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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
i
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
ii
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
iii
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
iv
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
THESAME 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,
2
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
3
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.
4
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.
2.2Options 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)
5
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
6
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.
3.2Security
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.
3.3Late
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.
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
8
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.
4.3Personal
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
9
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
11
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
12
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.
13
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
14
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.
15
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
16
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
18
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
19
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
20
(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
22
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.
23
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
26
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