall represent the cost of Landlord’s administering the Common Areas. Such costs and expenses shall include all sums expended by Landlord concerning the Common Areas for the maintenance and operation thereof and repairs thereto, and may include, by way of example but without imposing a requirement on Landlord, resurfacing, repainting, restriping, cleaning, sweeping, janitorial services, the purchase, construction and maintenance of trash and refuse receptacles, replanting and relandscaping, directional signs and other markers, patrol of and other security measures related to the Common Areas, supervision of traffic direction when required, car stops, lighting and other utilities, depreciation allowance on improvements therein and machinery and equipment used in connection therewith, ad valorem property taxes on the Common Areas, salaries, all insurance costs, and all fringe benefits on employees performing the

 

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services herein described, and adequate public liability and property damage insurance thereon in an amount to be determined by Landlord, and all other things necessary in Landlord’s judgment for the operation and maintenance of the Common Areas in a state of good and sanitary order, condition and repair. The cost of the original construction, installation or decoration of the Common Areas shall not be a part of the cost of maintenance and operation of the Common Areas.

(ii) Amount of Payments . Tenant shall pay to Landlord, in advance, on the first day of each and every month during the term of this Lease, an amount which Landlord shall estimate is Tenant’s pro rata share of the “costs of maintaining and operating the Common Areas.” Landlord shall notify Tenant, in writing, of Tenant’s estimated monthly payment. In the event the term hereof shall commence on a date other than the first day of a month, Tenant also shall make a prorated payment on the commencement date of the term for such part of the first month. Tenant’s initial monthly contribution through December 31 of the first calendar year of this Lease shall be $261.37.

Within one hundred twenty (120)  days after the end of any calendar year during which any portion of the term of this Lease occurs, Landlord shall deliver to Tenant a written statement showing the total cost of maintaining and operating the Common Areas for the calendar year ending and Tenant’s pro rata share of such expenses, together with any adjustment to the initial monthly payment made necessary by any increase in Common Area expenses. If during any calendar year for which the charges are made the number of days of the term hereof expiring is less than the number of days during which such Common Areas were maintained and operated by Landlord, Tenant’s pro rata share shall be determined by multiplying that amount which Tenant would otherwise have been liable to pay under the foregoing provisions thereof by a fraction, the numerator of which shall be the number of days of the term hereof expiring during such year, and the denominator of which shall be the number of days such Common Areas were maintained and operated by Landlord during such year. If the monthly amount paid by Tenant for such calendar year under the foregoing provisions of this Section (d) shall exceed Tenant’s pro rata share of such annual costs, Landlord shall refund such excess to Tenant or Landlord may, if it shall so elect, apply such excess as a credit against any existing or future liability of Tenant to Landlord. If the monthly amount paid by Tenant for such calendar year under the provisions of this Section (b) shall be less than Tenant’s pro rata share of such annual cost, Tenant shall pay to Landlord the amount of such deficiency within thirty (30) days after the receipt of such statement from Landlord.

(iii) Records . Landlord shall keep and maintain reasonable records of all expenses for the maintenance and operation of the Common Areas, and the same shall upon request by Tenant be made available annually to Tenant by appointment during reasonable business hours at the office of Landlord for inspection by Tenant.

 

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ARTICLE 2 - TERM

2.1 Term . Subject to the provisions of Exhibit D , the term of this Lease shall commence on the Rent Start Date, as defined in Section 3.1 below, and shall expire twenty (20) years thereafter (the “Term”); provided, however, if the Rent Start Date falls on a day other than the first day of a calendar month, then the Term shall expire twenty (20) years from the last day of the calendar month in which the Rent Start Date occurs. Within thirty (30) days after the Rent Start Date, Landlord and Tenant shall execute an addendum to this Lease setting forth the actual Rent Start Date and scheduled expiration date of the Term. The executed addendum shall be attached to this Lease and shall be a part hereof.

2.2 Options to Extend Term . Landlord further hereby grants Tenant two (2) successive options to extend the Term, each for an additional period often (10) years, as follows: Provided it is not then in default under this Lease beyond any applicable cure period, Tenant shall have the option to extend the Term for each successive ten (10) year period (“Extended Term”) by giving notice to Landlord of its exercise of the option at least one hundred eighty (180) days prior to the expiration of the Term or the then-expiring Extended Term, as the case may be. All of the terms and conditions of this Lease shall apply during each Extended Term, except the provisions relating to the initial construction of the Improvements and expired options to extend the Term. Failure to exercise any option to extend shall nullify any future options to extend the Term. Unless otherwise specified in this Lease, references to “Extended Term” shall mean and refer to all two (2) Extended Terms and references to “Term” shall be deemed to include any and all Extended Terms.

ARTICLE 3 - RENT

3.1 Minimum Monthly Rent . In consideration of leasing the Premises, Tenant agrees to pay Landlord, or Landlord’s designated agent, at the address provided in Article 21 of this Lease or such other address as Landlord from time to time may designate in writing, the following annual rent (“Minimum Annual Rent”), due and payable monthly, in advance during the Term of this Lease, in equal monthly installments in the following amounts (“Minimum Monthly Rent”):

 

     Lease Year    Minimum
Monthly Rent
   Minimum
Annual Rent
   Year l    $ 3,484.83/mo.    $ 41,818.00/yr.
   Year 2    $ 3,920.42/mo.    $ 47,045.00/yr.
   Years 3-5    $ 4,356.00/mo.    $ 52,272.00/yr.
   Years 6-10    $ 7,105.21/mo.    $ 60,116.00/yr.
   Years 11-15    $ 5,760.83/mo.    $ 69,130.00/yr.
   Years 16-20    $ 6,625.00/mo.    $ 79,500.00/yr.

First Extended Term:

   Years 21-30      Market Rent      (to be determined as provided below)

Second Extended Term:

   Years 31 -40      Market Rent      (to be determined as provided below)

 

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If the Tenant and the Landlord are not able to agree upon what rent increase should apply to reflect the current market rent (“Market Rent”) to calculate the new Minimum Monthly Rent and Minimum Annual Rent within thirty (30) days after the delivery of the written notice by Tenant of Tenant’s exercise of its option for a first or second Extended Term, the parties will endeavor to agree upon an appraiser to provide an appraisal of the Market Rent for the Premises (excluding improvements) as of the date of the written notice. If such an appraiser is agreed upon, the appraisal of such appraiser shall be binding on the parties with regard to the Market Rent. The cost of a single appraiser shall be borne equally between the parties.

If the parties cannot agree upon an appraiser within the thirty (30) day period specified above, then either party may send notice to the other party designating the commencement of the appraisal process. During the ten (10) day period following the delivery of such notice, each party shall be entitled to designate an appraiser, with each party bearing the cost of the appraiser selected by that party. Any appraiser so designated shall not be an affiliate of either party. The two appraisers so selected shall have thirty (30) days following the designation of the second appraiser to prepare their appraisals. After each has prepared an appraisal, the appraisers shall provide each other with their respective appraisals in writing. If the lower appraisal is equal to or greater than ninety percent (90%) of the higher appraisal, the average of the two appraisals shall be the Market Rent. If the lower appraisal is less than ninety percent (90%) of the higher appraisal, the two appraisers shall endeavor to agree jointly, within ten (10) days after the conclusion of their initial appraisals, to designate a third appraiser with similar qualifications. The cost of a third appraisal shall be borne equally between the parties.

In the event a third appraiser is designated to determine the Market Rent, the initial appraisers shall not inform the third appraiser of the results of their appraisals, and the third appraiser shall make its own independent appraisal. After such appraisal is complete, each of the three appraisers shall provide to the parties in writing the results of their respective appraisals. In such an event, the parties hereby agree that the Market Rent shall be deemed to be the average of (i) the appraisal of the third appraiser and (ii) that appraisal of the two initial appraisals which is the closest to the appraisal of the third appraiser; provided, however, that if the appraisal of the third appraiser is within two percent (2%) of the average of the initial two appraisals, the Market Rent shall be equal to the average of the initial two appraisals.

Each party shall bear its own legal expenses, if any, associated with the appraisal process. Notwithstanding anything in this Lease to the contrary, in no event shall the Market Rent for the second Extended Term be equal to or less than the first Extended Term, and in no event shall the Market Rent for the first Extended Term be equal to or less than the rent in effect at the end of the initial term of the Lease. The annual Market Rent for the first Extended Term shall increase at least three percent (3%) over the Minimum Annual Rent then in effect for original term. The annual Market Rent for the second Extended Term period shall increase at least three percent (3%) over the Minimum Annual Rent established for the first Extended Term.

The term “Lease Year” as used herein shall mean each consecutive twelve (12) month period from and after the Rent Start Date until the expiration of the Term; provided, however, if the Rent Start Date falls on a day other than the first day of a calendar month, then the first Lease Year shall be longer than one calendar year and shall end on the last day of the twelfth (12 th ) full calendar month

 

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after the Rent Start Date. Each subsequent Lease Year shall end on the last day of that same calendar month. Subject to the provisions of Exhibit D , the date on which Minimum Monthly Rent first becomes payable (the “Rent Start Date”) shall be the earlier of (a) the date Tenant opens for business or (b) June 12, 2003. If the Rent Start Date is other than the first day of a calendar month, the Minimum Monthly Rent for that month shall be prorated based upon a thirty (30) day month and the actual number of days from the Rent Start Date to the end of that calendar month.

3.2 Security Deposit . Tenant, contemporaneously with the execution of this Lease, has deposited with Landlord the Security Deposit in the amount of $3,484.83, receipt of which is hereby acknowledged by Landlord. This deposit shall be held by Landlord without liability for interest as security for the faithful performance by Tenant of all of the terms, covenants and conditions of this Lease by Tenant to be kept and performed during the term. If at any time during the term of this Lease any of the rent shall be overdue and unpaid, or any other sum payable by Tenant to Landlord shall be overdue and unpaid, then Landlord may at its option appropriate and apply the entire Security Deposit, or so much thereof as may be necessary to compensate the Landlord for loss or damage sustained or suffered by Landlord due to such breach on the part of Tenant. Should the entire deposit, or any portion thereof, be appropriated and applied by Landlord for the payment of overdue rent or other sums due and payable to Landlord by Tenant, then Tenant shall upon the written demand of Landlord remit to Landlord as additional rental a sufficient amount in cash to restore said security to the original sum deposited, and Tenant’s failure to do so within five (5) days after receipt of such demand shall constitute a breach of this Lease. Should Tenant comply with all of the terms, covenants and conditions and shall promptly pay all of the rental herein provided for as it falls due, and all other sums payable by Tenant to Landlord, the Security Deposit shall be returned in full to Tenant at the end of this Lease, or upon the earlier termination of this Lease.

3.3 Late Charge . If Tenant fails to pay any installment of Minimum Monthly Rent, Additional Rent, or any other charge that Tenant is obligated to pay hereunder within ten (10) days after the same is due and payable, then, without limiting Landlord in the exercise of any other right or remedy of Landlord with respect to such failure, Tenant shall pay Landlord a late charge equal to four percent (4%) of the amount of the late payment to compensate Landlord for any inconvenience or damage resulting therefrom; provided, however, such late charge shall not be imposed more than once for any particular late payment and shall not be applicable to any payment which becomes due on or after the date on which Landlord elects to pursue any remedy set forth in Article 14. In addition to the late fee provided herein, Tenant shall pay interest on any amount not paid within five (5) business days after the same is due and payable at the rate of the lower of fourteen percent (14%) per annum or the maximum amount per annum permitted under North Carolina law. Interest shall begin to accrue on any unpaid amount on the day that such amount is due and payable.

3.4 Rent Independent . Tenant’s covenants to pay Minimum Monthly Rent, Additional Rent and any other sums payable to Landlord under this Lease are independent of any other covenant, condition, provision, or agreement contained herein. Nothing herein contained shall be deemed to suspend or delay the payment of any amount of money or charge at the time that the same becomes due and payable hereunder, or limit any other remedy of Landlord. Minimum Monthly Rent and Additional Rent are sometimes collectively referred to as “Rent.” Rent shall be payable without deduction, offset, or prior notice or demand in lawful money of the United States.

 

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ARTICLE 4 - TAXES; UTILITIES; DECLARATION; MONUMENT SIGN

4.1 Real Property Taxes and Assessments . From and after the Rent Start Date, Tenant shall pay directly to the taxing authority all real property taxes and assessments, or installments thereof, whether general or special, or ordinary or extraordinary, every nature, name and kind whatever, including all governmental charges of whatever nature or kind, which are levied, assessed, charged or imposed against the Premises or any part of the Premises, the Improvements, the leasehold of Tenant under this Lease or against Tenant by reason of ownership of the Improvements and become due during the Term, at least ten (10) days before the date on which payment of such taxes or assessments would be delinquent. The amount of such taxes and assessments shall constitute Additional Rent hereunder. If any tax or assessment is payable in installments, Tenant may pay the tax or assessment in the maximum number of installments permitted by the applicable taxing authority as each becomes due and prior to the delinquency date therefor. In no event shall Tenant be required to pay any taxes or assessments attributable to any period before the Rent Start Date or after the expiration of the Term.

4.2 Utilities .

a. Expenses . Tenant shall make all arrangements for obtaining, and during the Term shall pay for, all utilities and services furnished to, or to be used on, the Premises, including, without limitation, electricity, water, gas, sewer, telephone service and trash collection, and for all service commencement charges and meter reading fees. Such charges and expenses shall be paid directly to the utility companies or other entities to which such charges and fees are payable.

b. Furnishing of Utility Services . Any utility or related service, including a privately owned water and spray irrigation sewage disposal system, which Landlord elects to provide or cause to be provided to the Premises may be furnished by any agent employed by Landlord or by an independent contractor selected by Landlord, and Tenant shall contract to receive those services to the exclusion of all other suppliers so long as the rates charged by the Landlord or by the supplier of such utility or related service are approved by the appropriate governmental authorities. Interruption or impairment of any such utility or related service, caused by or necessitated by repairs or improvements, or by hazards beyond the reasonable control of Landlord, shall not give rise to a right or cause of action by Tenant against Landlord in damages or otherwise.

Tenant acknowledges that Landlord has imposed a cap on water usage by Tenant, which is 200 gallons per day based on the average water usage of Tenant calculated over a rolling twelve (12) month period. For purposes of this usage limitation, water usage for irrigation landscape shall be separately metered and is not included within the cap. Landlord will install a meter and reserves the right periodically to read Tenant’s water meter and to inspect and repair the meter, the water and sewer

 

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connections, and the water and sewer lines. At Landlord’s option, a violation of these provisions, including the water cap, shall constitute an event of default. Furthermore, any violation by Tenant of the utilities contract between Landlord (or its private utility provider) and Tenant shall constitute an event of default.

Landlord and Tenant agree that in the event that (1) the water usage for the Bank increases such that the 200 gallons per day water usage limitation is not sufficient to accommodate the needs of the Bank in order to reasonably conduct its business and accommodate its employees and (2) Landlord has any available water capacity for the Shopping Center that is not allocated to a tenant or to a space within the Center or an outparcel, then to the extent that Landlord has any available water capacity, Landlord and Tenant will negotiate in good faith to agree upon an increased water cap for the Premises.

Tenant agrees to use reasonable efforts to conserve water, and specifically agrees to use only low flow water fixtures and appliances when available. Tenant shall not install any fixture or appliance using water without first having the fixture or appliance approved by Landlord, which approval will not be withheld unreasonably. Upon reasonable notice and during regular business hours except in the case of an emergency, Landlord reserves the right periodically to inspect Tenant’s use of fixtures and appliances using water to monitor compliance. At Landlord’s option, Tenant’s failure to comply with these provisions shall constitute an event of default.

Tenant agrees to use reasonable efforts to prevent grease or other incompatible products from being released into the spray irrigation sewage disposal system serving the Premises. Tenant agrees to install grease traps and filters to prevent damage to the spray irrigation sewage disposal system if Tenant’s permitted use of the Premises generates grease. Landlord reserves the right periodically to inspect the Tenant’s grease traps and filters to monitor compliance. Landlord reserves the right to install or cause to be installed appropriate signs in restrooms, at sinks and at other drains leading to the sewage disposal system warning of appropriate precautions necessary to protect the sewage disposal system from damage. At Landlord’s option, Tenant’s failure to comply with any of these provisions shall constitute an event of default.

4.3 Personal Property Taxes . During the Term, Tenant shall pay all personal property taxes levied upon the personal property on the Premises, before the date on which such taxes would be delinquent.

4.4 Assessment . Tenant acknowledges that the Premises are subject to the Declaration attached hereto as Exhibit C . Tenant acknowledges receipt of a copy of the Declaration. Tenant further acknowledges that under the Declaration certain assessments may be levied to cover common area and other expenses. Tenant agrees that during the Term Tenant shall pay all charges arising under the Declaration which are attributable to the Premises and shall be paid by Tenant as Additional Rent under the Lease. If Tenant fails to pay any assessment levied pursuant to the Declaration as and when due, Landlord shall have the right to make such payment for the account of Tenant, and Tenant shall reimburse Landlord therefor, including any interest or late charges paid by Landlord on account thereof, within ten (10) days after Tenant’s receipt of an invoice therefor. Landlord hereby grants to Tenant the benefit of all

 

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easements, rights, licenses, privileges, and other appurtenances granted under the Declaration to Landlord as fee owner of the Premises. Tenant shall at all times operate the Premises in accordance with the Declaration.

4.5 Proration . All of the costs, expenses and charges referred to in this Article 4 (“Impositions”), except personal property taxes and utility or other charges attributable solely to the operation of Tenant’s business on the Premises, shall be prorated between the parties for the first year of the Term, as of the Rent Start Date, and for the last year of the Term, as of the expiration or termination date. Landlord and Tenant agree that until such time as Guilford County assigns the Premises a separate tax lot number and assesses taxes against the Premises separate from the remainder of the Land, Tenant shall pay Landlord on demand as Additional Rent a pro-rata share of the ad valorem taxes assessed against the Land based on the relationship of the square footage of the Premises to the total square footage of the Land.

4.6 Contest . Tenant may, at its expense, contest any Impositions levied or charged against the Premises in any manner permitted by law, in Tenant’s name and, whenever necessary, in Landlord’s name. Landlord shall cooperate with Tenant and execute any documents or pleadings required for such purpose. Such contest may include appeals from any judgments, decrees or orders until a final determination is made by a court or governmental department or authority having final jurisdiction in the matter. Before commencing any such contest, Tenant shall obtain a surety bond in favor of Landlord sufficient to cover the amount of the possible Imposition which would be due if the decision were adverse to Tenant.

ARTICLE 5 - USE OF PREMISES

5.1 Permitted Use . The Premises shall be used for the purpose of conducting thereon the business of a bank and related services thereto, and for incidental purposes related thereto; and shall not be used for any other purpose without the prior written consent of Landlord. If Tenant is a retail tenant, the days and hours of operation shall generally be with the Tenant’s discretion and in accordance with applicable law. The Premises shall not be used in such manner as to knowingly violate any applicable law, rule, ordinance, or regulation of any governmental body. In addition, the Premises shall not be used for a purpose which would result in a breach or violation of any right of exclusive use granted to any owner or tenant of any other premises or space within the Shopping Center; provided, however, that Tenant shall have no liability to Landlord or any other owner, tenant, or occupant in the Shopping Center on account of a claimed violation of an exclusive use unless either (1) the right to such exclusive use was set forth in a document recorded prior to the date of this Lease, or (2) Tenant was given written notice of any exclusive use granted after the date of this Lease at least thirty (30) days prior to the date on which Tenant is claimed to have first violated the exclusive use. Any exclusive use right granted after the date of this Lease shall not prohibit Tenant’s permitted or then current use of the Premises. Tenant further agrees that, notwithstanding any provision of this Section 5.1 to the contrary, the Premises shall not be used for any purpose which would violate any use restriction created under the Declaration referred to in Section 4.4 above. Landlord may enforce this use provision by cancellation of this Lease or injunctive or other equitable relief in addition to any other legal remedies available to Landlord and in the event of any such legal or equitable action, Landlord shall, among other things, be entitled to recover reasonable attorney’s fees and costs.

 

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Tenant’s use of the Leased Premises shall be subject, at all times during the Term, to Landlord’s right to adopt from time to time, modify and/or rescind reasonable rules and regulations not in conflict with any of the express provisions hereof governing the use of the parking areas, walks, driveways, passageways, signs, exteriors of buildings, lighting and other matters affecting other tenants in and the general management and appearance of the Shopping Center of which the Premises are a part, but no such rule or regulation shall discriminate against Tenant. Tenant agrees to comply with all such rules and regulations upon notice to Tenant from Landlord. The initial set of Landlord’s rules and regulations effective as of the date of this Lease is attached hereto as Exhibit E .

5.2 Landlord’s Recapture Right . If Tenant abandons, vacates or otherwise ceases to conduct business from the Premises for more than sixty (60) consecutive days (the “Non-use Period”), then Landlord, at its option, may terminate this Lease upon thirty (30) days written notice to Tenant provided Landlord gives such notice within thirty (30) days after expiration of the Non-use Period; and provided further that:

a. The Non-use Period shall be extended by periods during which business cannot be conducted from the Premises because of damage to or destruction of the Improvements, the repair and restoration thereof, or causes beyond the control of Tenant, and by periods during which the Premises are closed for remodeling or alterations in connection with the on-going operation of the business provided that Tenant must begin such repairs, restoration or alterations and promptly and work diligently to complete the same; and

b. Tenant may nullify Landlord’s termination of the Lease by tendering to Landlord, within thirty (30) days after Tenant’s receipt of notice of termination, a proposed assignee or subtenant of the Premises, subject to the provisions of Article 11 below and reasonably acceptable to Landlord.

5.3 Exclusive Use . Landlord covenants and agrees that, commencing with the date this Lease is executed and continuing during the Term of this Lease, Landlord shall not sell, lease, rent, use or occupy or suffer or permit to be used or occupied, any part of the Shopping Center (other than the Premises) for the operation of (i) a national bank or savings bank, state bank or savings bank, state bank, savings and loan, credit union or other federally insured financial institution, a trust company, a stand-alone “ATM” located outside a Tenant’s business location, a loan production office, mortgage broker or other mortgage office or company, or a bank holding company (the “Bank Exclusive Use”); provided, however, Tenant acknowledges and agrees that the Bank Exclusive Use applies only to traditional retail banking services conducted at a branch office and does not apply to financial and other services which may be provided by a bank or another financial services institution, such as insurance services or stock brokerage services; the Bank Exclusive Use shall not apply to the use of an indoor stand-alone “ATM” machine by a tenant. Tenant further acknowledges that Landlord has already entered into certain leases, including a lease with Lowe’s Food Stores, Inc., which leases are not bound

 

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by the Bank Exclusive Use. Therefore, it is possible that Lowe’s Food Stores, Inc. may operate a bank within its leased premises or locate an ATM machine outside its premises and any such use by Lowe’s Food Stores, Inc. shall not constitute a breach of the Bank Exclusive Use. The Bank Exclusive Use shall terminate if Tenant ceases to operate traditional retail banking services for a period of 120 days, except when such failure to operate is caused by renovations, strikes, labor disputes, casualty or conditions beyond the control of Tenant.

If there is a breach of this Section 5.3, Tenant shall provide Landlord written notice of such breach and Landlord shall have thirty (30) days in which to act to discontinue or enjoin the conflicting use. If the Landlord does not institute and proceed diligently with a suit to enjoin such conflicting use or promptly take other reasonable actions to discontinue such use within such thirty (30) day period, Tenant, in addition to all other rights and remedies available to Tenant, shall have the right to institute proceedings to enjoin the violation, either in its name or in the name of Landlord and Landlord shall be liable to Tenant for all costs and expenses, including reasonable counsel fees based on actual hours worked and billed at normal hourly rates, sustained or incurred in connection with any proceeding instituted by Tenant. In the event of Landlord’s failure to take reasonable actions within the 30 day period to discontinue the use and if Landlord is solely at fault for such conflicting use, then, in addition to all other rights and remedies available to Tenant for a breach of this Lease by Landlord, Tenant may hold Landlord liable for any other damages sustained or to be sustained by reason of the violation of such covenant; provided, however, that if the conflicting use arises as the result of a breach by another tenant of the Shopping Center of the use provision of such tenant’s lease, then Landlord shall only be liable for reasonable attorney’s fees and expenses incurred by Tenant in acting to discontinue the conflicting use.

ARTICLE 6 - CONSTRUCTION OF IMPROVEMENTS; REPAIRS AND

MAINTENANCE; ALTERATIONS AND IMPROVEMENTS

6.1 Construction of Improvements . The parties contemplate that Tenant will construct or cause to be constructed on the Premises a building for use as a bank, subject to and in accordance with the Declaration, Exhibit D and in accordance with plans and specifications, which will be submitted to Landlord and all governmental agencies having jurisdiction therefor for review in accordance with the terms of this Lease (the “Improvements”).

Tenant shall perform all construction, including alterations and improvements referenced below, in compliance with the terms and provisions of Exhibit D and with all applicable ordinances, laws and regulations and only after obtaining and maintaining in full force and effect all necessary licenses and permits. The construction shall be performed in such a manner as not to interfere with the use and access to other portions of the Shopping Center. The construction and/or installation of the Improvements by Tenant shall be completed in a good and workmanlike manner and in compliance with building code requirements and zoning ordinances, as applicable, including, but not limited to, the Americans with Disabilities Act (“ADA”). The cost of the Improvements and any fines imposed for failure of Tenant to comply with applicable ordinances or restrictions shall be borne solely by Tenant. Tenant agrees to defend and hold Landlord forever harmless from any and all claims and liabilities of any kind and description which may arise out of or be connected in any way with said improvements, alterations, or installations performed by or on behalf of Tenant. Upon

 

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completion of the Improvements and any subsequent alterations, repairs or improvements, Tenant will furnish Landlord with contractor’s affidavits, full and final waivers of liens and receipted bills covering all labor and materials expended and used.

6.2 Repairs and Maintenance . Tenant agrees that, subject to the provisions of Article 9 below, during the Term it will, at its expense and without any expense to Landlord, make all necessary repairs to or replacements of the Improvements, including all parking areas, sidewalks, curbs, lawns and landscaping on the Premises, and maintain the Premises in good, sanitary and neat order, condition and repair, including repairs and replacement of the electrical, plumbing, heating, air conditioning and other equipment of all types on or in the Premises. Tenant shall, at its sole expense, keep any sidewalks and parking areas on the Premises free from snow, ice, rubbish and other obstructions.

6.3 Alterations and Improvements . Tenant shall have the right, at any time and from time to time during the Term, at its expense, to (a) make changes or alterations, structural or otherwise, to the Improvements, (b) erect, construct or install upon the Premises buildings and improvements in addition to or in substitution for those now or hereafter located thereon, and (c) demolish and remove the Improvements or any other structures hereafter located on the Premises for the purpose of replacing the same; provided, however, that the fair market value of all improvements on the Premises following each such change, alteration, construction or installation shall be at least equal to the fair market value of all improvements on the Premises immediately prior to such change, alteration, construction or installation. Notwithstanding the foregoing, Tenant shall make no changes at any given time costing in excess of Five Thousand Dollars ($5,000.00) without first obtaining the consent of Landlord, which consent shall not be unreasonably withheld or delayed.

6.4 Maximum Size of Improvements . Landlord has disclosed to Tenant and Tenant is aware that the current zoning classification to which the Land and Shopping Center are subject provide that the Shopping Center may not contain more than 124,585 square feet of combined office and retail space. Tenant acknowledges that Landlord has disclosed that the square footage of the Improvements to be constructed by Tenant may not exceed 6,686 square feet (the “Maximum Square Footage”) without the prior written consent of Landlord, which may be withheld in Landlord’s sole discretion. The Maximum Square Footage applies to both the Initial Improvements, as defined in Exhibit D, constructed by Tenant and all alterations, repairs, restorations or improvements constructed at any time during the Term of this Lease. Tenant is authorized by Landlord to have up to, but no more than, 0 restaurant seats.

6.5 Title to Improvements . At all times while this Lease is in force and effect, title to the Improvements shall belong solely to Tenant. Upon the termination or expiration of this Lease, title to the Improvements shall pass to Landlord, without payment therefor to Tenant, and Tenant shall have no further rights therein.

6.6 Landlord Improvements . Landlord hereby reserves the right at any time to make alterations or additions to the Shopping Center. Landlord also reserves the right to construct other buildings or improvements in the Shopping Center or Common Areas from time to time and to make alterations thereof and additions thereto and to build additional stories on any such building or buildings so constructed.

 

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ARTICLE 7 - LIENS

Tenant shall keep the Premises and the Shopping Center free from any liens arising out of any work performed, materials furnished or obligations incurred by Tenant, and shall indemnify, protect and hold harmless Landlord from any liens and encumbrances arising out of any work performed or materials furnished by or at the direction of Tenant.

If, at any time during the Term, any interest of Landlord in the Premises becomes subject to a lien for labor or materials furnished to Tenant in the repair or improvement of the Premises, within thirty (30) days after Tenant’s receipt of written notice informing Tenant of the recording of such lien, Tenant shall cause the lien to be bonded or discharged, and shall otherwise save Landlord harmless on account thereof; provided, however, that if Tenant desires in good faith to contest the validity or correctness of any such lien, it may do so, and Landlord shall cooperate to whatever extent may be necessary, provided only that Tenant shall indemnify Landlord against any costs, loss, liability or damage on account thereof, including reasonable attorneys’ fees, which amounts shall constitute Additional Rent and shall be payable on demand with interest at the rate set forth in Article 3.4 accruing from the date paid or incurred by Landlord until reimbursed to Landlord by Tenant.

ARTICLE 8 - LIABILITY INSURANCE

8.1 Tenant’s Insurance . Tenant agrees that on or before the Rent Start Date it will obtain for the mutual benefit of Landlord and Tenant commercial general liability insurance covering the Premises, providing occurrence-basis coverage, from an insurance company licensed to do business in the state in which the Premises are located. Such insurance shall provide coverage of at least Two Million Dollars ($2,000,000) combined single limit for death or injury to one or more persons and property damage, and shall name Landlord as an additional insured thereunder. Tenant agrees to maintain such insurance in full force and effect during the Term at its sole cost and expense. Tenant shall provide Landlord with a certificate of the company issuing the policy endorsed “Premium Paid,” certifying that the same is in full force and effect and providing that Landlord shall be given at least thirty (30) days notice prior to cancellation of the policy. Tenant may, at its option, bring its obligation to insure hereunder under a “blanket” policy of insurance; provided, however, that the interests of Landlord shall be as fully protected thereby as if Tenant obtained individual policies of insurance. At such time as insurance limits required of tenants in similar properties in the area in which the Shopping Center is located are generally increased to greater amounts, Landlord shall have the right to require such greater amounts of coverage as may then be customary. Any coverage shall be deemed primary to any liability coverage incurred by Landlord.

8.2 Exculpation of Landlord . It is expressly understood and agreed by and between Landlord and Tenant that Landlord shall have no liability for damage or injury to any person or property in, on or about the Premises caused by or resulting from acts or omissions of any tenant, occupant, licensee or invitee of the Shopping Center, electricity, gas, rain, ice, snow, or leakage or flow

 

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of water from or into any part of the Improvements, or from any other cause or occurrence, unless such damage or injury is caused by or results from the gross negligence or willful misconduct of Landlord or Landlord’s agents, employees, representatives, or contractors or Landlord’s failure to comply with its obligations under this Lease or the Declaration.

8.3 Tenant’s Indemnification of Landlord . Tenant agrees to indemnify, protect, defend and hold Landlord and Landlord’s partners, shareholders, employees, lender and managing agent harmless from and against any and all claims, losses, costs, liabilities, actions and damages, including, without limitation, reasonable attorneys’ fees and costs by or on behalf of any person or persons, firm or firms, corporation or corporations, arising from any breach or default on the part of Tenant in the performance of any representation, warranty, covenant or other agreement on the part of Tenant to be performed, pursuant to the terms of this Lease, or arising from gross negligence or willful misconduct on the part of Tenant or its agents, contractors, servants, employees or licensees, or arising from any accident, injury or damage to the extent caused by Tenant or its agents or employees to any person, firm or corporation occurring during the Term of this Lease or any renewal thereof, in or about the Premises and the Shopping Center, and from and against all costs, reasonable attorneys’ fees, expenses and liabilities actually incurred in or about any such claim or action or proceeding brought thereon; provided Tenant is given written notice of any such claims, losses, costs, liabilities, actions and damages and the opportunity to participate in the defense thereof; and in case any action or proceeding be brought against Landlord or its managing agent by reason of any such claim, Tenant, upon notice from Landlord, covenants to resist or defend such action or proceeding by counsel reasonably satisfactory to Landlord.

8.4 Landlord’s Indemnification of Tenant . Landlord agrees to indemnify, protect, defend and hold Tenant and Tenant’s partners, shareholders, and employees harmless from and against any and all claims, losses, costs, liabilities, actions and damages, including, without limitation, reasonable attorneys’ fees and costs by or on behalf of any person or persons, firm or firms, corporation or corporations, arising from any breach or default on the part of Landlord in the performance of any representation, warranty, covenant or other agreement on the part of Landlord to be performed, pursuant to the terms of this Lease, or arising from the gross negligence or willful misconduct of Landlord or its agents, contractors, servants, employees or licensees occurring during the term of this Lease or any renewal thereof, in or about the Premises and the Shopping Center, and from and against all costs, reasonable attorney fees, expenses and liabilities actually incurred in or about any such claim or action or proceeding brought thereon; and in case any action or proceeding be brought against Tenant or its managing agent by reason of any such claim, Landlord, upon notice from Tenant, covenants to resist or defend such action or proceeding by counsel reasonably satisfactory to Tenant or assist or cooperate in the defense thereof.

8.5 Tenant’s Property . All property in the Shopping Center or on the Premises belonging to Tenant or its agents, employees, invitees or otherwise located at the Premises, shall be at the risk of Tenant only, and Landlord shall not be liable for damage thereto or theft, misappropriation or loss thereof and Tenant agrees to defend and hold Landlord and Landlord’s agents, employees and servants harmless and indemnify them against claims and liability for injuries to such property; provided, however; the foregoing shall not apply to any intentional act or negligent act or omission of Landlord, its employees, agents or independent contractors or to a breach of this Lease or failure to perform obligations under this Lease by Landlord.

 

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ARTICLE 9 - PROPERTY INSURANCE

9.1 Tenant to Obtain “All Risk” Insurance . Tenant will, at its cost and expenses, carry and maintain so-called “All Risk” property insurance with an extended coverage endorsement, with an insurance company licensed to do business in North Carolina for the mutual benefit of Tenant, Landlord, and its mortgagee, if any, covering the Improvements and all Tenant’s equipment, machinery, furniture, and other personal property located on the Premises in an amount equal to at least one hundred percent (100%) of the full replacement cost thereof, excluding footings, foundation and excavation costs. Such “All-Risk” insurance shall insure the Premises against loss for damage by fire and other perils commonly covered under an extended coverage endorsement. As often as any such policy expires or terminates, a renewal or replacement policy providing similar coverage shall be obtained by Tenant. In the event of fire or other casualty, proceeds of any such policy shall be payable to Tenant, Landlord, and its mortgagee, as their respective interests may appear, and in accordance with the terms of Article 10 below. Tenant shall provide Landlord with a certificate of the company issuing the policy, endorsed “Premium Paid,” certifying that the same is in full force and effect and providing that Landlord shall be given at least thirty (30) days notice prior to cancellation of the policy.

During any construction, the policy shall include a Builder’s Risk Computed Value Non-reporting Form, which shall include the aforementioned coverage.

9.2 Blanket Policy . Tenant may, at its option, bring its obligations to insure under this Article 9 within the coverage of a “blanket” policy of insurance which it may now or hereafter carry, by appropriate amendment, rider, endorsement, or otherwise; provided, however, that the interest of Landlord shall thereby be as fully protected as if Tenant obtained individual policies of insurance.

ARTICLE 10 - DAMAGE AND DESTRUCTION

10.1 No Abatement of Rent . Notwithstanding any statute or rule of law of the state in which the Premises are located to the contrary, if the Improvements or any part thereof are damaged or destroyed by fire or other casualty, this Lease shall continue in full force and effect and such damage or destruction shall not affect, abate or mitigate Tenant’s obligation to pay rental or other sums due hereunder.

10.2 Restoration of Improvements . In the event of damage to or destruction of the Improvements, then, within a reasonable period of time after the date of the damage or destruction, Tenant shall proceed to repair, restore, and replace the Improvements. The proceeds received from Tenant’s property insurance on the Premises and Improvements shall be placed in an escrow account and shall be applied exclusively to the costs of repairs and replacements. The escrow account shall be maintained by Landlord or by Tenant’s leasehold mortgagee, if required, and shall be disbursed during the course of the repairs. If the insurance proceeds are insufficient to pay the costs of the repair work, Tenant shall pay any and all deficiency. Except as expressly provided to the contrary

 

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in this Lease, Landlord shall not be obligated to make any payment, disbursement or contribution towards the cost of the repairs or replacements. If the proceeds exceed the cost of such work, Tenant may retain the excess, except that, where any leasehold mortgage contains a contrary provision regarding the excess, such provision shall govern the application of the excess insurance proceeds. Notwithstanding the foregoing, if such damage or destruction occurs within two (2) years prior to the end of the Term, then Tenant may elect to terminate this Lease by giving Landlord written notice of the same within thirty (30) days following such damage or destruction, in which event all insurance proceeds by reason of such damage or destruction shall be payable to Landlord. Promptly following any fire or other casualty damage to the Improvements, Tenant shall remove any debris or other materials that may interfere with or create a hazard with respect to the Shopping Center.

ARTICLE 11 - CONDEMNATION

11.1 Complete Taking . If, at any time during the Term, the whole of the Premises is taken for any public or quasi-public purpose by any lawful power or authority by the exercise of the right of condemnation or eminent domain, including any such taking by “inverse condemnation,” then this Lease shall terminate as of the earlier of the date that title vests in the condemnor or the date that the condemnor takes possession of the property so taken (“Date of Taking”). In such event, Minimum Monthly Rent, all Additional Rent, and all other charges payable hereunder shall be prorated and paid to such date of termination.

11.2 Partial Taking . If, at any time during the Term, more than fifteen percent (15%) of the square footage of the Improvements including parking areas on the Premises, or any part of a driveway or other access way which is reasonably necessary for access to Tenant’s business on the Premises is taken for the purposes set forth in Section 11.1 and Landlord cannot provide an alternative parking areas, driveway or access, and such taking materially, adversely affects the operation of the business on the Premises, Tenant shall have the right to terminate this Lease as of the Date of Taking, by giving written notice of such termination to Landlord within ninety (90) days after the date of Tenant’s receipt of notice of such taking. In such event, Minimum Monthly Rent, all Additional Rent, and all other charges payable hereunder shall be prorated and paid to the date of termination.

11.3 Allocation of Condemnation Award . If the whole or a part of the Premises is taken by condemnation, Landlord shall have the unqualified right to pursue its remedies against the condemnor for the full value of Landlord’s fee interest and other property interests in and to the Premises. Similarly, Tenant shall have the unqualified right to pursue its remedies against the condemnor for the full value of Tenant’s leasehold interest and other property interests in and to the Premises. If the laws of the state in which the Premises are located allow or require the recovery from the condemnor to be paid into a common fund or to be paid to Landlord only, and if such recovery is so paid into a common fund or to Landlord only, then the recovery so paid shall be apportioned between the parties according to the value of their respective property interests as they existed on the date of the condemnation, giving due consideration for the number of years remaining in the Term and the condition of the buildings and other Improvements comprising the Premises. Tenant shall not be entitled to share in any awards to Landlord for the value of any land owned by Landlord, which is the subject of the taking. The provisions of this Section 11.3 shall survive any termination of this Lease pursuant to the provisions of Section 11.1 or 11.2.

 

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11.4 Rent Reduction in Case of Partial Taking; Restoration . If, at any time during the Term, a part of the Premises is taken by condemnation and Tenant is not entitled to or does not exercise its right to terminate, this Lease shall continue in full force and effect, except that Minimum Monthly Rent shall be reduced as of the Date of Taking, so that for the remainder of the Term, Tenant shall pay only such portion of the Minimum Monthly Rent as the rental value of the part remaining after condemnation bears to the rental value of the entire Premises at the date of condemnation. The rental value of the part of the Premises remaining after the Condemnation and rental value of the entire Premises as of the date of the Condemnation shall be determined using the appraisal procedure set forth in Section 3.1 above, unless otherwise agreed by Landlord and Tenant. Tenant shall perform the construction, repair, alteration or restoration of the remaining part of the Premises so the same shall continue a complete unit suitable for the use made by Tenant immediately prior to the condemnation; provided, however, that the condemnation award shall be made available to pay for such repairs and Tenant shall not be obligated to expend an amount greater than the amount awarded to Landlord and Tenant on account of the taking of the Improvements, exclusive of that portion of the award attributable to real property taken. If the amount awarded to Landlord and Tenant on account of the taking is not sufficient to permit Tenant to so alter, repair, and restore the Premises, Tenant shall notify Landlord of such deficiency within thirty (30) days after the Date of Taking and Landlord may elect to contribute the amount of the deficiency to the cost of the repair and restoration or to terminate this Lease. Landlord shall notify Tenant of its election within thirty (30) days after the date on which Landlord receives the notice of deficiency from Tenant. If Landlord elects to terminate the Lease, the termination shall be effective as of the Date of Taking and all Minimum Monthly Rent, Additional Rent and other charges payable hereunder shall be prorated and paid to such date of termination. The condemnation award received by Landlord and Tenant shall be allocated as set forth in Section 11.3 above.

ARTICLE 12 - BANKRUPTCY

If, at any time during the Term, bankruptcy, insolvency or other similar proceedings shall be instituted by or against Tenant, whether or not such proceedings result in an adjudication against Tenant, or should a receiver of the business or assets of Tenant be appointed, such proceedings or adjudication shall not affect the validity of this Lease so long as the Minimum Monthly Rent and Additional Rent reserved hereunder continues to be paid to Landlord when due, and the other terms, covenants and conditions of this Lease on the part of Tenant to be performed are performed, and in such event this Lease shall remain in full force and effect in accordance with its terms.

ARTICLE 13 - ASSIGNMENT AND SUBLETTING

13.1 Assignment and Subletting . Tenant may not assign this Lease or sublet the Premises, in whole or in part, without obtaining the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld or delayed; provided, however, that any assignment or subletting shall be subject to the provisions of Section 5.1 above. If Tenant assigns this

 

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Lease as set forth herein or sublets the Premises, Tenant shall remain fully liable hereunder for any obligation whether past, present or future. Consent to any assignment or subletting for which Landlord’s consent is required shall not be deemed consent to any subsequent assignment or subletting. Any assignee or subtenant hereunder shall expressly assume in writing all obligations on Tenant’s part to be performed under this Lease from and after the effective date of the assignment or subletting.

ARTICLE 14 - REMEDIES IN THE EVENT OF DEFAULT

14.1 Events of Default . The occurrence of any one or more of the following events (in this Article sometimes called “Event of Default”) shall constitute a default and breach of this Lease by Tenant:

a. If Tenant fails to pay any Minimum Monthly Rent or Additional Rent payable under this Lease or fails to pay any obligation required to be paid by Tenant and such failure shall continue for a period of ten (10) days after written notice from Landlord to Tenant that the same is due and payable or if notice has been given on two (2) occasions of default within a twelve (12) month period, then the failure of Tenant to pay Rent or other charges for a period of ten (10) days without notice.

b. If Tenant fails to perform any of Tenant’s nonmonetary obligations or breaches any covenant or representation or warranty under this Lease for a period of thirty (30) days after written notice from Landlord; provided that if more time is required to complete such performance, Tenant shall not be in default if Tenant commences such performance within the thirty (30) day period and thereafter diligently pursues its completion without interruptions. The notice required by this subsection is intended to satisfy any and all notice requirements imposed by law on Landlord and is not in addition to any such requirement.

c. If Landlord discovers that any financial statement, warranty, representation or other information given to Landlord by Tenant, any assignee of Tenant, any subtenant of Tenant, any successor in interest of Tenant or any guarantor of Tenant’s obligation hereunder, and any of them, in connection with this Lease, was materially false or misleading when made or furnished.

d. Abandonment of the Premises, Improvements or the leasehold estate.

14.2 Remedies . Upon the occurrence of an Event of Default by Tenant, and at any time thereafter, at Landlord’s option, and without limiting Landlord in the exercise of any other rights or remedies which Landlord may have at law or in equity by reason of such breach, with or without notice or demand, Landlord may:

a. Without terminating this Lease, re-enter the Premises with or without service of notice or resort to process of law, take possession of the same, and expel or remove Tenant and all other parties occupying the Premises, and remove all property of Tenant and store such property in a public warehouse or other suitable location at the costs of and for the account of

 

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Tenant without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby, and Landlord may, at its option, at any time and from time to time repair, alter, remodel and/or change the character of the Premises as it may deem fit and/or relet the Premises or any part thereof for the account of Tenant, for such term, upon such conditions, and at such rental as Landlord may deem proper. In such event, Landlord may receive and collect the rent from such reletting and shall apply it against any amounts due from Tenant hereunder, including, without limitation, such expenses as Landlord may have incurred in recovering possession of the Premises, placing the same in good order and condition, altering or repairing the same for reletting, and all other expenses, commissions and charges, including reasonable attorneys’ fees, which Landlord may have paid or incurred in connection with such repossession and reletting. Landlord may execute any lease made pursuant hereto in Landlord’s name or in the name of Tenant, as Landlord may see fit, and the Tenant thereunder shall be under no obligation to see to the application by Landlord of any rent collected by Landlord, nor shall Tenant have any right to collect any rent thereunder. Whether or not the Premises are relet, Tenant shall pay to Landlord all amounts required to be paid by Tenant up to the date of Landlord’s reentry, and thereafter Tenant shall pay to Landlord, until the end of the Term, the amount of all rent and other charges required to be paid by Tenant hereunder, less the proceeds of such reletting as provided above. Such payments by Tenant shall be due at such times as are provided elsewhere in this Lease, and Landlord need not wait until the termination of this Lease to recover them by legal action or otherwise. Landlord shall not be deemed to have terminated this Lease or the liability of Tenant for the total rent hereunder by any reentry or other act, unless Landlord shall give Tenant written notice of Landlord’s election to terminate this Lease.

b. Terminate this Lease by giving written notice to Tenant of Landlord’s election to so terminate, re-enter the Premises with or without process of law and take possession of the same, and expel or remove Tenant and all other parties occupying the Premises, and remove all property of Tenant and store such property in a public warehouse or other suitable location at the costs of and for the account of Tenant without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. In such event, Landlord shall thereupon be entitled to recover from Tenant:

(i) The worth at the time of award of any unpaid Rent which had been earned at the time of such termination; plus

(ii) The worth at the time of award of the amount by which the unpaid Rent which would have been earned after termination until the time of award exceeds the amount of such rental loss Tenant proves could have been reasonably avoided; plus

(iii) The worth at the time of award of the amount by which the unpaid Rent for the balance of the Term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus

 

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(iv) Any other amount reasonably necessary to compensate Landlord for all detriment proximately caused by Tenant’s failure to perform its obligations under this Lease or which, in the ordinary course of things, would be likely to result therefrom, including but not limited to reasonable attorney’s fees.

As used in Subsections (i) and (ii) above, the “worth at the time of award” is computed by allowing interest at the rate of ten percent (10%) per annum. As used in Subsection (iii) above, the “worth at the time of award” is computed by discounting such amount at the discount rate of the Federal Reserve Bank of Atlanta at the time of award.

14.3 Limitation on Landlord’s Liability . In the event of a default or breach by Landlord in the performance of Landlord’s obligations hereunder or a violation by Landlord of any of the provisions of this Lease and subject to the provisions of Section 8.4 of this Lease, there shall be no personal liability of Landlord and Tenant shall look solely to the equity of Landlord in the Premises for satisfaction of Tenant’s remedies.

ARTICLE 15 - SURRENDER OF THE PREMISES

At the expiration or earlier termination of this Lease pursuant to the provisions hereof; Tenant shall quit and surrender the Premises to Landlord without delay, and in good order, condition and repair, ordinary wear and tear (and damage and destruction or condemnation if this Lease is terminated pursuant to either Article 10 or 11) excepted. Such surrender of the Premises shall be accomplished without the necessity for any payment therefor by Landlord. Upon such event, title to the Improvements shall automatically vest in Landlord without the execution of any further instrument; provided, however, Tenant covenants and agrees, upon either such event, to execute (at no cost or expense to Tenant) such appropriate documentation as may be reasonably requested by Landlord to transfer title to the Improvements to Landlord. Notwithstanding anything to the contrary contained in Article 18 below, no such surrender shall cause or be deemed to cause a merger of Landlord’s Estate and Tenant’s Estate (both as hereinafter defined), unless Landlord, and any Mortgagee holding a permitted mortgage, the lien of which was not reconveyed upon such surrender, expressly so agree in writing.

ARTICLE 16 - QUIET ENJOYMENT AND TITLE

16.1 Covenant of Quiet Enjoyment . Subject to the terms of this Lease, upon paying the Minimum Monthly Rent and Additional Rent and performing the other terms, covenants and conditions of this Lease on Tenant’s part to be performed, Tenant shall and may peaceably and quietly have, hold, occupy, possess and enjoy the Premises during the Term, subject to the rights, if any, of the parties under easements or encumbrances of record or pursuant to the Declarations.

16.2 Right to Possession . Landlord covenants, warrants and represents that: (a) the Premises are now unoccupied and tenant-free, (b) absolute, tenant-free possession of the Premises will be delivered to Tenant on the Construction Start Date as set forth in Exhibit D , and (c) the Premises will thereafter remain tenant-free up to and including the date of Tenant’s acceptance of possession of the Premises on the Rent Start Date.

 

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16.3 Ownership; Authority; Restrictions . Landlord covenants, warrants and represents that: (a) Landlord alone has the full right and authority to lease the Premises for the Term and as set forth in this Lease; (b) in reliance on the title insurance policy attached hereto as Exhibit F , there are no restrictions or encumbrances affecting the Premises which would prohibit the construction of the Improvements or the use and occupancy of the Premises for the use described in Article 5; (c) there is no underlying or superior lease with respect to the Premises; and (d) Landlord has not granted any other tenant the exclusive right to operate a bank

ARTICLE 17 - TRADE FIXTURES

Anything contained in this Lease to the contrary notwithstanding, Landlord acknowledges, consents and agrees that all furniture, fixtures and equipment which are installed or placed in, on or about the Improvements or other parts of the Premises by Tenant or its affiliate (“Trade Fixtures”), whether affixed to the Premises or otherwise (excluding heating, ventilating, and air conditioning system, and all electrical, mechanical, and plumbing systems and components thereof that constitute an integral part of the Building), shall be and at all times remain the property of Tenant or its affiliate and provided that Tenant is not in default under the terms of this Lease, may be removed at any time during the Term or upon the expiration or earlier termination of this Lease, whether or not such Trade Fixtures may be regarded as property of Landlord by operation of law or otherwise. Tenant shall cause any damage to the Improvements caused by such removal to be repaired at no cost to Landlord, including performing any work that may be required to restore the Improvements to a complete architectural unit, such as, by way of example only, restoring an exterior wall section left open after removal of equipment that theretofore served to complete the wall section. Provided that Tenant is not at such time in default under the terms of this Lease, Landlord further agrees that, upon expiration or earlier termination of this Lease, Tenant shall have the right to remove from the Premises all signs and other distinctive features of the business on the Premises. Tenant shall, at its expense, repair any damage caused by such removal.

ARTICLE 18 - SUBORDINATION AND LEASEHOLD MORTGAGE

18.1 Subordination . This Lease and all of Tenant’s rights hereunder are and shall be subordinate to any mortgages or deeds of trust which Landlord may place on the Land and/or Shopping Center, provided that Landlord delivers to Tenant an agreement in writing and in recordable form from any future mortgagee or holder of a deed of trust or other encumbrance with respect to the Premises to the effect that:

a. Such person shall not for any reason disturb the possession, use or enjoyment of the Premises by Tenant, its successors and assigns, so long as all of the obligations of Tenant are fully performed in accordance with the terms of this Lease; and

b. Such person shall permit application of any insurance proceeds and condemnation proceeds in accordance with Articles 13 and 14 above, respectively, in the event of damage to or destruction of the Improvements, or condemnation of the Improvements or any part of the Premises, Tenant agrees that this Lease is subject and subordinate to the lien of such

 

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mortgage, deed of trust or other encumbrance which may hereafter affect the Premises. Provided such agreement is obtained, Tenant shall promptly execute and deliver to Landlord such instrument as may be reasonably necessary to effect such subordination, form and content reasonably acceptable to Landlord.

18.2 Leasehold Mortgage . Tenant may encumber by deed of trust its leasehold interest and estate in the Premises, together with all Improvements placed on the Premises by Tenant, as security for indebtedness of Tenant, provided that (a) the beneficiary of any such deed of trust is a reputable institutional lender, (b) the proceeds of any notes or other indebtedness secured by such deed of trust shall be disbursed solely for payment of obligations incurred by Tenant in effecting this Lease and constructing the Improvements on the Premises and otherwise only as Landlord and Tenant agree, and (c) Tenant shall refrain from encumbering or purporting to encumber, by means of any such deed of trust or otherwise (i) any portion of the Land other than Tenant’s interest in easements and covenants or (ii) any portion of the Landlord’s Estate, as hereinafter defined. The deed of trust and note or other indebtedness shall, without limitation by reason of specification, contain provisions to the following effect:

a. Shall provide that any assignment to the mortgagee of any rents due and payable to Tenant under any sublease of this Lease shall be effective only on default in payment or performance of any obligations imposed by the terms of the deed of trust or note or other indebtedness secured by the deed of trust; and

b. Shall provide that a copy of any notice to Tenant under the deed of trust or note or other indebtedness secured by the deed of trust shall be provided to Landlord at the address set forth in Section 21 of this Lease and that Tenant consents to Landlord being provided a copy of any such notice.

If Landlord shall consent to a leasehold deed of trust on the Premises and shall be provided the name and address of the mortgagee, Landlord shall mail or deliver to the mortgagee, at the mortgagee’s address, a duplicate copy of all notices in writing which Landlord may, from time to time, give to or serve on Tenant under and pursuant to the terms and provisions of this Lease. The copies shall be mailed or delivered to the mortgagee at, or as near as possible to, the same time that the notices are given to or served on the Tenant. The mortgagee may, at its option, at any time before the rights of Tenant shall be terminated as provided in this Lease, pay any of the rents or other charges due under this Lease or do any act or thing required of Tenant by the terms of this Lease or do any act or thing that may be necessary or proper to be done in observance of the covenants and conditions of the Lease or to prevent termination of the Lease. All payments so made and all things so done and performed by the mortgagee shall be as effective to prevent a termination of the rights of Tenant under this Lease as if the same would have been done or performed by Tenant.

“Landlord’s Estate” means all of Landlord’s right, title, and interest in its fee estate in the Premises, its reversionary interest in the Improvements pursuant thereto, and all other rent and benefits due Landlord hereunder. “Tenant’s Estate” means all of Tenant’s right, title and interest under this Lease.

 

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ARTICLE 19 - HAZARDOUS SUBSTANCE OR WASTE

19.1 Landlord’s Liability . Landlord hereby represents and warrants that, to the best of its actual knowledge without investigation, there does not exist on, in or under the Premises any “hazardous substance” or “hazardous waste” as those terms are used under the various applicable federal and state environmental laws, including, without limitation, petroleum, petroleum products and asbestos-containing materials (“Hazardous Material”). If any such Hazardous Material is discovered at any time during the Term under circumstances in which it is clear that such Hazardous Material was present on or before the date hereof, Landlord shall indemnify, defend with counsel reasonably satisfactory to Tenant, and hold and save Tenant harmless, from and against all claims, liabilities, actions, judgments, responsibilities, damages and costs of every kind and nature arising from or related to the presence of such Hazardous Material, including investigation costs, engineering fees, remediation costs and reasonable attorney fees.

19.2 Tenant’s Liability . Tenant shall not (either with or without negligence) cause or permit the escape, disposal or release of any biologically or chemically active or other hazardous substances or materials on or from the Premises. Tenant shall not allow the storage or use of such substances or materials in or on the Premises in any manner not sanctioned by law and by the highest standards prevailing in the industry for the storage and use of such substances or materials, nor allow to be brought into or on the Premises, any such materials or substances except to use in the ordinary course of business. If any such Hazardous Material is discovered at any time during the Term or any time thereafter under circumstances in which it is reasonably clear that such Hazardous Material became present at any time between the Construction Start Date and the expiration or earlier termination of this Lease, Tenant shall indemnify, defend with counsel reasonably satisfactory to Landlord, and hold and save Landlord harmless from and against all claims, liabilities, actions, judgments, responsibilities and damages of every kind and nature arising from or related to the presence of such Hazardous Material during said period, including investigation costs, engineering fees, remediation costs and reasonable attorney’s fees.

19.3 Hazardous Material . Without limitation, “hazardous substances and materials” shall include those described in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq.; any applicable state or local laws and the regulations which have been or may be enacted for the purpose of regulating or governing the environment or any aspect thereof. If any lender or governmental agency shall ever require testing to ascertain whether or not there has been any release of hazardous materials in violation of Tenant’s obligations under this Section 19.3, then the reasonable costs thereof shall be reimbursed by Tenant to Landlord upon demand as Additional Rent if such requirement applies to the Premises. In addition, Tenant shall execute affidavits, representations and the like from time to time at Landlord’s request concerning Tenant’s best knowledge and belief regarding the presence of hazardous substances or materials on the Premises. In all events, Tenant shall indemnify Landlord in the manner elsewhere provided in this Lease from any release of Hazardous Materials on the Premises occurring while Lessee is in possession, or on the Land or on any property adjoining or in the vicinity of the Land if caused by Tenant or persons acting under Tenant. The covenants in this Section 19.3 shall survive the expiration or earlier termination of the term of this Lease.

 

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ARTICLE 20 - REAL ESTATE COMMISSIONS

Tenant represents that it has dealt only with Steve Ellis, David Couch and Chris Dunbar with Easter & Eisenman as broker for Landlord with respect to the Premises. Landlord hereby indemnifies Tenant and agrees to hold Tenant harmless from any other commission, finder’s fee or similar claims and any liability, damages, judgments and costs related thereto, including reasonable attorney’s fees and costs, arising through actions of Landlord. Tenant hereby indemnifies Landlord and agrees to hold Landlord harmless from any commission, finder’s fee or similar claims and any liability, damages, judgments and costs related thereto, including reasonable attorney’s fees and costs, arising through actions of Tenant in contravention of the representations contained herein.

ARTICLE 21 - NOTICES AND DEMANDS

Any notice, demand or other communication required or permitted by law or any provision of this Lease to be given or served on either party shall be in writing, addressed to the party at the address set forth below, or such other address as the party may designate from time to time by notice, and (a) deposited in the United States mail, registered or certified, return receipt requested, postage prepaid, (b) delivered by an overnight private mail service which provides delivery confirmation such as, without limitation, Federal Express, Airborne or UPS, or (c) personally delivered at such address. All communications delivered as set forth herein shall be deemed received at the earlier of actual delivery, forty-eight (48) hours after deposit in registered or certified United States mail, postage prepaid or twenty-four (24) hours after deposit with an institutional overnight delivery service, and addressed to the parties as follows:

 

To Landlord:   To Tenant:
JPC Monroe, LLC   Mr. Ron Black, President
Attn: Philip M. Cooke   Bank of Oak Ridge
1690 N.C. Highway 68 North   P.O. Box 2
Oak Ridge, NC 27310   Oak Ridge, NC 27310
with a copy to:   with a copy to:
Margaret Shea Burnham   Kathryn V. Purdom, Esq.
Adams Kleemeier Hagan Hannah & Fouts, PLLC   Brooks Pierce McLendon Humphrey & Leonard
701 Green Valley Road, Suite 100 (27408)   230 N. Elm Street, Suite 2000 (27401)
P.O. Box 3463   P.O. Box 26000
Greensboro, NC 27402   Greensboro, NC 27420

 

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ARTICLE 22 - ATTORNEY’S FEES

If any action or proceeding, whether judicial or non-judicial, is commenced with respect to any claim or controversy arising from a breach of this Lease or seeking the interpretation or enforcement of this Lease, including any exhibits attached hereto, in addition to any and all other relief, the prevailing party or parties in such action or proceeding shall receive and be entitled to recover from the other party all reasonable costs and expenses, including reasonable attorney’s fees and costs, incurred by it on account of or related to such action or proceeding.

ARTICLE 23 - TENANT REPRESENTATIONS AND WARRANTIES

If Tenant violates any one of these representations and covenants and such violation is not cured within fifteen (15) days after written notice from Landlord of the violation, such violation shall constitute a default under Article 14 hereof:

a. If Tenant exceeds the agreed upon cap for water usage. Tenant agrees that its cap for water use shall be 200 gallons per day as provided in Section 4.2(b) above for a bank facility or building of 6,686 square feet; provided, however, that if Tenant’s violation does not cause Landlord to violate the conditions of its spray irrigation permit or otherwise jeopardize Landlord’s spray irrigation permit, Landlord agrees that an occasional and inadvertent violation by Tenant of its water cap will not be used by Landlord to terminate the Lease; if Tenant exceeds its cap on restaurant seats of 0 seats;

b. If Tenant fails to comply with the Design Guidelines imposed by the Town of Oak Ridge or otherwise fails to comply with the Certificate of Appropriateness issued by the Guilford County Historic Preservation Commission for the Shopping Center or any subsequently issued Certificates of Appropriateness for additional features not covered by the initial application; and

c. If Tenant fails to comply with the conditions imposed on Tenant’s use by the Conditional Use Zoning Permit as defined in and attached as an Exhibit to the Declaration.

Upon written request from Tenant and to the extent that Landlord has such information, Landlord agrees to provide Tenant information regarding any facts, circumstances, events or occurrences which cause or may cause Tenant to fail to comply with the provisions of this Articles 23.

ARTICLE 24 - LEASE CONTINGENCIES

If any one of the following does not occur, this Lease shall be null and void and neither the Landlord nor the Tenant shall have any further obligation to the other and neither shall be liable to the other for any damages:

a. Approval by the Utilities Commission for Landlord or its designee to become qualified to operate private utilities for a spray irrigation septic field to both the Center and the Outparcels and by the Division of Water Quality for the well; and issuance of the appropriate permits to provide the capacity needed for the Shopping Center and the Outparcels; or

 

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b. Approval of this Lease by Landlord’s lender; or

c. Applicable regulatory approvals for the Bank of Oak Ridge to operate within Oak Ridge Commons.

ARTICLE 25 - GENERAL PROVISIONS

25.1 Binding on Successors . All of the covenants, agreements, provisions and conditions of this Lease shall inure to the benefit of and be binding upon the parties hereto, their successors, legal representatives and assigns.

25.2 Severability . If any term or provision of this Lease or the application thereof to any person or circumstance shall be invalid or unenforceable, to any extent, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and enforceable to the maximum extent permitted by law.

25.3 Entire Agreement . This Lease and the exhibits attached hereto contain the entire agreement between the parties and shall not be modified in any manner except by a document executed by the parties hereto or their respective successors in interest.

25.4 Lien of Landlord for Rent, Taxes and Other Sums . Landlord shall have, and Tenant hereby grants, a security interest in any furnishings, equipment, fixtures, inventory, accounts receivable or other personal property of any kind belonging to Tenant, or the equity of Tenant therein, on the Premises. The security interest is granted for the purpose of securing the payment of rent, assessments, charges, penalties and damages herein covenanted to be paid by Tenant hereunder. Upon default or breach of any covenants of this Lease, Landlord shall have all remedies available under the Uniform Commercial Code enacted in the state where the Premises are located including, but not limited to, the right to take possession of the above-mentioned property and dispose of it by sale in a commercially reasonable manner. Tenant hereby agrees to sign a financing statement upon a request to do so by Landlord, for the purpose of serving notice to third parties of the security interest herein granted. In addition to the security interest granted to Landlord, Landlord shall also have a landlord’s lien on all the personal property of Tenant located in the Premises.

25.5 Captions . The captions used in this Lease are inserted as a matter of convenience only, and in no way define, limit or describe the scope of this Lease or the intentions of the parties hereto, and shall not in any way affect the interpretation or construction of this Lease.

 

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25.6 Gender and Number . Words of any gender in this Lease shall be held to include any other gender, and words in the singular shall be held to include the plural, and vice versa, as the context permits or requires.

25.7 “Affiliate” Defined . The term “affiliate” as used in this Lease shall mean and be understood to encompass any direct or indirect corporate parent of Tenant, and any direct or indirect corporate subsidiary of Tenant, in addition to any corporation that is an actual affiliate of Tenant in the commonly used meaning of the term.

25.8 Approvals . Wherever Landlord’s or Tenant’s approval or consent is required herein, such approval or consent shall not be unreasonably withheld or delayed, unless this Lease expressly provides to the contrary.

25.9 No Waiver . A waiver by Landlord or Tenant of any breach of any provision of this Lease shall not be deemed a waiver of any breach of any other provision hereof or of any subsequent breach by Tenant or Landlord of the same or any other provision.

25.10 Holdover . If Tenant holds over after the Term with the consent, express or implied, of Landlord, such holding over shall be construed to be a tenancy from month-to-month only, and Tenant shall pay the Minimum Monthly Rent, Additional Rent and other sums as herein required for such further time as Tenant continues in occupancy. The foregoing provision shall not affect Landlord’s right of reentry or any rights of Landlord hereunder or as otherwise provided by law.

25.11 Time of Essence . Time is of the essence with regard to every provision of this Lease and the exhibits attached hereto.

25.12 Governing Law . This Lease shall be governed by and construed in accordance with the laws of the State of North Carolina.

25.13 Counterparts . This Lease may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same document.

25.14 No Third Party Rights . The terms and provisions of this Lease shall not be deemed to confer any rights upon, nor obligate any party hereto to, any person or entity other than the parties hereto.

25.15 Unexecuted Lease . The submission of this Lease for review or execution does not constitute a reservation of, or option for, the rights conferred herein. This Lease shall become effective only upon its execution and delivery by both Landlord and Tenant.

25.16 Landlord’s Right of Entry . Landlord reserves the right to enter upon the Premises at any tune during construction or repair of Improvements or regular business hours to inspect the same or for the purpose of exhibiting the same to prospective purchasers or mortgagees or, during the last six (6) months of the Term, to prospective lessees. Landlord may post any customary sign stating “for lease” or “for sale” during the last six (6) months of the Term.

 

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25.17 Short Form Lease . The parties shall execute and record a short form of this Lease, which shall identify the parties and the Premises, specify the Term and any options to extend the Term and be recorded in the Guilford County, North Carolina Registry. In no event shall this Lease be recorded in its entirety.

25.18 Estoppel Certificates . Landlord and Tenant agree that within fifteen (15) days after receipt of a written request from either to the other, the party receiving the request will execute and deliver to the other a certificate certifying (a) that this Lease is unmodified and in full force and effect, or, if modified, stating the nature of the modifications and that, as so modified, this Lease is in full force and effect, (b) the date to which the rent and other charges hereunder are paid in advance, if any, (c) the then-scheduled expiration date of the Term and the number and duration of any unexercised, unexpired options to extend the Term, (d) that to the certifying party’s knowledge, as of the date of the certificate, there are no uncured defaults hereunder on the part of the requesting party or specifying such defaults as are claimed by the certifying party, and (e) as to such other matter as may be reasonably requested by the certifying party.

25.19 Due Authorization . Each person executing this Lease on behalf of Landlord and Tenant, respectively, warrants and represents that the partnership, joint venture, limited liability company or corporation, as the case may be, for whom he or she is acting, has been duly formed, is in good standing, and has duly authorized the transactions contemplated herein and the execution of this Lease by him or her and that, when so executed, this Lease shall constitute a valid and binding obligation of the party on whose behalf it is so executed.

25.20 Relationship of Parties . Nothing contained in this Lease shall be deemed to create a partnership or joint venture between Landlord and Tenant, and Landlord and Tenant’s relationship in this Lease shall be deemed to be one of landlord and tenant only.

25.21 Incorporation of Exhibits . All exhibits attached to this Lease are hereby incorporated herein as though set forth in full in this Lease itself.

(This Space Intentionally Left Blank)

 

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I N W ITNESS W HEREOF , the parties have executed this Lease as of the date first above written.

 

LANDLORD:
JPC M ONROE , LLC, a North Carolina limited liability company
By:  

 

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