EXHIBIT (10)(g)
HILLSBOROUGH SAVINGS BANK, INC., SSB
EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into as of February 18, 1999, by and between HILLSBOROUGH
SAVINGS BANK, INC., SSB (hereinafter referred to as the "SavingsBank") and Xxxxx
X. Xxxxx (hereinafter referred to as the "Officer") and is joined in by PIEDMONT
BANCORP, INC., the parent holding company of theSavings Bank (hereinafter
referred to as the "Holding Company").
WHEREAS, the Savings Bank is a state-chartered stock savings bank and
the wholly-owned subsidiary of the Holding Company, and
WHEREAS, the Savings Bank desires to retain the services of the Officer
as Vice President of the Savings Bank upon the terms and conditions set forth
herein; and
WHEREAS, the services of the Officer, his experience and knowledge of
the affairs of the Savings Bank, and his reputation and contacts in the industry
and the local community are extremely valuable to the Savings Bank, and
WHEREAS, the Savings Bank wishes to attract and retain such
well-qualified executives and it is in the best interest of the Savings Bank and
of the Officer to secure the continued services of the Officer notwithstanding
any change in control of the Savings Bank or the Holding Company; and
WHEREAS, the Savings Bank considers the establishment and maintenance
of a sound and vital management to be part of its overall corporate strategy and
to be essential to protecting and enhancing the best interests of the Holding
Company, the Savings Bank and their stockholders; and
WHEREAS, the parties desire to enter into this Agreement in order to
set forth the terms and conditions of the Officer's employment relationship with
the Savings Bank.
NOW, THEREFORE, for and in consideration of the premises and mutual
promises, covenants and conditions hereinafter set forth and other good and
valuable considerations, the receipt and sufficiency of which hereby are
acknowledged, the parties hereby do agree as follows:
1. Employment. The Savings Bank hereby agrees to employ the Officer and
the Officer hereby agrees to accept employment, upon the terms and conditions
stated herein, as Vice President of the Savings Bank. The Officer shall render
such administrative and management services to the Savings Bank as are
customarily performed by persons situated in a similar executive capacity. The
Officer shall promote the business of the Savings Bank and perform such other
duties as shall, from time to time, be reasonably prescribed by the Board of
Directors of the Savings Bank (the "Board").
2. Compensation. The Savings Bank shall pay the Officer during the term
of this agreement, as compensation for all service rendered by him to the
Savings Bank, a base salary at the rate of $59,000.00 per annum, payable in cash
not less frequently than monthly; provided that the rate of salary shall be
reviewed by the Board not less often than annually. Such rate of salary, or
increased rate of salary, as the case may be, may be further increased from time
to time in such amounts as the Board, in its discretion, may decide. In
determining salary increases, the Board shall compensate the Officer for
increases in the cost of living and may also provide for performance or merit
increases. Participation in incentive compensation, deferred compensation,
discretionary bonus, profit-sharing, retirement, stock option and other employee
benefit plans that the Savings Bank or the Holding Company have adopted or may
from time to time adopt, and participation in any fringe benefits, shall not
reduce that salary payable to the Officer under this Section. The Officer will
be entitled to such customary fringe benefits, vacation, sick leave as are
consistent with the normal practices and established policies of the Savings
Bank. In the event of a Change of Control (as defined in Section 10), the
Officer's rate of salary shall be increased not less than six percent (6%)
annually during the term of this Agreement.
3. Discretionary Bonuses. During the term of this Agreement, the
Officer shall be entitled in an equitable manner with all other key management
personnel of the Savings Bank, to such discretionary bonuses as may be
authorized, declared and paid by the Directors to the Savings Bank's key
management employees. No other compensation provided for in this Agreement shall
be deemed a substitute for the Officer's right to such discretionary bonuses
when and as declared by the Directors.
4. Participation in Retirement and Employee Benefit Plans: Fringe
Benefits. The Officer shall be entitled to participate in any plan relating to
deferred compensation, stock awards, stock options, stock purchases, pension,
thrift, profit sharing, group life insurance, medical and dental coverage,
disability coverage, education, or other retirement or employee benefits that
the Savings Bank or the Holding Company have adopted, or may, from time to time
adopt, for benefit of their executive employees and for employees generally,
subject to the eligibility rules of such plans. The Officer shall also be
entitled to participate in any other fringe benefits which are now or may be or
become applicable to the Officer or the Savings Bank's other executive
employees, including the payment of reasonable expenses for attending annual and
periodic meetings of trade associations, and any other benefits which are
commensurate with the duties and responsibilities to be performed by the Officer
under this Agreement. Additionally, the Officer shall be entitled to such
vacation and sick leave as shall be established under uniform employee policies
promulgated by the Directors. The Savings Bank shall reimburse the Officer for
all out-of-pocket reasonable and necessary business expenses which the Officer
may incur in connection with his services on behalf of the Savings Bank.
5. Term. The initial term of employment under this Agreement shall be
for the period commencing upon the effective date of this Agreement and ending
three (3) calendar years from the effective date of this Agreement. On each
anniversary of the effective date of this Agreement of the Savings Bank, the
term of this Agreement shall automatically be extended for an additional one
year period beyond the then effective expiration date unless written notice from
the Savings Bank or the Officer is received 90 days prior to an anniversary date
advising the other party that this Agreement shall not be further extended;
provided that the Directors shall review the Officer's performance annually and
make a specific determination pursuant to such review to renew this Agreement
prior to the 90 day notice period.
6. Loyalty. The Officer shall devote his full efforts and entire
business time to the performance of his duties and responsibilities under this
Agreement. The Officer agrees that he will hold in confidence all knowledge or
information of a confidential nature with respect to the respective businesses
of the Holding Company, the Savings Bank or of their subsidiaries, if any,
received by him during the term of this Agreement and will not disclose or make
use of such information, except in the ordinary course of his duties under this
Agreement, without the prior written consent of the Holding Company or the
Savings Bank.
7. Standards. The Officer shall perform his duties and responsibilities
under this Agreement in accordance with such reasonable standards expected of
employees with comparable positions in comparable organizations and as may be
established from time to time by the Board. The Savings Bank will provide the
Officer with the working facilities and staff customary for similar executives
and necessary for him to perform his duties.
8. Termination and Termination Pay. (a) The Officer's employment under
this Agreement shall be terminated upon the death of the Officer during the term
of this Agreement, in which event, the Officer's estate shall be entitled to
receive the compensation due the Officer through the last day of the calendar
month in which his death shall have occurred and for a period of one month
thereafter. (b) The Officer's employment under this Agreement may be terminated
at any time by the Officer upon sixty (60) days' written notice to the Board of
Directors. Upon such termination, the Officer shall be entitled to receive
compensation through the effective date of such termination. (c) The Board may
terminate the Officer's employment at any time, but any termination by the
Board, other than termination for cause, shall not prejudice the Officer's right
to compensation or other benefits under this Agreement for the remaining period
which would have been covered by this Agreement if such termination had not
occurred. The Officer shall have no right to receive compensation or other
benefits for any period after termination for "cause." Termination for "cause"
shall include termination because of the Officer's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule, regulation (other than traffic violations or similar offenses) or
final cease-and-desist order, or material breach of any provisions of this
Agreement.
9. Additional Regulatory Requirements. (a) If the Officer is suspended
and/or temporarily prohibited from participating in the conduct of the Savings
Bank's affairs by a notice served under Section 8(e)(3) or Section 8(g)(1) of
the Federal Deposit Insurance Act (12 U.S.C. 1818(e)(3) and (g)(l)), the Savings
Bank's obligations under this Agreement shall be suspended as of the date of
service, unless stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Savings Bank shall (i) pay the Officer all of the
compensation withheld while its contract obligations were suspended and (ii)
reinstate (in whole or in part) any of its obligations which were suspended. (b)
If the Officer is removed and/or permanently prohibited from participating in
the conduct of the Savings Bank's affairs by an order issued under Section
8(e)(4) of Section 8(g)(l) of the Federal Deposit lnsurance Act
(12U.S.C.1818(e)(4) and (g)(1)), all obligations of the Savings Bank under this
Agreement shall terminate as of the effective date of the order, but vested
rights of the contracting parties shall not be affected (c) If the Savings Bank
is in default as defined in Section 3(x)(1) of the Federal Deposit Insurance Act
(12U.S.C. ss. 1818(x)(1)), all obligations under this Agreement shall terminate
as of the date of default, but this paragraph shall not affect any vested rights
of the contracting parties. (d) All obligations under this Agreement shall be
terminated, except to the extent determined that continuation of the Agreement
is necessary for the continued operation of the Savings Bank, (i) by the Federal
Deposit Insurance Corporation (the "Corporation"), at the time the Corporation
enters into an agreement to provide assistance to or on behalf of the Savings
Bank under the authority contained in Section 13(c) of the Federal Deposit
Insurance Act (12 U.S.C. ss. 1818(c)); or (ii) by the Administrator of the
Savings Institution Division of the North Carolina Department of Commerce (the
"Administrator"), at the time the Administrator approves a supervisory merger to
resolve problems related to operation of the Savings Bank or when the Savings
Bank is determined by the Administrator to be in an unsafe or unsound condition.
Any rights of the parties that have already vested, however, shall not be
affected by such action.
10. Change in Control.
(a) In the event of a "Change in Control" (as defined in Subsection (b)
below), the acquiror shall be prohibited, during the remainder of the term of
this Agreement, from:
(i) Assigning Officer any duties and/or responsibilities that are
inconsistent with his position, duties, responsibilities or
status at the time of the Change in Control or with his
reporting responsibilities or equivalent titles with the
Savings Bank in effect at such time; or
(ii) Adjusting Officer's annual base salary rate other than in
accordance with the provisions of Section 2 of this Agreement;
or
(iii) Reducing in level, scope or coverage or eliminating Officer's
life insurance, medical or hospitalization insurance,
disability insurance, profit sharing plans, stock option
plans, stock purchase plans, deferred compensation plans,
management retention plans, retirement plans or similar plans
or benefits being provided by the Savings Bank or the Holding
Company to the Officer as of the effective date of the Change
in Control; or
(iv) Transferring Officer to a location outside of Orange County,
North Carolina, without the Officer's express written consent.
(b) For the purposes of this Agreement, the term "Change in
Control" shall mean any of the following events:
(i) a change in control of a nature that would be required to be
reported in response to Item 1 of the Current Report on Form
8K, as in effect on the date hereof, pursuant to Section 13 or
1 5(d) of the Exchange Act; or
(ii) such time as any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the
Holding Company or Savings Bank representing 25 percent or
more of the combined voting power of the outstanding Common
Stock of the Holding Company or Common Stock of the Savings
Bank, as applicable; or
(iii) individuals who constitute the Board or board of directors of
the Holding Company on the date hereof (the "Incumbent Board"
and "Incumbent Holding Company Board," respectively) cease for
any reason to constitute at least a majority thereof, provided
that any person becoming a director subsequent to the date
hereof whose election was approved by a vote of at least three
quarters of the directors comprising the Incumbent Board or
Incumbent Holding Company Board, as applicable, or whose
nomination for election by the Savings Bank's or Holding
Company's shareholders was approved by the Savings Bank's or
Holding Company's Board of Directors or Nominating Committee,
as applicable, shall be considered as though he or she were a
member of the Incumbent Board or Incumbent Holding Company
Board, as applicable; or
(iv) either the Holding Company or the Savings Bank consolidates or
merges with or into another corporation, association or entity
or is otherwise reorganized, where neither the Holding Company
nor the Savings Bank, respectively, is the surviving
corporation in such transaction; or
(v) all or substantially all of the assets of either the Holding
Company or the Savings Bank are sold or otherwise transferred
to or are acquired by any other entity or group.
Notwithstanding the other provisions of this Section 10, a transaction
or event shall not be considered a Change in Control if, prior to the
consummation or occurrence of such transaction or event, Officer and Savings
Bank agree in writing that the same shall not be treated as a Change in Control
for purposes of this Agreement.
(c) If, after the occurrence of a Change in Control, (i) the
employment of the Officer shall be terminated by the Savings
Bank or its successor for any reason other than for "cause" as
defined in Section 8(c) or (ii) the employment of the Officer
shall be terminated by the Officer as a result of a breach of
this Agreement by the Savings Bank or its successor, and as a
result of such termination, the Officer shall not become fully
vested in benefits provided to the Officer under any
retirement plan, restricted stock plan, stock option plan,
stock ownership plan, or other employee benefit plan, then in
addition to any liability arising under this Agreement, the
Savings Bank or its successor shall pay to the Officer an
amount equal to the value of the benefits in which the Officer
shall not become fully vested as a result of such termination.
(d) In the event any dispute shall arise between the Officer and
the Savings Bank as to the terms or interpretation of this
Agreement, including this Section 10, whether instituted by
formal legal proceedings or otherwise, including any action
taken by the Officer to enforce the terms of this Section 10
or in defending against any action taken by the Savings Bank,
the Savings Bank shall reimburse the Officer for all costs and
expenses incurred in such proceedings or actions, including
attorney's fees, in the event the Officer prevails in any such
action.
11. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and be binding upon
any corporate or other successor of the Savings Bank which shall
acquire, directly or indirectly, by conversion, merger,
consolidation, purchase or otherwise, all or substantially all of
the assets of the Holding Company or the Savings Bank.
(b) Since the Savings Bank is contracting for the unique and personal
skills of the Officer, the Officer shall be precluded from
assigning or delegating his rights or duties hereunder without
first obtaining the written consent of the Savings Bank.
12. Modification: Waiver: Amendments. No provision of this Agreement
may be modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing, signed by the Officer and on behalf of the
Savings Bank by such officer as may be specifically designated by the Directors.
No waiver by either party hereto, at any time, of any breach by the other party
hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time. No amendments or additions to this Agreement shall be binding unless in
writing and signed by both parties, except as herein otherwise provided.
13. Applicable Law. This Agreement shall be governed in all respects
whether as to validity, construction, capacity, performance or otherwise, by the
laws of North Carolina, except to the extent that federal law shall be deemed to
apply.
14. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
IN WlTNESS WHEREOF, the parties have executed this Agreement as of the
day and year first herein above written.
HILLSBOROUGH SAVINGS BANK, INC., SSB
By: /s/M. Xxxxxx Xxxxx
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M. Xxxxxx Xxxxx
Chairman of the Board
By: /s/Xxxxx X. Xxxxx (SEAL)
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Xxxxx X. Xxxxx
The foregoing Agreement is consented and agreed to by Piedmont
Bancorp,Inc., the parent holding company of Hillsborough Savings Bank, Inc.,
SSB.
PIEDMONT BANCORP, INC.
By: /s/M. Xxxxxx Xxxxx
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M. Xxxxxx Xxxxx
Chairman of the Board
Exhibit 10(h)
L E A S E
THIS LEASE is made and entered into this day of 1 1987, by and between ZT-DURHAM
ASSOCIATES, #1, a joint venture existing under the general partnership laws of
North Carolina ("Landlord") and GUARANTY STATE BANK, a North Carolina
corporation ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord holds a leasehold interest in that certain shopping center
(the "Shopping Center") described on Exhibit "A-1" attached hereto and made a
part hereof, and
WHEREAS, Tenant desires to sublease a portion of the Shopping Center# which
portion is more particularly described on Exhibit "A-2" attached hereto and made
a part hereof (the "Leased Land"), on the terms and conditions set forth herein.
NOW, THEREFORE, for payment of rent and the keeping and agreements hereinafter
set the parties hereto do hereby follows:
1. LEASED PREMISES
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Landlord and in consideration of the and performing of the covenants
Eorth to be kept and performed, mutually covenant and agree as
Landlord, for and in consideration of the rents, covenants and
agreements hereinafter reserved and contained on the part of Tenant to be paid,
kept, performed and observed by Tenant, hereby demises and leases unto Tenant,
and Tenant hereby leases from Landlord, the Leased Land, together with all and
singular rights, privileges and easements appurtenant thereto or which are
hereinafter provided in this Lease (all of which shall constitute and comprise
the "Leased Premises"). The Leased Premises are part of and are contained in the
Shopping Center. The Shopping Center is shown outlined with a heavy black line,
and the Leased Land is shown as the area cross-hatched in green on the Shopping
Cen'ter Site Plan attached hereto as Exhibit "A-3" and made a part hereof.
2. LEASE TERM.
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2.1 Interim and Initial Term
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TO HAVE AND TO HOLD the Leased Premises unto Tenant, its successors and
permitted assigns, for an interim term (the "Interim Term") commencing on the
date first above written and expiring ninety (90) days after completion of
Landlord's Work (as defined in Section 4.3 herein below), and continuing
thereafter following the expiration of the Interim Term 'for an initial term
(the "Initial 'Term") commencing on the date of expiration of the Interim Term
and expiring on the date twenty (20) years following the first day of the first
full calendar month following the expiration of the Interim Term, unless this
Lease shall sooner terminate as provided herein.
2.2 Option to Extend
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Provided Tenant shall not be in default hereunder either at the time of
the exercise of the option or on the commencement date of the term of the
option, Tenant shall have two (2) successive options of five (5) years each to
extend the term of this Lease beyond the Initial Term upon the same terms and
conditions as those herein specified, as applicable to the Initial Term of
Lease, with the exception of the minimum monthly rental which shall be as
provided in Section 5 .2 herein below. In the event Tenant exercises one or both
of the foregoing options, if Landlord's leasehold interest in the Shopping
Center expires prior to the expiration date of such option or options, this
Lease shall terminate as of the expiration date of Landlord's leasehold interest
in the Shopping Center, unless this Lease is extended between agreement between
Tenant and the owner of the Shopping Center. Tenant acknowledges and agrees that
landlord shall have no obligation to exercise any option which extends the term
of this lease beyond the date on which Landlord's leasehold interest would
otherwise terminate. If Tenant elects to exercise the first of said options,
Tenant shall do so by giving Landlord written notice of such election at least
six (6) months but not more than twelve-- (12)months prior to the expiration of
the Initial Term, and, it 'the Tenant elects to exercise the additional option,
Tenant shall do so by giving Landlord written notice of such election at least
six (6) months but not more than twelve (12) months before the beginning of the
additional period for which the term hereof is to be extended by the exercise of
said option. Notwithstanding the foregoing, if Tenant fails to exercise the
second option granted hereunder within the above-prescribed time period and
Landlord, on or before the termination of this Lease, elects to extend the term
of its leasehold interest in the Shopping Center (which term would have
otherwise expired during the option term which Tenant elected not to exercise)
Tenant shall have ten (10) days after receipt of written notice of Landlord's
extension election in which to elect to exercise the otherwise expired option by
giving Landlord written notice of such election within said ten (10) day period.
If Tenant exercises either option hereunder, the term of this Lease shall be
automatically extended for the additional period of years covered by the option
so exercised, or such portion thereof as Tenant's leasehold interest in the
Shopping Center is in effect, without execution of an extension or renewal
lease. As used in this Lease, the phrases "term of this Lease", "the term
hereof", "Lease Term" or words of like import shall refer to the Interim Term of
this Lease and to the Initial Term of this Lease, as the case may be, together
with, in any such case, any extended term with respect to which an option shall
be exercised.
2.3 Supplemental Memorandum of Lease.
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When the commencement date and termination date of the initial Term
have been determined as provided in Section 2.1 above, Landlord and Tenant shall
execute, acknowledge and record a Supplemental Memorandum of Lease specifying
therein the commencement date and termination of the Initial Term of this Lease.
2.4 Cancellation of Lease.
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Notwithstanding anything to the contrary herein contained, in the event
the Initial Term of this Lease is not commenced on or before ninety (90) days
from the date hereof, then Landlord shall have the right to cancel and terminate
this Lease; provided, however, that such cancellation and termination shall not
relieve either party of liability arising as a result of a breach by such party
of any covenant or obligation to be performed by such party under the terms of
this Lease.
3. USE OF PREMISES-COMPLIANCE WITH LAWS AND ORDINANCES.
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3.1 Use of Premises
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Tenant may use the Leased Premises for the purpose of a retail
commercial banking operation and for no other purpose whatsoever. Tenant agrees
to use the Leased Premises in a careful, safe and proper manner, and not to use
or permit the Leased Premises to be used for any purposes prohibited by
applicable federal, state, county, municipal or other govern- mental laws,
codes, rules and regulations. Tenant shall not commit waste, or suffer or permit
waste permit waste to be committed, or permit any nuisances on or in the
Premises.
3.2. Discontinuance of Business.
--------------------------------
If Tenant shall cease operating all or substantially all of Tenant's
business in the Leased Premises for a continuous period of one hundred fifty
(150) days or for a period of one hundred fifty (150) days out of one hundred
eighty (180) days, for any reason other than to permit repair of damage or
destruction thereto or to alter or refurbish the Leased Premises, or due to a
taking by condemnation or other taking of the Leased Premises or the access
thereto, then Landlord, upon sixty (60) days' prior written notice to Tenant,
may terminate this Lease; provided, however, that if Tenant shall commence and
continue the bona fide operation of Tenant's business on the Leased Premises
within sixty (60) days, said notice of termination shall be nullified and of no
force of effect; and further provided, however, that any such the operation of
Tenant's business shall not be deemed an event of default hereunder.
3.3 Compliance with Laws.
--------------------------
Tenant covenants that during the Lease term, Tenant will comply, at
Tenant's sole cost and expense, with all laws, ordinances, orders, rules,
regulations and requirements of all federal, state and municipal governments and
appropriate departments, commissions, boards and officers hereof, which may be
applicable to the Leased Premises, Tenant's Building and building equipment, any
improvements thereon or therein or the use or manner of use of the Leased
Premises.
Right to Contest Laws
Tenant shall have the right, after notice to Landlord, to contest by
appropriate legal proceedings, without cost or expense to Landlord, the validity
of any law, ordinance, order, rule, regulation or requirement of the nature
herein referred to and to postpone compliance with the same, provided such
contest shall be promptly and diligently prosecuted by and at the expense of
Tenant and so long as Landlord shall not thereby suffer any civil, or be
subjected to any criminal, penalties or sanctions, and Tenant shall properly
protect and save harmless Landlord against any liability and claims for any such
noncompliance or postponement of compliance. Landlord shall have the right, but
shall be under no obligations to contest by appropriate legal proceedings, at
Landlord's expense, any such law, ordinance, rule, regulation or requirement.
4. TENANT'S BUILDING.
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4.1 Plans and Specifications.
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Tenant shall select an architect to prepare the plans and
specifications for the improvements and to supervise the construction of the
improvements. When prepared, they shall be submitted to Landlord for Landlord's
written approval.
The following requirements shall apply with respect to the plans and
specifications for the improvements and construction thereof:
a. All construction on the Leased Land shall be in accordance with the
site plan attached to the Shopping Center lease agreement with Toys 'R Us
(the "Toys Lease") as Exhibit "a" (the "Toys Site Plan"), which site plan
is attached hereto as Exhibit "E" and by this reference made a part hereof;
b. The height of any building, structure or improvement constructed on
the Leased Land shall not exceed twenty (20) feet above -:he finished
grade;
c., The entrance to any building constructed on the Leased Land shall
not be located on the side of such building that faces the main driveway
between such building and the area shown as the "Primary Parking Area" on
the Toys Site Plan; and
d. No construction, remodeling, expansion, maintenance or repairs that
materially decrease the free flow of traffic and pedestrian passage through
the Common Area to premises leased to other tenants of the Shopping Center
shall be permitted during the period from November I through December 31 of
each year of the term of this Lease.
When Tenant's plans and specifications have been approved, they shall
be attached hereto as Exhibit "B" or, in the alternative, shall be described in
Exhibit "B" attached hereto.
4.2 Governmental Permits, Licenses and Authorizations.
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Tenant shall promptly apply to all applicable governmental and
regulatory agencies and authorities in order to secure proper permits, licenses,
and authorizations necessary for the work and shall diligently pursue same until
receipt thereof. Landlord agrees to cooperate with Tenant in applying for all
such applicable governmental permits, licenses And authorizations and
application shall be made in Landlord's name if required. Tenant shall pay all
fees and costs relating thereto. Notwithstanding the foregoing Landlord shall
secure, at its expense, all approvals, permits, licenses and authorizations
necessary for completion of Landlord's work.
4.3 Landlord's Work
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Landlord shall grade and compact the Leased Land to the extent
necessary for Tenant's Building, as reasonably determined by Tenant's architect
or engineer, and bring all required utility and sewer facilities and systems to
the perimeter of the Leased Land, all in strict accordance with the plans and
specifications approved by the parties as herinabove provided. The foregoing
work is herein referred to as "landlord's work".
4.4 Tenant's Work.
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After the plans and specifications have been prepared and all necessary
permits and licenses have been obtained as provided for hereinabove, Tenant
shall enter into a construction contract for the completion of the work (herein
referred to as "Tenant's Work") with a general contractor selected by Tenant
with the prior written approval of Landlord. Said construction contract shall
provide for -- one (1) year warranty covering materials and workmanship, a f1oor
and material bond and a completion bond issued by a qualified surety company
licensed to do business in the state in which the Leased Premises are situated.
Tenant shall have the right to enter into addenda and change orders with
appropriate adjustments therefor in the Construction Contract Price, provided
Tenant shall have first obtained the written approval of Landlord.
4.5 Architect's Certificate of Completion
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Upon completion of Tenant's Work, the architect supervising
construction shall certify in writing to Landlord and Tenant that Tenant's Work
is complete and Tenant's Building is ready for use and occupancy.
Simultaneously, Landlord and Tenant shall cooperate in securing a proper final
certificate of occupancy or other permit which may be required prior to Tenant's
beginning to transact business on the Leased Premises.
4.6 Construction Costs
----------------------
Except as otherwise specifically provided herein, Tenant shall
contribute all sums necessary for completion of Tenant's Work in accordance with
the plans and specifications, excluding fees of an architect, if any, employed
by Landlord for the purpose of examining and passing upon such plans and
specifications and seeing that Tenant's Work conforms therewith.
All building and improvements shall be deemed a part of the real
property and shall be and remain the property of the Landlord.
4.7 Trade Fixtures
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Landlord agrees not to unreasonably interfere with Tenant's right to
install fixtures, furnishings, equipment and signs (hereinafter collectively
referred to as "Trade Fixtures") in, on, or about the Leased Land during the
Interim Term of this Lease. All Trade Fixtures installed at any time by Tenant,
Tenant's suppliers, or any permitted subtenant(s) of Tenant in, on, or about the
Leased Land shall be and remain the property of the person, firm or corporation
installing same and shall be removable at any time during the term of this Lease
provided Tenant or any permitted subtenant(s) of Tenant shall not be in default
hereunder at the time of such removal. The removal of any such Trade Fixtures
shall be at the expense of Tenant or any permitted subtenant(s) of Tenant, who
shall repair any damage or injury to the Leased Land or Tenant's Building or
other improvements occasioned by any such removal. Notwithstanding the
foregoing, Tenant shall remain liable for any breach of this Section 4.7 or of
any other term or condition of this Lease by Tenant's subtenant(s).
4.8 Signage
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Tenant shall not erect or install any signs on the Leased Premises
without the prior written consent of Landlord. All permitted signs shall comply
appropriate governmental authorities, and all necessary permits or licenses
shall be obtained by Tenant. Tenant shall maintain all permitted signs in good
condition and repair at all times and shall save Landlord harmless from any
injury to persons or property arising - from the erection and maintenance of
said signs. Upon vacating the Leased Premises, Tenant shall remove all signs and
repair all damage caused by such removal.
4.9 Encumbrance of the Leasehold.
---------------------------------
Tenant shall have the right to convey or encumber its leasehold
interest in the Leased Premises by security deed, mortgage or other instrument
in connection with obtaining financing from a bank or institutional lender
provided Tenant shall not be in default at such time, and provided all such
conveyances and encumbrances shall at all times be ineerior and subject to the
prior right, title and interest of the Landlord therein and thereto.
5. RENTAL
---------
5.1 Interim Term.
-----------------
No rental or other charges shall accrue or be payable by Tenant to
Landlord during the interim Term; however, during the entire Interim Term,
Tenant shall perform, observe and discharge all other covenants and obligations
of Tenant under this Lease.
5.2 Initial Term and Option Periods.
------------------------------------
Tenant shall pay to Landlord as rental for the use and occupancy of the
Leased Premises during the Initial Term and any extension thereof, fixed annual
rental, commencing on the first day of the first full calendar month following
the date of expiration of the Interim Term, a fixed annual rental (the "Annual
Rental") of Thirty Thousand and No Dollars ($30,000.00) per year for the first
five (5) years of the Initial Term; Thirty-Four Thousand Five Hundred and No
Dollars ($34,500.00) for the next five (5) years of the Initial Term;
Thirty-Nine Thousand Six Hundred Eighty and 00/100 Dollars ($39,680.00) for the
next five (5) years of the Initial Term; Forty-Five Thousand Six Hundred Thirty
and 00/100 Dollars ($45,630.00) for the final five (5) years of the Initial
Term; FiEty-Two Thousand Four Hundred Seventy and 00/100 Dollars ($52,470.00)
for the first five (5) year option period; and Sixty Thousand Three Hundred
Forty and 00/100 Dollars ($60,340.00) for the second five (5) year option
period. The Annual Rental shall be payable in advance in equal installments of
one-twelfth (1/12th) of the Annual Rental applicable to the month in question,
except that installments for partial months shall be prorated.
5.3 Place of Payment.
--------------------
All payments of rental shall be made by Tenant to Landlord in lawful
money of the United States at the address set forth in Section 22.1 herein or at
such other place within the United States of America as Landlord may from time
to time direct in writing.
6. ASSIGNMENT AND SUBLETTING
----------------------------
Except as provided in Section 4. 9 above, or in the event of a merger
or consolidation of Tenant with another bank Authorized to conduct business in
North Carolina, neither this Lease nor any or all interest herein shall be sold,
mortgaged, pledged, encumbered, assigned, transferred, or otherwise disposed of
in any manner by Tenant, voluntarily or involun- tarily, by operation of law, or
otherwise, nor shall the Leased Premises or any part thereof be sublet, used, or
occupied for the conduct of any business any third person, firm, or corporation
or for any purpose other than herein authorized, except with the written consent
of Landlord. A sale or sales of fifty percent (50%) or more of the capital stock
of Tenant (if Tenant is a corporation) or of the majority interest in capital,
profits, or losses of Tenant (if Tenant is a partnership) shall be deemed to be
a prohibited assignment of this Lease within the meaning of this Article 6. In
the event Tenant desires to sublet the Leased Premises, or any portion thereof,
or assign this lease, Tenant shall give written notice thereof to Landlord at
least ninety (90.) days but not more than one hundred eighty (180) days prior to
the proposed commence- ment date of such subletting or assignment, which notice
shall set forth the name of the proposed subtenant or assignee, the relevant
terms of any sublease or assignment and copies of financial reports and other
relevant financial information or the proposed subtenant or assignee. Landlord
shall notify Tenant of its decision to grant or withhold its consent, which it
may do in its sole discretion, within thirty (30) days of its receipt of
Tenant's written notice. Notwithstanding any permitted assignment or subletting,
Tenant shall at all times remain directly and primarily liable for the payment
of the rent herein specified and for compliance with all of its other
obligations under this Lease. Upon the occurrence of a default under Section 20
of this Lease that is not cured within the applicable grace period, if the
Leased Premises or any part thereof are then sublet, Landlord, in addition to
any other remedies provided herein or by law, may collect directly from such
subtenant all rents due and becoming due to Tenant under such sublease and apply
such rent against any sums due to Landlord from Tenant hereunder. No such
collection directly from an assignee or subtenant shall be construed to
constitute a novation or a release of Tenant from the further performance of
Tenant's obligations hereunder. Any guaranty of Tenant executed as consideration
for this Lease shall remain in full force and effect before and after any such
assignment or subletting. Landlord may require Tenant, and Tenant hereby agrees,
to execute a guaranty of this Lease before Landlord consents to any such
assignment or sublease.
In addition to Landlord's right to consent to any subtenant or
assignee, Landlord shall have the option, in its sole discretion, in the event
of any proposed subletting or assignment, to terminate this Lease, or in the
case of a proposed subletting of less than the entire Premises, to recapture the
portion of the Premises to be sublet, as of the date the subletting or
assignment is to be effective. The option shall be exercised by Landlord's
giving Tenant written notice thereof within sixty (60) days following Landlord's
receipt of Tenant's written notice as required above. If this Lease shall be
terminated with respect to the entire Leased Premises, the Term shall end on the
date stated in Tenant's notice as the effective date of the sublease or
assignment as if that date had been originally fixed in this Lease for the
expiration of the Term. If Landlord recaptures only a portion of the Leased
Premises, the Annual Rental shall xxxxx, proportionately, based on the Annual
Rental due as of the date immediately prior to such recapture. Tenant shall, at
Tenant's sole cost and expense, discharge in full any outstanding commission
obligation with respect to this Lease and any commissions which may be owing as
a result of any proposed assignment or subletting, whether or not the Premises
are rented by Landlord to the proposed tenant or any other tenant.
Consent by Landlord to any assignment or subletting shall not include
consent on a subsequent assignment or subletting of the Leased Premises by
Tenant or its assignee or sublessee or the consent to the assignment or
transferring of any Lease renewal option rights, space option rights or other
special privileges granted to Tenant hereunder (and such - options, rights or
privileges shall terminate upon such assignment), unless Landlord specifically
grants in writing such options, rights or privileges to assignee or or
subtenant. Any sale assignment, mortgage, transfer of this lease or subletting
which does not comply with the provisions of this Section shall be void.
Notwithstanding Landlord's consent, in the event that Tenant sells,
sublets, assigns, or transfers this Lease and at any time receives periodic rent
and/or other consideration which exceeds that which Tenant would at that time be
obligated to pay to Landlord, Tenant shall pay to Landlord 100% of the gross
increase in such rent as such rent is received by Tenant and 100% of any other
consideration received by Tenant from such subtenant or such assignee.
Should Landlord consent to an assignment or sublease of this Lease,
Tenant, its proposed assignee or subtenant and Landlord shall execute an
agreement prepared by or acceptable to Landlord wherein the proposed assignee or
subtenant agrees to be bound by the terms and conditions of this Lease, and
Tenant will pay to Landlord on demand a sum equal to all of Landlord's costs,
including without limitation reasonable attorneys' fees, incurred in connection
with such assignment, sublease or transfer.
7. REPAIRS AND MAINTENANCE.
----------------------------
At the sole cost and expense of Tenant and throughout the terms hereof,
Tenant shall keep and maintain the Leased Premises in good order, condition and
repair, in a clean, sanitary and safe condition in accordance with the laws of
the State in which the Leased Premises are located, and in accordance with all
directions,, rules and regulations of the health officer, fire xxxxxxxx,
building inspector, or any other proper officer of the governmental agencies
having jurisdiction over the Leased Premises. Without limiting the foregoing,
Tenant shall be responsible for maintenance, repair and replacement as needed of
all electrical, plumbing, ventilating and utility systems located on the Leased
Premises (including the HVAC Facilities), all windows, window fittings and
sashes, and interior and exterior doors, all fixtures within the Leased
Premises, all interior walls, floors and ceilings, water heaters, termite and
pest extermination, all of Tenant's improvements and trade fixtures. Tenant
shall keep and maintain the Leased Premises in accordance with all requirements
of law concerning the manner, usage and condition of the Leased Premises and
appurtenances thereto, as the same shall be in effect from time to time. Tenant
shall permit no waste, damage or injury to the Leased Premises. If at any time
and from time to time during the term hereof Tenant shall fail to make any
maintenance, repairs or replacements in and to the Leased Premises as required
in this Lease, Landlord shall have the right, but not the obligation, to 'enter
the Leased Premises and to make the same for and on behalf of Tenant, and all
sums so expended by Landlord shall be deemed to be additional rent hereunder and
payable to Landlord upon demand.
8. ALTERATIONS BY TENANT
------------------------
Tenant shall not make any structural changes to the interior of
Tenant's Building or any change to the exterior building without the prior
written consent of Landlord. No building at any time on the Leased Land shall be
demolished without the prior written consent of the Landlord and any mortgagee
of Landlord. All permitted changes and alterations (herein collectively referred
to as "Alterations") shall be made in all cases subject to the following
conditions which Tenant covenants and agrees to observe and perform:
(a) No Alteration shall be undertaken until Tenant shall have procured
and paid for, so far as the same may be required from time to time, all
municipal and other governmental permits and any authorizations of the
various municipal departments and governmental subdivisions having
jurisdiction, and Landlord agrees to join, at the expense of the Tenant, in
the application for any such permit or whenever such action is necessary.
(b) Each Alteration, when completed, shall be of such a character as
to not adversely affect the value of the improvements and equipment on the
Leased Land immediately before such alteration.
(c) All work done in connection with any Alteration shall be done
promptly and in a good and workmanlike manner and in compliance with the
applicable municipal building and zoning laws and with all other laws,
ordinances, orders, rules, regulations and requirements of federal, state
and municipal governments and appropriate departments, commissions, boards
and officers thereof; the cost of any such alteration shall be paid in cash
or its equivalent, so that no liens shall be enforced against the Leased
Premises or the Shopping Center for labor and materials supplied or claimed
to have been supplied to the Leased Premises.
(d) No Alteration Building shall result in Tenant's Building having a
height of twenty (20) feet above grade, nor shall it violate any other
provision of Section 4.1 above.
(e) If Tenant ceases the operation of its business on the Leased
Premises during such Alterations, Tenant shall construct barriers to
obscure the view of such construction from the Shopping Center and the
adjacent roadways.
9. LIENS AND CLAIMS
Tenant shall not cause, directly or indirectly, the Leased Premises,
Tenant's Building, or the Shopping Center to be encumbered by any liens of
mechanic's, laborers, or materialmen or any other liens. Tenant shall, whenever
and as often as any such liens are filed against the Leased Premises, Tenant's
Building or the Shopping Center and are purported to be for labor or material
furnished or to be furnished to Tenant, discharge the same of record within
sixty (60) days after the date of filing by payment, bonding or otherwise, as
provided by law. Tenant shall, upon reasonable notice and request in writing
from Landlord, also defend against Landlord, at Tenant's sole cost and expense,
any action, suit, or proceeding which may be brought on or for the enforcement
of any -such lien and shall pay any damages and satisfy and Discharge any
judgements entered in such action, suit, or proceeding and shall save harmless
Landlord from any liability, calim, or damages resulting therefrom. Indefault of
Tenant procuring the discharge of any such lien, Landlord may, without further
notice, procure the discharge therof by bonding or payment or otherwise, and all
costs and expenses which Landlord may incur in obtaining such discharge shall be
paid by Tenant as additional rent within ten (10) days of any demand therefor.
10. UTILITIES.
--------------
10.1 Tenant Pays Charges
------------------------
During the term of this Lease, Tenant shall pay or cause to be paid all
charges for gas, electricity, water, and other utilities furnished to the Leased
Premises and all sewer use charges or similar charges or assessments for
utilities levied against the Leased premises and shall make all reasonable
efforts to insure that all such services are separately metered or assessed.
11. TAXES AND ASSESSMENTS
-------------------------
11.1 Real Estate.
------------------
As used herein, the term "Real Estate Taxes" shall mean all real estate
taxes, assessments for improvements to the Leased Land and improvements,
municipal or county water and sewer rates and charges which shall be levied,
assessed, or imposed against the Leased Land or Tenant's E3uildincj_ and any
other improvements erected or caused to be erected thereon and which become a
lien or are due and payable thereon during the term of this Lease, excluding any
franchise, corporate, income, personal property, capital levy, capital stock,
excess profits, transfer, revenue, estate, gift, inheritance or succession tax
payable by Landlord or any other tax, assessment, levy or charge upon, or
measured in whole or in part by, the income or profits of Landlord;
provided, however, if at any time during the term of this, Lease, the method of
taxation prevailing on the commencement date of the Interim Term shall be
altered so as to cause any tax measured by or imposed upon the rental or other
sums payable hereunder to be substituted for Real Estate Taxes or assessments,
then such taxes shall be 'deemed included in the obligations of Tenant under
this Section, but only to the extent the same would be payable if the Leased
Land were the only property of Landlord subject to such taxes.
11.2 Payment by Tenant.
------------------------
Tenant shall pay or cause to be paid, before any fine, penalty,
interest or cost may be added thereto for the nonpayment thereof, all Real
Estate Taxes levied against the Leased Land during the Initial Term or any
extended term of this Lease, including the improvements on the Leased Land, and
all permitted alterations and additions thereto. Tenant shall not be obligated
for the payment of such taxes during the Interim Term. If the Leased Land shall
not be separately assessed but shall be assessed as a part of a larger parcel of
real property or as a part of the Shopping Center and improvements owned by
Landlord, until such time as the Leased Land shall be separately assessed,
Tenant shall pay, within ten (10) days of written demand for payment from
Landlord, a portion of any Real Estate Taxes levied against the entire parcel of
real property or the Shopping Center owned by Landlord on the following basis:
Tenant's share shall be an amount equal to the product obtained by multiplying
such Real Estate Taxes by a fraction the numberator of which shall be the gross
leaseable floor area of Tenant's Building, and the denominator of which shall be
the xxxx xxxxx leasable floor area of all buildings in the Shopping Center as
shown on Exhibit "A-3". Gross leaseable floor area of the Shopping Center means
all ground floor area contained in the Shopping Center designated for tenants'
exclusive occupancy.
11.3 Installment Payments
-------------------------
If any real estate, special tax or assessments are at any time during
the Initial Term or any extended term of this Lease levied or assessed against
the Leased Land, which, upon exercise of any option permitted by the assessing
authority, may be paid in installments or converted to an installment payment
basis (irrespective of whether interest shall accrue on unpaid installments),
Tenant may elect to pay such taxes in installments with accrued interest
thereon, provided such taxes are separately assessed. In the event of such
election, Tenant shall be liable only for those installments of such tax or
assessment which accrue and become payable during the Initial Term'or any
extended term of this Lease plus accrued interest thereon.
11.4 Proration
--------------
Any Real Estate Taxes which are payable by Tenant hereunder shall be
prorated between Landlord and Tenant as of the date of commencement and as of
the date of- expiration or earlier termination of the Initial Term or any
extension thereof if such Real Estate Taxes relate to a fiscal period of the
levying authorities which commences before the commencement of the Initial Term
or extends beyond the expiration or earlier termination of the term hereof so
that Tenant shall only pay that portion of such Real Estate Taxes equal to that
proportion which the number of days of such fiscal the Initial Term or
extensions thereof number of days of such fiscal period falling within the
Initial Term or estensions thereof bears to the total number of days of such
fiscal period.
11.5 Cooperation of Landlord.
------------------------------
Landlord agrees to execute such documents and take such other action as
may be reasonably required so that the Leased Land will be assessed and taxed as
a separate parcel from the entire parcel of real property owned by Landlord.
11.6 Personal Property.
-----------------------
Tenant covenants 'and agrees to pay before delinquency all personal
property taxes, assessments and liens levied during the Initial Term or any
extended term of this Lease upon all personalty belonging to Tenant and situated
on or about the Leased Land.
12. INDEMNIFICATION AND NONLIABILITY OF LANDLORD AND TENANT
-----------------------------------------------------------
Tenant agrees to protect, defend, indemnify and save harmless Landlord
against any and all loss, damages and liability on account of any, all and every
demand or claim or assertion of liability or any claim or any action founded
thereon arising or alleged to have arisen out of any act or omission of Tenant,
its agents, servants, employees, patrons, customers, independent contractors,
licensees or invitees, arising out of the occupation, use, possession, conduct
or management of the Leased Premises whether such claim or action be for
damages, injury to person or property, including the property of Tenant, or
death of any person, made by any person, group or organization, whether employed
by either of the parties hereto or otherwise, except if Landlord shall have been
grossly negligent under the circumstances involved.
Landlord agrees to protect, defend and indemnify and save harmless
Tenant against any and all loss, damages, and liability on account of any, all
and every demand or claim or assertion of liability for any claim or any action
founded thereon, arising, or alleged to have arisen out of any act or omission
of Landlord, its agents, servants, employees, patrons, customers, independent
contractors, licensee's or invitee's arising out of its use, possession, conduct
or management of the Shopping Center whether such claim or action be or damages,
injury to personal property, including the property of Land- lord, or death of
any person, made by any person, group or organization, whether employed by
either of the parties hereto or otherwise, except if Tenant shall have been
grossly negligent under the circumstances involved.
13. INSURANCE.
--------------
13.1 Hazard Insurance.
----------------------
During the term hereof, Tenant shall at Tenant's sole cost and expense, for the
mutual benefit and protection of Landlord, Landlord's mortgagees and Tenant,
procure and maintain or cause to be procured and maintained an all-ri policy or
policies of insurance with a vandalism and malicious mischief endorsement
covering Tenant's Building and all other improvements located on the Leased
Land, in a company or companies licensed to do business in the state in which
the Leased Land is situated and acceptable to Landlord, in a total amount of one
hundred percent (100%) of the full replacement value of Tenant's Building and
appurtenances, but in no event shall such policies contain a co-insurance
provision. The term "full replacement value" shall mean the then actual
replacement cost, excluding excavation and foundation costs. Tenant agrees to
reevaluate insurance coverage at Land'lord's request, but not more often than at
one (1) year intervals and to increase said coverage if it shall then be less
than one hundred percent (100%) of the then full replacement value.
All policies of insurance, and all renewals thereof, shall name both
Landlord and Tenant as insureds and provide for the payment of all losses to ,
its successors or assigns (hereinafter referred to as the "Insurance Trustee"),
for the use and benefit of the Landlord and the Tenant, and of the mortgagee
under any mortgage on the leasehold estate (the "Mortgagee") as -------- their
respective interests may appear.
In the event of any loss, the Insurance Trustee shall proceed to hold
and disburse the proceeds of any such policies of insurance as provided in
Article 15 hereinbelow. During the term of this Lease, Tenant shall, at'
Tenant's sole cost and expense, for the mutual benefit and protection of
Landlord and Tenant, maintain comprehensive general liability insurance against
claims for personal injury or death and property damage occurring upon, in, or
about the Leased Premises, or on, in or about the adjoining sidewalks and
passageway under the control of Tenant, such insurance to afford protection to a
limit of not less than a combined single limit of Three Million Dollars
($3,000,000) per occurrence in respect of personal injury or death and property
damage.
13.2 Course of Construction Policy.
------------------------------------
Tenant shall during the Interim Term obtain at Tenant's sole cost and
expense a "course of construction" policy of insurance, including, but not
limited to, provisions for fire and extended coverage covering the building and
appurtenances to be constructed by Tenant on the Leased Land. Landlord, Tenant's
contractor and Tenant shall be named as insureds under such policy. Tenant
agrees that any "course of construction" policy obtained shall provide that any
insurance carried by Landlord shall be in excess of said "course of
construction" policy and shall not contribute to payment of any loss thereunder.
13.3 Xxxxxxx'x Compensation.
----------------------------
During the term of this lease, Tenant shall maintain or cause to be
maintained, workmen's compensation insurance as required by law.
13.4 Blanket Policies
---------------------
All policies of insurance required hereunder of the Tenant during the
term of this Lease may be in the form of "blanket" policies, provided that the
coverage thereunder must be at least equal to that which would be provided under
the separate policies which Tenant must maintain pursuant to this Lease.
13.5 Policies and Certificates of Insurance.
--------------------------------------------
Tenant agrees during the term of this Lease, to deliver to Landlord
certified copies o'f policies evidencing the insurance procured by Tenant under
the terms hereof, or to deliver in lieu thereof certificates of coverage from
the insurance company or companies writing said policy or policies of insurance,
which certificates shall designate the company writing the same, the number,
amount and provisions thereof, and shall indicate on the face thereof that
Landlord is a named insured under said policies and that Landlord's mortgagees
on the Leased Land shall be named insureds for the policies provided in this
Lease.
13.6 Cancellation or Termination
--------------------------------
All insurance policies to be provided by Tenant shall contain a
provision that said policies shall not be cancelled, terminated or expire
without thirty (30) days prior notice from the insurance company to Landlord.
Tenant agrees that on or before twenty (2) days prior to expiration of any
insurance policy, Tenant shall deliver to Landlord written notification in the
form of a receipt or other similar documents from the applicable insurance
company that said policy or policies have been renewed, or deliver certificates
of coverage or certified copies from another insurance company licensed to do
business in the state in which the Leased Land is located and acceptable to
Landlord for such coverage.
13.7 Failure to Procure.
------------------------
In the event Tenant should fail to procure or keep in force the
insurance which, as provided in this Lease, must be procured and kept by Tenant,
Landlord may, but shall not be obligated to, procure insurance for Tenant's
benefit and recover the cost thereof from Tenant within ten (10) days from
written demand therefor from Landlord.
13.8 Landlord's Insurance.
--------------------------
During the term of this Lease, Landlord shall, at Landlord's sole cost
and expense, for the mutual benefit and protection of Landlord and Tenant,
maintain comprehensive general liability insurance against claims for personal
injury or death and property damage occurring upon, on, or about the Shopping
Center, such insurance to afford protection to a limit of not less than a
combined single limit of One Million Dollars ($1,000,000.00) per occurrence in
respect of personal injury or death and property damage, as well as a so-called
"umbrella" or excess liability policy to afford protection to a limit of not
less than a combined single limit of Five Million Dollars ($5,000,000.00) per
occurrence in respect of personal injury or death and property damage.
Landlord agrees during the term of this Lease, to deliver to Tenant
certified copies of 'policies evidencing the insurance procured by Landlord
under the terms hereof, or to deliver in lieu thereof certificates of coverage
from the insurance company or companies writing said policy or policies of
insurance, which certificates shall designate the company writing the same, the
number, amount and provisions thereof. All insurance policies to be provided by
Landlord shall contain a provision that said policies shall not be cancelled,
terminated or expire without thirty (30) days' prior notice from the insurance
company to Tenant. Landlord agrees that on or before twenty (20) days prior to
expiration of any insurance policy, Landlord shall deliver to Tenant written
notification in the form of a receipt or other similar documents from the
applicable insurance company that said policy or policies have been renewed, or
deliver certificates of coverage or certified copies from another insurance
company licensed to do business in the state in which the Leased Land is located
and acceptable to Tenant for such coverage.
In the event Landlord should fail to procure or keep in force the
insurance which, as provided in this Lease, must be procured and kept by
Landlord, Tenant may, but shall not be obligated to, procure insurance for
Landlord '- Landlord benefit and recover the cost thereof from Landlord within
ten (10) days from written demand therefor from Tenant.
14. DAMAGE AND DESTRUCTION.
---------------------------
14.1 Damage Covered by Insurance
--------------------------------
If, during the term of this Lease, the Leased Land shall be damaged or
destroyed by a cause or casualty covered by the insurance Tenant is required to
carry pursuant to Article 13 above, Tenant shall repair or replace the building
and/or improvements damaged or destroyed by the insurable cause of damage or
destruction on the same plan and design as existed immediately prior to such
damage or destruction, subject to such delays as may be reasonably attributable
to governmental restrictions or other causes beyond the control of Tenant.
Materials used in repair shall be as nearly like original materials as may then
be reasonably procured in regular channels of supply. All proceeds of insurance
carried on Tenant's Building and any other improvements located on the Leased
Land hereinabove, payable as a result of such damage or destruction, shall be
used and applied in accordance with Article 13 hereinabove and this Article 14
to the extent necessary for such repair or rebuilding. Landlord shall not be
required to contribute any of its own funds to the cost of repair or rebuilding.
14.2 Damage Not Covered by Insurance.
-------------------------------------
If, during the term of this Lease, Tenant's Building or any other
improvements located on the Leased Land shall be damaged or destoyed by a clause
or casualty not covered by the insurance Tenant is required to maintain pursuant
to Article 14 hereinabove to the extent of twenty-five percent (25%) or more of
the monetary value thereof, then by written notice to Tenant within xxxxxx (30)
days after the date of such damage or destruction, Landlord may elect to
terminate this Lease. However, if Landlord gives notice of termination to
Tenant, this Lease shall not be so terminated if the Tenant shall, within thirty
(30) days after receipt of such notice, give written notice to Landlord of
Tenant's Building and improvements. In such event, Tenant shall, at its sole
expense, provide the funds necessary therefor and shall thereafter promptly and
diligently repair and restore the Leased Premises to the same extent required in
section 14.1 hereinabove. In the event any such damage or destruction, from a
cause not covered by the insurance required to be maintained in Article 13 is
not sufficient to permit termination of the Lease pursuant to this Section 14.2,
Tenant shall, at Tenant's sole cost and expense, promptly repair and restore the
Leased Premises to the same extent required in Section 14.1 hereinabove. 14.3
14.3 Approval of Plans.
-----------------------
Prior to commencement of such restoration, reconstruction or
replacement, the Tenant, or the Mortgagee, in the event any mortgagee shall
elect to undertake such restoration, reconstruction or replacement, shall
furnish Landlord with a copy of all plans, specifications, contracts and
guaranty bonds, or documents and shall obtain the prior written consent of
Landlord for all repairs involving structural portions of the Leased Premises.
All such restoration, reconstruction or replacement shall be subject to the
provisions of Sections 4.1 and 8 above.
14.4 Disbursement of Proceeds.
--------------------------------
After such resoration, repair, reconstruction or replacement shall have
commenced, the supervising architect, or if there be no supervising architect,
then the general contractor in charge of such work, shall certify monthly to the
Insurance Trustee statements showing the actual cost of the work done in the
preceding month, and shall furnish satisfactory receipts for labor and materials
showing that Tenant has paid such costs in full. Theerupon, said Insurance
Trustee shall reimburse Tenant for ninety (90) percent of the amount of such
monthly cost paid by the Tenant. Upon the completion of such restoration,
repair, reconstruction, or replacement free from liens for labor and materials,
the Tenant shall exhibit to said Trustee receipts in full showing that it has
paid for all of said work and thereupon said Trustee shall pay to said Tenant
the balance remaining in said insurance fund, it being understood and agreed
that the cost of administering said trust including the compensation of said
Insurance Trustee shall not be paid out of or withheld from said insurance
proceeds, but shall be paid by Tenant.
14.5 Replacement of Tenant's Equipment.
---------------------------------------
Leased Premises not giving rise to a termination of this Lease, Tenant
shall, at its own expense, replace and repair so much of Tenant's equipment in
the Leased Premises which may be damaged or destroyed, as may, in the option of
Tenant, be necessary for the resumption by Tenant of its business in the Leased
Premises. Such replacement or repair shall commence as soon after the damage or
destruction as may be reasonably possible, subject to delays beyond the control
of Tenant.
14.6 Right to Terminate.
-------------------------
In the event of the damage or destruction of the Leased Premises by a
cause or casualty covered by the insurance Tenant is required to carry pursuant
to Article 13 hereinabove, either party hereto shall have the right to terminate
this Lease if, during the last three (3) years of the Initial Term or any
extensions of this Lease, Tenant's Building is damaged in an amount exceeding
sixty-six and two-thirds percent (66-2/3%) of the then reconstruction cost
thereof, provided that, in such event, such termination of this Lease shall be
effected by written notice within ninety (90) days of the happening of the
casualty causing such damage, and all insurance proceeds shall promptly be paid
over to Landlord by the Insurance Trustee.
15. CONDEMNATION
----------------
15.1 Total or Substantial Takinq.
---------------------------------
(a) Total Taking. In the event the Leased Premises shall be
appropriated or taken under the power of eminent domain by any public or
quasi-public authority, this Lease shall terminate and expire as of the
date of such appropriation or taking, and Landlord and Tenant shall
thereupon be released from any liability hereunder for occurrences or
omissions hereunder arising subsequent .to such date of appropriation or
taking.
(b) Partial Taking. In the event as much as twenty percent (20%) of
the Leased Premises or twenty-five percent (25%) of the Shopping Center
shall be appropriated or taken under the power of eminent domain by any
public or quasi-public authority, Tenant shall have the right to cancel and
terminate this Lease as of the date of such taking upon giving Landlord
written notice of such election within thirty (30) days after the receipt
by Tenant from Landlord of notice that the Leased Premises or the Shopping
Center have been so appropriated or taken. In the event of such
cancellation, Landlord and Tenant shall thereupon be released from any
liability under this 'Lease for occurrences or omissions hereunder arising
subsequent to such date of appropriation or taking.
15.2 Effect on Rent
---------------------
If this Lease is terminated as provided in Section 15.1. herein, the
rent for the last month of Tenant's occupancy shall be prorated, and the
Landlord agrees to refund to the Tenant any rent paid in advance.
15.3 Condemnation Award.
------------------------
All compensation awarded or paid upon such a total or partial taking of
the Leased Premises shall belong to and be the property of Landlord without any
participation by Tenant. Nothing contained herein shall affect the Tenant's
right to prosecute any claim directly against the condemning authority in such
condemnation proceedings for loss of business, and/or depreciation to, damage
to, and/or cost of removal of Tenant's Building, and/or for the value of stock
and/or trade fixtures, furniture and other personal property of Tenant;
provided, however, that no such claim shall diminish or otherwise adversely
affect Landlord's award or the award(s) of any and all ground and underlying
lessor(s) and mortgagee(s).
15.4 Restoration of Remainder
-----------------------------
If this Lease shall not be terminated as in this Article 15 provided
but shall continue as to that portion of the Leased Premises which shall not
have been appropriated or taken, then in that event Tenant, at its cost and
expense, shall immediately restore to the extent reasonably possible Tenant's
Building and improvements on the Leased Land remaining to a complete unit of
like quality and character as existed prior to such appropriation or taking, and
the rent shall be reduced in the ratio that the ground floor area of the
restored Leased Premises bears or shall bear to the ground floor area of the
Leased Premises before such taking. Landlord shall make available to Tenant the
proceeds of any condemnation award received by Landlord to the extent such
proceeds shall be attributable to the loss of Tenant's Building or other
improvements on the Leased Land.
16. SUBORDINATION AND NONDISTURBANCE
------------------------------------
This Lease shall be subordinate to the lien of any underlying ground
lease and to any mortgage or deed of trust now or hereafter constituting a lien
on the Leased Premises and to all renewals, modifications and extensions of
either, and Tenant will promptly execute and deliver any instrument reasonably
required by Landlord in confirmation of such subordination; provided, however,
that with respect to any such lien, such subordination shall be conditional upon
the obligation of Landlord to secure from such ground lessor or mortgagee a
written agreement in form for recordation that nothing to the contrary in any
such ground lease, mortgage or deed oE trust withstanding, if by foreclosure or
otherwise, such lessor or lender or any successor in interest shall come into
possession or become the owner of the Leased Premises or the Shopping Center of
which the Leased Premises form a part, it will not disturb the possession, use
or enjoyment by of the Leased Premises nor disaffirm this Lease or Tenant's
rights hereunder, so long as all obligations of are fully performed in
accordance with the provisions of this Lease.
17. RIGHT OF INSPECTION BY LANDLORD
-----------------------------------
Landlord and Landlord's representatives, including, but not limited to
any ground lessor or mortgagee(s) of Landlord, may enter the Leased Land during
normal banking hours or at such other times as are approved by tenant in
writing, for the purpose of inspecting the Leased Premises; performing any work
which Landlord elects to undertake by reason of Tenant's default hereunder, at
Tenant's expense, or posting notices of non-responsibility under any mechanic's
lien or similar law; and, during the final twelve (12) months of the term
hereof, presenting the Leased Premises to prospective tenants.
18. SALE OF SHOPPING CENTER BY LANDLORD.
----------------------------------------
In the event of any sale of the Shopping Center by Landlord, Landlord
shall be and is hereby entirely freed and relieved of all liability under any
and all covenants and unaccrued obligations contained in or derived from this
Lease arising out of any act, occurrence or omission occurring after the
consummation of such sale, and Tenant shall and hereby does attorn to the
purchaser at any such sale or any subsequent sale of the Shopping Center,
provided that any such purchaser shall in writing covenant to and with Tenant to
carry out any and all of the covenants and obligations of Landlord under this
Lease.
19. LIABILITY OF LANDLORD
-------------------------
If Landlord shall fail to perform any covenant, term, or condition of
this Lease and Tenant shall recover a money judgment against, Landlord, such
judgment to be satisfied only out of the proceeds of sale received upon
execution of such judgment and levy thereon against the right, title, and
interest of Landlord in the Shopping Center as the same may then be encumbered
and neither Landlord nor any of its partners, officers, or shareholders shall be
liable for any deficiency. It is understood that in no event shall Tenant have
any right to levy execution against any property of Landlord, its partners,
officers, or shareholders, other than their respective interests in the Shopping
Center. Such right of execution shall be subordinate and subject to any mortgage
or other encumbrance upon the Shopping Center.
20. CONDITIONAL LIMITATIONS-DEFAULT PROVISIONS
----------------------------------------------
20.1 Events of default.
-----------------------
If at any time during the term of this Lease, any one or more of the
Eollowing events (herein called an "Event of Default") shall occur, that is to
say:
(a) If Tenant shall make benefit of its creditors; or
(b) If any petition shall be filed against Tenant in any court,
whether or not pursuant to any statute of the United States of America or
of any state, in any bankruptcy, reorganization, composition, extension,
arrangement or insolvency proceedings, and Tenant shall thereafter be
adjudicated bankrupt, or if such proceedings shall not be dismissed within
sixty (60) days after the institution of the same, or if any such petition
shall be so filed by Tenant or a liquidator; or
(c) If, in any proceeding, a receiver, receiver and manager, trustee
or liquidator be appointed for all or any portion of Tenant's property, and
such receiver, receiver and manager, trustee or liquidator shall not be
discharged within sixty (60) days after the appointment of such receiver,
receiver and manager, trustee or liquidator; or
(d) If Tenant shall fail to pay any installment of rent provided for
herein, or any part thereof, when the same shall become due and payable,
and such failure shall continue for five (5) days after notice thereof from
Landlord, except that Landlord shall not Pe obligated to provide such
notice more than twice in any twenty-four (24) month period; or
(e) If Tenant shall fail to pay any item of real estate taxes or any
other charge or sum required to be paid by te-n'ant hereunder, and such
failure shall continue for twenty (20) days after notice thereof; or -
(f) If Tenant shall discontinue its business as provided in Section
3.2 hereinabove; or
(g) If Tenant shall fail to perform or any other requirement of this
Lease on the Tenant to be performed or observed, and such shall continue
for twenty (20) days after thereof from Landlord to Tenant.
Then, upon the happening of any one or more of the aforementioned
Events of Default, Landlord shall have the right, then or at any time therafter
and while such default or defaults shall continue, to give Tenant written notice
of Landlord's intention to terminate this Lease on a date specified in such
notice, which date shall not be less than ten (10) days after the date of giving
such notice, and on the date specified in such notive, which date shall not be
less than ten (10) days after the date of giving of such notice, and on the date
specified in such notice, Tenant's right to possession of the Leased Premises
shall cease and tenant shall peaceably and quietly yield to and surrender to
Landlord the Leased premises and this Lease shall thereupon be terminated and
all of the right, title and interest of Tenant hereunder an in the Leased
Premises shall wholly cease and expire in the same manner and with the same
force and effect as if the date of expiration of such ten (10) day period were
the date originally specified herein for the expiration of this Lease and the
Lease term, and Tenant shall then quit and surrender the Leased premises to
Landlord, but Tenant shall remain liable as hereinafter provided.
20.2 Reentry by Landlord.
-------------------------
In the event of any termination of this Lease as so stated hereinabove
or as otherwise permitted by law, or if a default shall continue
beyond the expiration of any grace period above provided for and Landlord shall
have elected not to terminate the Lease, Landlord may enter upon the Leased
Premises and have, repossess and enjoy the same by summary proceedings,
ejectment or otherwise, and in any such event neither Tenant nor any person
claiming through or under Tenant by virtue of any statute or of an order of any
court shall be entitled to possession or to remain in possession of the Leased
Premises but shall forthwith quit and surrender the Leased Premises. Landlord
shall incur no liability to any person for or by reason of any such entry,
repossession or removal of Tenant or any person claiming through or under
Tenant.
20.3 Payment of Rental and Expenses Upon Default.
-------------------------------------------------
In case of any such termination, reentry or dispossession by summary
proceedings, ejectment or otherwise, the rent and all other charges required to
be paid by Tenant hereunder shall thereupon become due and payable. up to the
time of such termination, reentry or dispossession, and Tenant shall also pay to
Landlord all expenses which Landlord may then or thereafter incur for legal
expenses, reasonable attorneys' fees, brokerage fees and all other costs paid or
incurred by Landlord for restoring the Leased Premises to good order and
condition, for maintaining the Leased Premises and improve- ments, for reletting
the Leased Premises, and for certain expenses of altering and otherwise
preparing the Leased Premises for such reletting, which latter expenses shall be
limited to those incurred in connection with the removal of all fixtures,
equipment and architectural features unique to Tenant's operation as a banking
institution (such as, for example, vaults, automated teller machines, drive-in
window facilities and overhang) and any repairs necessitated by such removal, as
well as those expenses incurred in connection with adapting the Leased Premises
to use for retail space (such as, for example, installation of additional plate
glass windows).
Landlord may, by written notice, at its option elect to do and perform
any one or more of the following in addition to, and not in limitation of, any
other remedy or right permitted it by law or by this Lease:
(a) Relet the Leased Premises as the agent of Tenant without
advertisement and by private negotia- tions and for any term and upon such
conditions as Landlord deems proper in its reasonable discretion, and
receive the rent therefor, and Tenant shall pay Landlord any deficiency
that may arise by reason of such reletting on demand, but Tenant shall not
be entitled to any surplus so arising and Tenant shall not have any right
of prior approval with respect to the terms or conditions upon which
Landlord relets the Leased Premises. Tenant shall reimburse Landlord for
all costs, expenses and reasonable attorneys' fees of Landlord incurred in
connection with the default of Tenant, termination of this Lease, eviction
of Tenant and reletting the Leased Premises and, to the extent reimbursable
by Tenant as set Eorth above in this Section 20.3, all costs and expenses
of Landlord incurred in connection with the preparation of the Leased
Premises for reletting.
(b) As agent of Tenant, do whatever Tenant iq obligated to ' do by the
provisions of this Lease. Tenant agrees to reimburse Landlord immediately
upon demand for any costs and expenses, including, but not limited to,
reasonable attorneys' fees, which Landlord may incur in thus effecting
compliance with this Lease on behalf of Tenant, and Tenant further agrees
that Landlord shall not be liable for any damages resulting to Tenant or
the property of Tenant from such action, unless caused by the negligence of
Landlord.
No act or thing done by Landlord or Landlord's agents during the term
of this Lease shall be deemed an acceptance of a surrender of the Leased
Premises, and no agreement to accept a surrender of the Leased Premises shall be
valid unless the same be made in writing and executed by Landlord. Any waiver of
or redress for any violation of any covenant or condition contained in this
Lease or any of the Rules and Regulations now or hereafter adopted by Landlord,
shall not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation. In
case it should be necessary or proper for Landlord to bring any action under
this Lease, or to consult, or place this Lease or any amount payable by Tenant
hereunder, with an attorney concerning or for the enforcement of any of
Landlord's rights hereunder, then Tenant in each and any such case shall pay
Landlord its reasonable attorneys' fees. In the event of any default by Tenant
under the terms and provisions of this Lease, Landlord, in addition to but not
in lieu of or in limitation of, any other right or remedy provided to Landlord
under the terms of this Lease or otherwise, shall have the right to be
immediately repaid by Tenant the amount of all sums expended by Landlord and not
repaid by Tenant in connection with preparing or improving the Leased Premises
to Tenant's specifications and any and all costs and expenses incurred in
renovating or altering space to make it suitable for reletting.
20.4 Waiver of Rights.
----------------------
The right of Landlord to recover from Tenant the amounts hereinabove
provided for shall survive the issuance of any order for possession or other
cancellation or termination of this Lease. Tenant, for itself and any and all
persons claiming through or under Tenant, including its creditors, upon the
termination of this Lease in accordance with the terms hereof, or in the event
of entry of judgment for the recovery of the possession of the Leased Premises
in any action or proceeding, or if Landlord shall enter the Leased
Premises by process of law or otherwise, hereby waives any right of
redemption provided or permitted by any statute, law or decision now or
hereafter in force, and does hereby waive, surrender and give up all rights or
privileges which Tenant may or might have under and by reason of any present or
future law or decision, to redeem the Leased Premises or for a continuation of
this Lease for the term hereby demised after having been dispossessed or ejected
therefrom by process of law or otherwise.
20.5 Extended Period to Cure Default.
-------------------------------------
Anything in this Article 20 to the contrary notwithstanding, it is
expressly understood that, with respect to any Event of Default within the
purview of supparagraph (g) of Anything it is Section 20.1 hereof, if such event
of default is of such a nature that it cannot, in fact, with due diligence, be
cured within a period of twenty (20) days, Landlord shall not be entitled to
reenter the Leased Premises or serve a notice of termination upon Tenant, as
provided in said Section, nor shall the same be regarded as an Event of Default
for any of the purposes of this Lease, if Tenant shall have commenced the curing
of such default within the period of twenty (20) days referred to in said
subparagraph (f), and so long as Tenant shall thereafter proceed continuously
and with all due diligence and in good faith to complete the curing of such
default not susceptible of being cured with due diligence within twenty (20)
days, and the time of Tenant within which to cure the same shall be extended for
such period as may be necessary to complete the same with all due diligence.
20.6 Bank Closure or Takeover by state banking Authority.
----------------------------------------------------
Notwithstanding any other provision contained in this Lease, in the
event Tenant is closed or taken over by the Banking Authority of the State of
North Carolina or any other bank supervisory authority, the Landlord may
terminate this Lease only with the concurrence of such Banking Authority or
other bank supervisory authority, and any such authority shall in any event have
the election either to continue or to terminate this Lease; provided that in the
event this Lease is terminated, the maximum claim of Landlord for damages or
indemnity for injury resulting from the ejection or unexpired term of this Lease
shall in no event be more than the delivery to Landlord of the Leased Premises
and all improvements thereon, free and clear of all liens and encumbrances, and
an amount equal to the rent reserved by this Lease, without acceleration, for
(i) the year next succeeding the date of the surrender of the Leased Premises to
the Landlord or (ii) the period through the date of re-entry by the Landlord,
whichever period is shorter, whether before or after the closing of the Bank,
plus an amount equal to the accrued but unpaid rent, without acceleration, up to
the date of the surrender of the Leased Premises to the Landlord.
21. COMMON AREA.
---------------
21.1 Grant of Easement and Right to Use.
----------------------------------------
At all times during the Initial Term of this Lease and during any
extension thereof, Landlord shall continuously and without interruption make
available, and hereby grants and to Tenant and Tenant's successors and permitted
assigns, a nonexclusive easement and the right for Tenant and its permitted
subtenants in common with Landlord and all persons, firms and corporations and
others conducting business within or entitled to use the Shopping Center and
their respective customers, guests, licensees, invitees, subtenants, employees
and agents, to use those portions of the _shopping Center outlined on Exhibit
"C", attached hereto and made a p3-rt hereof, outside the Leased Land'-and shown
thereon as automobile parking area, pedestrian and vehicular accessways,
sidewalks and passageways and ingress and egress areas (herein collectively
referred to as "Common Area") for ingress, egress, parking and all purposes,
including drive-in windows, for which such areas would customarily be utilized.
Landlord hereby reserves the right to change, alter and modify the size,
location, nature or use of the Common Areas or components thereof from that
shown on Exhibit "C" , and/or to develop portions thereof as out parcels, at any
time and from time to time during the term hereof; provided, however, that no
such change, alteration or modification shall materially interfere with the
means of ingress and egress to and from the Leased Premises. Landlord hereby
also reserves the right to designate and redesignate areas for employee parking,
and Tenant agrees to cause all of its personnel to utilize same. Tenant shall
provide to Landlord, and supplement as and when necessary, a list of such
personnel and their vehicles by license plate. Landlord shall have the right to
tow or cause to be towed all such vehicles which do not comply with employee
parking requirements without any liability or responsibility for damage thereto
except in the event of the willful misconduct or gross negligence of Landlord.
21.2 Reimburserrent by Tenant
-----------------------------
During the Initial Term and any extension of Lease, Tenant shall
reimburse Landlord for Tenant's pro rata share of the Common Area maintenance
costs.
The term' "Common Area Maintenance Costs" shall mean all costs and
expense reasonably paid or incurred by Landlord during the Lease term in
managing, equipping, maintaining and operating (including, without limitation,
management oEEice rent or rental value, cleaning, waste disposal, insuring,
landscaping, advertising and promotion, parking area care, administrative costs
including management Eee, lighting and repairing, personal property taxes,
levies and assessments) the Common Area as hereinabove provided.
Tenant's pro rata share of the Common Area Maintenance Costs shall be a
fraction, the numerator of which shall be the total gross leaseable floor
area(expressed-in square feet) of Tenant's Building, which area shall include
the area covered by Tenant's drive-through window facilities but shall not
include Tenant's parking area, and the denominator of which shall be the gross
leasable floor area (expressed in square feet) of all buildings constructed
within the Shopping Center. For each calendar year or part thereof occurring
during the Initial Term or any extensions of this Lease, Landlord shall have the
right to make a good faith estimate of Tenant's share of the Common Area
Maintenance Costs for the upcoming calendar year and upon fifteen (15) days'
written notice to Tenant to require the payment by Tenant of one-twelfth
(1/12th) of such amount on the first (Ist) day of each month during the calendar
year in question. By April I of each calendar year during the Lease term, or as
soon thereafter as practical, Landlord shall furnish to Tenant a statement of
Common Area Maintenance Costs for the prior calendar year, including therein the
calculation of any additional amount owed by Tenant to Lnadlord, which amount
shall be promptly paid by Tenant to Landlord, as additional rent. Any amounts
owed by Landlord to Tenant because of overpayment by Tenant shall be promptly
refunded as long as Tenant is not in default hereunder. If, for any reason other
than the default of Tenant, this Lease shall terminate on a day other than the
last day of a calendar year, the additional rent payable by Tenant pursuant to
this Section 22.3 shall be prorated on the basis which the number of days from
the commencement of such calendar year to and including such termination date
bears to three hundred sixty-five (365). During any calendar year Landlord may
revise Tenant's Common Area Maintenance Costs which are currently being paid if
it appears to Landlord that the actual Common Area Maintenance Costs will vary
from the anticipated Common Area Maintenance Costs by five percent (5%) or more.
21.3 Rules and Regulations
--------------------------
Tenant agrees that Landlord has the right, at any time and from time to
time, for the general welfare of the Shopping Center and its -occupants, to
impose reasonable rules and regulations of general application governing the
conduct of occupants of the Shopping Center and their use of the Common Areas.
Tenant agrees to comply with any and all such rules and regulations imposed by
Landlord, including, without limitation, those rules and regulations set forth
in Exhibit "'D" .
23. GENERAL PROVISIONS.
-----------------------
23.1 Notices
------------
Every notice, demand, request, designation, consent, approval or other
document or instrument-required or permitted to be served hereunder shall be in
writing, shall be deemed to have been duly delivered, if sent by mail, on the
third (3rd) day after mailing and shall be hand delivered or sent by certified
or registered United States mail, postage prepaid, return receipt requested,
addressed to the parties hereto as their addresses appear below:
If to Landlord: Zarernba CenterPoint Cornpany
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
With a copy to: Xxxxxxx Management Corporation
c/x Xxxxxxx Corporation
00000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
If to Tenant: Guaranty State Bank
Xxxx Xxxxxx Xxx 0000
Xxxxxx, Xxxxx Xxxxxxxx
Attn: Xxxxxxx X. Xxxxxxx 27702
With a copy to: Tenant's Manager at the Shopping Center
Either party may change the place for notice, or provide for the
delivery of not more than two (2)copies, by giving the other party at least ten
(10)days' prior written notice to such effect.
23.2 Estoppel Certificates
--------------------------
Each party agrees from time to time upon not less than ten (10) days'
prior notice from the other, to execute, acknowledge and deliver, to the other
party, a statement in writing certifying (i) that this Lease is unmodified and
in full force and effect (or, if there have been modifications, identifying the
s 'ame by the date thereof and specifying the nature thereof) (ii) that to the
knowledge of such party no uncured Event of Default exists hereunder (or, if
such uncured Event of Default does exist, specifying the same); (iii) the dates
to which the Annual Rental and other sums and charges payable hereunder have
been paid; (iv) that such party, to its knowledge, has no claims against the
other party hereunder except for the continuing obligations under this Lease
(or, if such party has any such claims, specifying the same); (v) whether or not
there are then existing any offsets or defenses against the enforcement of any
of the terms, covenants or conditions hereof; and (vi) any other information
reasonably requested by the other party.
23.3 Force Majeure.
-------------------
Notwithstanding that time is of the essence for the performance of each
and every act to be performed by either party hereunder, the time within which
either party hereto shall be required to perform any act under this Lease shall
be extended by a period of time equal to the number of days during which
performance of such act is delayed unavoidably by strikes, lockouts, Acts of
God, governmental restrictions, failure or inability to secure materials or
labor by reason of priority or similar regulation or order of any governmental
or regulatory body, enemy action, civil disturbance, fire, unavoidable
casualties or any other cause beyond the reasonable control of either party
hereto.
23.4 Waivers.
-------------
No delay or omission by either party hereto in exercising any right or power
accruing upon the noncompliance or failure of performance by the other party
hereto under the provisions of this Lease shall impair any such right or power
or be construed to be a waiver thereof. A waiver by either party hereto of any
of the covenants, conditions or agreements hereto to be performed by the other
party shall not be construed as a waiver of any succeeding breach of the same or
any other covenants, agreements, restrictions and conditions hereof.
23.5 Modifications
------------------
Any alteration, change or modification of or to this Lease, in order to
become effective, shall be made by written instrument or endorsement hereon and
in each such instance executed on behalf of the party against whom enforcement
is sought.
23.6 Applicable Law
-------------------
This Lease shall be governed by, and construed in accordance with, the
laws of the state in which the Leased Land is situated.
23.7 Partial Invalidity
-----------------------
If any term, provision, condition or convenant of this Lease or the
application thereof to any party or circumstances shall, to any extent be held
invalid or unenforceable, the remainder of this Lease, or the application of
such term., provision, condition or covenant to persons or circumstances other
than those as to whom or which it is held invalid or unenforceable, shall not be
affected thereby, provision of this Lease shall be valid and fullest extent
permitted by law.
23.8 Brokerage Commission
-------------------------
Landlord represents and warrants that no real estate broker, agent,
commission salesman, or other person other than Allenton Realty has represented
in the negotiations for and procurment of this Lease and of the Leased Premises,
and that no commissions, fees or compensationof any kind are due and payable in
connection herewith to any real estate broker, agent, commission salesman or
other person (even including the broker or other person or firm excluded above
from the warranting party's warranty of no broker) except if and only as may be
provided in a separate written commission agreement signed simultaneously with
or before this lease by the party against whom the commission or compensation is
charged. Each party agrees to indemnify and hold the other hereunder harmless
from and against any claim for any such commissions, fees or other form of
compensation by any such third party claiming through the indemnifying party,
including, without limitation, any and all claims, causes of action, damages,
costs and expenses (including reasonable attorneys' fees), associated therewith.
23.9 Covenants Running with the Land
------------------------------------
All of the covenants, agreements, conditions and restrictions set forth
in this Lease are intended to be and shall be construed as covenants running
with the land, binding upon, inuring to the benefit of and enforceable by the
parties hereto and their successors and permitted assigns.
23.10 Section Headings.
------------------------
The section headings of this Lease are inserted as a matter of
convenience and reference only and in no way define, limit or describe the scope
or intent of this Lease or in any way affect the terms and provisions hereof.
23.11 Gender
------------
The use herein of (i) the singular number shall be deemed to mean the
plural; (ii) the masculine gender shall be deemed to mean the feminine or
neuter; and (iii) the neuter gender shall be deemed to mean the masculine or
feminine whenever the sense of this Lease so requires.
23.12 Memorandum of Lease.
---------------------------
A short form or memorandum of this Lease, incorpor- ating this
indenture of Lease by reference, shall be executed, acknowledged and recorded at
the commencement date of the interim Term of this Lease setting forth the
parties hereto, the legal description of the Leased F'remises (including all
rights, privileges and easements appurtenant thereto), the term of this Lease
and the options granted to Tenant hereunder if so requested by Landlord.
23.13 Surrender and Quitclaim at End of Term.
----------------------------------------------
Upon the end of the term of this Lease, as provided herein, or any
extension or renewal thereof, or sooner termination of this Lease pursuant to
any provisions herein or by operation of law, Tenant shall surrender to Landlord
all and singular the Leased Premises, including Tenant's Building and all
improvements constructed upon the Leased Land, and Tenant shall execute,
acknowledge and deliver to Landlord within five (5) days after written demand
from Landlord to Tenant, any quitclaim deed or other document required by any
title company to remove the cloud of this Lease from the Leased Premises.
Should Tenant remain in possession of the Leased Premises after the
expiration or other termination of the term of this Lease and any renewals as
provided herein, it shall be a tenant at will, at a rental equal to twice the
Annual Rental then payable hereunder, and otherwise on the same terms and
conditions as herein provided. Nothing herein shall be construed as constituting
Landlord's consent or approval to any such holdover, nor operate to preclude or
inhibit the exercise by Landlord of all of its rights and remedies hereunder or
available under applicable law to dispossess or evict Tenant. There shall be no
renewal of this Lease by operation of the law.
23.14 Attorneys' Fees
-----------------------
In the event any action is brought by Landlord to recover any rent due
and unpaid hereunder or to recover possession of the Leased Premises, or in the
event any action is brought by Landlord or Tenant, against the other to enforce
or for the breach of any of the terms, covenants or conditions contained in this
Lease, the prevailing party shall be entitled to recover reasonable attorneys'
fees to be fixed by the court, together with costs of suit therein incurred.
23.15 Relationship of Parties.
-------------------------------
The relationship of the parties hereto is that of Landlord and Tenant,
and it is expressly understood and agreed that Landlord shall not in any way nor
for any purpose be deemed a partner of Tenant or a joint venturer with Tenant in
the conduct of Tenant's business or otherwise, and that the provisions of any
agreement between Landlord and Tenant relating to rent are made solely for the
purpose of providing a method whereby rental payments are to be measured and
ascertained.
23.16 Corporate Authority.
--------------------------
In the event either party to this Lease is a corporation, each
individual executing this Lease on behalf of said corporation represents and
warrants that he or she is duly authorized to execute and deliver this Lease on
behalf of said corporation, in accordance with a duly adopted resolution of the
Board of Directors of said corporation or in accordance with the Bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
23.17 Consents and Approvals.
------------------------------
Wherever the consent or approval of either party is provided for in
this Lease, such consent or approval shall be given in writing to the requesting
party, and each party agrees to not unreasonably withhold such consent or
approval unless specifically provided to the contrary herein.
23.18 Addendum.
---------------
Amendments to this Lease must be in writing and signed by the parties,
and the same may be attached as addenda to this Lease, and the same when made
and attached shall be deemed incorporated herein and made a part hereof.
23.19 Definitions.
-------------------
The words "mortgage", "trust deed", "deed to secure debt" and "deed of
trust" are used interchangeably, as are the words "mortgagee", "trustee" and
"grantee under deed to secure debt" or "grantee under trust deed". Similarly,
"mortgage" includes security agreements, UCC-1 financing statements and like
security instruments.
23.20 Condition of Tenant's Obligations.
----------------------------------------
Tenant's obligations under this Lease are conditional upon Tenant
securing, pursuant to Section 4.2 above, the approval of the Federal Deposit
insurance Corporation and of The North Carolina Commissioner of Banks
(collectively, the "Authorizations") necessary for the construction of Tenant's
Work and the operation of a branch bank. Tenant shall diligently pursue securing
the Authorizations.
If said condition has not been satisfied within ninety (90) days from
the execution of this Lease, Tenant or Landlord shall have the option to
terminate this Lease at any time thereafter but prior to Tenant's delivery of
written evidence to Landlord that it has waived or satisfied said unsatisfied
condition.
23.21 Special Stipulations
--------------------------
The provision of the Special Stipulations set forth in Exhibit "F"
attached hereto and by this reference made a part hereof shall, to the extent in
conflict with the terms of this lease, control.
IN
WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and
year above written.
LANDLORD:
ZT-Durham Associates, #1,
a joint venture existing under
the general partnership
laws of North Carolina
By: Durham Retail Associates,
a North Carolina limited
partnership, General Partner
By: Center Point Southern,
Inc., a Georgia corporation
General Partner
By: S/S Xxxxxxx Xxxxxx, President
------------------
Xxxxxxx Xxxxxx
CORPORATE SEAL
EXHIBIT "A-1"
LEGAL DESCRIPTION OF THE SHOPPING CENTER
----------------------------------------
[SURVEYORS DESCRIPTION OF PROPERTY WITH COORDINATES]
EXHIBIT "A-2"
LEGAL DESCRIPTION
LEASE AREA REATAIL "E' OUT PARCEL
[SURVEYORS DESCRIPTION OF PROPERTY WITH COORDINATES]
EXHIBIT "A-3"
SHOPPING CENTER SITE PLAN
[GRAPHIC-MAP]
EXHIBT "B"
PLANS AND SPECIFICATIONS
------------------------
1. Those certain Drawings preparted for Guaranty State Bank by
Xxxxxxxxx/Xxxx Architects, Inc., Architects and Planners, dated August 5, 1987,
consisting of Sheets C-1; SD-1; A-1 through A-8; S-1 and S-2; E-1 through E-5;
HAC; P-1; and LEF-1 through LEF-6 (including LEF-1a and LEF-2a).
2. Those certain Construction Documents for Guaranty state Bank,
Westgate Shopping Center, Durhan, N.C., prepared by Xxxxxxxxx/Xxxx Architects,
Inc., Architects and Planners, dated August 5, 1987, as amended by Addendum
(No.1) dated August 7, 1987.
EXHIBIT "C"
[GRAPHIC-MAP]
EXHIBIT "D"
RULES AND REGULATIONS
---------------------
1. Tenant shall not, (i) conduct or permit any fire, bankruptcy or
auction sale (whether real or fictitious) unless directed by. order of a court
of competent jurisdiction, or conduct or permit any legitimate or fictitious
"Going Out of Business" sale nor represent or advertise that it regularly or
customarily sells merchandise at "manufacturer's," "distributor's" or
"wholesale," "warehouse," or similar prices or other than at "offprice" or at
"retail" prices; (ii) use, or permit to be used, the malls or sidewalks adjacent
to such premises, or any other area outside the premises for solicitation or for
the sale or display of any merchandise or for the distribution of handbills,
fliers or other similar materials, or for any other business, occupation or
undertaking, or for outdoor public meetings, circus or other entertainment
(except for promotional activities in cooperation with the management of the
Shopping Center or an association of merchants within the Shopping Center or for
promotions sponsored by Burger King Corporation); (iii) use or permit to be used
any sound broadcasting or amplifying device which can be heard outside of the
premises (other than devices necessary for drive-through service) or any
flickering lights; or (iv) use or permit to be used any portion of the premises
for any unlawful purpose or use or permit the use of any portion of the premises
as regular living quarters, sleeping apartments or lodging rooms or for the
conduct of any manufacturing business.
2. Tenant shall not obstruct any sidewalks, passages, exists,
entrances, truck ways, loading docks, package pick-up stations, pedestrian
sidewalk and ramps, first 'aid and comfort stations, or stairways of the
Shopping Center. No tenant and no employee or invitee of any tenant shall go
upon the roof of the Shopping Center without notifying the Landlord.
3. Tenant shall not install, maintain or operate or in any common areas
under the control of Tenant any vending machine or video game without Landlord's
prior written consent.
4. Tenant shall store all its trash and garbage in containers within
its premises and/or in the portion of the Common Areas designated by Landlord.
Tenant shall not place in any trash box or receptacle any material which cannot
be disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Landlord.
5. Tenant and Tenant's employees shall park thier cars only in such
portion of the parking area designed for those purposes by the Landlord. Tenant,
from time to time, upon Landlord's request, shall use its best efforts to
furnish Landlord with state automobile license numbers assigned to Tenant's
employees within five (5) days after taking possessionof the premises and shall
thereafter notify the Landlord of any changes within five (5) days after changes
ocur. In the event that the Tenant or its employees fail to park their cars in
designated parking areas as aforesaid, then the Landlord at its option shall
charge the Tenant Ten Dollars ($10.00) per days or partial day per car parked in
any area other than that designated. Landlord agrees to designate employee
parking areas in locations that do not unreasonably interfere with the
availability of customer parking for Tenant's Building.
6. Landlord may waive any one or more of these Rules and Regulations
for the benefit of any particular tenant or tenants, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in favor
of any other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all of the tenants of the Shopping
Center.
7. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of premises in the Shopping
Center.
8. Tenant shall be responsible for the observance of all of the
foregoing rules by Tenant's employees and agents.
9. Trailers or trucks shalll not be permitted to remain parked
overnighht in any area of the Shopping Center, whether loaded, unloaded or
partially loaded. No parking shall be permitted of any trailer, truck or other
vehicle in any area of the Shopping Center at any time for purposes of
advertising or promotion without Landlord's written permission.
Tenant agrees to comply with all reasonable additional and supplemental
rules and regulations upon notice of same from the Landlord.
EXHIBIT "E"
TOYS 'R US SITE PLAN
[GRAPHIC-MAP]
EXHIBIT "F"
SPECIAL STIPULATIONS
--------------------
1. Notwithstanding anything to the contrary contained in the Lease,
fixed monthly rental for that portion of the Initial Term that falls in calendar
year 1987 shall partially xxxxx to a rate of One Thousand Two Hundred Fifty and
No/100 Dollars ($1,250.00) per month; to the extent that the calendar year 1987
portion of the Initial Term consists of a partial month, such partially abated
monthly rental shall be prorated on a per them basis.
