Exhibit 10.4
LEASE
THIS LEASE, dated this 11th day of October, 2003, by and between CAROLINA
PARTNERS, LLC ("Landlord") and Regional Bankshares Inc. (Tenant), hereinafter
designated in Section 1.4 hereof.
ARTICLE 1
BASIC LEASE TERMS
1.1 Landlord: Carolina Partners, LLC
1.2 Landlord's Address: X.X. Xxx 000
Xxxxxx, Xxxx 00000
1.3 Landlord's Telephone Number: (000) 000-0000
1.4 Tenant: Regional Bankshares Inc.
1.5 Tenant's Address: 0 Xxxxxxxxxx Xxxxx Xxxxx X
Xxxxxxxx, XX 00000
1.6 Tenant's Telephone Number: To be determined
1.7 Tenant's Store Name: Regional Bankshares, Inc.
1.8 Permitted Use: Bank
1.9 General Location of Shopping Center: Hwy. 278 at Sheridan Park,
Bluffton, SC
1.10 Size of Store: 2190 + Square Feet
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1.11 Location of Store: Suite J as designated on Exhibit
"A" hereto.
1.12 Lease Term: 3 years, to commence and terminate
as set forth in Article 3 with two
(2) three-year options as
described in Article 1.13. If
Tenant wishes to exercise a Lease
Option period available under the
Lease, Tenant must provide
Landlord with written notice six
(6) months prior to the expiration
of the original lease agreement or
current option period. Tenant is
granted access upon signing of
lease for its I.T. work.
1.13 Minimum Guaranteed Rental:
Months 1 - 36 $4562.50 per month ($54,750.00 per
year)
Option Months 37-72 $4927.50 per month ($59,130.00 per
year)
Option Months 73-108 $5292.00 per month ($63,510.00 per
year)
1.14 Tenant pays the following as additional rent:
(a) Pro rata share of real estate taxes as set forth in Article 5.
(b) Pro rata share of Common Area Maintenance Costs (including insurance)
as set forth in Article 10.
(c) Any applicable sales tax on the above.
1.15 Tenant's percentage of pro-rata share of real estate taxes, common area
maintenance and insurance costs: 6.55% (2190 sq. ft. out of a total of
33,450 sq. ft.)
1.16 Contents of Lease:
Pages 1 through 17
Articles 1 through 33
EXHIBITS:
A. Shopping Center Layout and Floor Plan.
B. General Rules and Regulations.
This Article 1 is intended as a summary of certain of the terms of this Lease,
which terms are more fully set forth in subsequent Articles hereof.
ARTICLE 2
PREMISES
2.1 Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, a
portion of a building in a shopping center located as generally described in
Section 1.9 and as shown on Exhibit A hereto (hereinafter referred to as the
"Shopping Center"). Exhibit A sets forth the general layout of the Shopping
Center, but is not a warranty by Landlord that the Shopping Center will be
exactly as indicated.
2.2 The Demised Premises (hereinafter referred to as the "Store") is delineated
on the floor plan attached hereto as Exhibit A and is the size specified in
Section 1.10 hereof.
2.3 Leasable Area shall be measured on the sides from center of partition to
center of partition, but including the full width of any end wall; and on the
front and rear, said measurement shall include the full width of the walls. In
computing the leasable area of the Shopping Center or of the Store, no deduction
shall be made for columns, partitions, stairs, or other structures or equipment.
ARTICLE 3
LEASE TERMS
3.1 The term of this Lease shall commence on October 15, 2004. Rent commences on
December 15, 2004.
3.2 This Lease shall terminate on the last day of the month in which the 3rd
anniversary of the commencement shall fall.
3.3 If Tenant wishes to exercise a Lease Option period available under the
Lease, Tenant must provide Landlord with written notice six (6) months prior to
the expiration of the original lease agreement or current option period.
ARTICLE 4
RENT
4.1 During the term of this Lease, Tenant shall pay to Landlord Minimum
Guaranteed Rental as specified in Section 1.13. This rental shall be payable in
advance on or before the first (1st) day of each calendar month during the term.
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Rents which are made more than five (5) days after the due date will be
subjected to a late charge of five percent (5%) of the amount due compounded
monthly or Twenty-five Dollars ($25.00), whichever is greater.
ARTICLE 5
TAXES
5.1 Tenant agrees to pay to Landlord, as additional rent, Tenant's pro rata
share of all real estate taxes or other forms of taxes, which may be levied or
assessed against the land, buildings and all other improvements in the Shopping
Center. Any tax year commencing during any Lease Year shall be deemed to
correspond to such Lease Year. Said taxes shall be equitably prorated during the
first and last Lease Years of the term of this Lease.
5.2 Tenant agrees to pay to Landlord, prior to delinquency, any and all taxes
and assessments levied or assessed during the term hereof upon or against:
(a) all furniture, fixtures, equipment, and any other personal property
located within the Store;
(b) all alterations or improvements of whatsoever kind, made by Tenant
to the Store; and
(c) the rentals or any other payments payable hereunder by Tenant to
Landlord (other than Landlord's federal and state income taxes
thereon), whether the obligation for the payment of such taxes shall be
upon Landlord or Tenant.
5.3 Should any governmental authority require that a tax, other than the taxes
above mentioned, be paid by Tenant, but collected by Landlord, for and on behalf
of said governmental authority, and forwarded by Landlord to said governmental
authority, the same shall be paid by Tenant to Landlord, and be collectible by
Landlord, and payment thereof enforced in the same fashion as provided for the
enforcement of payment of rent hereunder; and shall be deemed rent payable as
billed.
5.4 Landlord shall have the unrestricted right, but not the obligation or
validity to contest amount of any tax by appropriate proceedings, and if
Landlord shall institute any such contest on its own volition, it shall have the
unrestricted right to settle any such contest, proceeding, or action upon
whatever terms Landlord may determine. In the event Landlord receives any refund
of such taxes (and provided Tenant is not then in default of any of the terms of
this Lease), Landlord shall credit such proportion of such refund as shall be
allocable to payments of taxes actually made by Tenant (less costs, expenses and
attorney's fees) against the next succeeding payments of rent.
5.5 Landlord shall notify Tenant of the amount that Landlord estimated will be
the Tenant's pro rata share of real estate taxes for each Lease Year and Tenant
shall pay such amount in equal monthly installments as additional rent in
advance on or before the first day of each month. Within thirty (30) days
following the end of each Lease Year, Landlord shall submit to Tenant a
statement(s) showing the real estate taxes to be paid by Tenant with respect to
such year, the amount of the resulting balance due thereon, or overpayment
thereof, as the case may be. Tenant will remit to Landlord the amount of any
underpayment within fifteen (15) days after the date of the aforesaid
statements. In the event of any overpayment by Tenant, Landlord will remit to
the Tenant the amount of any overpayment. Tenant's share of real estate taxes
shall be prorated if Tenant's commencement and termination dates do not coincide
with the date taxes are due.
ARTICLE 6
INSURANCE
6.1 Tenant agrees to secure and keep in force from the date Landlord shall
deliver possession of the Store to Tenant and throughout the term of this Lease,
at Tenant's own expense:
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(a) Comprehensive General Liability Insurance on an occurrence basis
with minimum limits of liability in an amount of Five Hundred Thousand
($500,000.00) Dollars for bodily injury, personal injury or death to
any one person, and One Million ($1,000,000.00) Dollars for bodily
injury, personal injury or death to more than one person and One
Hundred Thousand ($100,000.00) Dollars with respect to damage to
property, including water damage and sprinkler leakage legal liability,
if any;
(b) Fire Insurance, with extended coverage and vandalism and malicious
mischief endorsements, in an amount adequate to cover the full
replacement value of all fixtures and contents in the Store in the
event of fire or other casualty; and
(c) Plate Glass Insurance covering all plate glass in the Store.
6.2 All Comprehensive General Liability Insurance to be procured by Tenant in
pursuance of the section shall be insured in the names of and for the benefit of
Tenant and Landlord, and its designee(s), by one or more responsible insurance
companies satisfactory to Landlord and licensed to do business in the state
where the Shopping Center is located; and at Tenant's option, such insurance may
be carried under a blanket policy covering the Store and any other of Tenant's
stores. All policies of insurance mentioned in this section shall contain the
following endorsements: (a) that such insurance may not be cancelled or amended
with respect to Landlord except upon thirty (30) days' prior written notice from
the insurance company to Landlord sent by certified or register mail; (b) that
Tenant shall be solely responsible for the payment of all premiums under such
policy and that Landlord shall have no obligation for the payment thereof; and
(c) that in the event of payment of any loss covered by such policy, Landlord
shall be paid first by the insurance company for its loss. Tenant agrees to
deliver to Landlord certificates, binders or memoranda of insurance of all
policies or insurance to be procured by Tenant within at least ten (10) days
prior to Tenant obtaining possession of the Store under this Lease; and at least
ten (10) days prior to the expiration of any such policy, Tenant shall deliver
to Landlord certificates, binders or memoranda of insurance evidencing the
renewal thereof.
6.3 Tenant agrees to pay Landlord, as additional rent, Tenant's pro rata share
of all insurance premiums, including but not limited to fire insurance and
extended coverage, and liability insurance, that may be carried by Landlord
covering the Shopping Center. These payments shall be made as part of the Common
Area Maintenance Costs in accordance with Article 10.
6.4 Tenant shall not suffer anything to be or remain upon or about the Store,
nor carry on nor permit in the Store any trade or occupation, or suffer to be
done anything which may render an increased or extra premium payable for the
insurance of the Store or the Shopping Center against fire, or other perils
included under standard extended coverage insurance, unless Landlord shall
consent in writing, and if such consent is given, Tenant shall pay such
increased or extra premium ten (10) days after Tenant shall have been advised of
the amount thereof.
ARTICLE 7
[Reserved]
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ARTICLE 8
REPAIRS
8.1 Landlord will make necessary repairs to the roof, roof structure, gutters,
downspouts, exterior walls (not including glass) and foundation walls of the
Shopping Center during the original or any extended term of this Lease after
receiving notice from Tenant of the need for said repairs and where said repairs
are not in any way occasioned through the misuse or neglect of Tenant or
otherwise out of the occupancy of the Store. Where such repairs are occasioned
through the misuse or neglect of Tenant or otherwise arise out of the occupancy
of the Store by Tenant, its employees and/or invitees, same shall be made
promptly by Tenant, at its expense.
8.2 All repairs within the Store, including storefronts, plate glass, and entry
doors, shall be the responsibility of Tenant. Tenant shall keep the interior of
the Store together with all electrical, heating, air conditioning, and other
mechanical installations and equipment used by or in connection with the Store,
in good order and replacement and repair. Landlord warrants the HVAC system for
the first two years of the Lease. Tenant will not overload the electrical wiring
and will not install any additional electrical wiring or plumbing unless it has
first obtained Landlord's written consent thereto, and, if such consent is
given, Tenant will install them at its own cost and expense. In furtherance of
the above, Tenant covenants and agrees to obtain a maintenance, repair and
service contract on the HVAC system, unless such maintenance service and repair
are covered by a comprehensive maintenance, replacement and repair contract
through Landlord, Tenant agrees, within 4 weeks of Landlord's request for
evidence of such a contract covering units in Tenant's store, to either; enter
into an equivalent contract; or to enter into Landlord's comprehensive contract.
In the event that Tenant fails to do this, Landlord is hereby authorized to
provide such services on Tenants units on a quarterly basis, and Tenant agrees
to promptly pay Landlord's standard contract charges for such work.
8.3 If Tenant does not proceed to make repairs imposed upon it by this Article 8
within seven (7) days after receiving written notice from Landlord, or after
receiving notice by telephone in the event of emergencies, then Landlord may, at
its option, enter the Store and do the things specified in said notice, without
liability on the part of Landlord; and Tenant agrees to pay promptly upon demand
any reasonable cost or expense incurred by Landlord in doing such work. Landlord
agrees, after written notice from Tenant, to make such repairs of which it is
required and perform its obligations hereunder as promptly as reasonably
possible.
ARTICLE 9
COMMON AREAS
9.1 All common areas and other common facilities (hereinafter collectively
called "Common Areas") made available by Landlord in or about the Shopping
Center shall be subject to the exclusive control and management of Landlord,
expressly reserving unto Landlord, without limitation, the right to erect and
install within the parking areas, and other common areas, planters, pools,
sculpture, or otherwise. "Common Areas" shall mean all areas, space, facilities,
equipment, sidewalks, parking areas, driveways, landscaped areas, loading docks,
if any, signs and special services from time to time made available by Landlord
for the common and joint use and benefit of Landlord, the stores in and/or
adjoining the Shopping Center, Tenant, and other tenants of the Shopping Center,
Tenant, and their respective employees, customers, and other invitees. Landlord
hereby expressly reserves the right, from time to time: to change the area, and
arrangement of the parking areas and other facilities forming a part of said
Common Areas; provided; however, Landlord agrees to restrict parking by tenants
of the Shopping Center and their employees, agents, subtenants, concessionaires
and licensees; to close temporarily all or any portion of the Common Areas for
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the purpose of making repairs or changes thereto and to discourage non-customer
parking and to establish, modify and enforce reasonable rules and regulations
with respect to the Common Areas and the use to be made hereof. Landlord shall
operate, manage, equip, light and maintain the Common Areas in such manner as
Landlord, in its sole discretion, may from time to time determine, and Landlord
shall have the sole right to employ and discharge all personnel with respect
thereto. Tenant is hereby given a license (in common with all others to whom
Landlord has or may hereafter grant rights) to use, during the term of this
Lease, the Common Areas of the Shopping Center; provided, however, that if the
size, location or arrangement of such Common Areas, or the type of facilities at
any time forming a part thereof, be changed or diminished, Landlord shall not be
subject to any liability therefor, nor shall Tenant be entitled to any
compensation or diminution of such areas be deemed a constructive or actual
eviction.
9.2 Landlord shall not be responsible for any merchandise; cash or any other
valuable left in Common Areas at any time (either before, during, or after hours
of operation).
ARTICLE 10
COMMON AREA MAINTENANCE COSTS
10.1 (a) Landlord shall maintain the Common Areas in good order, conditions and
repair. Tenant agrees to pay Landlord a pro rata share of the costs of the
Shopping Center's Common Area Maintenance Costs. "Common Area Maintenance Costs"
shall mean the total costs and expenses incurred in operating, maintaining and
repairing the Common Areas, including without limitation the cost of the
following: personal and real property taxes; surcharges levied upon or assessed
against parking spaces or areas; payments toward mass transit or car pooling
facilities or otherwise as required by federal, state or local governmental
authorities; costs and expenses in connection with maintaining federal, state or
local ambient air and environmental standards, and the cost of all materials,
supplies, and services purchased or hired therefor; landscaping, gardening,
planting, garbage collection, cleaning, painting (including line painting);
decorating, paving, lighting, sanitary control, removal of trash and other
refuse; heating, ventilating and air conditioning of any enclosed portions of
the Common Areas; fire protection; water and sewerage charges; electrical
charges applicable to Common Areas; security; the cost of all types of insurance
coverages carried by Landlord covering the Shopping Center, including without
limitation public liability, personal and bodily injury, and property damage
liability and fire and extended coverage, vandalism and malicious mischief and
all broad form coverages, sign insurance and any other insurance that may be
carried by Landlord covering Shopping Center, all in limits selected by
Landlord; installing and rent of signs; maintenance, repair and replacement of
utility systems serving the Shopping Center, including sprinkler, water,
sanitary sewer and storm water lines and other utility lines, pipes and
conduits, Landlord's comprehensive maintenance, replacement and repair contract
for heating, ventilating and air conditioning equipment; replacement of
machinery and equipment owned and used in operation, maintenance and repair of
the Common Areas, or the rental charge for such machinery and equipment; the
cost of personnel (including applicable payroll taxes, workers compensation
insurance and disability insurance) to implement all of the foregoing, including
the policing of the Common Areas and the directing of traffic and parking of
automobiles on the parking areas thereof; a management fee of not greater than
5% of the annual gross rental revenues recognized by the Landlord from the
Shopping Center, and an overhead cost equal to ten percent (10%) of all such
costs (but there shall be excluded initial costs of equipment and items real
estate in nature and the original cost of constructing the Common Areas).
Landlord may, however, cause any or all of said services to be provided by
independent contractors.
10.1 (b) Landlord will notify Tenant from time to time of the amount which
Landlord estimates will be the amount of the Common Area Maintenance Costs for
each fiscal year, and Tenant shall pay to Landlord Tenant's pro rata share of
such amount in equal monthly installments in advance on or before the first day
of each month. Landlord shall submit to Tenant annually a statement showing the
Common Area Maintenance Costs paid by Tenant with respect to such year, and the
amount of the balance due thereon, or overpayment thereof, as the case may be.
Appropriate adjustments shall thereupon be made between the parties, on demand,
on the basis of such statement. Tenant shall have the right to examine
Landlord's books and records at the offices of Landlord during ordinary business
hours not more than once in each fiscal year for the purpose of verifying the
matters set forth in the statement for the immediately preceding fiscal year.
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10.2 Tenant shall pay to Landlord as additional rent that proportion of the
Common Area Maintenance Costs of the Shopping Center as the gross leasable area
of the Store shall bear to the gross leasable area of the Shopping Center.
10.3 Tenant shall be responsible for any Common Area expenses, over and above
normal Shopping Center expenses, i.e., security, lighting, parking area,
clean-up, etc., which are a result of Tenant's business.
ARTICLE 11
UTILITIES
11.1 Tenant shall pay directly to local utility companies the cost of
electricity, fuel, and other special fees, including required deposits for
utilities or services used in or for the Store. Water and sewer charges will be
included in the Common Area Maintenance Costs with the exception of
extraordinarily high users, who will be individually metered. Landlord shall not
be liable for any interruption in the supply of any utility services to the
Store, nor shall any such interruption constitute any ground for an abatement of
any other rents reserved hereunder. Tenant shall not at any time overburden or
exceed the capacity of the mains, feeders, ducts, conduits, or other facilities
by which utilities are supplied to the Store.
ARTICLE 12
DESTRUCTION
12.1 If the Store shall be partially damaged by any casualty insurable under
Landlord's insurance policy, Landlord shall, upon receipt of the insurance
proceeds, repair the same, and the minimum rent shall be abated proportionately
as to that portion of the Store rendered untenantable. If the Store (a) by
reason of such occurrence is rendered wholly untenantable, or (b) should be
damaged as a result of a risk which is not covered by Landlord's insurance, or
(c) should be damaged in whole or in part during the last two (2) years of the
term, Tenant shall vacate and surrender the Store to Landlord. Tenant's
liability for rent upon the termination of this Lease shall cease as of the day
following the event of damage. In the event Landlord elects to repair the damage
insurable under Landlord's policies, any abatement of rent shall end five (5)
days after notice by Landlord to Tenant that the Store has been repaired.
Nothing in this section shall be construed to xxxxx percentage rent; but in the
event Tenant's minimum rent shall have been abated pursuant to this Section
16.1, that amount of Gross Sales after which percentage rent shall be paid, as
set forth in Section 1.14 hereof, shall be reduced by a percentage equal to the
percentage of the Lease Year during which minimum rent was abated. If the damage
is caused by the negligence of Tenant, its employees, agents or concessionaires,
there shall be no abatement of rent. Unless this Lease is terminated by
Landlord, Tenant shall repair and refixture the interior of the Store in a
manner and to at least a condition equal to that existing prior to its
destruction or casualty and the proceeds of all insurance carried by Tenant on
its property and improvements shall be held in trust by Tenant for the purpose
of said repair or replacement.
ARTICLE 13
CONDEMNATION
13.1 If the whole of the Store shall be acquired or taken by eminent domain,
then this Lease shall terminate as of the date Tenant is no longer permitted to
use the Store.
13.2 If any part of the Store shall be taken rendering the remaining portion
unsuitable for the business of Tenant, then this Lease shall terminate as
aforesaid. If such partial taking is not extensive enough to render the Store
unsuitable for the business of Tenant, then this Lease shall continue in effect
except that the minimum rent shall be reduced in the same proportion that the
floor area of the Store taken bears to the original floor area thereof.
13.3 If more than fifty percent (50%) of the floor area of the Shopping Center
shall be taken, Landlord may, by written notice, terminate this Lease and such
termination is to be effective as aforesaid.
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13.4 If this Lease is terminated as provided in this Article, rent shall be paid
up to the day that Tenant is no longer permitted to use the Store and Landlord
shall make an equitable refund of any rent paid by Tenant in advance.
13.5 Tenant shall not be entitled to and expressly waives all claims to any
condemnation award for any taking, whether whole or partial, and whether for
diminution in value of the leasehold or to the fee; provided, however, Tenant
shall have the right, to the extent that the same shall not reduce Landlord's
award, to claim from the condemnor, but not from Landlord, such compensation as
may be recoverable by Tenant in its own right for damage to Tenant's business
and fixtures, if such claim can be made separate and apart from any award to
Landlord, and without prejudice to Landlord's award.
ARTICLE 14
MECHANIC'S LIENS
14.1 Should any mechanic's, materialmen's, or other lien be filed against the
Store, the Shopping Center, or any part thereof for any reason whatsoever by
reason of Tenant's acts or omissions or because of a claim against Tenant,
Tenant shall cause the same to be cancelled and discharged of record by bond or
otherwise within ten (10) days after notice by Landlord.
ARTICLE 15
LIABILITY
15.1 Tenant shall indemnify Landlord and save it harmless from suits, actions,
damages, liability and expense in connection with loss of life, bodily or
personal injury or property damage arising from or out of the use or occupancy
of the Store or any part thereof, or occasioned wholly or in part by any act or
omission of Tenant, its agents, contractors, employees, servants, invitees,
licensees or concessionaires, including the sidewalks and Common Areas and
facilities within the Shopping Center development. Landlord shall indemnify
Tenant and save it harmless from suits, actions, damages, liability and expense
in connection with loss of life, bodily or personal injury or property damage
arising from or out of the use or occupancy of the Store or any part thereof, or
occasioned wholly or in part by any act or omission of Landlord, its agents,
contractors, employees, servants, invitees, licensees or concessionaires,
including the sidewalks and Common Areas and facilities within the Shopping
Center development.
15.2 Tenant shall store its property in and shall occupy the Store and all other
portions of the Shopping Center at its own risk, and releases Landlord, to the
full extent permitted by law, from all claims of every kind resulting in loss of
life, personal or bodily injury or property damage. Landlord shall not be
responsible or liable at any time for any loss or damage to Tenant's
merchandise, equipment, fixtures or other personal property of Tenant or to
Tenant's business.
15.3 Landlord shall not be responsible or liable to Tenant or to those claiming
by, through or under Tenant for any loss or damage to either the person or
property of Tenant that may be occasioned by or through the acts or omissions of
persons occupying adjacent, connecting or adjoining premises.
15.4 Landlord shall not be responsible or liable to Tenant for any defect,
latent or otherwise, in any building in the Shopping Center or any of the
equipment, machinery, utilities, appliances or apparatus therein, nor shall it
be responsible or liable for any injury, loss or damage to any person or to any
property of Tenant or other person caused by or resulting from bursting,
breakage, or by leakage, steam or snow or ice, running, backing up, seepage, or
the overflow of water or sewerage in any part of said Store, or for any injury
or damage caused by or resulting from acts by or resulting from any defect or
act of omission in the occupancy, construction, operation or use of any of said
Store, buildings, machinery, apparatus or equipment by any person or by or from
the acts of negligence of any occupant of the Shopping Center.
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15.5 Tenant shall give prompt notice to Landlord in case of fire or accidents in
the Store or in the building of which the Store is a part, or of defects therein
or any fixtures or equipment.
ARTICLE 16
QUIET ENJOYMENT
16.1 Tenant, upon paying the rents and performing all of the terms on its part
to be performed, shall peaceably and quietly enjoy the Store, subject,
nevertheless, to the terms of this Lease and to any mortgage, ground lease, or
agreements to which this Lease is subordinated.
ARTICLE 17
ACCESS TO PREMISES
17.1 Landlord shall have the right to place, maintain and repair all utility
equipment of any kind, upon or under the Store as may be necessary for the
servicing of the Store and other portions of the Shopping Center. Landlord shall
also have the right to enter the Store to inspect or to exhibit the same to
prospective purchasers and mortgagees. If, in an emergency only, Tenant shall
not be present to permit entry into the Space, Landlord may enter the same by
use of reasonable force without incurring liability therefor and without in any
manner affecting the obligations of this Lease. The provisions of this Article
shall in no wise be construed to impose upon Landlord any obligation whatsoever
for the maintenance or repair of the building or any part thereof, except as
otherwise herein specifically provided.
ARTICLE 18
DEFAULT
18.1 The following events shall be deemed to be events of default by Tenant
under this Lease:
(a) Tenant shall fail to pay any rents or other charges by the eighth
(8th) day of the month as noted in Article 4 hereof;
(b) Tenant shall fail to comply with any provision of this Lease other
than payments of rent, and shall not cure such failure within thirty
(10) days after written notice to Tenant;
(c) Tenant shall be the subject of any action or proceeding relating to
bankruptcy or insolvency as set forth in Article 23 hereof; and/or
(d) Tenant shall desert or vacate all or any portion of the Store or
fail to take possession and open for business within the time required
by this lease.
18.2 Upon the occurrence of any of such events of default, Landlord shall have
the option of pursuing any one or more of the following remedies, without notice
or demand:
(a) Terminate this Lease, in which event Tenant shall immediately
surrender the Store to Landlord, and if Tenant fails to do so, Landlord
may, without prejudice to any other remedy, enter upon and take
possession of the Store and remove Tenant and any other person who may
be occupying said Store, by force, if necessary, without being liable
for prosecution or any claim of damages therefor; and Tenant agrees to
pay Landlord on demand the amount of all loss and damage which Landlord
may suffer by reason of such termination, whether through inability to
relet the Store on satisfactory terms or otherwise;
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(b) Enter upon the Store by force, if necessary, without being liable
for prosecution or any claim for damages, and so whatever Tenant is
obligated to do under the terms of this Lease; and Tenant agrees to
reimburse Landlord on demand for any expenses including reasonable
attorney's fees which Landlord may incur in thus effecting compliance
with Tenant's obligations under this Lease, and Tenant further agrees
that Landlord shall not be liable for any damages resulting to Tenant
from such action. Pursuit or non-pursuit of the foregoing remedies
shall not constitute a waiver of any default or preclude pursuit of any
of the other remedies herein provided or any other remedies provided by
law, nor shall pursuit of any remedy constitute a forfeiture or waiver
of any rent or damages accruing to Landlord. In determining the amount
of loss or damage which Landlord may suffer by reason of termination of
this Lease or the deficiency arising by reason of any reletting of the
Store, allowance shall be made for the expense of repossession and
repairs by Landlord following repossession.
ARTICLE 19
BANKRUPTCY OR INSOLVENCY
19.1 If at any time after the date of this Lease (whether prior to the
commencement of or during the term of this Lease), any of the following shall
occur:
(a) The institution of any proceedings in bankruptcy, insolvency or
reorganization against Tenant pursuant to any federal or state law now
or hereafter enacted, or the appointment of any receiver or trustee for
all or any portion of Tenant's business or property, or the issuance of
any execution or attachment against Tenant or any of Tenant's business
or property or against the leasehold estate created hereby, and any of
such proceedings, process or appointment be not discharged and
dismissed within thirty (30) days from the date of such filing,
appointment or issuance; or
(b) The entry of a decree or order for relief by a court having
jurisdiction in the Premises in respect of Tenant in an involuntary
case under the federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency, or other similar law, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of
Tenant or for any substantial part of its property, or ordering the
winding-up or liquidation of its affairs, and the continuance of any
such decree or order unstayed and in effect for a period of thirty (30)
days consecutive days; or
(c) The commencement by Tenant of a voluntary case under the federal
bankruptcy laws, as nor constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency, or other similar
law, or the consent by it to the appointment of or taking possession by
a receiver, liquidator, assignee, trustee, custodian, sequestrator (or
similar official) of Tenant or for any substantial part of its
property, or the making by it of any assignments for the benefit of
creditors, or the failure of Tenant generally to pay its debts as such
debts become due, or the taking of action by Tenant in preparation for
or in furtherance of any of the foregoing; shall be deemed to
constitute and shall be construed as a repudiation by Tenant's
obligations hereunder and shall cause this Lease ipso facto to be
cancelled and terminated, without thereby releasing Tenant; and upon
such termination, Landlord shall have the immediate right to re-enter
the Store and to remove all persons and property therefrom and this
Lease shall not be treated as an asset of the Tenant's estate and
neither the Tenant nor anyone claiming by, through or under Tenant by
virtue of any law or any order of any court, shall be entitled to the
possession of the Store or to remain in the possession thereof. Upon
the termination of this Lease, as aforesaid, Landlord shall have the
right to retain as partial damages, and not as a penalty, any prepaid
rents and any security deposited by Tenant hereunder and Landlord shall
also be entitled to exercise such rights and remedies to recover from
Tenant damages, unless any statute or rule of law governing the
proceedings in which such damages are to be proved shall lawfully limit
the amount of such claims capable of being so proved, in which case
Landlord shall be entitled to recover, as and for liquidated damages,
the maximum amount which may be allowed under any such statute or rule
or law. As used in this Article, the term "Tenant" shall be deemed to
include Tenant and its successors and assigns, and the guarantor of
Tenant's obligations under this Lease, if any.
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ARTICLE 20
ATTORNEY'S FEES
20.1 In the event that either party hereto brings legal action against the other
arising out of this Lease, each party will be responsible for own attorney's
fees and other costs unless the legal action is deemed frivolous by the Court.
ARTICLE 21
SUBORDINATION AND NOTICE TO MORTGAGEE
21.1 Tenant shall, upon Landlord's request, subordinate this Lease to any lien
placed by Landlord upon the Shopping Center of which the Store forms a part,
with an insurance company, bank, or any other institutional lender, provided
that such lender agrees that if Tenant is not then in default under this Lease,
this Lease shall not terminate as a result of the foreclosure of such lien, and
Tenant's rights under this Lease shall continue in full force and effect and
Tenant's possession be undisturbed except in accordance with the provisions of
this Lease. Tenant will, upon request of such lienholders, be a party to such an
agreement, and will agree that if such lienholder succeeds to the interest of
Landlord, Tenant will recognize said lienholder (or successor-in-interest of the
lienholder) as its Landlord under the terms of this Lease.
Tenant agrees that in the event that such institutional lender shall request
that the Lease be modified as a condition precedent to its making a loan on the
Shopping Center of which the Store forms a part, Tenant shall consent to the
making of such modifications, provided that it does not make changes to the
terms and conditions, as such institutional lender shall reasonably request. In
the event that Tenant should refuse to make any such changes requested by such
institutional lender, Landlord shall have the option of canceling this Lease, in
which event it shall become null and void and neither party hereto shall have
any further obligations to the other.
21.2 Anything in this Lease to the contrary notwithstanding Tenant agrees that
it will not terminate this Lease because of Landlord's default in the
performance hereof until Tenant has first given written notice to Landlord and
to the holder of any mortgage (provided Tenant has been notified of such
mortgagee's name and address) specifying the nature of any such default by
Landlord and allowing Landlord and such mortgage holder, or either of them,
thirty (30) days after date of such notice to cure such default or a reasonable
period of time in addition thereto if circumstances are such that said default
cannot reasonably be cured within said thirty (30) day period.
21.3 In the event that Tenant refuses to comply with the obligations so stated
in 21.1 or 21.2 or refuses to sign any Estoppel Certificate and Subordination
Attornment and Non-Disturbance Agreement as required by such institutional
lender, Landlord shall have the option of canceling this Lease, in which event
it shall become null and void and neither party hereto shall have any further
obligations to the other.
ARTICLE 22
ATTORNEY-IN-FACT
22.1 In the event Tenant shall fail or refuse to execute and deliver to Landlord
the documents that may be required to evidence the intent of Article 21 and any
other Article requiring the signature of Tenant within ten (10) days after
Landlord's written request therefor, Tenant hereby irrevocably appoints Landlord
as attorney-in-fact for Tenant with full power and authority to execute and
deliver such instruments for and in the name of Tenant, or Landlord may treat
such failure on the part of Tenant as an "Event of Default" within the meaning
of Article 18 of this Lease.
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ARTICLE 23
ASSIGNMENT AND SUBLETTING
23.1 Tenant shall not assign this Lease in whole or in part or sublet all or any
part of the Store, nor permit other persons to occupy the Store or any part
thereof, nor grant any license or concession for all or any of the Store,
without the written consent of Landlord. In the event Landlord approves Tenant's
request to sublet and Tenant sublets the Premises for an amount greater than the
amount Tenant is required to pay for said Premises, then all additional rent
shall accrue to Landlord. Any consent by Landlord to an assignment or subletting
of this Lease shall not constitute a waiver of the necessity of such consent for
subsequent assignment or subletting and shall not relive Tenant of liability
hereunder. An assignment for the benefit of Tenant's creditors or otherwise by
operation of law shall not be effective to transfer or assign Tenant's interest
under this Lease unless Landlord shall have first consented thereto in writing.
Notwithstanding the above, it is understood and agreed that Tenant may assign
this Lease without Landlord's consent, at any time during the term of this Lease
to any parent corporation or wholly-owned subsidiary corporation of Tenant or to
the surviving corporation in connection with a merger or consolidation or a
reorganization or sale between Tenant and any of its subsidiaries, provided,
however, Tenant shall notify Landlord of any such assignment. Approval to assign
this Lease shall not be unreasonably withheld by Landlord and such assignment
shall relive original Tenant (assignor) of all terms and conditions of this
Lease.
ARTICLE 24
TENANT'S IMPROVEMENTS, INSTALLATIONS AND ALTERATIONS
24.1 Tenant shall fully equip the Store with all trade fixtures and equipment,
lighting fixtures, furniture, furnishings, and floor coverings, and any other
fixtures and equipment necessary for the proper operation of Tenant's business,
all of which shall be completely new or refurbished.
24.2 In the event Tenant engages in the preparation of food or baked goods,
Tenant agrees, at the Tenant's own expense: (a) to install dry chemical
extinguishing devices (such as ansul) approved by the local fire insurance
rating organization and Landlord's insurance carriers, and to keep such devices
in good working order and repair and regularly serviced under a maintenance
agreement as may be required by Landlord or by such fire insurance rating
organization or carriers; (b) to keep and maintain all exhaust ducts and filters
in a clean condition; (c) to place and store Tenant's garbage and refuse; and
(d) to install within or without the Store, as may be required by governing
codes, a grease trap of a pattern and make approved in writing by Landlord, and
to keep and maintain the same in a clean and sanitary condition and in good
working order and repair. In the event Tenant engages in the use, sale or
storing of flammable or combustible materials, Tenant agrees to install and
maintain similar chemical extinguishing devices referred to in subdivision (a)
above. In the event gas is used in the Store, Tenant agrees to install a proper
gas cut-off valve. If Tenant shall fail to install any such devices referred to
in this Article and/or to subscribe to the servicing thereof, Landlord shall
have the right to enter the Store to make such necessary installations and
charge the cost of same and/or the servicing thereof to Tenant, as additional
rent hereunder.
24.3 Tenant may make nonstructural alterations or improvements to the interior
of the Store in a good and workmanlike manner in conformity with all laws,
ordinances, and regulation of public authorities having jurisdiction thereof.
Tenant shall not make any alterations to the foundation, roof, exterior, walls,
gutters and downspouts, or any structural portions of the Store without first
obtaining the written consent of Landlord. All installations and improvements
made by Tenant in or about the Store shall remain the property of Tenant during
the term of this Lease; provided, however, that any and all such installations
and improvements shall become the property of Landlord and shall remain upon and
be surrendered with the Store as a part thereof at termination of this Lease.
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24.4 If during the term of this Lease, or at the termination thereof, Tenant
removes any equipment or trade fixtures, Tenant, at its expense, will repair any
structural damages, including walls, floors or roof and wall secure any gas,
electrical or water hook-ups to the satisfaction of Landlord.
ARTICLE 25
DELIVERY AT END OF LEASE
25.1 Any holding over after the expiration of this term or any renewal term
shall be construed to be a tenancy from month to month at the rents herein
specified, and shall otherwise be on the terms herein specified so far as
applicable.
ARTICLE 26
FORCE MAJEURE
26.1. Landlord and/or Tenant, as the case may be, shall be excused for the
period of any delay in the performance of any obligations hereunder when
prevented from so doing by cause or caused beyond Landlord's or Tenant's control
which shall include without limitation all labor disputes, civil commotion, war,
war-like operations, invasion, rebellion, hostilities, military or usurped
power, sabotage, governmental regulations or controls, fire and other casualty,
inability to obtain any material services or financing or through acts of God,
but only to the extent that such events occur prior to the commencement date of
this Lease.
ARTICLE 27
WAIVER OF LIABILITY
27.1 Anything contained in this Lease to the contrary notwithstanding, Tenant
agrees that Tenant shall look solely to the estate and property of Landlord in
the land and buildings comprising the Shopping Center of which the Store forms a
part for the collection of any judgment (or other judicial process) requiring
the payment of money by Landlord in the event of any default or breach by
Landlord with respect to any of the terms and provisions of this Lease to be
observed and/or performed by Landlord; subject, however, to the prior rights of
any ground or underlying landlords or the holder of any mortgage covering the
Shopping Center; and no other assets of the Landlord shall be subject to levy,
execution as collateral security for a loan, upon such conveyance or transfer,
Landlord (and in the case of any subsequent conveyances or transfers, the then
grantor or transferor) shall be entirely released and relieved for all liability
with respect to the performance of any covenants and obligations on the part of
Landlord to be performed hereunder from and after the date of such conveyance or
transfer, provided that any amounts then due and payable to Tenant by Landlord
(or by the then grantor or transferor) or any other obligations then to be
performed by Landlord (or by the then grantor or transferor) or such payment or
performance assumed by the grantee or transferee; it being intended hereby that
the covenants and obligations on the part of Landlord to be performed hereunder
shall be binding on Landlord, its successors and assigns only during and in
respect of their respective periods of ownership of an interest in the Shopping
Center or in this Lease. This provision shall not be deemed, construed or
interpreted to be or constitute an agreement, express or implied, between
Landlord and Tenant that the Landlord's interest hereunder and in the Shopping
Center shall be subject to impressment of an equitable lien or otherwise.
ARTICLE 28
CORPORATE TENANTS
28.1 If Tenant is or will be a corporation, the persons executing this Lease on
behalf of Tenant hereby covenant and warrant that Tenant is a duly incorporated
or duly qualified (if foreign) corporation and is authorized to do business in
the State in which the Shopping Center is located, and that the person or
persons executing this Lease on behalf of Tenant is an officer or are officers
of such Tenant, and that he or they as such officers are duly authorized to sign
and execute this Lease.
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ARTICLE 29
RECORDING
29.1 Tenant shall not record this Lease, but will at the request of Landlord,
execute a memorandum thereof in recordable form specifying the date of
commencement and expiration of the term of this Lease and other information
required by statute. Either Landlord or Tenant may then record said memorandum
of Lease.
ARTICLE 30
NOTICES
30.1 Any notice to be given or served in connection with this Lease shall be in
writing and be delivered via certified mail, return receipt to: XX Xxx 0000,
Xxxxxxxxxx, XX 00000. All rent and other payments shall be sent to Landlord's
address set forth in Section 1.2, unless Tenant shall be directed otherwise in
writing by Landlord.
ARTICLE 31
GENERAL CONDITIONS
31.1 Any sum accruing to Landlord and Tenant under the provisions of this Lease
which shall not be paid when due shall bear interest at the rate of ten percent
(10%) per annum from the date written notice specifying such nonpayment is
served upon the defaulting party until paid.
31.2 If any term, covenant, condition or restriction of this Lease is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the provisions hereof shall remain in full force and effect and
shall in no way be affected thereby.
31.3 Nothing contained in this Lease shall be deemed or construed by the parties
hereto or by any third person to create the relationship of principal and agent
except as set forth in Article 22, or of partnership, or of joint venture, or of
any other association between the parties other than that of Landlord and
Tenant.
31.4 All reference to the term of this Lease shall include any extension of such
term.
31.5 Time is of the essence of the performance of each provision of this Lease.
31.6 The waiver of performance of any covenant, term or condition of this Lease
by Landlord or Tenant shall not be construed as a waiver of any subsequent
breach of the same covenant, term or condition.
31.7 Any reference to pro-rate share contained in this Lease shall be defined as
the gross leasable area of the Store divided by the gross leasable area of the
Shopping Center, as shown in Exhibit A, excluding any expansions to the Shopping
Center.
31.8 This Lease, including the Exhibits, Riders and/or Addendum, if any,
attached hereto, sets forth the entire agreement between the parties hereto or
their representatives are merged herein and extinguished.
ARTICLE 32
SIGNAGE
32.1 Landlord must approve all Tenant signage (with the exception of signs
located wholly within demising portions of the Stores) in writing prior
to fabrication and installation. All signage to be constructed shall be
at Tenant's sole cost and expense. All exterior signage must match the
existing tenants' signage, including color, size, depth and style.
32.2 Tenant is allowed usage of marque sign along Route 278. This is a
single use marque sign used by former tenant of this space. Sign needs
prior Landlord approval.
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ARTICLE 33
SECURITY DEPOSIT
33.1 Upon execution of this Lease agreement, Tenant has deposited with Landlord
a Security Deposit in the amount of Four Thousand sixty two and 50/100
($4562.50) Dollars, receipt of which is not yet acknowledged. Said deposit shall
be held by Landlord without liability for interest as security for the faithful
performance by Tenant of all the terms and conditions of this Lease by said
Tenant to be observed and performed. Landlord shall have no obligation to
maintain such deposit in a segregated account and may use or commingle the same
with other funds.
33.2 If any of the rents herein reserved or any other such sum payable by Tenant
to Landlord shall be overdue and unpaid or should Landlord make payments on
behalf of the Tenant, or Tenant shall fail to perform any of the terms of this
Lease, then Landlord may, at its option and with prejudice to any other remedy
which Landlord may have on account thereof, appropriate and apply said entire
Security Deposit or so much thereof as may be necessary to compensate Landlord
toward the payment of rent or additional rent or loss of damage sustained by
Landlord due to such breach on the part of the Tenant and Tenant shall forthwith
upon demand restore said Security Deposit to the original sum deposited. Should
Tenant comply with all of said terms and promptly pay all of the rentals as they
fall due and all other sums payable by Tenant to Landlord, said Security Deposit
shall be returned in full to Tenant within thirty (30) days after termination of
Lease.
In WITNESS WHEREOF, the parties hereto have executed this Lease on the date
first above written.
[SIGNATURES OMITTED]
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EXHIBIT B
GENERAL RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, vestibules, corridors, halls,
delivery alleys and courtyards shall not be obstructed or encumbered by any
Tenant or used for any purpose other than ingress and egress to and from the
respective stores (with the exception of authorized "kiosks"), without the prior
written consent of Landlord.
2. No awnings or other projections shall be attached to the outside walls of the
building without the prior written consent of Landlord. No curtains, blinds,
shades or screens shall be attached to or hung in, or used in connection with,
any window or door of the respective stores, without prior written consent of
Landlord.
3. No sign, signal, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
respective stores, without the prior written consent of Landlord. In the event
of the violation of the foregoing by any Tenant, Landlord may remove same
without any liability and may charge any expense incurred in such removal to the
Tenants violating this rule.
4. The sashes, sash doors, skylights, windows, and doors that reflect or admit
light and air shall not be covered or obstructed by any Tenant, nor shall any
bottles, parcels or other articles be placed on the window xxxxx.
5. No show cases, sales tables, merchandise displays, signs or other articles
shall be put in front of or affixed to any part of the exterior of the building,
nor placed in the halls, common passageways, corridors or vestibules without the
prior written consent of Landlord. This rule does not pertain to the Tenant's
interior space.
6. The water and wash closets and other plumbing fixtures shall not be used for
any purpose other than those for which they were constructed and no sweepings,
rubbish, rags, or other substances shall be thrown therein. All damages
resulting from any misuse of the fixtures shall be borne by the Tenant who (or
whose servants, employees, agents, visitors, or licensees) shall have caused the
same.
7. No tenant shall cause or permit any unusual or objectionable odors to be
produced upon or released from the respective stores.
8. No space in the Shopping Center shall be used for the sale of merchandise,
goods or property of any kind at auction.
9. No tenant shall make, or permit to be made, any unseemly or disturbing noises
or disturb or interfere with occupants of the Shopping Center or those having
business within them, whether by the use of any musical instrument, amplified
sound, unmusical noise, whistling, or singing, or in any other way. No tenant
shall throw anything out of the doors, windows or skylights down the
passageways.
10. No tenant, nor any of tenant's servants, employees, agents, visitors or
licensees, shall at any time bring or keep in the respective stores any
flammable, combustible or explosive fluid, chemical or substance. This rule does
not apply to materials used and/or consumed in the Tenant's day-to-day business
operations as long as the materials are stored in a safe and appropriate manner.
11. Each tenant must, upon the termination of his tenancy, restore to Landlord
all keys of stores, offices, and toilet rooms either furnished to, or otherwise
procured by tenant, and in the event safes, closets, or other lockable permanent
fixtures are installed in the respective store, give all keys or combinations
thereto to Landlord at the termination of the Lease.
12. The respective stores shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
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13. All boxes must be broken down before being placed in dumpsters. All plastic
bags, wrapping paper, loose materials, etc., must be secured in boxes or tied in
bags prior to emptying into dumpster.
14. The requirements of each tenant will be attended to only upon application to
the Landlord's local mall operations manager. Landlord's employees shall not
perform any work or do anything outside of their regular duties, unless under
special instructions from Landlord's mall operations manager.
15. Canvassing, soliciting, and distribution of handbills other than in the
respective stores is prohibited and each tenant shall cooperate to prevent the
same.
16. There shall not be used in any space, or in the public halls of the
building, either by any tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires.
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