LEASE AGREEMENT FUNDAMENTAL LEASE PROVISIONS
Exhibit
10.26
FUNDAMENTAL
LEASE PROVISIONS
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Lease
Date:
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June
1, 2005
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Landlord:
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XXXXX,
LLC
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Address
of Landlord:
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X.X.
Xxx 0000
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Xxxxx,
XX 00000
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|
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Tenant:
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BBI
Computer Solutions, Inc.
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Address
of Tenant:
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00
Xxxxxx Xxxxx Xxxx
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Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
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Tenant's
Trade Name:
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Cyber
Cynergy
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Shopping
Center:
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THE
AIRPORT CENTRE
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Address
of the
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Shopping
Center:
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000
Xxxxxxx Xxxx
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Xxxxx,
Xxxxx Xxxxxxxx
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Premises:
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Xxxx
000-X
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Xxxx
of the Premises:
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1,566
square feet
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Term:
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Commencement
Date:
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June
1, 2005
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Expiration
Date:
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May
31, 2010
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Renewal
Term:
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One
5-year option to renew
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1
Security
Deposit: $
2.866.50*
*amount
transferred from existing lease of Unit J
Rent,
payable monthly beginning on the date the Tenant commences
business:
Rent:
$21,141.00
- Year 1 ($1,761.75
monthly)
$3290.13
BDR
RJF
$21,924.00
- Year 2 ($1,827.00
monthly)
$3355.38
BDR
RJF
$22,707.00
- Year 3 ($1,892.25
monthly)
$23,490.00
- Year 4 ($1,957.50
monthly)
$24,273.00
- Year 5 ($2,022.75
monthly)
Rent:
$25,056.00
- Year 6 ($2,088.00
monthly)
$25,839.00
- Year 7 ($2,153.25
monthly)
$26,622.00
- Year 8 ($2,218.50
monthly)
$27,405.00
- Year 9 ($2,283.75
monthly)
$28,188.00
- Year 10 ($2,349.00
monthly)
The
following Items of additional rent are payable monthly in advance and are based
upon Landlord's estimates for the calendar year in which the Commencement Date
is scheduled too occur and are subject to adjustment as provided In this Lease
for each succeeding calendar year:
Common
Area Maintenance: $1.00/sq.
ft. = $1,566.00 yearly ($1130.50 month)
Taxes
and
Insurance: $0.75/sq.
ft. = $1,174.50 yearly ($97.88 monthly)
Sub-Total
CAM, Tax & Insurance: $2,740.50
yearly
($228.38
monthly)
Total
Monthly Rent for Year One:
$
3,290.13
Permitted
Use: Wireless
telecommunications sales and service and computer hardware, software and
accessories sales and service
2
THIS
LEASE AGREEMENT (this "Lease"), made and entered Into as of the 1st day of
June,
2005 by and between XXXXX, LLC, a corporation duly organized and existing under
the laws of the State of North Carolina, ("Landlord"), and BBI COMPUTER
SOLUTIONS, INC. D/B/A CYBER CYNERGY, ("Tenant”). This Lease replaces the lease
of Unit J to Tenant.
Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord approximately
1566 square feet of office space designated as Unit N as shown on the plat
attached hereto as Exhibit A (the "Premises"). The Premises are located in
the
Shopping Center known as The Airport Centre, composed of the building and
improvements (the "Building") now or hereafter constructed on that parcel of
land at 000 Xxxxxxx Xxxx, Xxxxx Xxxxx Xxxxxxxx (the "Shopping Center") and/or
on
any additional land acquired by Landlord and made a part of the Shopping Center,
which land and additional land is hereinafter called the “Land.” The Premises,
the Building and the Land are sometimes collectively referred to as the
"Property".
The
Fundamental Lease Provisions appearing on the face Page of this Lease are an
integral part of this Lease and are incorporated herein by reference. Each
of
the Fundamental Lease Provisions shall be deemed a definition of an essential
term of this Lease and whenever any such term shall appear In this Lease, it
shall be deemed to have the meaning therefore set forth in the Fundamental
Lease
Provisions and shall be limited by the provisions of this Lease applicable
thereto.
ARTICLE
1
POSSESSION
AND FORCE MAJEURE
1.01
Delivery and Acceptance of Premises. Landlord shall deliver possession of the
Premises and Tenant shall accept possession thereof on the Commencement Date
as
specified In the Fundamental Lease Provisions. Tenant has inspected the Premises
and, by execution of this Lease, accepts the Premises in its existing condition
(Le., "as is"). Except as may be expressly set forth in this Lease or otherwise
expressly agreed In writing by Landlord, Tenant acknowledges that Landlord
shall
not be obligated to make any further improvements to the Premises,
1.02
Force Majeure Extension. If Landlord for any reason whatsoever cannot deliver
possession of the Premises to Tenant on the Commencement Date, this Lease shall
not be void or voidable nor shall Landlord be liable to Tenant for any loss
or
damage resulting therefrom; but In that event, there shall be a proportionate
reduction of all Rent and other charges to Tenant for the Period between the
Commencement Date and the date when Landlord does In fact deliver possession
to
Tenant. No such failure to give possession on the Commencement Date shall be
construed In anywise to extend the Term of this Lease. The other provisions
of
this section to the contrary notwithstanding, if for any reason other than
strikes or acts of God beyond the control of Landlord possession of the Premises
Is not delivered to Tenant within sixty (60) days of the Commencement Date,
then
this Lease may be 'terminated by either party and shall be deemed to be
terminated thirty (30) days after receipt by the other party of written notice
to terminate, and thereupon neither party hereto shall have any further
liability to the other.
Any
date
with respect to Landlord's completion of any work In the Premises provided
for
herein or In any other agreement between Landlord and Tenant relating to the
Premises shall be extended for any period that any such Landlord's work shall
have been unavoidably delayed due to labor disputes, acts of God, government
regulations or controls, or other casualties, conditions or causes beyond the
reasonable control of Landlord.
3
ARTICLE
2
TERM
2.01
Commencement and Expiration Dates of Term. The Term of this Lease and Tenant's
obligation to pay Rent hereunder shall commence On the Commencement Date, and
shall expire, unless extended for a Renewal Term pursuant to Section 2.02 hereof
or sooner terminated In accordance with the provisions hereinafter contained,
at
12:00 p.m. midnight on the Lease Expiration Date. The Term and the Renewal
Term,
If any, are collectively referred to as the "Term."
2.02
Renewal Term. Provided that Tenant is not In default under any of the terms
of
this Lease, Tenant shall have the option to extend the Term of the Lease for
one
(1) additional term of five (5) years upon the same terms and conditions
contained In this Lease and at the rental amounts set forth as Renewal Term
Rent
in the Fundamental Lease Provisions. To exercise this option. Tenant must
provide written notice to Landlord not later than one hundred eighty (180)
days
prior to the expiration date of the then-current Term. The Renewal Term of
this
Lease and Tenant's obligation to pay Rent hereunder shall commence on the
Renewal Term Commencement Date, and shall expire, unless sooner terminated
In
accordance with the provisions of this Lease, at 12:00 p.m.
midnight
on the Renewal Term Expiration Date.
2.03
Failure of Tenant to Open. In the event that Tenant shall have failed to fully
fixture, stock and staff the Premises and to open the Premises for business
on
or before thirty (30) days following the Commencement Date, then Landlord shall
have, in addition to any and all remedies hereinafter provided, the right to
immediately terminate this Lease and/or Tenant's right to possession
hereunder.
2.04.
Memorandum of Lease. This Lease shall not be recorded. If requested by Tenant,
Landlord and Tenant shall execute a short form Memorandum of Lease, specifying
the exact term of this Lease and such other reasonable and appropriate terms
as
agreed to by Landlord and Tenant. for recording In the Office of the Register
of
Deeds for Buncombe County, North Carolina. Tenant shall pay the recording
fees
2.05
Attorney-in-Fact. Tenant hereby Irrevocably appoints Landlord as Tenant's
attorney-in-fact pursuant to the provisions of Chapter 47, Section 115.1 of
the
General Statutes of North Carolina coupled with an Interest to execute any
certificate or certificates required pursuant to Section 4.15 hereof regarding
subordination and/or any Estoppel Agreement required pursuant to Section 8
hereof. In the event Tenant fails to execute any such documents within fifteen
(15) days of submission by Landlord. Landlord may execute and/or record same
as
attorney-in-fact for Tenant.
ARTICLE
3
TENANT
PAYMENTS
Tenant
covenants and agrees to pay Landlord as rental for the Premises Rent In
accordance with the provisions set forth hereinbelow. Tenant further covenants
and agrees to pay, as hereinafter set forth, common area costs and expenses,
taxes, insurance costs, promotional costs, late charges, and other charges
required to be paid by Tenant by the provisions of this Lease, all of which
are
hereinafter sometimes collectively referred to as "Common Area Costs" and shall
not be deemed a part of Rent hereunder. Common Area Costs shall for the purposes
of the default provisions hereof, be deemed Additional Rent due from Tenant
and
any default in the prompt payment thereof shall entitle Landlord to exercise
any
or all of the remedies provided for herein and at law or at equity, on account
of Tenant's failure to pay Rent. It is further agreed that Common Area Costs
shall not be deemed Rent as that term is construed relative to government wage,
price and rent control or analogous governmental actions affecting the amount
of
Rent which Landlord may charge Tenant. For the purposes of this Lease, the
term
Tenant's Proportionate Share shall mean (for each calendar year during the
Term
of this Lease during which Tenant Is required to make a specified payment of
Common Area Costs, taxes, or Insurance costs) that fraction the numerator of
which is the Area of the Premises and the denominator of Which Is the total
rentable areas of all buildings forming the Shopping Center.
4
3.01
Rent. Tenant shall pay to Landlord without notice or demand during the Term
hereof, at the address of Landlord or at such other place as Landlord may direct
from time to time by notice to Tenant, the Annual Rent In equal monthly
Installments of the Monthly Rent set forth in the Fundamental Lease Provisions
payable in advance on or before the first day of each calendar month during
the
Term of this Lease, without abatement, offset or deduction of any kind or for
any reason. Installments of Rent due for any period Jess than one (1) calendar
month for which tenant Is obligated to pay Rent shall be prorated on a per
diem
basis with respect to such fractional calendar month. .
3.02
Common Area Costs and Expenses. Taxes and Insurance Costs.
(a)
For
each calendar year during the Term of this Lease, Tenant shall pay to Landlord
as Additional Rent Tenant's Proportionate Share of all common area costs and
expenses ("Common Area Costs"). Common Area Costs are those costs paid or
Incurred by Landlord and shall be charged to the operation, maintenance and
management of the Shopping Center and its common areas. Tenant shall pay with
the first payment of Rent, the Initial Installment toward Tenant’s Proportionate
Share of Common Area Costs In the amount set forth In the Fundamental Lease
Provisions, the same being based on Landlord's estimates for the calendar year
in which the Commencement Date Is scheduled to occur. Such Initial estimated
Installment is for the period from the scheduled Commencement Date to the last
day of the calendar year during which the Commencement Date Is scheduled to
occur. Tenant shall thereafter pay annual installments toward Tenant's
Proportionate Share of Common Area Costs for each subsequent calendar year
based
on Landlord's estimates for each such period. After the end of each such
calendar year, Landlord shall deliver to Tenant a statement certifying the
actual Common Area Costs for the estimated period Just ended and a statement
estimating the Common Area Costs for the calendar year thereafter. On or before
the due date for the installment of Rent next due following receipt of each
such
statement.
Tenant
shall pay any deficiency resulting from the actual Common Area Costs exceeding
estimated payments for the period Just ended and shall pay Tenant's
Proportionate Share of each such Item for the calendar year thereafter on the
basis of Landlord's latest estimate. Landlord shall credit any excess payment
made by Tenant for the preceding period against future payments of Tenant's
Proportionate Share. If the Term of this Lease shall begin or end on a date
other than the first or last day of an estimated period established by Landlord
as aforesaid, the charges to Tenant for Common Area Costs for the first and/or
final period shall be prorated on a dally basis.
(b)
The
term "Common Area Costs" shall mean and include all amounts paid or incurred
by
Landlord for operating, managing and maintaining the common areas of the
Shopping Center in a manner deemed by Landlord reasonable and appropriate and
for the best interests of the Shopping Center, including, without limitation,
all costs and expenses of: (a) operating, repairing, maintaining, lighting,
cleaning, painting and securing (including cost of uniforms, equipment, and
all
employment taxes) the common areas of the Shopping Center; (b) heating and
cooling any enclosed common areas of the Shopping Center; (c) paying all
personnel employed on a part time basis or full time basis in the operation,
maintenance or repair of the common areas of the Shopping Center; (d) removing
rubbish and debris from the common areas of the Shopping Center; (e) inspection,
maintenance, operation and depreciation of machinery and equipment used in
the
operation and maintenance of the common area facilities; (f) replacement, repair
and maintenance of: all roofs, exteriors and structural portions of all
buildings within the Shopping Center; all paved parking and other
areas
serving the Shopping Center (including, without limitation recapping, pot hole
repair, painting and striping); and all walkways, landscaping, and lighting
facilities; (g) planting, replanting and replacing flowers, shrubbery, and
planters and the supplies required therefore; (h) all utilities used in
connection with the operation, repair and maintenance of the common area
facilities; (i) leasing or renting equipment used In connection with the
operation, repair and maintenance of common area facilities; (j) compliance
with
any and all governmental regulations or the requirements of any governmental
authority (such as but not limited to those of the Environmental Protection
Agency and/or the Occupational Health and Safety Act) including the cost of
any
improvements required thereby and all costs and fees paid or incurred in
preparing to make such improvements and In contesting or negotiating as to
such
regulations or requirements, (k) taxes; (l) insurance costs; (m) promotional
costs; (n) an administrative cost equal to fifteen percent (15%) of the total
amount of all Common Area Costs; and (o) establishing and maintaining reasonable
reserves for the foregoing purposes. It is acknowledged and agreed that for
the
purposes of this Lease the “common areas" of the Shopping Center shall mean and
include all roofs, exteriors and structural portions of all buildings and all
utilities underground or otherwise forming part of the Shopping Center and
all
paved parking areas, driveways, sidewalks, passages, loading docks and all
other
areas not specifically designated to be under the exclusive control of any
single tenant.
5
(c)
The
term "taxes" shall mean and Include all assessments or charges paid or incurred
by Landlord for public betterments or Improvements, fire or water line taxes,
ad
valorem real estate and/or personal property taxes, or any other tax on rents
or
real estate as such (of her than Income taxes thereon) are from time to time
directly or Indirectly assessed or imposed upon the Shopping Center and/or
the
Land and/or the property, furniture, fixtures, and equipment used in the
operation, maintenance or repair of the Shopping Center and its common areas,
including all costs and fees paid or Incurred by Landlord In contesting, or
in
negotiating with the public authorities as to the amount of such assessments,
charges or taxes or the basis upon which the same shall be
assessed.
(d)
The
foregoing provisions to the contrary notwithstanding, it is understood end
agreed that any and all taxes imposed upon or with respect to any alterations,
additions, or improvements made to the Premises by Tenant or under its
direction, or with respect to any property of Tenant therein shall be borne
and
paid entirely by Tenant and if any of said items or any portion thereof shall
be
paid by Landlord, Tenant shall reimburse Landlord for the same immediately
upon
receipt by Tenant of written demand therefore from Landlord.
(e)
The
term "insurance costs" shall mean and include all amounts paid or incurred
by
Landlord for all insurance which may be maintained by Landlord from time to
time
with respect to the Shopping Center, the common areas thereof and the
management, operation and maintenance thereof including, but not limited to,
all
risk fire and extended coverage insurance, rental loss insurance, general
liability insurance, automobile insurance, workmen's compensation insurance,
insurance against liability for defamation and claims for false arrest, and
plate glass insurance.
3.03
Utilities.
(a)
Tenant shall promptly pay for all utilities and other services (Including,
but
not limited to, water, sewage service charges, garbage or trash removal, fuels,
including natural gas and electricity, including electricity for any heating
in
the Premises) furnished to and/or used in or at the Premises for any purpose.
Landlord shall Install a meter at the Premises to record Tenant's water usage,
and Tenant shall pay to Landlord monthly, as Additional Rent, the cost of
Tenants water usage within then (10) days of Tenant’s receipt of a statement
from Landlord setting forth the cost of such water usage on the
Premises.
(b)
Landlord shall not be liable for any interruption or curtailment whatsoever
in
the furnishing of utility services or other services to the Premises whether
or
not the same are furnished by Landlord, which Is due to fire, accidents,
strikes. acts of God or other casualties, conditions or causes beyond Landlord's
control or which Is necessary or proper In order to make alterations,
improvements or repairs. Landlord reserves and shall at all times have the
right
to cut off and discontinue on ten (10) days written notice to Tenant all utility
services in the event Tenant has failed to pay any amounts due from Tenant
to
Landlord under any provision of this Leas~ and fails to cure such default within
said ten (10) day notice period.
3.04
Amounts Due Upon Termination. Notwithstanding any expiration or termination
of
this Lease (except in the case of cancellation by mutual agreement) Tenant's
obligation to pay Rent, Tenant's Proportionate Share of all Common Area Costs
and utility charges under this Lease shall continue and shall cover all periods
up to the Lease Expiration Date. Tenant’s obligation to pay any and all such
amounts under this Lease and Landlord’s and Tenant's obligations to make the
adjustments referred to above shall survive for one (1) year after any
expiration or termination of this Lease.
6
3.05
Security Deposit. Tenant has concurrently with the execution of this Lease,
deposited with the landlord the sum set forth for the Security Deposit in the
Fundamental Lease Provisions as security for the full and faithful performance
of each and every provision of this Lease to be performed by Tenant. If Tenant
defaults with respect to any provision of this Lease by it to be performed,
Landlord may, in addition to any other remedy it may have, use, apply or retain
all or any part of the Security Deposit for the payment of any Rent or any
other
sum in default, or for the payment of any other amount which Landlord may spend
or become obligated to spend by reason of Tenant's default or to compensate
Landlord for any other loss or damage which Landlord may suffer by reason of
Tenant's default. If any portion of the Security Deposit is so used or applied,
Tenant shall, within five (5) days after written demand therefore, deposit
cash
with Landlord in an amount sufficient to restore the Security Deposit to its
original amount. Landlord shall not be required to keep the Security Deposit
separate from its general funds and Tenant shall not be entitled to interest
on
such deposit. If Tenant shall fully and faithfully perform each provision of
this Lease to be performed by it, the Security Deposit or any balance thereof
shall be returned to Tenant only upon the expiration of the full stated Term
of
this Lease and after payment by Tenant of all sums due or to become due Landlord
under any provisions of this Lease, it being the intention of the parties that
such sum of money shall secure Landlord not only as to default by Tenant prior
to termination but as to any deficiency in sums to be paid by Tenant to Landlord
for the full stated Term hereof. In the event of a sale, lease or other transfer
of the Shopping Center, Landlord shall have the right to transfer the Security
Deposit to the vendee, lessee or transferee, and Landlord snail thereupon be
released from all liability for the return of such Security Deposit, and Tenant
shall look to the new Landlord solely for the return of said Security Deposit
and this provision shall apply to every transfer or assignment made of the
Security Deposit to a new landlord. The Security Deposit shall not be assigned
or encumbered by Tenant without the written consent of Landlord and any such
assignment or encumbrance without Landlord's consent shall be void.
ARTICLE
4
TENANT
COVENANTS
4.01
Use.
(a)
Tenant shall not use, occupy or operate the whole or any part of the Premises
for any purpose other than that set forth under Permitted Use In the Fundamental
Lease Provisions or permit the same to be used for any other purpose. Tenant
agrees to maintain minimum business hours from 10:00 a.m. to 6:00 p.m., six
(6)
days per week (Monday through Saturday), which minimum business hours may be
modified by Rules and Regulations reasonably imposed by Landlord. Tenant shall
further use the Premises in accordance with the Rules and Regulations from
time
to time adopted by Landlord and in such a manner as will not interfere with
or
infringe on the rights of other tenants in the Shopping Center. If Rules end
Regulations have already been adopted by Landlord, a copy of such Rules and
Regulations presently in effect are attached hereto as Exhibit "B" and by this
reference made a part hereof.
(b)
Tenant shall not use or occupy the Premises in violation of an~ law, ordinance,
regulation or other directives of any governmental authority having jurisdiction
thereof, nor permit a nuisance to be created or maintained therein. Tenant
shall
not maintain or permit any coin operated or vending machines within the Premises
without the prior written consent of Landlord.
(c)
During the Term hereof, Tenant shall be in continuous use, occupancy and
operation of the entire Premises, shall conduct business in the Premises for
the
purposes herein stated and shall not vacate or abandon the Premises or allow
the
same to appear vacated or abandoned. Tenant shall conduct its business in the
Premises under the trade name set forth under Tenant's Trade Name in the
Fundamental Lease Provisions and under no other name or trade name unless first
approved in writing by Landlord.
7
(d)
Tenant shall not allow any odor or sound produced or originating within the
Premises to be detectable outside the Premises and shall, at its sole expense,
exhaust or filter all such odors in such manner that they cannot be detected
outside the Premises and sound proof the walls of the Premises in such manner
that such sounds cannot be heard outside the Premises.
(e)
Tenant shall not under any circumstances conduct in the Premises or the Shopping
Center any auction or bankruptcy sale or fire sale or going-out-of-business
sale
or any similar liquidation sale, it being agreed that the same are inconsistent
and in conflict with and would be detrimental to the interests of Landlord
and
Tenant.
4.02
Painting and Decorating. Tenant shall paint and keep the Premises, including
the
storefront thereof, in good repair, but Tenant shall not change the decorative
or architectural treatment of the storefront (including the paint colors),
the
interior or the exterior of the Premises without Landlord's written consent.
Tenant shall promptly remove, upon order from Landlord, any decoration or
architectural change which has been applied to or installed upon the Premises
without Landlord's written consent or take such other action with reference
thereto as Landlord may direct.
4.03
Signs and Displays. Tenant shall not place or permit to be placed or maintained
any sign, awning, advertising matter, decoration, lettering, or other thing
of
any kind on the interior or the exterior of the Premises or on the glass any
window or door of the Premises without first obtaining Landlord's written
approval thereof. Tenant shall promptly remove upon order from Landlord, any
sign, awning, advertising matter or other thing of any kind which has been
applied to or installed upon the interior or exterior of Premises without
Landlord's written consent or take such other action with reference thereto
as
Landlord may direct. Tenant shall maintain displays of merchandise in such
a
manner as shall be visible from Tenant's storefront and shall take such other
action with respect thereto as Landlord shall direct.
4.04
Rubbish Removal. Tenant at its own expense shall keep the Premises clean, both
inside and outside, and shall remove all rubbish, garbage and other refuse
from
the Premises and place it in containers which shall be provided by Tenant and
located as directed by Landlord within the service areas of the Shopping
Center.
4.05
Passageways. Tenant shall neither encumber nor obstruct the passageways
adjoining the Premises or in other areas of the Shopping Center, nor allow
the
same to be obstructed or encumbered in any manner, including, but not limited
to
the use of same for displays, advertising or the sale of merchandise.
4.06
General Insurance Requirements. During the Term hereof, Tenant shall, at its
own
cost and expense, carry with companies satisfactory to Landlord, comprehensive
public liability insurance in the Joint names of Landlord and Tenant covering
the Premises and the use and occupancy thereof in such amount or amounts as
may
be reasonably required y Landlord from time to time but in no event less than
One Million Dollars ($1,000,000.00) combined single limit for any one
occurrence. Tenant shall also keep in force at its own cost and expense as
set
forth herein, fire, extended coverage, sprinkler and water damage insurance
on
Tenant’s personal property and other contents of the Premises, including, but
not limited to betterments and improvements made by Tenant, Tenant's inventory,
trade fixtures, furnishings and other personal property whether or not removable
by Tenant, in an amount sufficient to cover the full replacement cost of such
property. Tenant hereby waives any claim or right of action which it may have
against Landlord for loss or damage covered by any insurance required to be
maintained by it pursuant t the terms of this Lease and covenants and agrees
that it will obtain a waiver in writing from the carrier of such insurance
releasing such carrier’s subrogation rights as against Landlord. In addition,
Tenant shall keep in force xxxxxxx’x compensation or similar insurance to the
extent required by law. Tenant shall deliver said policies or certificates
thereof to Landlord before entering the Premises or within ten (10) days of
the
Commencement Date, whichever shall occur first and thereafter thirty (30) days
prior to the expiration of any existing policy of insurance. Should Tenant
fail
to obtain or maintain in effect the insurance called for herein or to pay the
premiums therefore or to deliver said policies, certificates or duplicates
thereof to Landlord, Tenant shall indemnify and hold Landlord harmless from
all
loss or damage incurred by Landlord arising out of such failure and Landlord,
may, at its election and in addition to any other remedy available to Landlord,
procure said insurance and pay the requisite premiums therefore, in which event,
Tenant shall pay to Landlord on demand as Additional Rent all sums so expended
by Landlord. Tenant shall cause each Insurer under the policies required
hereunder to agree by endorsement on the policy issued by it or by independent
instrument furnished to Landlord that it will give Landlord fifteen (15) days
prior written notice before the policy or policies in question shall be altered
or canceled.
8
4.07
Plate Glass. Tenant shall replace, at its sole cost and expense any and all
plate and other glass in or about the Premises damaged or broken from any cause
whatsoever.
4.08
Insurance Restrictions. Tenant shall not, without Landlord’s prior written
consent, used the Premises or the Shopping Center in any manner which will
increase the insurance premium costs or invalidate any insurance policies
carried on the Premises or on other parts of the Shopping Center, nor shall
Tenant do or cause to be done or permit or keep on the Premises or in the
Shopping Center anything which will have a like effect upon any such insurance
policies. If, because of anything done, caused to be done, permitted or omitted
by Tenant or its agents, servants, employees (whether or not acting in the
scope
and course of their employment), licensees, or assignees, the premium rate
for
any kind of insurance in effect on the Shopping Center or any part thereof
shall
be raised, or if Landlord should consent to a use or occupancy of the Premises
by Tenant whish shall cause an increase in the premium rate for such insurance,
Tenant shall pay Landlord on demand as Additional Rent the amount of any such
increase in premium which Landlord shall pay for such insurance. If Landlord
shall demand that Tenant remedy the condition which caused any such increase
in
an insurance premium rate, unless Landlord has otherwise consented to the
condition in writing, Tenant shall remedy such condition within five (5) days
after receipt of such demand. All property kept, stored, maintained or permitted
within the Premises by Tenant shall be at Tenant’s sole risk.
4.09
Indemnification of Landlord. Tenant agrees to indemnify and defend Landlord
and
to save harmless Landlord, and the tenants, licensees, invitees, agents,
servants and employees of Landlord against and from any and all claims by or
on
behalf of any person, firm or corporation arising by reason of injury to person
or property occurring on the Premises, or in the Shopping Center occasioned
in
whole or in part by any act or omission on the part of Tenant or any servant,
agent, employee; licensee, or assignee of Tenant, or by reason of any unlawful
use of the Premises or by reason of any breach, violation or nonperformance
of
any covenant in this Lease on the part of Tenant to be observed or performed,
and also by reason of any matter or thing growing out of the occupancy or use
of
the Premises by Tenant or anyone holding or claiming to hold through or under
Tenant. Tenant agrees to pay Landlord promptly for all damage to the Shopping
Center or the Premises and for all damage to tenants or occupants of the
Shopping Center caused by Tenant's misuse or neglect of the Shopping Center
or
of the Premises or of its or their apparatus and appurtenances and Tenant agrees
in any event to reimburse and compensate Landlord as Additional Rent within
five
(5) days of rendition of any statement to Te an by Landlord for expenditures
made by Landlord or for fines sustained or incurred by Landlord due to
nonperformance or noncompliance with or breach or failure to observe any term
covenant or condition of this Lease upon Tenant's pert to be kept, observed,
performed or complied with, Landlord shall not be liable to Tenant for any
damage by or from any act o negligence of any co-tenant or other occupant of
the
Shopping Center or by any owner or occupant of adjoining or contiguous property.
Neither Landlord nor its agents shall be liable to Tenant or to any person,
firm
or corporation claiming through or under Tenant for any injury or damage to
persons or property resulting from fire, explosion, failing plaster, steam,
glass, electricity, water, rain or snow or leaks from any part of the Shopping
Center or from the pipes, appliances or plumbing works or from the roof, street
or sub-surface or from any other place or by dampness or by any other cause
of
whatever nature, unless caused by or due to the negligence of Landlord, it
agents, servants or employees acting in the course and scope of their
employment. Landlord shall not be liable to Tenant or to any person, firm or
corporation claiming through or under Tenant for any latent defect in the
Premises or in the Shopping Center.
9
4.10
Alterations by Tenant. Tenant shall make no alterations, addition or
improvements to the Premises or to the exterior, the structure, or the
storefront thereof or the signs thereon without the prior written consent of
Landlord. Any request by Tenant for Landlord's co sent to an such proposed
alterations, additions and improvements shall in each instance be accompanied
by
plans and specifications for the proposed work, prepared and submitted to
Landlord in accordance with such requirements as Landlord may reasonably impose.
All such alterations, additions and improvements shall be made by Tenant in
accordance with the reasonable, requirements of Landlord. All alterations,
additions and improvements (excluding personal property and movable business
fixtures of Tenant no part of the cost of which shall have been paid by
Landlord) made by, for or at the direction of Tenant, shall become the property
of Landlord and shall remain upon and be surrendered with the Premises as a
part
thereof at the expiration or earlier termination of this Lease or at such time
as Landlord shall reenter and take possession of the Premises without
terminating this Lease pursuant to the provisions of Section 4.14 hereof;
Landlord shall, however, have the right to require Tenant to remove any such
alterations, additions, or improvements and to restore the Premises to the
condition in which they were in at the commencement of Tenant's occupancy
thereof. Such right shall be exercised by Landlord by giving notice to Tenant
at
any time prior to but not later than thirty (30) days after the expiration
or
earlier termination of this Lease. Upon receipt of such notice, Tenant, at
Tenant’s sole cost and expense, shall comply with the requirements specified in
such notice on or before the expiration or earlier termination of this Lease
or
within five (5) days after receipt of such notice by Tenant whichever shall
be
later.
4.11
Repairs and Maintenance by Tenant. (a) Tenant shall, at Tenant’s own cost and
expense, keep and maintain the Premises and appurtenances thereto (including
replacements as necessary) and every part thereof, in good order and repair
except portions of the Premises to be repaired by Landlord pursuant to Section
6.01 hereof. Tenant shall also keep the heating, cooling and ventilation, water,
sewer, electrical and sprinkler systems within or serving the Premises in good
order and repair and Tenant shall be liable for any damages due or attributable
to Tenant's , failure to perform or cause such maintenance or repairs to be
performed. Throughout the Term of this Lease, Tenant shall enter into and
maintain at its expense a maintenance contract with the service contractor
designated from time to time by Landlord, or selected by Tenant and approved
in
writing by Landlord, which contract shall provide for, and Tenant shall through
such contractor perform or cause to be performed, routine maintenance on the
heating, cooling and ventilation system serving the Premises, including but
not
limited to timely changing of filters (at least quarterly), adjustment and
inspection of air handling mechanisms, control equipment, inspection,
maintenance and performance of necessary lubrication, testing and other such
normal maintenance procedures.
In
addition, throughout the Term of this Lease, Tenant shall enter into and
maintain at its expense a pest control contract with the pest control contractor
designated from time to lime by Landlord, or selected by Tenant and approved
in
writing by Landlord, which contract shall provide for, and Tenant shall through
such contractor perform or cause to be performed, not less frequently than
quarterly, routine pest control services and extermination of and preventive
treatment for vermin, insects and wood destroying organisms.
All
damage or injury to the Premises or the Shopping Center, or the comm0f. areas,
caused by any act or negligence of Tenant, its agents, employees, licensees,
invitees or visitors, shall be promptly repaired by Tenant. Landlord may make
such repairs which are not promptly made by Tenant and charge Tenant for the
cost thereof, and Tenant hereby agrees to pay such amount to Landlord, together
with interest thereon at the highest legal rate not to exceed eighteen (18%)
percent per annum from the date of such repairs, as Additional Rent on demand.
Tenant shall have no right to make repairs at the expense of Landlord, or to
deduct the cost thereof from the Rent due hereunder.
10
4.12
Transfers. Assignment and Subletting. Tenant shall not sell, assign, pledge
or
hypothecate this Lease or sublet the Premises or any part thereof without the
prior written consent of Landlord in each such instance. Consent of Landlord
to
one assignment or subletting shall not destroy or operate as a waiver of the
prohibitions contained in this section as to tot re assignments or subleases
and
all such later assignments or subleases shall be made only with Landlord’s prior
written consent. In the event any assignment of this Lease or subletting of
the
Premises or any part thereof is made by Tenant whether or not the same is
consented to by Landlord, Tenant shall remain liable to Landlord for payment
of
all Rent and for the faithful performance of all of the covenants and conditions
of this Lease by an assignee or sublessee to the same extent as if the Lease
had
not been assigned or the Premises sublet. If this Lease shall be assigned or
the
Premises or any portion thereof sublet by Tenant at a rental that exceeds all
Rent and Additional Rent to be paid to Landlord hereunder, then and in such
event any such excess shall be paid over to Landlord by Tenant. If Tenant shall
request Landlord's consent to an assignment of this Lease or a subletting of
the
Premises or any portion thereof, it shall do so by written notice to Landlord
naming the proposed assignee or subtenant, designating any portion of the
Premises. t be su~1 at and setting forth the other terms and conditions of
such
proposed assignment or subletting. Thereupon and at any time thereafter Landlord
shall, at its election upon notice to Tenant and without limitation, have the
right to refuse to consent to such subletting or assignment; or enter into
a
direct lease with such proposed assignee or subtenant; and/or terminate this
Lease as to the portion of the Premises designated in such notice. Upon Landlord
giving such notice, this Lease shall terminate as to the portion of the Premises
designated in such notice from Tenant to Landlord, the area of the Premises
shall be reduced by the area of the portion of the Premises so designated by
Tenant, the Rent shall be reduced in the same proportion as the area of the
Premises shall be so reduced, an Tenant shall upon request of Landlord execute
an instrument in recordable form prepared by Landlord amending this Lease to
set
forth the new Premises, Rent and Additional Rent.
4.13
Voting Control. If Tenant is a corporation and if the entity or person or
persons own a majority of its voting shares at the time of the execution hereof
cease to own a majority of such shares at any time hereafter, except as a result
of transfers by gift, bequest or in heritance, Tenant shall so notify Landlord.
In the event of such change of ownership, whether or not Tenant has notified
Landlord thereof, Landlord may at its option terminate this Lease by notice
to
Tenant effective immediately upon the giving of such notice. This section shall
not apply if and so long as Tenant is a corporation the outstanding voting
stock
of which is listed on a recognized security exchange. .
4.14
Remedies Upon Default.
(a)
Each
of the following events (herein called "Events of Default") shall be deemed
default by Tenant:
(1)
If
Tenant shall fall to pay any Rent or Additional Rent when due an upon receipt
of
written notice of delinquency from Landlord shall fail to pay any delinquent
Rent or Additional Rent within ten (10) days after receipt of such notice,
or if
Tenant shall fail to carry out any other obligation imposed upon it under the
terms of this Lease within thirty (30) days after it shall have been notified
by
Landlord of its breach of this Lease, or Tenant is not diligently proceeding
to
carry out any obligation which may physically require more than thirty (30)
days. Landlord shall not, however, be required to give Tenant notice of default
if Tenant is in default more than two (2) times in a twelve-month period; or
11
(2)
If
Tenant (or, if Tenant is a partnership, if any partner of Tenant) or any
guarantor of this Lease shall: (i) file a petition in bankruptcy; (ii) take
or
consent to any other action seeking any such judicial decree; (iii) file any
debtor proceeding or a petition for an arrangement or for corporate
reorganization; (iv) make any assignment for the benefit of its creditors;
(v)
admit in writing its inability to pay its debts generally as they become
due;
(3)
If a
court of competent jurisdiction shall enter a decree or order adjudicating
Tenant bankrupt or insolvent;
(4)
If
any trustee or receiver for Tenant, or for any substantial part of its property,
be appointed;
(5)
If
any person shall file a petition for involuntary bankruptcy against Tenant
a
such appointment or petition shall not be stayed or vacated within sixty (60)
days (entry thereof;
(6)
If
Tenant's interest hereunder shall pass to another by operation of '1w in an
other manner;
(7)
If
Tenant's interest in this Lease or the Premises shall be subjected to any
attachment, levy or sale pursuant to any order or decree entered against Tenant
in any legal proceeding and such order or decree shall not be vacated within
fifteen (15) days of entry thereto;
(8)
If
Tenant shall vacate or abandon the Premises or shall fail to strictly maintain
minimum business hours as required in this Article 4,
Then
and
in any such event. Landlord may, if Landlord so elects but not otherwise, at
the
occurrence of anyone or more of the foregoing events as a default of this Lease
and with or without notice of such election, and with or without any demand
whatsoever, either forthwith terminate this Lease and Tenant's rights to
possession of the Premises or, without terminating this Lease, forthwith
terminate Tenant's right to possession of the Premises.
(b)
No
course of dealing between Landlord and Tenant or any delay on the part of
Landlord in exercising any rights it may have under this Lease shall operate
as
a waiver of any of the rights of Landlord hereunder nor shall any waiver of
a
prior default operate as a waiver of any subsequent default or defaults and
no
express waiver shall affect any condition, covenant, rule or regulation other
than the one specified in such waiver and that one only for the time and in
the
specifically stated.
(c)
In
the event of any re-entry of the Premises and/or changing of the locks on the
Premises and/or termination of this Lease by Landlord pursuant to any of the
provisions of this Lease, Tenant hereby waives all claims for damages which
may
be caused by such re-entry or changing of locks or termination by Landlord
and
Tenant shall save Landlord harmless from any loss, costs (including legal
expense and reasonable attorneys’ fees) or damages suffered by Landlord by
reason of such re-entry or changing of locks or termination and no such re-entry
or changing of locks or termination shall be considered or construed to be
a
forcible entry.
12
(d)
If
Landlord elects to terminate Tenant's right to possession only, without
terminating the Lease, Landlord may, at Landlord’s option, enter into the
Premises, remove Tenant's signs and other evidence of tenancy, and take and
hold
possession thereof as provided in Subsection (b) above, without such entry
and
possession terminating this Lease or releasing Tenant, in whole or in part,
from
Tenant's obligation to pay the Rent hereunder for the full term, and in any
such
case Tenant shall pay forthwith to Landlord. If Landlord so elects, a sum equal
to the entire amount of the Rent for the remainder of the then current Term,
plus any other sums then due hereunder. Upon and after entry into possession
without termination of this Lease, Landlord may, but need not, relet the
Premises or any part thereof for the account of Tenant to any person, firm
or
corporation other than Tenant, for such Rent, for such time and upon such terms
as Landlord in Landlord’s sole discretion shall determine, and Landlord shall
not be required to accept any sums offered by Tenant or to observe any
instructions given by Tenant about such reletting. In any such case, Landlord
may make repairs, alterations and additions in or to the Premises and redecorate
the same to the extent deemed by Landlord necessary or desirable, and Tenant
shall, upon demand, pay the cost thereof, together with Landlord’s expenses of
reletting. If the consideration collected by Landlord upon any such reletting
for Tenant’s account is not sufficient to pay monthly the full amount of Rent
and Additional Rent reserved in this Lease, and all other monies to be paid
by
Tenant, together with the costs of repairs, alterations, additions, redecorating
and Landlord’s expenses, Tenant shall pay to Landlord the amount of each monthly
deficiency upon demand.
(e)
Any
and all property which may be removed from the Premises by Landlord pursuant
to
the authority of this Lease or of law, to which Tenant is or may be entitled,
may be handled, removed or stored by Landlord at the risk, cost and expense
of
Tenant, and except strictly as required by law, Landlord shall in no event
be
responsible for the value, preservation or safekeeping thereof. Tenant shall
pay
to Landlord, upon demand, any and all expenses incurred in such removal and
all
storage charges against such property so long as the same shall be in Landlord's
possession or under Landlord's control. Tenant agrees that, to the fullest
extent permitted by law, any such property of Tenant not retaken from storage
by
Tenant within thirty (30) days after the end of the Term, however terminated,
shall be deemed abandoned by Tenant and Landlord shall become the owner thereof.
Landlord may dispose of any such property in any manner whatsoever including
without limitation, the sale, scrapping and/or destruction thereof without
any
further obligation to Tenant, and Tenant shall pay to Landlord promptly on
demand the reasonable expenses of such disposal.
4.15
Subordination. Tenant agrees that this Lease is and shall remain subject and
subordinate to and may be assigned as security for any present and all future
ground leases or underlying leases of the Shopping Center or of the Land and
to
and for all mortgages or deeds of trust which may now or hereafter affect such
leases or the Shopping Center or the Land and to and for all renewals,
modifications, consolidations, replacements and extensions thereof. This clause
shall be self-operative and no further instrument shall be necessary to effect
such subordination, however, Tenant shall execute promptly and deliver to
Landlord any such certificate or certification in writing as Landlord may
request evidencing the subordination of this Lease to or the assignment of
this
Lease as additional security for such ground lease, underlying lease, mortgage
or deed of trust.
4.16
Liens. Any work on the Premises performed by Tenant hereunder s all be performed
subject and pursuant to the provisions of the Alterations by Tenant, Section
of
this Lease, and upon completion thereof Tenant shall furnish Landlord with
waivers and affidavits confirming that all contractors, subcontractors, laborers
and materialmen who have performed work in the Premises have been paid in full.
Such waivers and affidavits shall be in a form acceptable to Landlord and in
accordance with applicable laws of the State of North Carolina. If any such
lien
or claim of lien shall at any time be flied against the Premises, the Shopping
Center or the Landlord, or Tenant's interest therein or hereunder, by reason
of
Tenant's acts or omissions or because of a claim against Tenant or any
contractor or subcontractor of Tenant, Tenant shall cause the lien or claim
of
lien to be canceled and discharged of record by bond or otherwise within ten
(10) days after receipt of notice from Landlord. If Tenant shall fail to cause
such lien or claim of lien to be so discharged or bonded within such period,
Tenant shall be in default hereunder, and, in addition to any other right or
remedy it may have, Landlord may, but shall not be obligated to, discharge
the
same by paying the amount claimed to be due or by procuring the discharge of
such lien or claim by deposit in court or bonding, and in any such event,
Landlord shall be entitled, if Landlord so elects, to compel the prosecution
of
an action for the foreclosure of such lien or claim by the lienor or claimant
and to pay the amount of the judgment, if any, in favor of the lienor, with
interest, costs sand allowances. Tenant shall pay as Additional Rent on demand
any sum so paid by Landlord or the aforesaid purposes with interest as
hereinafter provided and all costs and expenses incurred by Landlord including,
but not limited to attorneys’ fees in processing such discharge or in defending
any such action.
13
4.17
Retail Restriction Limit. During the Term of this Lease (including any extension
or renewal thereof, Tenant shall not, either directly or indirectly, own,
operate or be financially interested in, either by itself or with others within
a radius of three (3) miles of the perimeter of the Shopping Center, a business
like or similar to the business permitted to be conducted under this
Lease.
ARTICLE
5
COMMON
AREAS
5.01
Use
of Common Areas. (a) As long as Tenant is not in default hereunder, Tenant
shall
be entitled to the use in accordance with the Rules and Regulations referenced
herein and in common with other tenants, the common areas of the Shopping
Center, as same may be constituted from time to time; provided that Landlord
may
adopt and amend Rules and Regulations and make or grant such departures
therefrom at such times and in such manner as Landlord in its sole discretion
may deem appropriate. and further provided that the use of the common areas
by
Tenant shall be subject to the terms and conditions contained herein and to
such
other reasonable Rules and Regulations for the use thereof as may be prescribed
by Landlord from time to time.
(b)
It is
acknowledged and agreed that Landlord may in its sole discretion at any time
or
from time to time relocate or rearrange or alter or modify the common areas
or
any part thereof provided only that after any such change the common areas
then
available for Tenant's use and enjoyment shall be substantially equivalent
to
those so available prior to such change.
(c)
Tenant agrees that it shall cause all of its employees. agents and contractors
to utilize that portion of the parking areas of the Shopping Center designated
from time to time by Landlord for employee parking and shall prohibit such
persons from using other parking areas Shopping Center.
ARTICLE
6
LANDLORD
OBLIGATIONS
6.01
Repairs by Landlord. Landlord agrees to keep in good order the common areas
of
the Shopping Center (exclusive of the storefront of the Premises or any plate
or
other glass in or about the Premises) provided that the cost of the same shall
be included in Common Area Costs. Except as otherwise provided in this Lease,
Landlord gives to Tenant exclusively control f the Premises and shall be under
no obligation to inspect or repair any part of the Premises. Tenant shall at
once report in writing to Landlord any defective condition known to Tenant
which
Landlord is required to repair, and failure to so report such defects shall
make
Tenant responsible to Landlord for the repair of such defective condition and
any liability, cost or expense incurred by Landlord by reason of failure to
so
report such defective condition. Landlord shall have a reasonable time after
receipt of notice from Tenant to commence and complete repairs required of
Landlord hereunder.
6.02
Damage or Destruction. (a) In the event that before or during the Term of this
Lease, the Premises or the Shopping Center shall be damaged by fire or other
casualty which renders the Shopping Center, the Premises or any part of the
Shopping Center or the Premises untenantable, Landlord within thirty (30) days
of such fire or casualty or of receipt of written notice from Tenant of such
damage (whichever shall last occur) shall have the right to either (i) serve
written notice upon Tenant of Landlord's intent to repair said damage or (ii)
if
said damage renders so much of either of the Premises or of the Shopping Xxxxxx
untenantable that repair would not be feasible as determined in Landlord's
sole
discretion, or if said damage shall have been occasioned by the act or omission
of Tenant, its servants, agents or employees, serve written notice upon Tenant
that this Lease is terminated. If Landlord shall so terminate this lease, such
termination shall be effective as of the date therefore set forth in Landlord's
notice to Tenant. If Landlord shall elect to repair such damage, such repairs
shall be commenced within thirty (30) days of notice to Tenant of such election,
and such repairs shall be completed within one hundred eighty (180) days of
notice to Tenant of such election. During the period of repair the Rent shall
be
reduced to an amount which bears the same ratio as the portion of the Premises
then available or use bears to the entire Premises. Upon completion of such
repair, the Rent shall thereafter be paid as if no fire or other casualty had
occurred. Additional Rent shall not be abated.
14
(b)
The
other provisions of this Section notwithstanding, Landlord shall have no
obligation to replace or repair any property in the Shopping Center or on the
Premises belonging to Tenant or to anyone claiming through or under Tenant
nor
shall Landlord have any obligation hereunder to replace or repair any property
on the Premises which Landlord shall have the right require Tenant to remove
from the Premises or any alteration, addition or improvement made to the
Premises by, for or at the direction of Tenant.
6.03
Condemnation. In the event the whole or any part of the Shopping Center shall
be
taken by eminent domain or in any manner for public use, landlord may at its
option terminate this Lease and the estate hereby granted by giving written
notice of such termination to Tenant and upon the giving of such written notice
by Landlord the estate hereby granted and all rights of Tenant hereunder shall
expire as of the earlier of the date when title to or the right to possession
of
the Shopping Center or a part thereof shall vest in or be taken by public
authority as aforesaid and any Rent or other charges paid for any period beyond
said date shall be repaid to Tenant. Tenant shall not be entitled to any part
of
any award or payment which may be paid to Landlord or made for Landlord's
benefit in connection with such public use and Tenant shall have no claim or
rights as against Landlord for the value of any unexpired Term of this Lease.
Tenant may, however claim and receive from the condemning authority, if legally
payable, compensation for Tenant’s relocation costs and/or business interruption
provided that the same shall not reduce amounts otherwise payable to
Landlord.
6.04
Quiet Enjoyment and Transfer of Tenants. Tenant shall peaceably and quietly
hold
and enjoy the Premises during the Term hereof without hindrance or interruption
by Landlord so long as Tenant performs and observes all of the terms, covenants
and conditions to be performed and observed by Tenant hereunder and pays all
sums due from Tenant for Rent, Additional Rent, costs, charges or reimbursement
for sums advanced by Landlord on Tenant's behalf in accordance with the
provisions hereof; provided, however, Landlord shall have the right, after
having given Tenant thirty (30) days written notice of its intention to do
so,
to transfer and remove Tenant and all property in the Premises from the Premises
to any other available premises in the Shopping Center substantially equal
in
size and area. Landlord shall bear the expense of any renovations or alterations
necessary to make the new space substantially conform in layout and appointment
with the original Premises,
ARTICLE
7
ADDITIONAL
COVENANTS
7.01
Right of Entry. Landlord shall have the right to enter and to grant licenses
to
enter and/or pass through the Premises at any time and such lengths of time
as
Landlord shall deem reasonable (a) to inspect the Premises; (b) to exhibit
the
Premises to prospective tenants or purchasers of the Shopping Center; (c) to
make alterations or repairs to the Premises or to the Shopping Center (including
the installation and repair of utility lines, including sprinkler lines, which
may pass through the Premises to service other areas of the Shopping Center)
and
to store necessary materials, tools and equipment for such alterations or
repairs; (d) for any purpose which Landlord shall deem necessary for the
operation and maintenance of the Shopping Center and the general welfare and
comfort of its tenants; (e) for the purpose of removing from the Premises any
placards, signs, fixtures, alterations or additions not permitted by this Lease;
or (f) to xxxxx any condition which constitutes a violation of any requirements,
covenant or condition of this Lease or of the Rules and Regulations or of any
notice given Tenant by Landlord in accordance with the terms of this Lease.
No
such entry by Landlord shall in any manner affect Tenant’s obligations and
covenants under this Lease and no such entry shall of itself render Landlord
liable for any loss of or damage to the property of Tenant. Any such entry
by
Landlord shall not unreasonably interfere with Tenant’s business operations on
the Premises.
15
7.02
Surrender of Premises. At the end of the Term of this Lease or upon any earlier
termination of this Lease or Tenant’s right to possess the Premises, Tenant
shall vacate and surrender possession of the Premises to Landlord broom clean
and in as good order and condition as the Premises were at the time Landlord
shall have delivered possession thereof to Tenant, ordinary wear and tear,
damage by fire or other casualty not caused by Tenant, its servants, agents
or
employees and (subject to the provisions of Article 4 of this Lease)
alterations, additions and improvements to the Premises consented to in writing
by Landlord excepted. Tenant shall have no right (except as it may be obligated
to do pursuant to Article 4 hereof) to remove any betterments and improvements
whether made by Tenant or Landlord, including but not limited to, floor and
wall
coverings, lighting, cooling and ventilating, plumbing and other such fixtures,
partitions, alterations, improvements, systems and all such similar apparatus
and equipment. If not in default, Tenant shall, however, have the right at
the
end of the Term hereof to remove any furniture, trade fixtures or other personal
property placed in the Premises, provided that Tenant promptly repairs any
damage to the Premises caused by such removal and provided further that all
such
removal and/or repairs are completed by the Expiration Date of this
Lease.
7.03
Late
Charges. In the event that Tenant fails to pay any sum due under any provisions
of this Lease (including, without limitation, Rents, costs, charges, Additional
Rents, or reimbursements) when due as herein provided, then, such sum shall
bear
interest at the highest legal rate not to exceed eighteen (18%) percent per
annum calculated from said due date. The payment of such interest shall not
excuse or cure any default by Tenant under this Lease. Tenant shall, in
addition, pay a late charge of $50.00 for processing of late payments. Such
interest and late charges shall be considered Additional Rent under the
provisions hereof, the non-payment of which shall be considered a default on
the
part of Tenant and shall entitle Landlord to exercise all of its rights and
privileges hereunder.
7.04
Notices. All notices and other communications which may be or are required
to be
given or made by any party to the other in connection herewith shall be in
writing and shall be deemed to have been received on the date delivered in
person or deposited in the United States Mail, registered or certified, return
receipt requested, or by a nationally recognized overnight courier, to the
following addresses, or to such other addresses as specified by written notice
delivered in accordance herewith:
If
to
Landlord:
Xxxx
Xxxxx
Post
Office Box 1075
000
Xxxxxxx Xxxx
Xxxxx,
Xxxxx Xxxxxxxx 00000
With
a
copy
to:
Xxxxxxx
X. Xxxxx, Esq.
Van
Winkle, Buck, Wall, Xxxxxxx & Xxxxx, P.A.
Post
Office Box 7376 (28802)
00
Xxxxx
Xxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx, Xxxxxxxx 00000
If
to
Tenant:
Xxxxx
Xxxxxxx Xxxxx
BBI
Computer Solutions, Inc.
00
Xxxxxx
Xxxxx Xxxx
Xxxxxxxxx.
XX 00000
Notices
shall be in writing. The time of mailing shall be the time of the
notice.
16
ARTICLE
8
MISCELLANEOUS
8.01
Attorney's Fees. Tenant shall pay reasonable attorney's fees of Landlord in
the
event Landlord is required to use the services of an attorney for the
enforcement against Tenant of any of the terms, covenants or provisions
hereof.
8.02
Time
of Essence. Each of Tenant’s covenants herein is a condition and time is of the
essence with respect to the performance of every provision of this Lease, and
the strict performance of each shall be a condition precedent to Tenant’s right
to remain in possession of the Premises or to have this Lease continue in
effect.
8.03
Holding Over. Should Tenant, with or without Landlord's written consent, hold
over after the expiration or earlier termination of this Lease, Tenant shall
become a tenant at will and shall be bound by each and all of the terms herein
provided as may be applicable to such tenancy at will. Any such holding over
shall not constitute an extension of this Lease by law or otherwise. During
such
holding over, Tenant shall pay Rent, Common Area Costs, and other charges
hereunder, at that rate equal to two hundred fifty percent (250%) of the rate
or
rates then applicable under the provisions of this Lease.
8.04
Waiver. No Waiver by Landlord of any provision of this Lease shall be deemed
to
be a waiver of any other provision hereof or of any subsequent or continuing
breach by Tenant of the same or any other provision. Landlord’s consent to or
approval of any act by Tenant shall not be deemed to render unnecessary the
obtaining of Landlord’s consent to or approval of any subsequent act. No
agreement to accept Tenant’s surrender of the Premises shall be valid unless in
writing and signed by Landlord. No employee of Landlord or of Landlord’s agents
shall have any power to accept the keys to the Premises prior to the termination
of the Lease or surrender of the Premises.
8.05
Successors and Assigns. Except as otherwise provided in this Lease, all of
the
covenants, conditions, and provisions of this Lease shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives, executors, administrators, successors and assigns,
when permitted hereunder; it is understood and, agreed, however, that the term
"Landlord", as used in this Lease, means only the owner or the Landlord for
the
time being of the Shopping Center of which the Premises are a part, so that
in
the event of any sale or sales of the Shopping Center or of any lease thereof,
Landlord named herein shall be and hereby is entirely freed and relieved of
all
covenants and obligations of Landlord hereunder accruing thereafter, and it
shall be deemed without further agreement that the purchaser or the tenant
as
the case may be, has assumed and agreed to carry out any and all covenants
and
obligations of Landlord hereunder during the period such party has possession
of
the Land n the Shopping Xxxxxx.
8.06
Headings, Captions and References. The article and section captions contained
in
this Lease are for convenience only and do not in any way limit or amplify
any
term or provision hereof. The terms “Landlord” and “Tenant” as used herein shall
include the plural as well as the singular, the neuter shall include the
masculine and feminine genders and, if there be more than one tenant, the
obligations herein imposed upon Tenant shall be joint and several.
17
8.07
Landlord and Tenant Relationship. Nothing herein contained shall be deemed
or
construed by the parties hereto, nor by any other party, as creating the
relationship of principal and agent or of partnership or of joint venture
between the parties hereto, it being understood and agreed that neither the
method of computation of Rent, nor any other provision contained herein nor
any
acts of the parties hereto, shall be deemed to create any relationship between
the parties hereto other than that set forth in Section 8.08
hereinbelow.
8.08
No
Estate By Tenant. This Lease shall create the relationship of Lessor and Lessee
between Landlord and Tenant, no estate shall pass our of the Landlord, and
this
Lease shall not be subject to levy and/or sale and shall not be assignable
by
Tenant except as provided in Article 4 hereof.
8.09
Entire Agreement and No Offer. This Lease constitutes the entire agreement,
intent and understanding between the parties hereto with respect to the subject
matter hereof and no prior or contemporaneous agreement or understanding with
regard to any matter shall be effective for any purpose unless reduced to
writing herein. No provision of this Lease may be amended or added to except
by
an agreement in writing signed by the parties hereto or their respective
successor in interest. The submission of this Lease for examination or
consideration by Tenant shall not constitute an offer to lease by Landlord
nor a
reservation of space and this Lease shall be effective only upon execution
and
delivery hereof by both Landlord and Tenant.
8.10
Representations. Tenant acknowledges that neither Landlord nor Landlord's
employees or contractors have made any representations or promises with respect
to the Premises, the Shopping Center, or this Lease except as expressly set
forth herein and that Tenant shall have no claim, right or cause or action
based
on or attributable to any representation or promise allegedly made by Landlord,
its agents, employees or contractors which is not expressly set forth
herein.
8.11
Jurisdiction. The laws of the State of North Carolina shall govern the
interpretation, validity, performance and enforcement of this
Lease.
8.12
Landlord's Liability. It is understood and agreed that there shall he no
personal liability on Landlord in respect to any of the covenants, conditions
or
provisions of this Lease, in the event of a breach or default by Landlord of
any
of its obligations under this Lease, Tenant shall look solely to the equity
of
Landlord in the Shopping Center.
8.13
Estoppel Agreements. Tenant agrees that from time to time, at reasonable
intervals, within ten (10) days after written request by Landlord, Tenant will
execute, acknowledge and deliver to Landlord or to such other party as may
be
designated by Landlord, a certificate stating that: this Lease is in full force
and effect and has not been modified, supplemented or amended in any way, except
as indicated in such certificate; that all conditions and agreements under
this
Lease to be performed by Landlord have been satisfied or performed, except
as
set forth in said certificate; that there are no existing defenses or offsets,
except as indicated in said certificate; that Tenant has not paid any Rent
in
advance, except as indicated in said certificate; and that Tenant is not in
default in the payment of Rent or any of the other obligations required of
Tenant under this Lease.
8.14
Execution By Agent. It is acknowledged and agreed that if this Lease is executed
by an agent on behalf of Landlord, such agent is acting solely in his or its
capacity as agent for Landlord and neither such agent or its officers,
directors, shareholders or employees shall have any liability under this Lease
for any act or omission of Landlord hereunder, and Tenant shall look solely
to
Landlord with respect to all covenants and agreements of Landlord contained
in
this Lease.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Lease Agreement
as
of the Lease Date set forth in the Fundamental Lease Provisions.
Cyber Cynergy Inc.
LANDLORD:
XXXXX,
LLC
TENANT:
BBI
COMPUTER SOLUTIONS, INC.
By: /s/
Xxxxxxx Xxxxx
By: /s/
Xxxxx Xxxxxxx Xxxxx
Xxxxxxx
Xxxxx,
Member-Manager
Xxxxx
Xxxxxxx Xxxxx,
Chief Operating Officer
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