REALTOR* North Carolina Association of REALTORS® COMMERCIAL LEASE AGREEMENT (Multi-Tenant Facility)
Exhibit 10.9
Highland
Realty 8, Development
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Phone:
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REALTOR*
Commercial Alliance
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REALTOR*
North Carolina
Association
of REALTORS®
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(Multi-Tenant
Facility)
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THIS LEASE AGREEMENT,
including any and all addenda attached hereto ("Lease"), is by and
between
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▇▇▇▇▇▇▇▇▇▇
, a(n)
an
individual___________________ ("Landlord"),
(individual
or
State of formation and type of entity)
whose address is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇.▇. 28226______________________________________________________
and
Anchor
Funding
Services, LLC
, a(n) North
Carolina Limited Liability ("Tenant").
(individual
or
State of formation and type of entity)
whose
address is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇
▇▇▇-▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
oIf this box is checked,
the obligations of Tenant under this Lease are secured by the guaranty of n/a
(name(s) of guarantor(s)) attached hereto and incorporated herein by
reference.
(Note:
Any guaranty should be prepared by an attorney at law.)
For and
in consideration of the mutual promises set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
PREMISES/PROPERTY
(Note:
In this paragraph, Premises is the actual space being leased and Property is the
broader site/location of the Premises.)
1. (a)
Landlord leases unto Tenant, and Tenant hereby leases and takes upon the terms
and conditions which hereinafter appear, those certain premises depicted on
Exhibit
A
attached hereto and incorporated herein by reference (hereinafter called
the "Premises"), which is a part of a building or buildings located at the
Property (defined below).
The
address of the Premises is:
(Address):
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▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
(b) The
Premises is located at the following described property ("Property"):
(Address):
▇▇▇▇▇▇▇▇
Downs Building, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
o All o A portion of the property in Deed
Reference: Book n/a ________,
Page No_____________
n/a
County;
consisting of approximately __________________n/a ______________________________________ acres.
Plat Reference: Lot(s)
________________n/a
Block or Section n/a___________________________ as shown on Plat Book or Slide
n/a
at Page(s)
_________________n/a______________, n/a_______________________Contry,
consisting of ____________n/a___________________acres
o If
this box is checked, Property shall mean that property described on Exhibit B
attached hereto and incorporated herewith by reference.
(For information purposes only, the tax
parcel number of the Property is n/a
1
All
facilities furnished at the Property and designated for the general use,
in common, of occupants of the Property and their invitees, agents or
employees, including Tenant hereunder, including but not limited to parking
areas, streets, driveway s, sidewalks, canopies, roadways, loading platforms,
shelters, ramps, landscaped areas, exterior water faucets, irrigation systems,
exterior lighting fixtures, signs and other facilities whether of a similar or
dissimilar nature ("Common Areas") shall at all times be subject to the
exclusive control and management of Landlord, and Landlord shall have the right
from time to time to change the area, level, location and arrangement of the
Common Areas and to restrict parking by tenants and their employees to employee
parking areas, to make Rules and Regulations (as herein defined) and do such
things from time to time as in Landlord's reasonable discretion may be necessary
regarding the Common Areas.
Tenant
shall also have a non-exclusive right, in common with other tenants at the
Property, to the use of the Common Areas at the Property, subject to the terms
hereof.
TERM
2. The term of this
Lease shall commence on November
01
, 2007 ("Lease Commencement Date"), and shall end at midnight
on May
30,
2009 , unless
sooner terminated as herein provided. The first Lease Year Anniversary shall be
the date twelve (12) calendar months after the first day of the first full month
immediately following the Lease Commencement Date and successive Lease Year
Anniversaries shall be the date twelve (12) calendar months from the previous
Lease Year Anniversary.
o If this box is checked,
Tenant shall have the option of renewing this Lease, upon written notice given
to Landlord at least 90
days prior to the end of
the then expiring term of this Lease, for oneadditional term(s) of Two years
each.
o
Option to Lease- If this box is checked, Tenant, upon the payment
of the sum of $ n/a (which
sum is not rental or security deposit hereunder, but is consideration for this
Option to Lease and is non-refundable under any circumstances) shall have a
period of n/a days
prior to the Lease Commencement Date ("Option Period") in which to inspect the
Premises and make inquiry regarding such sign regulations, zoning regulations,
utility availability, private restrictions or permits or other regulatory
requirements as Tenant may deem appropriate to satisfy itself as to the use of
the Premises for Tenant's intended purposes. Tenant shall conduct all such
on-site inspections, examinations, inquiries and other review of the Premises in
a good and workmanlike manner, shall repair any damage to the Premises caused by
Tenant's entry and on-site inspections and shall conduct same in a manner that
does not unreasonably interfere with Landlord's or any tenant's use and
enjoyment of the Property. In that respect, Tenant shall make reasonable efforts
to undertake on-site inspections outside of the hours any tenant's business is
open to the public and shall give prior notice to the tenant at the Premises of
any entry onto the Premises for the purpose of conducting inspections. Upon
Landlord's request, Tenant shall provide to Landlord evidence of general
liability insurance. Tenant shall also have a right to review and inspect all
contracts or other agreements affecting or related directly to the Premises and
shall be entitled to review such books and records of Landlord that relate
directly to the operation and maintenance of the Premises, provided, however,
that Tenant shall not disclose any information regarding the Property (or any
tenant therein) unless required by law and the same shall be regarded as
confidential, to any person, except to its attorneys, accountants, lenders and
other professional advisors, in which case Tenant shall obtain their agreement
to maintain such confidentiality. Tenant assumes all responsibility for the acts
of itself, its agents or representatives in exercising its rights under this
Option to Lease and agrees to indemnify and hold Seller harmless from any
damages resulting therefrom. This indemnification obligation of Tenant shall
survive the termination of this Option to Lease or this Lease. Tenant shall, at
Tenant's expense, promptly repair any damage to the Premises or Property caused
by Tenant's entry and on-site inspections. IF
TENANT CHOOSES NOT TO LEASE
THE PREMISES, FOR ANY REASON OR NO REASON, AND PROVIDES WRITTEN NOTICE TO
LANDLORD THEREOF
PRIOR TO THE EXPIRATION OF THE OPTION PERIOD, THEN THIS LEASE SHALL TERMINATE
AND NEITHER PARTY SHALL HAVE ANY FURTHER OBLIGATIONS HEREUNDER AND LANDLORD
SHALL RETURN TO TENANT
ANY RENTAL OR SECURITY DEPOSIT PAID TO LANDLORD HEREUNDER. Tenant shall
be deemed to have exercised its Option to Lease and to be bound under the terms
of this Lease if (i) Tenant shall occupy the Premises prior to the expiration of
the Option Period, whereupon the date of occupancy shall be deemed the Lease
Commencement Date, or (ii) Tenant shall not provide written notice to Landlord
of its termination of this Lease prior to the expiration of the Option
Period.
RENTAL
3.
Beginning on November
01, 2007 ("Rent Commencement Date"), Tenant agrees to pay Landlord (or
its Agent as directed
by Landlord), without notice, demand, deduction or set off, an annual rental of
$ 9,000.00 , payable
in equal monthly installments
of $ 750.00 ,
in advance on the first day of each calendar month during the term hereof. Upon
execution of this Lease, Tenant shall pay to Landlord the first monthly
installment of rent due hereunder. Rental for any period during the term hereof
which is less than one month shall be the pro-rated portion of the monthly
installment of rental due, based upon a 30 day month.
q If this
box is checked, the annual rental payable hereunder (and accordingly the monthly
installments) shall be adjusted every one Lease
Year Anniversary by 4 %
over the amount then payable hereunder. In the event renewal of this
Lease is provided for in paragraph
2 hereof and effectively exercised by Tenant, the rental adjustments provided
herein shall apply to the term of the Lease so renewed, or
q If this
box is checked, the annual rental payable hereunder (and accordingly the monthly
installments) shall be adjusted every n/a Lease
Year Anniversary by $ nia over
the amount then payable hereunder. In the event renewal of this Lease is
provided
2
for in
paragraph 2 hereof and effectively exercised by Tenant, the rental adjustments
provided herein shall apply to the term of the Lease so renewed,
x If this box is
checked, Tenant shall pay all rental to Landlord's Agent at the following
address:
Highland Realty &
Development, Ltd., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇.▇.
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LATE
CHARGES
4. If
Landlord fails to receive full rental payment within 10
days after it becomes due, Tenant shall pay Landlord, as
additional
rental, a
late charge equal to ten percent
10
(%) of the overdue amount or $
n/a whichever
is greater, plus any actual bank fees incurred for dishonored payments. The
parties agree that such a late charge represents a fair and reasonable estimate
of the cost Landlord will incur by reason of such late payment.
SECURITY
DEPOSIT
5. Upon the
execution of this Lease, Tenant shall deposit with Landlord the sum of $
750
- 00 as a security deposit which shall be held by Landlord as
security for the full and faithful performance by Tenant of each and every term,
covenant and condition of this Lease. The security deposit does not represent
payment of and Tenant shall not presume application of same as payment of the
last monthly installment of rental due under this Lease. Landlord shall have no
obligation to segregate or otherwise account for the security deposit except as
provided in this paragraph 5. If any of the rental or other charges or sums
payable by Tenant shall be over-due and unpaid or should payments be made by
Landlord on behalf of Tenant, or should Tenant fail to perform any of the terms
of this Lease, then Landlord may, at its option, appropriate and apply the
security deposit, or so much thereof as may be
necessary, to compensate toward the payment of the rents, charges or other sums
due from Tenant, or towards any loss, damage or expense sustained by Landlord
resulting from such default on the part of the Tenant; and in such event Tenant
upon demand shall restore the security deposit to the amount set forth above in
this paragraph 5. In the event Tenant furnishes Landlord with proof that all
utility bills and other bills of Tenant related to the Premises have been paid
through the date of Lease termination, and performs all of Tenant's other
obligations under this Lease, the security deposit shall be returned to Tenant
within sixty (60) days after the date of the expiration or sooner termination of
the term of this Lease and the surrender of the Premises by Tenant in compliance
with the provisions of this Lease.
x If this box is checked,
Agent shall hold the security deposit in trust and shall be entitled to the
interest, if any, thereon.
UTILITY
BILLS/SERVICE CONTRACTS
6.
Landlord and Tenant agree that utility bills and service contracts ("Service
Obligations") for the Premises shall be paid by the party indicated below as to
each Service Obligation. in each instance, the party undertaking responsibility
for payment of a Service Obligation covenants that they will pay the applicable
bills prior to delinquency. The responsibility to pay for a Service Obligation
shall include all metering, hook-up fees or other miscellaneous charges
associated with establishing, installing and maintaining such utility or
contract in said party's name. Within thirty (30) days of the Lease Commencement
Date, Tenant shall provide Landlord with a copy of any requested Tenant Service
Obligation information.
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Service
Obligation
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Landlord
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Tenant
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Not
Applicable
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Sewer/Septic
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x
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q
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q
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Water
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x
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q
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q
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Electric
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q
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x
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q
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Gas
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q
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q
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x
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|
Telephone
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q
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x
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q
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|
HVAC
(maintenance/service contract)
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x
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q
|
q
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|
Elevator
(including phone line)
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q
|
q
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x
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Security System
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q
|
q
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x
|
|
Fiber Optic
|
q
|
q
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x
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Janitor/Cleaning
|
q
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q
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q
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|
Trash/Dumpster
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x
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q
|
q
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|
Landscaping/Maintenance
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x
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q
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q
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|
Sprinkler System (including phone
line)
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q
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q
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x
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Pest
Control
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q
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q
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x
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n/a
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q
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q
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x
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n/a
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q
|
q
|
q
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|
n/a
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q
|
q
|
q
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|
n/a
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q
|
q
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q
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3
Landlord
shall not be liable for injury to Tenant's business or loss of income there-from
or for damage that may be sustained by the person, merchandise or personal
property of Tenant, its employees, agents, invitees or contractors or any other
person in or about the Premises, caused by or resulting from fire, steam,
electricity, gas, water or rain, which may leak or flow from or into any part of
the Premises, or from the breakage, leakage, obstruction or other defects of any
utility installations, air conditioning system or other components of the
Premises or the Property, except to the extent that such damage or loss is
caused by Landlord's gross negligence or willful misconduct. Landlord makes no
representations or warranties with respect to the heating, ventilation and air
conditioning system(s) or utility installations existing as of the date hereof
or in the future. Subject to the provisions of this paragraph 6, Landlord shall
not be liable in damages or otherwise for any discontinuance, failure or
interruption of service to the Premises of utilities or the heating, ventilation
and air conditioning system(s) and Tenant shall have no right to terminate this
Lease or withhold rental because of the same.
RULES
AND REGULATIONS
7. The rules
and regulations, if any, attached hereto ("Rules and Regulations") are made a
part of this Lease. Tenant agrees to comply with any Rules and Regulations of
Landlord in connection with the Premises which are in effect at the time of the
execution of the Lease or which may be from time to time promulgated by Landlord
in its reasonable discretion, provided such Rules and Regulations are in writing
and are not in conflict with the terms and conditions of the Lease. Landlord
shall use commercially reasonable efforts to enforce such Rules and Regulations
at the Property, provided, however, in no event shall Landlord be obligated to
make any material expenditures in connection with the enforcement of such Rules
and Regulations. Landlord shall not be liable for any damages arising from any
use, act or failure to act of any other tenant or occupant (including such
tenant's or occupant's invitees, agents or employees), if any, of the
Property.
PERMITTED
USES
8. The permitted use of the Premises shall
be Professional
Office
Use Only
("Permitted
Use"). The Premises shall be used and wholly occupied by Tenant solely for the
purposes of conducting the Permitted Use, and the Premises shall not be used for
any other purposes unless Tenant obtains Landlord's prior written approval of
any change in use. Landlord makes no representation or warranty regarding the
suitability of the Premises for or the legality (under zoning or other
applicable ordinances) of the Permitted Use for the Premises, provided however,
that Landlord does represent that it has no contractual obligations with other
parties which will materially interfere with or prohibit the Permitted Use of
Tenant at the Premises. At Tenant's sole expense, Tenant shall procure, maintain
and make available for Landlord's inspection from time to time any governmental
license(s) or permit(s) required for the proper and lawful conduct of Tenant's
business in the Premises. Tenant shall not cause or permit any waste to occur in
the Premises and shall not overload the floor, or any mechanical, electrical,
plumbing or utility systems serving the Premises. Tenant shall keep the
Premises, and every part thereof, in a clean and wholesome condition, free from
any objectionable noises, loud music, objectionable odors or
nuisances.
TAXES,
INSURANCE AND COMMON AREA AND PROPERTY OPERATING EXPENSES
9.
Landlord shall pay all taxes (including but not limited to, ad valorem taxes,
special assessments and any other governmental charges) on the Property, shall
procure and pay for such commercial general liability, broad form fire and
extended and special perils insurance with respect to the Property as Landlord
in its reasonable discretion may deem appropriate and shall maintain and operate
the Common Areas and the Property. Tenant shall reimburse Landlord for its
proportionate share of all taxes, insurance and Common Areas and Property
operating expenses as provided herein within fifteen (15) days after receipt of
notice from Landlord as to the amount due. Tenant shall be solely responsible
for insuring Tenant's personal and business property and for paying any taxes or
governmental assessments levied thereon. Tenant shall reimburse Landlord for its
proportionate share of taxes, insurance and Common Areas and Property operating
expenses during the term of this Lease, and any extension or renewal thereof; as
follows:
Taxes
o Its proportionate share
of the amount by which all taxes (including but not limited to, ad valorem
taxes, special assessments and any other governmental charges) on the Property
for each tax year exceed all taxes on the Property for the tax year n/a ; or
o Its proportionate share
of all taxes (including but not limited to, ad valorem taxes, special
assessments and any other governmental charges) on the Property for each tax
year.
If the
final Lease Year of the term fails to coincide with the tax year, then any
excess for the tax year during which the term ends shall be reduced by the pro
rata part of such tax year beyond the Lease term. If such taxes for the year in
which the Lease terminates are not ascertainable before payment of the last
month's rental, then the amount of such taxes assessed against the Property for
the previous tax year shall be used as a basis for determining the pro rata
share, if any, to be paid by Tenant for that portion of the last Lease
Year.
o If this box is checked,
Tenant shall reimburse Landlord for its proportionate share of taxes by paying
to Landlord, beginning on the Rent Commencement Date and on the first day of
each calendar month during the term hereof, an amount equal to one-twelfth
(1/12) of its proportionate share of the then current tax payments for the
Property. Upon receipt of bills, statements or other evidence of taxes due,
Landlord shall pay or cause to be paid the taxes. If at any time the
reimbursement payments by Tenant hereunder do not equal its proportionate share
of the amount of taxes paid by Landlord, Tenant shall upon demand pay to
Landlord an amount equal to the deficiency or Landlord shall refund to Tenant
any overpayment (as applicable) as documented
by Landlord. Landlord shall have no obligation to segregate or otherwise account
for the tax reimbursements paid hereunder except as provided in this paragraph
9.
4
Insurance
Its
proportionate share of the excess cost of commercial general liability, broad
form fire and extended and special perils insurance with respect to the Property
over the cost of the first year of the Lease term for each subsequent year
during the term of this Lease; or
q Its proportionate share of the
cost of all commercial general liability, broad form fire and extended and
special perils insurance with respect to the Property.
Provided,
however, that in the event Tenant's use of the Premises results in an increase
in the rate of insurance on the Property, Tenant also shall pay to Landlord,
upon demand and as additional rental, the amount of any such
increase.
|
o
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If
this box is checked, Tenant shall reimburse Landlord for its proportionate
share of insurance by paying to Landlord, beginning on the Rent
Commencement Date and on the first day of each calendar month during the
term hereof, an amount equal to one-twelfth (1/12) of its proportionate
share of the then current insurance premiums for the Property. Upon
receipt of bills, statements or other evidence of insurance premiums due,
Landlord shall pay or cause to be paid the insurance premiums. If at any
time the reimbursement payments by Tenant hereunder do not equal its
proportionate share of the amount of insurance premiums paid by Landlord,
Tenant shall upon demand pay to Landlord an amount equal to the deficiency
or Landlord shall refund to Tenant any overpayment (as applicable) as
documented by Landlord. Landlord shall have no obligation to segregate or
otherwise account for the insurance premium reimbursements paid hereunder
except as provided in this paragraph
9.
|
Common
Areas and Property Operating Expenses
Its
proportionate share of all Common Areas and Property operating
expenses.
For the purpose of this Lease, Common
Areas and Property operating expenses shall include: (a) the cost of water and
sewer services for any exterior landscaping irrigation systems; (b) the cost of
utilities to service the Property (not separately metered to tenants and
regardless of their
allocation to Landlord under paragraph 6 hereof) including but not limited to,
electric service for any parking lot lighting, marquee signs, ground signs, pylon signs, time
clocks, irrigation systems, common electric outlets used in connection with
maintenance of the Property, and such other electric costs,
including the replacement of light bulbs in Common Areas light fixtures as
necessary to properly maintain and operate the Common Areas; (c) the
cost of the removal of any trash, including the rental cost of dumpster units
and fees for refuse removal; (d) the cost of exterior
window washing of vacant spaces, cleaning of any building exterior, awnings,
sidewalks, driveways and parking areas; (e) the cost of
anygrounds maintenance, including but not limited to charges for maintaining
plant materials, fertilizer, pesticides, grass mowing, pruning of plants,
planting of annual flowers, removal of debris and trash from Common Areas,
cleaning supplies, and such other expenses necessary to maintain
the Property; (f) the cost of service contracts with independent contractors to
maintain on a regular basis the plumbing systems outside the
rentable areas of each tenant, and to provide for pest control and exterminating
services for the Common
Areas; (g) the cost of maintaining the parking areas and driveways, including
the re-striping of parking spaces, patching of deteriorated pavement,
replacement of parking signs or directional signs; (h) the cost of Landlord's
personnel when such personnel are engaged directly in the maintenance of
the Common Areas of the Property, including the cost of employer taxes and a
proration of employee benefits; (i) the cost of snow and ice
removal from parking areas, driveways, walkways and service areas; (j) the cost
of telephone, telegraph, stationery, advertising, and mail or shipping costs
related directly to the maintenance or operation of the Property; (k) the cost
of all capital and
structural repair maintenance for the Property and systems related thereto; and
(1) such other costs and expenses as are typically incurred in the maintenance and
operation of a property of this type, inclusive of a management fee paid by
Landlord to a property manager or property management company or organization
for the management of the Property and any owner association dues or
assessments. Within one
hundred eighty (180) days following the end of each calendar year, Landlord
shall cause a statement to be prepared of the actual cost of Common Areas and
Property operating expenses for such calendar year and shall provide Tenant a
copy of same. Tenant's proportionate share of Common Areas and Property
operating expenses is presently estimated to be the sum of $ n/a
annually
or $ n/a per
month.
5
o If this box is checked,
Tenant shall reimburse Landlord for its proportionate share of Common Areas and
Property operating expenses by paying to Landlord, beginning on the Rent
Commencement Date and on the first day of each calendar month during the term
hereof, the amount set forth above as the presently estimated per month
proportionate share of Common Areas and Property operating expenses for the
Premises. Landlord shall pay or cause to be paid the Common Areas and Property
operating expenses. Within one hundred eighty (180) days following the end of
each calendar year, Landlord shall: (i) cause a statement to be prepared of the
actual cost of Common Areas and Property operating expenses for such calendar
year and shall notiy Tenant of any overpayment or underpayment of Tenant's
proportionate share of these items during such prior calendar year; and, (ii)
establish an estimate of the cost of Common Areas and Property operating
expenses for the then current calendar year. To the extent Tenant has overpaid
Tenant's proportionate share of these items for the preceding calendar year,
such overage shall be credited to Tenant's proportionate share of these items
for the current calendar year. To the extent Tenant has underpaid Tenant's
proportionate share of these items for the preceding calendar year, Tenant
shall, on
the first day of the calendar month following receipt of the statement from
Landlord setting forth the amount of such underpayment, pay to Landlord the full
amount of such underpayment for the preceding calendar year. In addition,
beginning on the first day of the calendar month following the date upon which
Landlord shall have delivered to Tenant the statement for the estimated Common
Areas and Property operating expenses for the then current calendar year, Tenant
shall pay to Landlord the product of one-twelfth (1/12) of Tenant's
proportionate share of the estimated Common Areas and Property operating
expenses for the then current calendar year multiplied by the number of calendar
months in the calendar year which shall have begun as of said first day, minus
the aggregate amount
of the monthly payments for Tenant's proportionate share of expenses
theretofore paid by Tenant during such calendar year. The remainder of Tenant's
proportionate share of such expenses for the then current calendar year shall be
paid by Tenant to Landlord on the first day of each succeeding month in equal
consecutive monthly installments of one-twelfth (1/12) of the total amount of
Tenant's proportionate share of Common Areas and Property operating expenses as
shown on the estimate thereof provided by Landlord. Landlord shall have no
obligation to segregate or otherwise account for the insurance premium
reimbursements paid hereunder except as provided in this paragraph
9.
For purposes of this paragraph 9,
"Tenant's proportionate share" shall mean (check
one):
| o | n/a % of the expenses above designated; or |
| o | $ n/a payable monthly, in satisfaction of all reimbursements under this paragraph 9; or |
| o | None- Tenant shall have no responsibility to reimburse Landlord for taxes, insurance or Common Areas and Property operating expenses. |
INSURANCE;
WAIVER; INDEMNITY
10.
(a) During the term of this Lease, Tenant shall maintain commercial general
liability insurance coverage (occurrence coverage) with broad form contractual liability
coverage and with coverage limits of not less than 1,000,000.00
combined
single limit, per occurrence, specifically including liquor liability
insurance covering consumption of alcoholic beverages by customers of
Tenant should Tenant choose to sell alcoholic beverages. Such policy shall
insure Tenant's performance of the indemnity provisions of this Lease, but the
amount of such insurance shall not limit Tenant's liability nor relieve Tenant
of any obligation hereunder. All policies of insurance provided for herein shall
name as "additional insureds" Landlord, Landlord's Agent, all mortgagees of
Landlord and such other individuals or entities as Landlord may from time to
time designate upon written notice to Tenant. Tenant shall provide to Landlord,
at least thirty (30) days prior to expiration, certificates of insurance to
evidence any renewal or additional insurance procured by Tenant. Tenant shall
provide evidence of all insurance required under this Lease to Landlord prior to
the Lease Commencement Date.
(b) Landlord
(for itself and its insurer) waives any rights, including rights of subrogation,
and Tenant (for itself and its insurer) waives any rights, including rights of
subrogation, each may have against the other for compensation of any loss or
damage occasioned to Landlord or Tenant arising from any risk generally covered
by the "all risks" insurance required to be carried by Landlord and Tenant. The
foregoing waivers of subrogation shall be operative only so long as available in
the State of North Carolina. The foregoing waivers shall be effective whether or
not the parties maintain the insurance required to be carried pursuant to this
Lease.
(c) Except as
otherwise provided in paragraph 10(b), Tenant indemnifies Landlord for damages
proximately caused by the negligence or wrongful conduct of Tenant and Tenant's
employees, agents, invitees or contractors. Except as otherwise provided in
paragraph 10(b), Landlord indemnifies Tenant for damages proximately caused by
the negligence or wrongful conduct of Landlord and Landlord's employees, agents,
invitees or contractors. The indemnity provisions in this paragraph 10 cover
personal injury and property damage and shall bind the employees, agents,
invitees or contractors of Landlord and Tenant (as the case may be). The
indemnity obligations in this paragraph 10 shall survive the expiration or
earlier termination of this Lease.
REPAIRS
BY LANDLORD
11.
Landlord agrees to keep in good repair the roof, foundation, structural
supports, exterior walls (exclusive of all glass and exclusive of all exterior
doors) and the Common Areas of the Property, except repairs rendered necessary
by the negligence or intentional wrongful acts of Tenant, its employees, agents,
invitees or contractors. Tenant shall promptly report in writing to Landlord any
defective condition known to it which Landlord is required to repair and failure
to report such conditions shall make Tenant responsible to Landlord for any
liability incurred by Landlord by reason of such conditions.
REPAIRS
BY TENANT
12. (a) Tenant accepts the Premises in
their present condition and as suited for the Permitted Use and Tenant's
intended purposes. Tenant,
throughout the initial term of this Lease, and any extension or renewal thereof,
at its expense, shall maintain in good order and repair the Premises, except those
repairs expressly required to be made by Landlord hereunder. Tenant shall use
only licensed contractors for repairs where such license is
required. Landlord shall have the right to approve the contractor as to any
repairs in excess of $ 100.00
(b) Tenant
agrees to return the Premises to Landlord at the expiration or prior termination
of this Lease, in as good condition and repair as on the Lease Commencement
Date, natural wear and tear, damage by storm, fire, lightning, earthquake or
other casualty alone excepted.
Tenant, Tenant's employees, agents, invitees or contractors shall take no action
which may void any manufacturers or installers warranty with relation to the
Premises or the Property. Tenant shall indemnify and hold Landlord harmless from
any liability, claim, demand or cause of action arising on account of Tenant's
breach of the provisions of this paragraph 12.
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o If this box is checked,
there is heating, ventilation and air conditioning equipment exclusively serving
the Premises. Tenant, at its expense, shall maintain in good order and repair,
including but not limited to replacement of parts, compressors, air handling
units and heating units; provided that, as to repair or replacement expenses for
heating, ventilation and air conditioning equipment in excess of $ n/a
(per occurrence) or $ n/a
(annually), Landlord shall reimburse Tenant for the amount in
excess of
the stated amount, provided that Tenant has obtained Landlord's prior written
approval of the contractor and the repair or replacement.
ALTERATIONS
13. Tenant
shall not make any alterations, additions, or improvements to the Premises
without Landlord's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed. Tenant shall promptly remove any
alterations, additions, or improvements constructed in violation of this
paragraph 13 upon Landlord's written request. All approved alterations,
additions, and improvements will be accomplished in a good and workmanlike
manner, in conformity with all applicable laws and regulations, and by a
contractor approved by Landlord, free of any liens or encumbrances. Landlord may
require Tenant to remove any alterations, additions or improvements (whether or
not made with Landlord's consent) at the termination of the Lease and to restore
the Premises to its prior condition, all at Tenant's expense. All alterations,
additions and improvements which Landlord has not required Tenant to remove
shall become Landlord's property and shall be surrendered to Landlord upon the
termination of this Lease, except that Tenant may remove any of Tenant's
machinery, equipment or trade fixtures which can be removed without material
damage to the Premises or the Property. Tenant shall repair, at Tenant's
expense, any damage to the Premises or the Property caused by the removal of any
such machinery, equipment or trade fixtures.
DESTRUCTION
OF OR DAMAGE TO PREMISES
14. (a) If
the Premises are totally destroyed by storm, fire, lightning, earthquake or
other casualty , Landlord shall have the right to terminate this Lease on
written notice to Tenant within thirty (30) days after such destruction and this
Lease shall terminate as of the date of such destruction and rental shall be
accounted for as between Landlord and Tenant as of that date.
(b) If the
Premises are damaged but not wholly destroyed by any such casualties or if the
Landlord does not elect to terminate the Lease under paragraph 14(a) above,
Landlord shall commence (or shall cause to be commenced) reconstruction of the
Premises within one hundred twenty (120) days after such occurrence and
prosecute the same diligently to completion, not to exceed two hundred seventy
(270) days from the date upon which Landlord receives applicable permits and
insurance proceeds. In the event Landlord shall fail to substantially complete
reconstruction of the Premises within said two hundred seventy (270) day period,
Tenant's sole remedy shall be to terminate this Lease.
(c) In the
event of any casualty at the Premises during the last one (1) year of the Lease
Term, Landlord and Tenant each shall have the option to terminate this Lease on
written notice to the other of exercise thereof within sixty (60) days after
such occurrence.
(d) In the
event of reconstruction of the Premises, Tenant shall continue the operation of
its business in the Premises during any such period to the extent reasonably
practicable from the standpoint of prudent business management, and the
obligation of Tenant to pay annual rental and any other sums due under this
Lease shall remain in full force and effect during the period of reconstruction.
The annual rental and other sums due under this Lease shall be abated
proportionately with the degree to which Tenant's use of the Premises is
impaired, commencing from the date of destruction and continuing during the
period of such reconstruction. Tenant shall not be entitled to any compensation
or damages from Landlord for loss of use of the whole or any part of the
Premises, Tenant's personal property, or any inconvenience or annoyance
occasioned by such damage, reconstruction or replacement.
(e) In the
event of the termination of this Lease under any of the provisions of this
paragraph 14, both Landlord and Tenant shall be released from any liability or
obligation under this Lease arising after the date of termination, except as
otherwise provided for in this Lease.
GOVERNMENTAL
ORDERS
15. Tenant, at its
own expense, agrees to comply with: (a) any law, statute, ordinance, regulation,
rule, requirement, order, court decision or procedural requirement of any
governmental or quasi-governmental authority having jurisdiction over the
Premises; (b) the rules and regulations of any applicable governmental insurance
authority or any similar body, relative to the Premises and Tenant's activities
therein; (c) provisions of or rules enacted pursuant to any private use
restrictions, as the same may be amended from time to time and (d) the Americans
with Disabilities Act (42 U.S.C. S. § 12101, et seq.) and the regulations and
accessibility guidelines enacted pursuant thereto, as the same may be amended
from time to time. Landlord and Tenant agree, however, that if in order to
comply with such requirements the cost to Tenant shall exceed a sum equal to one
(1) year's rent, then Tenant may terminate this Lease by giving written notice
of termination to Landlord in accordance with the terms of this Lease, which
termination shall become effective sixty (60) days after receipt of such notice
and which notice shall eliminate the necessity of compliance with such
requirements, unless, within thirty (30) days of receiving such notice, Landlord
agrees in writing to be responsible for such compliance, at its own expense, and
commences compliance activity, in which case Tenant's notice given hereunder
shall not terminate this Lease.
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EXTERIOR
SIGNS
20. Tenant
shall place no signs upon the outside walls, doors or roof of the Premises or
anywhere on the Property, except with the express written consent of the
Landlord in Landlord's sole discretion. Any consent given by Landlord shall
expressly not be a representation of or warranty of any legal entitlement to
signage at the Premises or on the Property. Any and all signs placed on the
Premises or the Property by Tenant shall be maintained in compliance with
governmental rules and regulations governing such signs and Tenant shall be
responsible to Landlord for any damage caused by installation, use or
maintenance of said signs, and all damage incident to removal
thereof.
LANDLORD'S
ENTRY OF PREMISES
21. Landlord
may advertise the Premises "For Rent" or "For Sale" 60 days
before the termination of this Lease. Landlord may enter the Premises upon prior
notice at reasonable hours to exhibit same to prospective purchasers or tenants,
to make repairs required of Landlord under the terms hereof, for reasonable
business purposes and otherwise as may be agreed by Landlord and Tenant.
Landlord may enter the Premises at any time without prior notice, in the event
of an emergency or to make emergency repairs to the Premises. Upon request of
Landlord, Tenant shall provide Landlord with a functioning key to the Premises
and shall replace such key if the locks to the Premises are
changed.
QUIET
ENJOYMENT
22. So long
as Tenant observes and performs the covenants and agreements contained herein,
it shall at all times during the Lease term peacefully and quietly have and
enjoy possession of the Premises, subject to the terms hereof.
HOLDING
OVER
23. If Tenant
remains in possession of the Premises after expiration of the term hereof,
Tenant shall be a tenant at sufferance and there shall be no renewal of this
Lease by operation of law. In such event, commencing on the date following the
date of expiration of the term, the monthly rental payable under Paragraph 3
above shall for each month, or fraction thereof during which Tenant so remains
in possession of the Premises, be twice the
monthly rental otherwise payable under Paragraph 3 above.
ENVIRONMENTAL
LAWS
24. (a)
Tenant covenants that with respect to any Hazardous Materials (as defined below)
it will comply with any and all federal, state or local laws, ordinances, rules,
decrees, orders, regulations or court decisions relating to hazardous
substances, hazardous materials, hazardous waste, toxic substances,
environmental conditions on, under or about the Premises or the Property or soil
and ground water conditions, including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Resource
Conservation and Recovery Act, the Hazardous Materials Transportation Act, any
other legal requirement concerning hazardous or toxic substances, and any
amendments to the foregoing (collectively, all such matters being "Hazardous
Materials Requirements"). Tenant shall remove all Hazardous Materials from the
Premises, either after their use by Tenant or upon the expiration or earlier
termination of this Lease, in compliance with all Hazardous Materials
Requirements.
(b) Tenant
shall be responsible for obtaining all necessary permits in connection with its
use, storage and disposal ofHazardous Materials, and shall develop and maintain,
and where necessary file with the appropriate authorities, all reports,
receipts, manifest, filings, lists and invoices covering those Hazardous
Materials and Tenant shall provide Landlord with copies of all such items upon
request. Tenant shall provide within five (5) days after receipt thereof, copies
of all notices, orders, claims or other correspondence from any federal, state
or local government or agency alleging any violation of any Hazardous Materials
Requirements by Tenant, or related in any manner to Hazardous Materials. In
addition, Tenant shall provide Landlord with copies of all responses to such
correspondence at the time of the response.
(c) Tenant
hereby indemnifies and holds harmless Landlord, its successors and assigns from
and against any and all losses, liabilities, damages, injuries, penalties,
fines, costs, expenses and claims of any and every kind whatsoever (including
attorney's fees and costs) paid, incurred or suffered by, or asserted against
Landlord as a result of any claim, demand or judicial or administrative action
by any person or entity (including governmental or private entities) for, with
respect to, or as a direct or indirect result of, the presence on or under or
the escape, seepage, leakage, spillage, discharge, emission or release from the
Premises or the Property of any Hazardous Materials caused by Tenant or Tenant's
employees, agents, invitees or contractors. This indemnity shall also apply to
any release of Hazardous Materials caused by a
fire or other casualty to the Premises if such Hazardous Materials were
stored on the Premises or the Property
by Tenant, its agents, employees, invitees or successors in
interest.
(d) For
purposes of this Lease, "Hazardous Materials" means any chemical, compound,
material, substance or other matter that: (i) is defined as a hazardous
substance, hazardous material or waste, or tox c substance pursuant to any
Hazardous Materials Requirements, (ii) is regulated, controlled or governed by
any Hazardous Materials Requirements, (iii) is petroleum or a petroleum product,
or (iv) is asbestos, formaldehyde, a radioactive material, drug, bacteria,
virus, or other injurious or potentially injurious material (by itself or in
combination with other materials).
(e) The
warranties and indemnities contained in this paragraph 24 shall survive the
termination of this Lease.
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SUBORDINATION; ATTORNMENT;
ESTOPPEL
25. (a)
This Lease and all of Tenant's rights hereunder are and shall be subject and
subordinate to all currently existing and future mortgages affecting the
Premises. Within ten (10) days after the receipt of a written request from
Landlord or any Landlord mortgagee, Tenant shall confirm such subordination by
executing and delivering Landlord and Landlord's mortgagee a recordable
subordination agreement and such other documents as may be reasonably requested,
in form and content satisfactory to Landlord and Landlord's mortgagee. Provided,
however, as a condition to Tenant's obligation to execute and deliver any such
subordination agreement, the applicable mortgagee must agree that mortgagee
shall not unilaterally, materially alter this Lease and this Lease shall not be
divested by foreclosure or other default proceedings thereunder so long as
Tenant shall not be in default under the terms of this Lease beyond any
applicable cure period set forth herein. Tenant acknowledges that any Landlord
mortgagee has the right to subordinate at any time its interest in this Lease
and the leasehold estate to that of Tenant, without Tenant's
consent.
(b) If
Landlord sells, transfers, or conveys its interest in the Premises or this
Lease, or if the same is foreclosed judicially or nonjudicially, or otherwise
acquired, by a Landlord mortgagee, upon the request of Landlord or Landlord's
successor, Tenant shall attorn to said successor, provided said successor
accepts the Premises subject to this Lease. Tenant shall, upon the request of
Landlord or Landlord's successor, execute an attornment agreement confirming the
same, in form and substance acceptable to Landlord or Landlord's successor and
Landlord shall thereupon be released and discharged from all its covenants and
obligations under this Lease, except those obligations that have accrued prior
to such sale, transfer or conveyance; and Tenant agrees to look solely to the
successor in interest of Landlord for the performance of those covenants
accruing after such sale, transfer or conveyance. Such agreement shall provide,
among other things, that said successor shall not be bound by (a) any prepayment
of more than one (1) month's rental (except the Security Deposit) or (b) any
material amendment of this Lease made after the later of the Lease Commencement
Date or the date that such successor's lien or interest first arose, unless said
successor shall have consented to such amendment.
(c) Within
ten (10) days after request from Landlord, Tenant shall execute and deliver to
Landlord an estoppel certificate (to be prepared by Landlord and delivered to
Tenant) with appropriate facts then in existence concerning the status of this
Lease and Tenant's occupancy, and with any exceptions thereto noted in writing
by Tenant. Tenant's failure to execute and deliver the Estoppel Certificate
within said ten (10) day period shall be deemed to make conclusive and binding
upon Tenant in favor of Landlord and any potential mortgagee or transferee the
statements contained in such estoppel certificate without
exception.
ABANDONMENT
26.
Tenant shall not abandon the Premises at any time during the Lease term. If
Tenant shall abandon the Premises or be dispossessed by process of law, any
personal property belonging to Tenant and left on the Premises, at the option of
Landlord, shall be deemed abandoned, and available to Landlord to use or sell to
offset any rent due or any expenses incurred by removing same and restoring the
Premises.
NOTICES
27. All
notices required or permitted under this Lease shall be in writing and shall be
personally delivered or sent by U.S. certified mail, return receipt requested,
postage prepaid. Notices to Tenant shall be delivered or sent to the address
shown at the beginning of this Lease, except that upon Tenant taking possession
of the Premises, then the Premises shall be Tenant's address for such purposes.
Notices to Landlord shall be delivered or sent to the address shown at the
beginning of this Lease and notices to Agent, if any, shall be delivered or sent
to the address set forth in Paragraph 3 hereof. All notices shall be effective
upon delivery. Any party may change its notice address upon written notice to
the other parties, given as provided herein.
GENERAL
TERMS
28. (a)
"Landlord" as used in this Lease shall include the undersigned, its heirs,
representatives, assigns and successors in title to the Premises. "Agent" as
used in this Lease shall mean the party designated as same in Paragraph 3, its
heirs, representatives, assigns and successors. "Tenant" shall include the
undersigned and its heirs, representatives, assigns and successors, and if this
Lease shall be validly assigned or sublet, shall include also Tenant's assignees
or sublessees as to the Premises covered by such assignment or sublease.
"Landlord", "Tenant", and "Agent" include male and female, singular and plural,
corporation, partnership or individual, as may fit the particular
parties.
(b) No
failure of Landlord to exercise any power given Landlord hereunder or to insist
upon strict compliance by Tenant of its obligations hereunder and no custom or
practice of the parties at variance with the terms hereof shall constitute a
waiver of Landlord's right to demand exact compliance with the terms hereof. All
rights, powers and privileges conferred hereunder upon parties hereto shall be
cumulative and not restrictive of those given by law.
(c) Time
is of the essence in this Lease.
(d) This
Lease constitutes the sole and entire agreement among the parties hereto and no
modification of this Lease shall be binding unless in writing and signed by all
parties hereto.
(e) Each
signatory to this Lease represents and warrants that he or she has full
authority to sign this Lease and such instruments as may be necessary to
effectuate any transaction contemplated by this Lease on behalf of the party for
whom he or she signs and that his or her signature binds such
party.
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(f) Upon
request by either Landlord or Tenant, the parties hereto shall execute a short
form lease (memorandum of lease) in recordable form, setting forth such
provisions hereof (other than the amount of annual rental and other sums due) as
either party may wish to incorporate. The cost of recording such memorandum of
lease shall be borne by the party requesting execution of same.
SPECIAL
STIPULATIONS
o If this box
is checked, additional terms of this Lease are set forth on Exhibit C attached
hereto and incorporated herein by reference. (Note: Under North
Carolina law, real estate agents are not permitted to draft lease
provisions.)
THIS
DOCUMENT IS A LEGAL DOCUMENT. EXECUTION OF THIS DOCUMENT HAS LEGAL CONSEQUENCES
THAT COULD BE ENFORCEABLE IN A COURT OF LAW. THE NORTH CAROLINA ASSOCIATION OF
REALTORS® MAKES NO REPRESENTATIONS CONCERNING THE LEGAL SUFFICIENCY, LEGAL
EFFECT OR TAX CONSEQUENCES OF THIS DOCUMENT OR THE TRANSACTION TO WHICH IT
RELATES AND RECOMMENDS THAT YOU CONSULT YOUR ATTORNEY.
IN WITNESS WHEREOF, the
parties hereto have hereunto caused this Lease to be duly executed.
LANDLORD:
Individual
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LANDLORD
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(SEAL)
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| Date: | |||
| Business Entity | |||
| n/a | |||
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(Name of
Firm)
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| By: | (SEAL) | ||
| Title: n/a | |||
| Date. n/a |
Business
| TENTAN: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| President for Anchor Funding Services, Inc | (SEAL) | ||
| By: Anchor Funding Services, Inc |
| Date: | |||
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| n/a | |||
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(Name of
Firm)
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| By: | (SEAL) | ||
| Title: n/a | |||
| Date. n/a |