HomeMy WebLinkAbout2008-087 Purchasing - Hillsborough Commons - Mayo Street Lease agreement® ''
rinase return tms copy to
Cleik to the Boazd's office for PAF -
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Prepared By: Marc Hagle
Retnrn To: Coleman, Gledhill, Hargrave & Peek, P.C., PO Drawer
1529, Hillsborough, North Carolina 27278
(..EASE AGREEMENT
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®RANGBE COUNTY,
NORTH CAROLINA
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HILLSBOROUGH COMMONS LI ITED
PARS~ TNERSHIP
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UNIT 01
HILLSBOROUGH COMMONS
SHOPPING CENTER
HILLSBOROUGH, NORTH CAROLINA
TABLE OF CONTENTS
SECTION PAGE
1. BASIC LEASE PROVISIONS ........: ............................................................................................1
2. DEMISED PREMISES .................................................................................................................2
3. TERM AND LEASE YEAR ....:.....................................................................................................3
4. MINIMUM RENT ..........................................................................................................................4
5. OPERATING EXPENSES ...........................................................................................................4
7. PAYMENTS BY COUNTY ...........................................................................................................7
8. LATE CHARGE ...........................................................................................................................7
9. SITE PLAN ..................................................................................................................................8
10. LANDLORD'S WORK ...........................................................:.....................................................8
11. COUNTY'S WORK ......................................................................................................................8
12. CONSTRUCTION OR ALTERATIONS BY COUNTY .................................................................9
13. USE ...........................................................................................................................................10
14. OPENING ..................:...............................................................................................................10
15. COUNTY'S COVENANTS WITH RESPECT TO OCCUPANCY ...............................................10
16. UTILITIES ............................................................................:.....................................................12
17. SIGN ..........................................................................................................................................12
18. LEGAL REQUIREMENTS ............................................................:............................................12
19. COMMON AREA .......................................................................................................................13
20. NOT USED ..........................................:.....................................................................................13
21. MAINTENANCE AND REPAIRS ...............................................................................................13
22. DELETED ..................................................................................................................................15
23. LANDLORD'S INSURANCE ......................:.........................................................:....................15
24. COUNTY'S INSURANCE ......................................:...................................................................15
25. HOLD HARMLESS ...................................................................................................................16
26. DESTRUCTION OF DEMISED PREMISES ..............................................................................16
27. CONDEMNATION .....................................................................................................................18
28. ASSIGNMENT, SUBLETTING AND ENCUMBERING LEASE .............................................:...18
29. SUBORDINATION, ATTORNMENT, AND FINANCING ...........................................................20
30. DEFAULT BY COUNTY ...............................................:............................................................21
31. REMEDIES OF DEFAULT ........................................................................................................22
32. ABANDONMENT OF PREMISES .....................:.......................................................................24
33. PERSONAL PROPERTY ..........................................................................................................24
34. DEFAULT BY LANDLORD ....: ..................................................................................................24
35. LIEN ON FIXTURES .................................................................................................................25
36. RIGHT OF ACCESS ..................................................................................................................25
37. RETURN OF DEMISED PREMISES .........................................................................................25
38. HOLDING OVER .......................................................................................................................25
39. COVENANT OF QUIET ENJOYMENT .....................................................................................26
40. ENVIRONMENTAL HAZARDS .......:..:..: :...............:..:......:.......:....:.:::.......................................26
41. MISCELLANEOUS ................................................................::...........:...................:..................27
42. AMENDMENT AND LIMITATION OF WARRANTIES ........:.......................................:..............30
43. OPTION TO PURCHASE ..........................................................................................................30
EXHIBIT A -LEGAL DESCRIPTION ...................................:....................................................37
EXHIBIT B -SITE PLAN ............................................................................................:..............38
EXHIBIT B -SITE PLAN ...........................................................................................................39
EXHIBIT C - AS IS CONDITION ...............................................................................................40
EXHIBIT D -COUNTY'S WORK ........................................................................................:......41
EXHIBIT E -COMPLETION ALLOWANCE RIDER .................................................................42
EXHIBIT F -RENEWAL OPTION ............................................................................................43
EXHIBIT G - RESTRICTIONS ...................................................................................................44
RIGHT OF RECAPTURE AND TERMINATION RIDER ..........................:.................................45
AFFIDAVIT ..........................................:.....................................................................................46
County of Orange, in North Carolina - Hills6orongh Commons
~C~O/U~N'TY
LEASE
THIS LEASE, entered into at this 2~ day of ~w~../ 2008,
("Effective Date") by and between HILLSBOROUGH OMMONS LIMITED
PARTNERSHIP, a North Carolina limited partnership ("Landlord") and Orange
County, North Carolina ("County").
WITNESSETH:
IN CONSIDERATION of the mutual covenants hereinafter contained, and each act
performed hereunder by either of the parties, Landlord and County agree as follows:
BASIC LEASE PROVISIONS
Section 1 is an integral part of this Lease and all of the terms hereof are
incorporated into this Lease in all respects. The Section references contained
herein are for convenience only and shall not be considered as a limitation on the
interpretation of the Lease, unless such reference specifically contains a clause
providing for such reference to be a limitation. In addition to the other provisions
which are elsewhere defined in this Lease, the following, whenever used in this
Lease shall have the meanings set forth in this Section 1:
(1) Shopping Center: Hillsborough Commons, situated in the Town of
Hillsborough, State of North Carolina (Section 2).
(2) Premises: Unit No. 01 containing approximately 56.328 square feet of
gross floor area (Section 2).
(3) County's Trade Name: Government of Orange County.
(4) Permitted Use: Permitted Use: Various Governmental Services ~to be
determined by the County. No prisonerdetenfion or other similar
services which will ~be detrimental to the Shopdina Center will be
permitted.
(Section 13).
(5) Lease Term: 10 years and 3 months (Section 3).
(6) Rent Commencement Date: 90 days following the execution of this Lease by
both. parties. (Section 3 & 4).
(7) Expiration Date: 123 months following Delivery of Possession.
(8) Minimum Rent during Lease Term: (Section 4).
$0 er month Month 1- 3
$59,363 er month Month 4- 63
$63,858 er month Month 64-123
O tion Periods -- $60 788 er month Month 124-183
$65 904 er month Month 184-243
$77 537 er month Month 244-303
$77,733 er month Month 304-363
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County of Orange, in North Carolina -Hillsborough Commons 07/02/08
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(9) NOT USED
(10)Delivery of Possession Date: the date upon which this Lease is approved by
the North Carolina Local Government Commission as evidenced by the
secretary's certificate hereon. (section lo).
(11)Outside Opening Date: As soon as practicable in the sole discretion of the
County. (Section 14).
(12)NOT USED
(13)NOT USED
(14)NOT USED
(15)Security Deposit: none (Section 6).
(16)Options to Renew: See Renewal Option Rider (to be initialed if attached).
4 consecutive period(s) containing
60 months each ("Renewal Term");
90 days prior notice to exercise required.
(17)Landlord: Hillsborough Commons Limited Partnership
100 East Sybelia, Suite 120
Maitland, Florida 32751
Atterition: CEO
Federal I. D. # 65-0049695
(18)County: Oranare County. North Carolina. ~4ftention Pam Jones
PO BOX 8181
129E Kin4 Street. Hillsborou4h. NC 27278
Phone: 919-245-2652
E-Mail: pj nes~a.co.oranpe.nc.us
Tax LD. #: 56-6000327
(19)NOT USED
(20)Buildina Manaaer: Tricor International Corporation or such other person as
Landlord may designate.
(21)Countv's Proportionate Share: 52.26%
(22)Base Year Stop : 221751
2. DEMISED PREMISES. ~ Landlord hereby leases to .County for the term and upon
the covenants hereinafter set forth the premises hereinafter identified on the
schedule attached hereto and made a part hereof entitled Basic Lease
Provisions, see Section 1; (hereinafter "Basic Lease Provisions") that certain
portion of the Shopping Center identified as Unit 01 on Exhibit B -The Shopping
Center of which the Demised Premises are a part is described in Exhibit A
County of Orange, in North Carolina - Hillsborough Commons 07/02/08
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LAND I2D
hereto, which exhibit is incorporated herein by reference. The leased space
shall hereinafter be referred to as the "Demised Premises". The Demised
Premises is outlined on the site plan of the Shopping Center attached hereto and
made a part hereof as Exhibit B.
Landlord shall not alter the Shopping Center by selling or acquiring lands
increasing its size, reducing its size and/or otherwise alter the Shopping Center
during the term (or any renewal term) of this Lease except any alteration
necessary to subdivide Outparcel A from the Shopping Center. Notwithstanding
the foregoing to the contrary, Landlord may develop Outparcel A as shown on
Exhibit B during the term of this Lease, including any renewal term. In no event
shall Landlord use or allow Outparcel A to be used for any of the following
activities during any term of this Lease: check cashing, pay-day lending, bowling
alley, skating rink, bar (as distinguished from a restaurant deriving at least 60%
of its Gross Sales from the sale of nonalcoholic beverages and food), theater,
amusement park, carnival, meeting hall, banquet facility, entertainment facility,
disco or other dance hall, nightclub establishment, sporting events, for any
manufacturing, for the sale of cars or boats (new or used), trailers, mobile homes
(if inventory is stored in the Common Areas of the Shopping Center), lumber
yard (except in connection with a retail home improvement store such as Lowe's
or Home Depot), video arcade or other game parlor, pool hall, billiard parlor,
amusement center, off-track betting establishment, flea-market, massage parlor,
tattoo or body piercing facility, auditorium, or far the sale and display of obscene
or pornographic materials. Additionally, notwithstanding anything contained
herein to the contrary, for the limited purposes of reducing the County's Common
Area Maintenance Charges, Taxes, Insurance and Reserves, Landlord shall
have the right, from time to time, in its sole discretion, to include parcels
adjacent to or within the Shopping Center, which may be owned by Landlord or
an entity other than Landlord, including, without limitation, Landlord's affiliates,
subsidiaries, joint venture partners or parent entity. The County's Proportionate
Share may be decreased pursuant to this Paragraph, but it shall not be
increased above 52.26%. Outparcel A and any building located thereon has not
and will not be used to calculate County's Proportionate Share.
Landlord reserves the right to maintain, repair, and replace utility lines under,
over, upon or through the Demised Premises or the Shopping Center as may be
reasonably necessary or advisable for the servicing of the Demised Premises or
other portions of the Shopping Center. Landlord further reserves the right to use
for non-commercial purposes (or grant to other parties the right to use for non-
commercial purposes) and County will have no right title or interest iri (i) the roof
of the buildings within the Shopping Center, including the Demised Premises, (ii)
exterior non-storefront portions of the Demised Premises (including, without
limitation, neutral piers, demising walls, and outer walls of buildings in which the
Demised Premises are located), (iii) air rights above the Shopping Center,
including the Demised Premises, and (iv) the right to land and improvements
below the floor level of the Demised Premises. Landlord shall not lease any
rooftop within the Shopping Center, including the rooftop of the Demised
Premises.
3. TERM AND LEASE YEAR., The Term of this Lease for a total of 123
consecutive months as specified in the Basic Lease Provisions and shall begin
on the date this lease is approved by the North Carolina Local Government
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County of Orange, in Norkh Carolina -Hillsborough Commons 07/02/08
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Commission as evidenced by the secretary's certificate hereon. The terms and
provisions of this Lease (excluding specifically, payment of Minimum Rent,
Common Area Charges, Taxes and Insurance Charges and other monthly
charges (hereinafter defined)) shall become effective upon the Delivery of
Possession Date. The first payment of Minimum Rent, Common Area Charges,
Taxes and Insurance Charges and other monthly charges shall be due and
payable Ninety (90) days following the execution of this Lease by both parties
(the Rent Commencement Date): Any and all payments required hereunder are
contingent upon the County's receipt of the North Carolina Local Government
Commission's approval of this Lease as specified in Section 44. Any monies
which would have been due and payable commencing upon the Delivery of
Possession Date through the Rent Commencement Date are hereby waived by
Landlord as a Rental Concession. County acknowledges that Minimum Rent
and all other charges pursuant to this Lease would have commenced on the date
of Delivery of Possession should Landlord not have provided County with a
Rental Concession for same.
The term "Lease Year", as used herein, shall be a calendar year and each Lease
Year shall begin on January 1. The term "Lease Year" does not apply to the
Lease Term or Term as: used Herein. Lease Year. shall have no meaning as to
the beginning and ending dates of the Lease and is only used for the purposes
of pro-rating Common Area Maintenance, Tax and Insurance expenses,
Reserves, and rent increases. The first Lease Year of this Lease Term shall
begin on the first day of January next following the Commencement Date and
each succeeding Lease Year shall begin on the first day of each succeeding
January during the Lease Term. Any portion of the Lease Term which is prior to
January 1 of the first Lease Year or after December 31 of the final Lease Year
shall be deemed a "Partial Lease Year."
4. MINIMUM RENT. Beginning on the Rent Commencement Date, and not before,
County shall pay, without set-off or deduction, monthly "Minimum Rent" in
advance on the frst day of each calendar month in the amounts set forth in the
Basic Lease Provisions. If the Rent Commencement. Date occurs on other than
the first day of a month, the first installment of Minimum Rent shall be prorated
on a per diem basis (based on a thirty (30) day calendar month). The first
month's installment of Minimum Rent and Additional Rent along with any
prorated Minimum Rent and Additional Rent due Landlord, if any, shall be due
and payable on the Rent Commencement Date.
5. .OPERATING EXPENSES.
(a) In addition to the Minimum Rent, County shall pay (as hereinafter defined)
such expenses for Real Estate Taxes, Insurance and Operating Expenses
incurred by Landlord for or during each calendar year during the Term in excess
of the Base Year Stop of 221 751 (such excess hereinafter referred to as the "Excess
Expenses").
~~
(b) (i) Real Estate Taxes shall mean all governmental imposts, levies, fees,
taxes, assessments (both general and special) for charges of every kind and
nature whatsoever, which are levied, assessed, or imposed against the
Shopping Center or any portion thereof by reason of its ownership and operation
of the Shopping Center and its receipt of rent there from, including without
County of Orange, in North Carolina -Hillsborough Commons 07/02!08
INITIALS
LANDLORD C TY
limitation, ad valorem taxes, real estate taxes, any other tax on rent or real
estate, water, sewer or other utility and all other governmental exactions from
time to time directly or indirectly assessed or imposed upon the Shopping Center
and/or the portion of the land upon which it is situated.
(ii) "Insurance" shall mean and include such fire and extended coverage
insurance, comprehensive general liability coverage, umbrella liability coverage,
commercial automobile liability coverage on the Shopping Center improvements
constructed by Landlord in an amount equal to at least eighty percent (80%) of
the insurable value of such improvements, together with endorsements insuring
against such other risks (including, but not limited to, earthquake, boiler and
machinery, plate glass, power failure, windstorm, terrorism, seepage or leakage).
County shall have no rights in said policy or policies maintained by Landlord and
shall not be entitled to be a named insured thereunder. In the event any of
Landlord's policies insures Demised Premises or risks other than the Shopping
Center or the rents therefrom, the statement of the insurer shall be conclusive as
to the portion of the total premium attributable to the Shopping Center. Landlord
shall provide County a certificate of Landlord's Insurance.
(iii) "Operating Expenses" shall mean all expenses paid or incurred by
Landlord or on Landlord's behalf in respect of the management, repair, operation
and maintenance of the Shopping Center. Operating Expenses shall include
but not be limited to the following: (1) salaries, wages and benefits of
employee of Landlord engaged in the management, repair, operation and
maintenance of the Shopping Center; (2) payroll taxes, workmen's
compensation, uniforms and related expenses for such employees; (3) the cost
of all charges for oil, gas, steam, electricity, any alternate source of energy, heat,
ventilation, air-conditioning, water, sewers and other utilities furnished to the
Building or Shopping Center (including the Common Areas and leased areas
thereof), together with any taxes on such utilities; (4) the cost of painting
non-County space; (5) the cost of all charges for rent, casualty, liability and
fidelity insurance with regard to the Shopping Center and the maintenance or
operation thereof; (6) the cost of all supplies (including cleaning supplies), tools,
materials and equipment, the rental thereof and sales and other taxes thereon;
(7) depreciation of hand tools and other removable equipment used in the repair,
operation or maintenance of the Shopping Center; (8) the cost of all charges for
window and other cleaning and janitorial, snow and ice removal, and security
services; (9) charges of independent contractors; (10) repairs and replacements
made by Landlord at its expense; (11) exterior and interior landscaping; (12)
alterations and improvements to the Building made by reason of the laws and
requirements of any public authorities or the requirements of insurance bodies;
(13) management fees or, if. no managing agent is employed by Landlord, a sum
in lieu thereof which is not in excess of the then prevailing rates for management
fees of other first class buildings in the area in which the Building is located; (14)
the cost of any capital improvements or additions to the Building which improve
the comfort or amenities available to tenants of the Building and are agreed to by
the County in advance of any such improvements or additions being made; (15)
the cost of any capital improvements or additions to the Building and of any
machinery or equipment installed in the Building which are made or become
operational, as the case may be, during the Term and which have the effect of
reducing the expenses which otherwise would be included in Operating
Expenses to the extent of the lesser of (A) such cost, as reasonably amortized
by Landlord with interest on the unamortized amount at the prime rate then
County of Orange, in North Carolina - Hillsboroagh Commons 07/02/08
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generally available in the State, or (B) the amount of such reduction in Operating
Expenses; (16) reasonable legal, accounting and other professional fees
incurred in connection with the operation, maintenance and management of the
Shopping Center specifically excluding any and all fees, legal or otherwise,
expended for either the collection of rent from any tenant occupying space within
the Shopping Center; (17) Real Estate Taxes; and (18) all other charges properly
allocable to the repair, operation and maintenance of the Building in accordance
with generally accepted accounting principles. Excluded from Operating
Expenses shall be the following: (aa) depreciation (except as~provided above);
(bb) interest on and amortization of debts; (cc) leasehold improvements including
redecorating made for tenants of the Building; (dd) brokerage commissions and
advertising expenses for procuring new tenants of the Building; (ee) refinancing
costs; (ff) the cost of any repair or replacement, other than as described in
clauses (10), (12), (14) or (15) above, which would be required to be capitalized
under generally accepted accounting principles, except that if under such
principles such costs may be amortized over a period of not more than 10 years,
then a proportionate part of such cost may be included each year in Operating
Expenses over the useful life (as reasonably estimated by Landlord) of such
repair or replacement; (gg) the cost of any item included in Operating Expenses
under clauses (1)-(18) to the extent that such cost is reimbursed by an insurance
company or a condemnor or a Tenant (except as a reimbursement of Operating
Expenses) or any other party, but if at the time Operating Expenses are
determined for a calendar year such reimbursement has not been made, such
expenses may be included in Operating Expenses and an adjustment shall be
made when and if such reimbursement is actually received.
(c) In order to provide for current payments on account of Excess Expenses,
County shall, at Landlord's request, pay as additional rent, an amount equal to
County's Proportionate Share of the Excess Expenses due for the ensuing 12
months, as estimated by Landlord from time to time, in 12 equal monthly
installments, commencing on the first day of the month following the month in
which Landlord notifies Tenant of the amount. It is the intention hereunder to
estimate the amount of the Excess Expenses for each calendar year and then to
adjust such estimate in the following year based on the actual Excess Expenses
incurred or paid by Landlord.
(d) On or before March 1 of each calendar year (or as soon thereafter as is
practical), Landlord or the Building Manager shall deliver to County a statement,
certified by an officer of Landlord, of County's Proportionate Share of the
Excess Expenses for the preceding calendar year. If County's Proportionate
Share of the actual Excess Expenses for the previous calendar year exceeds the
aggregate of the estimated monthly payments made by County for such year,
County shall within 30 days of the receipt of the statement, tender to Landlord an
amount equal to such excess as additional rent. If such aggregate of the
estimated monthly payments exceeds County's Proportionate Share of the actual
Excess Expenses for such calendar year, then Landlord shall credit against
County's next ensuing monthly installment or installments of the Rent an amount
equal to such difference until the credit is exhausted.
(e) If a credit is due from Landlord on the Termination Date, County shall be
entitled to receive the amount of the credit in the form of payment from Landlord,
provided, however, that Landlord may, in lieu of such payment, apply the credit
against any Rent which is due but not paid on said date. No interest or penalties
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Connty of Orange, in North Carolina -Hillsborough Commons 07/02/08
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shall accrue on any amounts which Landlord is obliged to credit or pay to County
by reason of this Section. The obligations of County and Landlord to make
payments or credits required by this Section shall survive the Termination Date.
(f) Each statement given by Landlord or the Building Manager pursuant to this
Section shall be conclusive and binding upon County unless within 30 days after
the receipt of such statement County shall notify Landlord that it disputes the
correctness of the statement, specifying the particular respects in which it is
claimed to be incorrect. If such dispute shall not have been settled by
agreement, then; pending the legal determination of such dispute by a later
agreement or litigation, County shall pay additional rent in accordance with such
statement and such payment shall be without prejudice to County's position. If
the dispute shall be determined in County's favor, Landlord shall forthwith credit
County the amount of County's overpayment of additional rent resulting from
compliance with Landlord's statement. Landlord shall grant County reasonable
access to Landlord's books and records for the purpose of verifying the Excess
Expenses.
(g) If the Commencement Date is other than January 1, County's Proportionate
Share of Excess Expenses for the calendar year in which the Commencement
Date occurs shall be multiplied by a fraction, the numerator of which shall be the
number of days from the Commencement Date to the following December 31
and the denominator of which shall be 365.
(h) In no event shall the percentage increase in Operating Expenses from Lease
Year to Lease Year be greater than five (5) percent. For example, the Operating
Expenses for the second Lease Year shall not be increased on a percentage
basis over and above the Base Year Stop of $221,751 by a greater percentage
rate than five. (5) percent. Notwithstanding, there shall be no limitation on
increases for utilities, snow and ice removal or amortized capital repairs.
6. NOT USED
7. PAYMENTS BY COUNTY. All payments and charges required from County
hereunder shall be payable in U.S. currency without notice or demand, at the
address indicated herein. No payment to or receipt by Landlord of an amount
less than the then amount required to be paid hereunder shall be deemed to be
other than on account of the earliest amount then due hereunder. No
endorsement or statement on any check or other communication accompanying
a check for payment of any amounts payable hereunder shall be deemed an
accord and satisfaction, and Landlord may accept any such check in payment
without prejudice to Landlord's right to recover the balance of any sums owed by
County hereunder or to seek recovery of possession for non-payment of the full
amount due and owing Landlord. County hereby waives any and all right to
offset or charge any amount owed to County by Landlord against the minimum
rent, or any other monies due Landlord under this Agreement.
8. 1~4TE CHARGE. County's failure to pay Minimum Rent, Additional Rent, any
other Lease costs or other monies due hereunder, when due under this Lease
may cause Landlord to incur unanticipated costs. The exact amount of such
costs is impractical or extremely difficult to ascertain. Such costs may include,
but are not limited to, processing and accounting charges and late charges that
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County of Orange, in North Carolina -Hillsborough Commons 07/02/08
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may be imposed on Landlord by any ground lease, mortgage, or deed of trust
encumbering the Shopping Center. Therefore, if Landlord does not receive the
Minimum Rent, Additional Rent, any other Lease costs or other monies due
hereunder in full on or before the fifth (5th) day of the month it becomes due,
with the exception of,the July payments which shall be due and payable no later
than the 10~' day of July. County shall be in Default under this Lease if any
payment is not paid on or before its due date. Should County be in Default, for
not making a payment on or before its due date, than in that event upon ten (10)
days written notice from Landlord, interest at the rate of eight percent (8%) or at
the highest rate allowed by law, whichever is less, shall accrue on the amount of
such sums in default or other sums of money due Landlord hereunder.
9. SITE PLAN. Exhibit B sets forth the general layout of the Shopping Center.
Landlord may change or alter the parking lot layout, so long as the total number
of parking spaces available to the County as of the Effective Date is not reduced
below 450. Landlord may not change or alter any of the buildings in the
Shopping Center, nor may Landlord sell or lease any portions of the Shopping
Center except in accordance with Section 43 "Option to Purchase" of this Lease
and except in accordance with the Right of Refusal. Landlord hereby agrees
that the location and actual size of the Demised Premises shall remain
.unchanged.
10. LANDLORD'S WORK. See "AS IS" Rider attached hereto as Exhibit "C". All
other work done by Landlord at County's request (if any and for which Landlord
shall have no obligation to perform unless agreed to in writing) shall be at
County's expense and shall be paid for within ten (10) days after the presentation
to County of a bill for such work.
11. COUNTY'S WORK. Other than work done pursuant to Section 10, all work is to
be performed by County at its expense, except as provided in "Completion
Allowance" Rider attached hereto as Exhibit E (hereinafter referred to as
"County's Work") shall be in accordance with Exhibit D attached hereto. All entry
into the Demised Premises and work done by County shall be at County's risk
and all work shall be subject to Landlord's approval and shall be in accordance
with good construction practices, all applicable laws, and insurance
requirements. Further, Landlord shall have no responsibility or liability for any
loss or damage to County's property and County agrees to pay for any utilities
used prior to the Rent Commencement Date. County shall furnish all certificates
and approvals, which may be necessary, so that a certificate of occupancy for
the Demised Premises may be issued, a copy of which shall be delivered to
Landlord. The Demised Premises shall be ready for the opening of County's
business by the Outside Opening Date. Within ninety (90) days from the date of
this Lease, County shall prepare and deliver to Landlord 2 copies of detailed
plans and specifications on 11" x 17° paper of the improvements to the Demised
Premises to be constructed by County in compliance with Exhibit "B" attached
hereto and made a part hereof. If County's plans and specifications are not
acceptable to Landlord, Landlord will advise County of the required modifications
to County's plans and specifications. County shall modify and deliver to
Landlord its revised plans and specifications as soon as practicable from receipt
of Landlord's required modifications. Landlord and County will continue this
process until Landlord has approved County's plans and specifications
("County's Work"). As soon as practicable from receipt of Landlord's approval of
Connty of Orange, in North Carolina -Hillsborough Commons 07!02/08
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County's plans and specifications, County will apply for any and all permits and
other governmental approvals necessary to perform County's Work and County
will diligently prosecute such application until approved. County shall not modify
County's plans and specifications approved by Landlord without Landlord's prior
written consent, which consent shall not be unreasonable withheld. Upon
Landlord's delivery of the Demised Premises, and provided Landlord has
approved County's plans and specifications, County will commence construction
of County's improvements to the Demised Premises in accordance with the
plans and specifications approved by Landlord. Work completed by County shall
be consistent with laws governing County construction projects and County shall
provide Landlord a copy of such construction documents prior to commencement
of County's Work. County shall submit to Landlord for Landlord's approval
County's plans and specifications for County's exterior signage in accordance
with Exhibit "E" of this Lease (see Section 17). County must receive Landlord's
consent to its exterior signage plans and specifications prior to installation of~
County's exterior signage upon the Demised Premises. Landlord requires
County to install its approved exterior signage, at County's sole cost and
expense, prior to the date County opens for business to the public from the
Demised Premises.
County shall be required to clean all H.V.A.C. filters clogged with dust, or other
materials resulting from its construction activities.
12. CONSTRUCTION OR ALTERATIONS BY COUNTY.
(a) County may not make any alterations to the Demised Premises without prior
written consent of Landlord, and pursuant to all requirements of Section 11.
Such alterations shall be performed in a good and workmanlike manner and in
accordance with applicable legal requirements including mechanics' lien laws,
insurance requirements, and the terms of this Lease. Nothing contained within
this Lease shall be construed as a prohibition against County's replacement or
installation of windows, skylights, or other day lighting whatsoever regardless of
whether roof or wall penetrations are required for such installation.
(b) County agrees to indemnify (to the extent of insurance policies owned by the
County and to the extent of applicable law) and hold Landlord harmless from
and against. any and- all liabilities incurred by County or claimed or charged
against the Demised Premises on account of any, claims; expenses or liens
incurred by County in connection with the Demised Premises and not to permit to
be attached or recorded against the Demised Premises or any other portion of
the Shopping Center any lien, encumbrance or charge arising out of any work
performed or materials furnished by any contractor, mechanic, laborer, or
materialman for or at the request of County. County will not enter into any
mortgages, conditional sale, and security agreement or like instrument nor suffer
any other matter or thing whereby the estate, right and interest of Landlord in the
Demised Premises or any part thereof might be impaired or diminished. If any
lien or notice of lien on account of an alleged debt of County or any notice of
contract by a party engaged by County or County's contractor to work on the
Demised Premises is filed against the Demised Premises or any part of the
Shopping Center, County will, within thirty (30) days after notice of the filing
thereof, cause the same to be discharged of record by payment, deposit, bond,
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O
order of a court of competent jurisdiction, letter of credit or other adequate
security.
(c) If, in an emergency, such repairs are not completed by County, it becomes
necessary to make repairs required to be made by Tenant, Landlord may reenter
the Demised Premises and proceed to have such repairs made and pay the
costs thereof. Tenant shall pay the Landlord the costs of such repairs plus a ten
(10) percent administrative fee on demand as Additional Rent. .
(d) All alterations, additions and improvements to the premises made by County
or Landlord shalt immediately become the property of Landlord and shall be
surrendered with the premises at the termination of the Lease. All trade fixtures
installed by County shall be new or completely reconditioned. County may
remove said trade fixtures from the Demised Premises from time to time during
the Lease term, provided County repairs any damage to the Demised Premises
caused by removal of such fixtures. (See Section 37)
(e) County shall be permitted to .make roof penetrations for the exclusive
purpose of installation of skylights and additional day lighting in the Demised
Premises.
13. USE. County shall use and occupy the Demised Premises for the purposes
described in the Basic Lease Provisions only, and for no other purpose.
14. OPENING. DELETED.
15. COUNTY'S COVENANTS WITH RESPECT TO OCCUPANCY.
County agrees:
(1) To occupy the Demised Premises in a safe and careful manner and in
compliance with all laws, ordinances, rules, regulations and orders of any
governmental bodies having jurisdiction over the Demised Premises, and without
committing or permitting waste;
(2) To neither do nor suffer anything to be done or .kept in or about the
Demised Premises which contravenes Landlord's insurance policies or increases
the premiums therefore;
(3) To keep its show or display windows, canopy and electric signs, if any,
lighted until at least 9:30 P.M. local time of each day or until thirty (30) minutes
after the close of each business day, whichever is the later;
(4) To permit no reproduction of sound which is audible outside the Demised
Premises, nor permit odors to be unreasonably dispelled from the Demised
Premises;
(5) To place no sign on the exterior of the Demised Premises or on the interior
surface of any, windows of the Demised Premises without Landlord's prior written
consent and in accordance with the requirements of Exhibit "E" attached hereto.
County shall maintain all signs placed upon the Demised Premises by County in
good condition and repair. County agrees not to display any commercial;
banners, pennants, search lights, window signs,. balloons, or similar advertising
media on or about the Demised Premises. Upon vacating the Demised
Premises, County agrees to remove all signs installed by County and repair all
damage caused by such removal in accordance with Section 37, of this Lease;
(6) To place no merchandise, sign or other thing of any kind on the sidewalks
or other Common Areas adjacent thereto;
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(7) DELETED ;
(8) To prohibit the burning of any trash of any kind, in or about the building or
premises and to keep any rubbish, garbage and waste generated by County
from the Demised Premises in proper dumpsters provided by County adjacent to
the Demised Premises or such other area designated by Landlord from time to
time until such rubbish, garbage and waste is removed from the Shopping
Center and to permit no refuse to accumulate around the exterior of the Demised
Premises;
(9) DELETED;
(10) DELETED;
(11) To permit Landlord free access to the Demised Premises at all reasonable
times for the purpose of examining or making repairs to the Demised Premises
that Landlord may deem necessary or desirable for the safety or preservation
thereof;
(12) To solicit no business in the Common Areas, nor distribute handbills or
other commercial advertising matter to customers, nor place the same in or on
automobiles in the Common .Areas, nor conduct any promotional activity
whatsoever in the Common Areas without the prior written permission of
Landlord which such permission will not be unreasonably withheld;
(13) To comply with all additional reasonable rules and regulations which
Landlord may from time to time establish for the use and care of the Demised
Premises and the Common Areas which such rules shall be provided to County
thirty (30) days in advance of the effective date of any such rule;
(14) NOT USED
(15) DELETED;
(16) DELETED;
(17) To permit Landlord or its agents, during the one hundred and eighty (180)
day period preceding the expiration of Lease Term,' to show the Demised
Premises to potential tenants, and to place on the Demised Premises notices
offering the Demised Premises for lease or sale;
(18) Any unauthorized roof installations or penetrations by County shall be
subject to immediate removal and repair, at County's sole cost and expense,
upon notice from Landlord. Repairs shall be made with materials of equal or
better quality and by contractors approved by Landlord;
(19) County shall, at its sole cost and expense, upon Landlord's reasonable
request: (i) temporarily relocate and/or remove County's signage; and/or (ii)
modify County's signage to conform to Landlord's signage criteria, then in effect,
that applies to the Shopping Center, provided such requirements are uniformly
applied to Landlord and all tenants of the Shopping Center and uniformly
enforced;
(20) County shall, at its sole cast and expense, contract for pest extermination
services covering the Demised Premises to be rendered as may be reasonably
required by Landlord but no more frequently than two (2) times in any given
lease year; County shall not be responsible for any damage to the Demised
Premises caused by termites or other pests whatsoever during any Term of this
Lease;
(21) NOT USED
(22) DELETED
(23) To observe all easements and restrictive covenants of record which are
applicable to the Shopping Center and which are listed in Exhibit G attached
hereto and incorporated herein by reference, provided the same do not prohibit
County's Permitted Use of the Demised Premises;
(24) DELETED;
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(25) DELETED.
16. UTILITIES. Commencing on the Delivery of Possession Date, County shall pay
for all utilities provided to or for the benefit of the Demised Premises, including
but not limited to waterlsewer, demand or reservation fees, connection fees, tap
fees, gas, electricity, fuel, light, heat, power, telephone, cable, and trash and
garbage removal, together with all taxes levied or other charges on such utilities
and governmental charges based on utility consumption as applicable. County
shall, at its sole cost and expense, pay for the cost of installation of meters for
the Demised Premises and any and all related costs and expenses if such
meters do not exist at the Demised Premises on the date possession of the
Demised Premises is made available to County. County agrees to hold Landlord
harmless from any and all claims arising from the installation, interruption, and
maintenance of such utility services and from all costs and charges for utilities
consumed on the Demised Premises. Landlord makes no representations as to
the quality or suitability of the electric power provided by the utility company as it
may apply to computer hardware or similar equipment, which may be used by
County. If any utilities are.not separately metered or are only partly separately
metered and are used in common with other tenants of the Shopping Center,
County shall pay to Landlord its share of such utility costs computed by
Landlord, in Landlord's sole discretion, to accurately reflect County's
consumption of such utility from the Demised Premises.
17. SIGN. County shall install and maintain one (1) sign affixed to the front of
the Demised Premises, subject to the written approval of Landlord, and legal and
insurance requirements. County's sign shall be consistent with the specifications
and requirements contained in Exhibit E attached hereto. County. shall pay for
all costs in connection with such sign and shall be responsible for the cost of
proper installation and removal thereof and any damage caused to the Demised
Premises thereby. In the event Landlord deems it necessary to remove such
sign, the Landlord shall have the right to do so if Landlord replaces the sign at no
cost to the County. No additional signs which can be seen from the exterior of
the Demised Premises shall be installed without the prior written consent of
Landlord.
18. LEGAL REQUIREMENTS. County shall procure and maintain all licenses and
permits legally necessary for the operation of County's business and allow
Landlord to inspect them on request. County shall. not use the Demised
Premises or permit anything to be done in or about the Demised Premises which
will in any way conflict with any law, statute, ordinance or governmental rule or
regulation now in force or which may hereafter be enacted or promulgated.
County shall at its sole cost and expense comply with all laws, statutes,
ordinances and governmental rules, regulations, notices from Landlord's
mortgagee concerning matters of occupancy, condition or maintenance of the
Demised Premises, whether such orders or directions shall be directed to
Landlord or County, or requirements of any board of fire underwriters (including
all modifications and improvements required thereby) now in force or which may
hereafter be in force relating to or affecting the condition, use or occupancy of
the Demised Premises, including without limitation the American With Disabilities
Act. County shall observe all plat and deed restrictions of record that are
included on .Exhibit G. Without limiting the generality of the foregoing, County
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b'
will not generate, store, bury, discharge or release on or from the Demised
Premises any hazardous substances or waste in a manner which would give rise
to penalty or liability under the Resources Conservation Recovery Act 42 U.S.C.
6901 et seq., or any other federal, state or local law. Landlord further
represents and warrants that it knows of no legal reason that County would be
prevented from engaging in the Permitted Use within the Demised Premises.
19. COMMON AREA
(a) Common Areas. Landlord grants to County and County's clients and
invitees the non-exclusive right to use the areas designated by Landlord from
time to time as Common Areas. The term "Common Areas" shall mean the
parking areas, roadways, pedestrian sidewalks, delivery areas, exterior surfaces
of Shopping Center buildings, landscaped areas, service courts, open and
enclosed courts and malls, fire corridors, meeting areas and public restraoms,
not located within any tenant's space, and all other areas or improvements.
which may be provided by Landlord for the common use of the tenants of the
Shopping .Center. Landlord does not represent or warrant that the Common
Areas will be free from interruption of service or use for reasons beyond
Landlord's reasonable control. In no event shall Landlord be liable for
compensatory, incidental or consequential damages by reason of such
interruption. Landlord hereby reserves the following rights with respect to the
Common Areas:
(1) To establish reasonable rules and regulations for the use thereof (there
are none as of the date hereof);
(2) To use or permit the use by others to whom Landlord may have granted
such rights for promotional activities, provided said activities do not conflict
with or negatively impact the Intended Use;
(3) To close all or any portion thereof as may be deemed necessary by
Landlord to prevent a dedication thereof or the accrual of any rights to any
person or the public herein;
(4) DELETED;
(5) To erect and install signs, kiosks, landscaping (including planters),
fountains, sculptures, free standing buildings and other structures, additional
stories to existing buildings or otherwise that do not reduce parking area
below 450 or negatively impact the public's accessibility of the Demised
Premises; and
(6) To operate, manage, equip, light, repair and maintain said Common
Areas for their intended purposes in such manner as Landlord shall in its sole
discretion from time to time determine.
(b) Any damage which may be done to the Common Area or facilities of
Landlord by the County, or by any person is engaged in business on behalf of
the County, including its employees, agents, concessionaires or sub-lessees or
anyone in its employ, excluding ordinary wear and tear, shall be repaired at the
sole cost and expense of County.
20. NOT USED
21. MAINTENANCE AND REPAIRS.
(a) Repairs b~ Landlord. Landlord shall keep the foundations, roof, and
structural portions of the outer walls of the Demised Premises in good repair,
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except for repairs required thereto by reason of the acts of County, County's
employees, agents, invitees, licensees, or contractors. Notwithstanding anything
herein to the contrary, some or all of these repairs will be subject to inclusion in
Operating Expenses, including, but not limited to roof repairs and the cost of
painting of the outer walls of the shopping center buildings, including the
Demised Premises. County shall.give Landlord written notice of the necessity for
repairs coming to the attention of County following which Landlord shall have a
reasonable time to undertake and complete such repairs. The provisions of this
Section 21, shall not apply in the case of damage or destruction by fire or other
casualty or by eminent domain, in which events the obligations of Landlord shall
be controlled by either Section 26 or Section 27 hereof.
It is expressly understood that Landlord shall not be responsible for any portions
of the Demised Premises constructed by County.
~) Repairs by County. Except as provided in Section 19, County shall keep all
aspects of the Demised Premises and any fixtures, facilities, signs or equipment
contained therein, in good condition and repair, including, but not limited to,
exterior and interior portions of all doors, door checks and operations, windows,
plate glass, and showcases surrounding the Demised Premises, the heating, air
conditioning, electrical, plumbing and sewer systems, the exterior doors, window
frames, and all portions of the store front area, and shall make any replacements
thereof and of all broken and/or cracked plate and window glass which may
become necessary during the Term of this Lease, and any renewals thereof,
excepting any repairs to items of Landlord's original construction made
necessary by reason of damage due to fire or other casualty covered by
standard fire and extended coverage insurance. County shall be responsible for
repair to any items of repair required of Landlord, including but not limited to:
roof, exterior or structural elements of the Demised Premises if such repairs are
necessary as a result of County's negligent or intentional actions or the negligent
or intentional actions of County's agents, employees, customers, invitees, or
licensees. In connection with County's obligation to maintain the HVAC system
servicing the Demised Premises, County shall, during the Term of this Lease,
and any renewals thereof, at its sole cost and expense, provide routing
maintenance through its building maintenance staff.
(c) Landlord shall not be liable to County, except as expressly provided in this
Lease, for any damage or inconvenience, and County shall not be entitled to any
damages nor to any abatement or reduction of rent by reason of any repairs,
alterations or additions made by Landlord under this Lease if any such repairs,
alternations or additions were performed in a commercially reasonable manner.
(d) Specific Obligations. County specifically agrees that it shall, during the term
of this Lease: (i) install and maintain such fire protection, devices as may be
required by any governmental body or insurance underwriter for the Shopping
Center; (ii) change County's air conditioning filter at least five (5) times a year
and have County's air conditioner and heater serviced two (2) times per year;
and (iii) make any and all repairs to the Demised Premises as may be
necessitated by any break-in, forcible entry or other trespass into or upon the
Demised Premises. County further agrees that the plumbing facilities shall not
be used for other than its intended purpose and that the expense of any
breakage, stoppage, or damage shall be borne by County. County's heating and
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Coanty of Orange, in North Carolina -Hillsborough Commons 07!02/08
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air conditioning facilities shall be operated during all hours that County is open
for business or occupying the Demised Premises, and County shall not
intentionally allow the temperature in the Demised Premises to drop below sixty
(60) degrees Fahrenheit at any time during the term of this Lease.
22. DELETED.
23. LANDLORD'S INSURANCE Landlord shall not be liable (i) for any damage to
County's property located in the Demised Premises, regardless of the cause of
such damage, (ii) for any acts or omissions of other tenants of the Shopping
Center, nor (iii) for any condition of the Demised Premises whatsoever unless
Landlord is responsible for the repair thereof, and has failed to make such repair
after written notice from County of the need therefor, and expiration of a
reasonable time, for the making of such repair, such time period to include, but
not be limited to the time necessary to settle insurance claims.
24. COUNTY'S INSURANCE. Effective ttie earlier of: (i) the date County first enters
the Demised Premises, or (ii) Delivery of Possession, and continuing throughout .
the Lease Term and any extensions or renewals thereof, including, without
limitation, any holdover with or without Landlord's consent, County shall procure,
pay for and keep in full force and effect, the following types of insurance:
(1) Commercial General Liability Insurance Policy insuring the Demised
Premises and County's use thereof, Landlord understands and agrees that
County is insured through an insurance pool for NC counties administered
through the NC Association of County Commissioners whose limits of liability
shall provide a minimum limit of Five Million and 00!100 Dollars ($5,000,000.00)
on account of bodily injuries to or death or property damage for each occurrence
and a minimum limit of Five Million Dollars ($5,000,000.00) annual general
aggregate. The aggregate limit may be satisfied through a combination of
primary and umbrella/excess liability insurance. Such insurance shall alsa
provide that the general aggregate limits apply separately to each insured
location, if applicable. The foregoing policy shall name Landlord or its
successors and assigns as additional insureds under County's insurance policy
and shall bear endorsements to the effect that the insurer agrees to notify all
additional insureds not less than thirty (30) days in advance of any modification
or cancellation thereof;
(2) Special Form Cause of Loss Policy insuring against fire and such other risks
as are, from time to time, included in standard extended coverage endorsements
(including, but not limited to earthquake, boiler and machinery, plate glass,
power failure, windstorm, terrorism, seepage or leakage), insuring all leasehold
and building improvements in the Demised Premises which were originally
constructed by County, County's trade fixtures, furniture, furnishings, special
equipment, floor and wall coverings, and all other items of personal property of
County located on or within the Demised Premises, such coverage to be in an
amount equal to one hundred percent (100%) of the replacement cost thereof.
The foregoing policy shall name Landlord and such other parties as Landlord
may from time to time designate in writing to County as additional insured under
County's insurance policy and shall bear endorsements to the effect that the
insurer agrees to notify all additional insured not less than thirty (30) days in
advance of any modification or cancellation thereof;
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(3) DELETED
(4) DELETED
(5) Plate glass insurance covering all plate glass on the Demised Premises at
full replacement value; and,
(6) DELETED
County shall deposit with Landlord prior to the date of any construction, use or
occupancy of the Demised Premises by County certificates evidencing County's
compliance with each of the required coverages. To the extent that any of the
foregoing policies shall change in name and/or coverage due to general changes
in the insurance industry, County shall obtain and maintain the equivalent
policies and coverages as are then recognized in the insurance industry.
The limits for insurance policies as required above shall be construed as
limitations on the liability of County. The policies described in this Section 24
shall contain an express waiver of subrogation by the insurance company
against Landlord, its agents and employees. County shall not permit any act
which will invalidate or conflict with any insurance policies required herein, and if
the acts of County, its employees or agents shall increa$e the rate.for insurance
referred to in this Lease, such increases shall be immediately paid by County as
Additional Rent.
25. HOLD HARMLESS.
(a) Landlord and County each hereby release the other, its officers, directors,
employees, and agents from any and all liability or responsibility for any loss or
damage to the extent insurance proceeds sufficient to fully pay for such cost of
repair are actually received from fire insurance with standard and extended
coverage endorsement, even if such fire or other casualties shall have been
caused by the fault or negligence of the other party, or anyone for whom such
party may be responsible.
(b) County hereby indemnifies (to the extent of insurance policies owned by the
County and to the extent of applicable law) agrees to hold harmless and defend
(to the extent of insurance policies owned by the County and to the extent of
applicable law) Landlord, its' managing agent, its mortgagees and land lessor
from and against any and all damages (direct, indirect or consequential), claims,
loss, cost, expense or liabilities (including Landlord's cost of defending against
the foregoing., such cost to include attorney's fees) that arise from County's
possession, use, construction, alteration, repairs, maintenance or control of the
Demised Premises, and any sidewalks adjoining same, including, but not limited
to, the loss, theft, or damage to any property of County or others, no matter what
the source or cause and without regard to contributory or non-contributory
determinations. Landlord shall not be liable for any damage or injury caused to
any person or property by reason of the failure of County to perform any of its
covenants or agreements hereunder nor for such damage or injury caused by
reason of any defect in the premises now or in the future existing nor for any
damage or injury caused by any present or future defect in plumbing, wiring, or
piping in the store space or any part of the Demised Premises.
26. DESTRUCTION OF DEMISED PREMISES.
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(a) Subject to the provision of Section 26 (b) below, if the Demised Premises
shall be partially damaged by any casualty covered by Landlord's insurance
policy, Landlord shall repair the same to their condition at the time of the
occurrence . of the damage and the Minimum Rent shall be abated
proportionately as to that portion of the Demised Premises rendered
untenantable. Provided, however, Landlord shall not be obligated to commence
such repair until insurance proceeds sufficient to pay for such cost of repair are
received by Landlord. Following February 2012, Landlord's obligation hereunder
shall be limited to the application of the proceeds actually received by Landlord
under its insurance policy and/or which are not required to be applied toward the
reduction of any indebtedness secured by a mortgage covering the Shopping
Center and any portion thereof.
(b) If the Demised Premises (i) are rendered wholly untenantable; or (ii) should
be damaged to the extent of fifty percent (50%) or more of the then monetary
value thereof as a result of the risk which is not covered by Landlord's insurance;
or (iii) Deleted, or (iv) the building of which it is a part should be damaged to the
extent of fifty percent (50%) or more of the then monetary value thereof, or (v)
Deleted, or (vi) any or all of the buildings or Common Areas of the Shopping
Center are damaged to such an extent that the Shopping Center cannot in the
sole judgment of Landlord be operated as an integral unit, then or in any of such
events, Landlord may elect either to repair the damage or terminate this Lease
by notice of termination within one hundred eighty (180) days after such event
and thereupon this Lease shall, expire, and Tenant shall vacate and surrender
the Demised Premises to Landlord. Tenant's liability for rent and all other
charges and/or monies due, subject to the provisions of this Section, shall
continue until the date of termination of this Lease. Notwithstanding, anything in
this. Section 26 to the contrary, if Landlord should elect to terminate the Lease,
Landlord shall provide written notice thereof to County. County shall have the
option exercisable within thirty (30) days thereafter to exercise its option to
purchase the subject Shopping Center in which event, County shall purchase
Shopping Center in accordance with Purchase Option attached hereto, and
Landlord shall assign to County all of its insurance proceeds (but not loss of rent
insurance) received by Landlord as a result of such casualty or if, in the County's
opinion the Shopping Center is not worth the cost pursuant to the Purchase
Option less insurance proceeds, County shall tender to Landlord an offer to
purchase the Shopping Center at such value as the County feels appropriate.
Landlord shall not be bound to accept such lesser offer, but shall agree to
negotiate in good faith. Should Landlord and County not agree on a purchase
price within ten (10) days of the date such offer is tendered to Landlord, but in no
event longer than forty-five (45) days from the. date upon which Landlord elected
to terminate the Lease, this Lease shall be terminated and the County shall have
no further Purchase Option.
(c) In the event Landlord elects to repair the damage insurable under Landlord's
policies, any abatement of rent shall end five (5) days after notice by Landlord to
County that (other than County's Work) the Demised Premises have been fully
repaired and Landlord has received final inspection of Landlord's work. If the
damage is caused by the actions or negligence of County or its employees,
agents, invitees, or concessionaires, there. shall be no abatement of rent.
Unless this Lease is terminated by Landlord, and only if the damage is insured
by County's insurance policies, then County shall repair and re-fixture the interior
of the Demised Premises in a manner and at least at a condition equal to that
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existing prior to its destruction or casualty and the proceeds of County's
insurance shall be held in trust by County for the purpose of such repair and
replacement.
27. CONDEMNATION.
(a) If the whole of the Demised Premises, or more than twenty-five percent
(25%) of the floor area of the Shopping Center, shall be taken or condemned by
any government authority, then either party may elect to terminate this Lease
by giving notice to the other party not more than sixty (60) days after the date on
which such title shall vest in the authority. If the parking facilities are reduced
below the minimum parking requirements imposed by the applicable authorities
or if the parking facilities are reduced below 450 spaces, then either Landlord or
County may elect to terminate this Lease by giving the other party notice within
one hundred. twenty (120) days after such taking or other action. If all of the
buildings or Common Areas of the Shopping Center are damaged to such an
extent that the Shopping Center cannot, reasonably, be operated as an integral
unit, Landlord may terminate this Lease on written notice to County within sixty
(60) days after notice to County from Landlord.
(b) In case of any taking or condemnation, whether or not the term of this Lease
shall cease and terminate, the entire award shall be the property of Landlord.
County may file such claims as are permitted by law for the loss of its leasehold
interest, business dislocation damages, .moving expenses and other damages
caused by such taking, neither party shall have rights to the claim filed by the
other. County in no event shall have any claim against Landlord for the value of
any unexpired term of the Lease. County's obligation to pay Minimum Rent shall
be apportioned or end, as the case may be, as the date of vesting of title or
termination of this Lease. Any purchase of all or a portion of the Shopping
Center in lieu of a taking or condemnation under powers of eminent domain shall
be a taking or condemnation thereof.
(c) Notwithstanding anything herein to the contrary, any condemnation action
wherein the County is the condemning authority, the County shall have no rights
of termination.
28. ASSIGNMENT. SUBLETTING AND ENCUMBERING LEASE. County shall not
transfer, assign, mortgage or encumber this Lease, without the prior written
consent of Landlord which consent shall not be unreasonably withheld. County
shall be permitted to sublease or permit the use of the Demised Premises by
others in the County's sole discretion. Landlord may either approve or
disapprove said Assignment as Landlord deems necessary in its sole discretion,
which such approval shall not be unreasonably withheld. If this Lease is
assigned or if the Demised Premises or any part thereof is sublet or occupied by
anyone other than County without the express written consent of Landlord,
Landlord may collect rent from the assignee, subtenant, or occupant and apply
the net amounts collected to all rent herein reserved, but no assignment,
subletting, occupancy or collection shall be deemed a waiver of the covenants
contained herein or the acceptance of the assignee, subtenant or occupant as
County or a release of the performance of the covenants on County's part herein
contained. If Landlord shall consent to an assignment of this Lease, no further
or additional assignments may be made without the prior written consent of
Landlord. At least thirty (30) days prior to commencement of any sublease or
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assignment, and as a condition thereof, County shall furnish to Landlord (for
Landlord's review of the same for compliance with the terms of this Lease) a
copy of the fully executed sublease or assignment document.
a. No Release. No assignment or subletting of any form shall serve to
release County of any obligations hereunder or alter the primary liability
of County for the payment of rent and other sums due Landlord
hereunder or for the performance of any other obligations to be
performed by County under this Lease, whether or not the sub-lessee or
assignee has attorned to the Landlord.
b. Acceptance of Rent or Performance. Landlord may accept any rent or
performance of County's obligations from any person other than County
and such acceptance of any rent or performance shall not constitute a
waiver or estoppel of Landlord's rights to _ exercise its remedies for the
default or breach by County of any of the terms, covenants or conditions
of this Lease.
c. No Need to Exhaust Security. In the event of any default or breach of
County's obligations under this Lease, Landlord may proceed directly
against County, or any one else responsible for the performance of
County's obligations under this Lease, including the sub-lessee or
assignee, without first exhausting Landlord's remedies against any other
person or entity responsible therefore.
d. Assumption. Any assignment or subletting permitted hereunder shall be
conditioned upon the assignee or sub-lessee assuming and agreeing in
writing addressed to Landlord and Landlord's Lender, if any, to conform
and comply with each and every term, covenant, condition and
obligation herein to be observed or performed by County during the term
of said assignment or sublease.
e. Provisions to be Included in Sublease. The following terms and
conditions shall apply to any subletting by County of all or any part of
the Demised Premises and shall be deemed included in all subleases
under this Lease whether or not expressly incorporated therein.
(1) Assignment of Rents. Landlord shall not, by reason of this
assignment of rents or any other assignment of sublease to Landlord, or
by reason of the .collection of the rents from asub-lessee, be deemed
liable to the sub-lessee for any failure of County to perform and comply
with -any of the County's obligations to such sub-lessee under such
sublease. County hereby irrevocably authorizes and directs any such
sub-lessee, upon receipt of a written notice from Landlord stating that a
default exists in the performance of County's. obligation under this
Lease, to pay to Landlord the rents and other charges due and to
become due under the sublease. Sub-lessee shall rely upon any such
statement and request from Landlord and shall pay such rents and other
charges to Landlord without any obligation or right to inquire as to
whether such default exists and notwithstanding any notice from or
claim from County to the contrary, County shall have no right or claim
against said sub-lessee, or, until the default has been cured, against
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INTTIAIS
~~~
Landlord, for any such rents and other charges so paid by sub-lessee to
Landlord.
(Z) Attornment. In the event of a breach by County in the performance
of its obligations under this Lease, and a resulting termination of Lease
by Landlord, Landlord, at its option and without any obligation to do so,
may require any sub-lessee to attorn (i.e., agree to become tenant to a
new owner or landlord of the same property) to Landlord, in which event
Landlord shall undertake the obligations of the sub-lessor under such
sublease from the time of the exercise of said option to the expiration of
such sublease; provided, however, Landlord shall not be liable for any
prepaid rents or security deposit paid by such sub-lessee to such sub-
lessor or for any prior defaults or breaches of such sub-lessor under
such sublease.
(3) Consent of Landlord Required. DELETED.
(4) Conditions of Sublease. Each sublease shall provide that (i) it is
subject and subordinate to this Lease; (ii) Landlord may enforce the
provisions of the sublease, including collection of rent; (iii) if this Lease
is terminated for any reason, Landlord may, at its option, either (a)
terminate the sublease, or (b) takeover all of the rights and interest of
County, as sub-lessor, by the sub-lessee shall simultaneously be given
to Landlord. If Landlord elects to take over the rights and interest of
County, Landlord shall not (1) be liable for any previous act or omission
of County under the sublease (2) be subject to any defense or offset in
favor of the sub-lessee against County, or (3) be bound by any
modification to the sublease made without Landlord's written consent or
by any prepayment by sub-lessee of rent or other monies.
29. SUBORDINATION, ATTORNMIENT. AND FINANCING. (a) This Lease and
County's tenancy hereunder shall be subject and subordinate at all times to the
lien of any mortgage or deed of trust (including any renewals, modifications,
extensions, or future advances thereof), or other method of financing or
refinancing, now or hereafter placed upon the interest of Landlord and the
Demised Premises. Landlord shall have the continuing obligation to update
Exhibit G if additional mortgages, deeds of trust, or other financing documents
encumber the Shopping Center. County agrees to execute and deliver such
instruments as may be desired by Landlord or by any mortgagee. County shall
execute within thirty (30) days from receipt of Landlord's request such
instruments (including. but not limited to a Memorandum of Lease and/or a
Subordination, Non-Disturbance and Attornment Agreement in recordable form)
which may be required by Landlord's mortgagee or trustee to evidence such
subordination.
(b) County shall, without charge, attorn to such mortgagee or purchaser as its
Landlord under this Lease.
(c) In the event the construction lender, land lessor, or the permanent lender of
the Shopping center requires, as a condition to financing, modifications to this
Lease, provided such modifications are reasonable, do not adversely affect.
County, do not materially alter the approved working plans and do not increase
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ORD C~Z~U~'
L~~~~~~ Tl
the rentals and other sums to be paid hereunder, Landlord shall submit to
County a written amendment with such required modifications for the County's
review far compliance with the terms of this Subsection 29(c). If the County
determines that such written amendment conforms with the requirements of this
paragraph, and if County fails to execute and return within thirty (30) days
thereafter the amendments that have been submitted, Landlord shall have the
right to cancel this Lease, upon written notice to County.
(d) At any time and from time to time, County agrees, upon request in writing
from Landlord, to execute and deliver to Landlord, for the benefit of such persons
as Landlord names in such request, a statement in writing and in substance
satisfactory to Landlord certifying to such of the following information as Landlord
shall request: (i) that this Lease constitutes the entire agreement between
Landlord and County and is unmodified and in full force and effect (or if there
have been modifications, that the same is in full force and effect as modified and
stating the modifications); (ii) the dates to which the Minimum Rent and other
charges hereunder have been paid, and the amount of any security deposited
with Landlord; (iii) that the Demised Premises have been completed on or before
the date of such letter and that all conditions precedent to this Lease taking
effect have been carried out; (iv) that County has accepted possession, that the
Lease Term has commenced, that County is occupying the Demised Premises,
that County knows of no default under the Lease by Landlord and that there are
no defaults or offsets which County has against enforcement of this Lease by
Landlord; (v) the Rent Commencement Date of this Lease and the expiration
date of this Lease; and (vi) that County's office is open for business, provided
such facts are true and ascertainable. County acknowledges and agrees that
County's failure to execute and deliver to Landlord any estoppel certificate(s)
requested by Landlord within thirty (30) days from County's receipt of Landlord's
request shall be deemed County's acknowledgement that the terms and
conditions contained in such estoppel certificate are true and correct and that
such terms and conditions may also be relied upon by any third party or parties
identified in such estoppel certificate.
30. DEFAULT BY COUNTY. If any one or more of the following events occur, said
event(s) shall hereby be classified as a "Default":
(a) if County fails to pay any portion of any sum due from County hereunder,
including-any Exhibit hereto, within five (5) days following written notice;
(b) if County fails to cease all conduct prohibited hereby within a reasonable
time upon receipt of written notice from Landlord;
(c) if County fails to take actions in accordance with the provisions of written
notice from Landlord to remedy County's failure to perform any of the terms,
covenants, and conditions hereof;
(d) if County refuses to take possession of the Demised Premises at the
Delivery of Possession Date, or fails to open its doors for business on or before
the Outside Opening Date, as required herein, or vacates the Demised Premises
and permits the same to remain unoccupied and unattended;
(e) Deleted;
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INPI7[AIS
(f) if County commits an act in violation of this Lease which Landlord has
previously notified County to cease more than once in any year;
(g) DELETED;
(h) DELETED;
(i) if County commits waste to the Demised Premises;
(j) if County is otherwise in breach of County's obligations hereunder and shall
not have cured same within fifteen (15) days following written notice from
Landlord with respect to monetary obligations or within thirty (30) days with
respect to non-monetary obligations.
Provided, however, for other than the payment of monies, County shall be
excused for the period of any delay in the performance of any obligations
hereunder when prevented from doing so by cause or causes beyond
County's control which shall include, without limitation, all labor disputes, civil
commotion, war, war-like operations, invasion, rebellion, hostilities, military or
usurped power, sabotage, governmental regulations or controls, fire or~other
casualty, inability to obtain any material, services, insurance proceeds or
financing or through acts of God (Force Majeure).
31. REMEDIES OF DEFAULT.
(a) Upon the occurrence of any. Default, Landlord may give written notice of
such Default to County and, in such event, County shall immediately and
diligently thereafter seek to cure such Default, but in any event County shall have
a maximum of fifteen (15) days for monetary and thirty (30) days for non-
monetary, in which to cure the Default. Upon the failure of County to cure a
Default within the time herein provided, Landlord shall have all rights and
remedies allowed by this Lease and under law or in equity including, but not
limited to the right of specific performance and/or injunction.
(b) Landlord may, at its option and without further notice to County, terminate
County's right to possession of the Demised Premises and, without terminating
the Lease, re-enter and resume possession of the Demised Premises and/or
declare this Lease terminated and may thereupon in either event remove all
persons from the Demised Premises, ~ with or without resort to process of any
court, either by force or otherwise. Notwithstanding such re-entry by Landlord,
County hereby holds Landlord harmless from any and all loss or damage which
County may incur by reason of the termination of this Lease and/or County's
right to possession hereunder. In no event shall Landlord's termination of this
Lease and/or County's right to possession of the Premises abrogate County's
agreement to pay rent, additional charges, and any or all other monies due
hereunder for the full term hereof. Following re-entry of the Demised Premises
by Landlord, County shall continue to pay all such rent, additional charges, and
or all monies as same become due under the terms of this Lease, together with
all other expenses incurred by Landlord in regaining possession until such time,
if any, as Landlord re-lets same and the Demised Premises are occupied by
such successor, it being understood and agreed as a material consideration to
this Lease that Landlord shall have no obligations to mitigate damages by re-
letting the Demised Premises. Upon re-letting, sums received from such new
lessee by Landlord shall be applied first to payment of costs incident to re-letting
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INITIALS
LAND RD ~C,~~J}VTY
~,
(including, without limitation, Landlord's expenses in connection with such re-
letting and including, without limitation, all repossession costs, brokerage
commissions, legal expenses, reasonable attorney's fees (of not less than ten
percent (10%) of any outstanding balance), alteration and repair costs and
expenses of preparation for such re-letting; any excess shall then be applied to
any indebtedness to Landlord from County other than for Minimum Rental,
Additional Rental due and unpaid and only then to, Additional Rent and Minimum
Rent (in that order). The balance due Landlord, if any, shall be applied against
the deficiency between all amounts received hereunder and sums to be received
by Landlord on re-letting, which deficiency County shall pay to Landlord in full
within thirty. (30) days of notice of same from Landlord. Tenant shall have no
right to any proceeds of re-letting that remain following application of monies
received in the manner set forth herein. Any action taken by Landlord under
this Section shall not operate as a waiver of any right which Landlord would
otherwise have against County for rent or other monies hereby reserved or
otherwise,' and County shall remain responsible to Landlord for any loss and/or
damage suffered by Landlord by reason of County's default or breach. The
words "re-enter" and "re-entry" as used in this Lease are not restrictetl to their
technical legal meaning and shall include the right of the Landlord to enter upon
and take possession of the Demised Premises by picking and/or changing locks
if necessary and lockout, expel or remove County and any other person who may
be occupying all or any part of the Demised Premises without being liable for any
claim for damages.
(c) At any time after expiration/termination of County's possessory right to~the
Demised Premises, Landlord, in lieu of collection of deficiency, as set forth
above, shall, in the sole option of Tenant, accept as liquidated and agreed final
damages for County's default(s), and County may pay to Landlord an amount
equal to the difference between the Minimum Rentals payable hereunder for the
unexpired portion of the lease term and the then fair and reasonable rental
value of the Demised Premises for the same period discounted at the rate of four
percent (4%) per annum plus Additional Rentals plus and plus the sum of all
other monies due from the date of expiration/termination of County's possessory
right to the end of the term of the Lease.
(d) Any suit brought to collect the amount of the deficiency for any month shall
not prejudice the right of Landlord to collect the deficiency for any subsequent
month by a similar action. Any action taken by Landlord under this Section shall
not operate as a waiver of any right Landlord would otherwise have against
County shall remain liable to Landlord for any damages suffered by Landlord by
reason of County's default or breach.
(e) The various rights and remedies herein granted to Landlord shall be
cumulative and in addition to any other Landlord may be entitled to by law or in
equity, and the exercise of one or more rights or remedies shall not impair
Landlord's right to exercise any other right or remedy. In all events, Landlord
shall have the right upon notice to County to cure any breach by County
atCounty's sole cost and expense, and County shall reimburse Landlord for such
expense plus ten percent (10%) of such amount for Landlord's overhead upon
demand.
(f) "Additional Rentals" for the purpose of this Section shall be deemed to refer to
the greatest amount paid by or due from County for additional rental payments
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IlVITIALS
RD ~~~~:iNTY
and other charges and sums paid or payable under this Lease for the one-year
period immediately preceding the event of default, or if one year shall not have
elapsed at the time of default, the greatest amount then paid by or due from
County to Landlord.
(g) Landlord's exercise following a Default by County under the Lease or any
right granted hereunder or under any applicable law to lockout or change the
lock securing the Demised Premises. shall not impose upon Landlord any duty to
notify County of the name and address or telephone number of the individual or
company from whom a new key may be obtained, nor shall Landlord have any
duty to provide County with a new key or any other means of access to the
Demised Premises. ,County hereby specifically acknowledges that any such
exercise by Landlord shall not be a termination of this Lease to the maximum
extent permitted by law. County, for and on behalf of itself and all persons
claiming through or under County, also waives any right of redemption or re-
entry- or repossession or restoration of County's possessory rights hereunder in
the event County. shall be dispossessed by a judgment or by action of any court
or judge or in case of reentry or repossession by Landlord as a result of County's ,
default. Landlord and County, so far as permitted by law, waive trial by jury in
any action, proceeding, or counterclaim brought by either of the parties hereto
against the other on any matter arising out of or in any way connected with this
Lease, the relationship of Landlord and County's use or occupancy of the
premises, or any claim of injury or damage.
(h) Notwithstanding anything contained in this Lease to the contrary, this Lease
may be terminated by Landlord only by written notice of such termination to
County given in accordance with Section 41 (b) below and no other act or
omission of Landlord shall be construed as a termination of this Lease.
32. ABANDONMENT OF PREMISES. SEE RECAPTURE RIDER ATTACHED
33. PERSONAL PROPERTY. Should County fail to remove its personal property
upon abandonment, expiration, termination or recovery of possession and after
fifteen (15) days' notice to County to remove its properly, said notice to also be
conspicuously posted on the Demised Premises, all personal properly of any
nature then remaining on the premises shall be placed in storage for the benefit
of County, and any rental and moving costs for said storage shall be paid by the
County.
34. DEFAULT BY LANDLORD. Landlord shall in no event be in default in the
performance of any of its obligations contained in this Lease unless and until
Landlord shall have failed to perform such obligation within thirty (30) days, or
such additional time as is reasonably required to correct any such default, after
written notice by County to Landlord properly specifying wherein Landlord has
failed to perform any such obligation. Landlord shall be excused for the period of
any delay in the performance of any obligations hereunder when prevented from
doing so by cause or causes beyond Landlord's control which shall include,
without limitation, all labor disputes, civil commotion, war, war-like operations,
invasion, rebellion, hostilities, military or usurped power, sabotage, governmental
regulations or controls, fire or other casualty, inability to obtain any material,
services, insurance ,proceeds or financing or through acts of God (Force
Majeure). Provided, however, no act or failure to act on the part of Landlord
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LAND ORD ~:s
which would entitle County under the terms of this Lease, or by law, to be
relieved of County's obligations hereunder or to terminate this Lease, shall result
in a release or termination of such obligations or a termination of this Lease
unless (i) County shall have first given formal written notice, in accordance with
the requirements of this Lease, of Landlord's act or failure to act to Landlord's
mortgagees of record, if any, specifying the nature of the act or failure to act on
the part of Landlord which could or would give basis to County's rights and (ii)
such mortgagees, after receipt of such notice, have failed or refused to correct or
cure the condition complained of within a reasonable time thereafter, but nothing
contained in this Section shall be deemed to impose any obligation on any such
mortgagee to correct or cure any' such condition. "Reasonable time" as used
above means and includes a reasonable time to obtain possession of the
mortgaged premises, if the mortgagee elects to do so, and a reasonable time to
correct or cure the condition if such condition is determined to exist.
Notwithstanding any default by Landlord, County shall not be excused from the
obligation to pay all rents and charges required under this Lease as the same
became due, nor shall anything in this Section 34 be construed to provide the
County any rights of termination of this Lease.
35. LIEN ON FIXTURES. Deleted.
36. RIGHT OF ACCESS. Landlord and Landlord's mortgagee, if any, may enter
upon the Demised Premises for the purpose of inspecting, making .repairs,
curing defaults, replacements or alterations, and showing the Demised Premises
to prospective purchasers or tenants upon giving seven (7) days prior written
notice to County, except in cases of emergency repairs when no such advance
notice is required. Landlord may place signs at the Demised Premises "For Rent"
or "For Sale" one hundred and eighty (180) days before the expiration or
termination of the Lease.
37. RETURN OF DEMISED PREMISES. Upon the expiration or termination of this
Lease, County shall quit and surrender the Demised Premises in good order,
broom clean, normal wear and tear and acts of God excepted, to Landlord:
All fixtures (other than trade fixtures and equipment not for the operation of the
Building), improvements, alterations and equipment for the operation of the
Building now or hereafter permanently attached to the Demised Premises,
.including without limitation all plumbing, electrical, and HVAC equipment and all
doors,- ceiling tiles and lighting fixtures, shall be and remain Landlord's property
and shall not be removed from the Demised Premises without Landlord's prior
written consent.
38. HOLDING OVER. If County remains in possession of the Demised Premises
after any termination of this Lease, County shall be bound by the terms and
provisions of this Lease except that no tenancy or interest in the Demised
Premises shall result, but such holding over shall be an unlawful detainer and all
such parties shall be subject to immediate eviction, and County shall pay the
Minimum Rent payable by County, a sum equal to one hundred twenty-five
percent (125%) of the Minimum Rent payable during the calendar month
immediately preceding the expiration or earlier termination of this Lease, plus all
other amounts due under the Lease, for any period during which County shall
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OR`D ~~~
I~~~~-94`- .
hold the Demised Premises after the stipulated Term of this Lease shall expire or
may have terminated.
39. COVENANT OF QUIET ENJOYMENT. Landlord and County each warrants that
it has the right and authority to execute this Lease, and Landlord warrants to
County, that upon payment of the required rents and all other sums due by
County and subject to the terms, conditions, covenants and agreements
contained in this Lease, County shall have possession of the Demised Premises
during the full term of this Lease, as well as any extension or renewal thereof,
without hindrance from Landlord or any person or persons lawfully claiming the
Demised Premises by, through or under Landlord (but not otherwise); subject,
however, to all mortgages, deeds of trust, leases and agreements to which this
Lease is subordinate and to all laws, ordinances, orders; rules and regulations of
any governmental authority. County agrees to be bound by any and all
easements and restrictions of record as may be recorded against the Demised
Premises if such easements and restrictions are included on Exhibit G. Landlord
shall not be responsible for the acts or omissions of any lessee or third party that
may interfere with County's use and enjoyment of the Demised Premises.
40. ENVIRONMENTAL HAZARDS. County hereby warrants and agrees that during
County's upfit, occupancy, and use of the Demised Premises and the Shopping
Center that County shall not permit or allow any pollutants or other toxic or
hazardous substances to be discharged, dispersed, released, stored, installed,
treated, generated, disposed of, or allowed to escape in the Demised Premises
and the Shopping Center or on Landlord's surrounding property. County further
warrants and represents that County's operations at the Demised Premises and
the Shopping Center are in compliance with all applicable federal, state, and
local statutes, laws, and regulations. County shall promptly inform Landlord if
any investigation, administrative order, consent order, litigation, or settlement
with respect to substances is proposed, threatened, or anticipated with respect
to the Demised Premises and the Shopping Center, or if any notice is served on
or delivered to County from any entity, governmental body, or individual claiming
any violation of any law, regulation, ordinance or code, or demanding payment or
contribution for environmental damage or injury to natural resources. County
agrees to defend, indemnify and hold harmless Landlord, its successors and
assigns from and against any and all claims, damages or liabilities in connection
with the activities of County, its successors in interest, or parties in a contractual
relationship with .County, which:
(i) arises out of the actual use, discharge, storage, or installation of
substances; or
(ii) actually arises out of the failure to detect the existence of chemicals in
the soil, air, surface water, or groundwater, ar;
(iii) arises out of any duty to pay for the cleanup or removal of any material
from the premises or surrounding property under any federal, state or local
laws.
County shall discharge any and all such judgments or claims for damages,
penalties, or otherwise against Landlord described in this Section 40 and shall
assume the burden of defending any suits or proceedings with any government
agencies arising out of any of the occurrences set forth herein. The foregoing
covenants shall survive termination of this Lease.
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ORD ,
41. MISCELLANEOUS.
(a) This Lease contains the entire agreement between the parties hereto and
there are no promises, agreements, conditions, undertakings, warranties or
representations, oral or written, between them or others than as set forth herein.
No amendment to this Lease shall be binding upon Landlord or County unless in
writing. If any provisions of this Lease shall be invalid or unenforceable, the
remainder of the Lease shall not be affected thereby.
(b) No notice or other communications given under this Lease shall be effective
unless the same is in writing and is delivered in person, by a nationally
recognized overnight courier service which provides a receipt, or mailed by
registered or certified mail, return receipt requested, postage prepaid, addressed
to the addresses set forth in the Basic Lease Provisions or such other address
as Landlord or County may designate by giving written notice thereof to the other
party. The effective date of any notice given by mail shall be the date on which
such notice is deposited in the U.S. mail or received by such overnight courier
service.
(c) It is the intent of the parties hereto that all questions with respect to the
construction of this Lease and the rights and the liabilities of the parties hereto
shall be determined in accordance with the laws of the State of North Carolina.
(d) This Lease shall bind and inure to the benefit of the parties hereto and their
respective legal representatives, successors and assigns. Provided however, no
assignment by, from, through, or under County in violation of the provisions
hereof shall vest in the assigns any right, title, or interest whatsoever. Landlord
shall have the right to freely assign this Lease without notice to or the consent of
County. Both parties were represented by attorneys and no provision shall be
construed for or against either County or Landlord, and this Lease shall be
interpreted in accordance with its general tenor in an effort to reach an equitable
result. The obligations and responsibilities of the parties to this Lease shall be
binding upon, and the rights and benefits shall inure to the successors and
assigns of the parties hereto; but the liabilities of any successor to the interest of
the Landlord hereunder shall be limited to the performance of those obligations
which arise and accrue during the period of ownership of the Demised Premises
by any such successor.. In the event that Landlord sells assigns or transfers the
Demised Premises; and the buyer/transferee assumes; in writing, all obligations
of Landlord under this Lease, a copy of which shall be provided to County, then
from and after the effective date of such sale, assignment or transfer, .landlord
shall have no further liability under this Lease.
(e) Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed, such agreement being a primary
consideration for the execution of this Lease by Landlord, that if Landlord shall
fail to perform any covenant, term or condition of this Lease upon Landlord's part
to be performed and, as a consequence of such default, County shall recover a
judgment against Landlord, such judgment shall be satisfied only out of the
proceeds of sale received upon execution of such judgment and levy thereon
against the right, title, and interest of Landlord in the Shopping Center, but not
the income therefrom, as the same may then be encumbered, and neither
Landlord, any of its officers or shareholders, nor, if Landlord be a partnership,
any of the partners comprising such partnership shall be liable far any deficiency.
It is understood that in no event shall County have any right to levy execution
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against any property of Landlord other than its interest in the Shopping Center as
hereinbefore expressly provided. In the event of the sale or other transfer of
Landlord's right, title and interest in the Demised Premises or the Shopping
Center, Landlord shall be released from all liability and obligations under this
Lease if the Buyer or transferee assumes, in writing, all obligations of Landlord
under this Lease. There shall be no personal liability on the Landlord or any
successor in interest with respect to any provisions of this Lease. County shall
look solely to the equity, as described above, of the then owner of the Demised
Premises in the Demised Premises for the satisfaction of any remedies of
County in the event of a breach by Landlord of any of its obligations hereunder.
County hereby specifically releases any officer, director, shareholder, member or
partner of the Landlord or the then owner of the Demised Premises.
(f) County warrants that, except for any amounts payable by Landlord to its
agent, there are no claims for broker's commissions or finder's fees in
connection with its execution of this Lease.
(g) The terms of this Lease shall not be interpreted to mean that Landlord and
County are partners or joint venturers.
(h) DELETED
(i) DELETED
(j) In the event that any litigation is commenced between the parties hereto
concerning this Lease or the rights and duties of either party in relation thereto or
in the breach of any of the terms and conditions of this Lease by Landlord or
County; the party prevailing in such litigation shall be entitled in addition to such
other relief as may be determined by the court in such litigation, reasonable
attorneys' fees and reimbursement of all costs and expenses of such litigation.
Each party hereby waives trial by jury as to any and all such litigation.
(k) It is expressly agreed between Landlord and County that time is of the
essence in performance of all terms and provisions of this agreement.
(I) If County shall make any default or defaults under this Lease, Landlord may
at its election without waiving any claim for breach of agreement, cure such
default or defaults for the account of County. The cost to Landlord thereof plus
ten percent (10%) thereof for Landlord's overhead shall be due and payable on
demand and shall be deemed as reimbursement hereunder, payment of which
shall be enforceable as rent or as other monies due Landlord and shall be added
to the installment of rent next accruing, or to any subsequent installment of rent,
at the election of Landlord. Landlord shall not be responsible to County and
County hereby releases and holds harmless Landlord for any loss or damage
resulting in any manner by reason of its undertaking any acts in accordance with
the provisions of this Lease.
(m) The failure of Landlord to insist in any one or more instances upon the strict
performance of any of the covenants or agreements in this Lease, or to exercise
any option herein contained, shall not be construed as a waiver or a
relinquishment for the future of such covenants, agreement or option, but the
same shall continue and remain in full force and effect. The receipt by Landlord
of rent or any other money due hereunder with knowledge of the breach of any
28
County of Orange, in North Carolina - Hillsborongb Commons 07/02/08
I1v1T7ALS
L~~~ C~~
covenant or agreement hereof by County shall not be deemed a waiver of such
breach and no waiver by Landlord or any provision hereof shall be deemed to
have been made unless expressed in writing and signed by Landlord. No waiver
of any condition or legal right or remedy shall be implied by the failure of
Landlord to declare a forfeiture, or for any other reason, and no waiver of any
condition or covenant shall be valid unless it be in writing signed by Landlord.
No waiver by Landlord with respect to one or more tenant's or occupants of the
Shopping Center shall constitute a waiver in favor of any other tenant, nor shall
the waiver of a breach of any condition be claimed or pleaded to excuse a future
breach of the same condition or covenant.
(n) NOT USED
(o) With respect to any provision of this Lease which provides or infers, in
effect, that Landlord shall not unreasonably withhold or unreasonably delay its
consent or approval, County, in no event, shall be entitled to make, nor shall
County make, any claim against Landlord for money damages, and Tenant
hereby waives any claim or assertion by County that Landlord has unreasonably
withheld or unreasonably delayed any consent or approval, but County's sole
remedy shall be an action or proceeding to enforce any such provision of this
Lease, or for specific performance, injunction or declaratory judgment.
(p) DELETED
(q) NOT USED
(r) This Lease shall be recorded in the ofFce of the Orange County Register of
Deeds by County.
(s) NOT USED
(t) NOT USED
(u) DELETED
(v) DELETED
(w) DELETED.
(x) DELETED
(y) NOT USED
(z) If any term or provision of this Lease shall. be held invalid or unenforceable to
any extent, the remaining terms, conditions and covenants of this Lease shall not
be affected thereby and each of said terms, covenants and conditions shall be
valid and not be affected thereby and each of said terms, covenants and
conditions shall be valid and enforceable to the fullest extent permitted by law.
(aa) County hereby assumes responsibility for and shall take all reasonable
security measures for the Demised Premises.
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RD
(bb) The headings used in this Lease are for convenience only and shall not
have any bearing or meaning with respect to the content or context of this
instrument. '
42. AMENDMENT AND LIMITATION OF WARRANTIES.
(a) IT IS EXPRESSLY AGREED BY COUNTY, AS A MATERIAL
CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS
LEASE, WITH THE SPECIFIC REFERENCES TO EXTRINSIC DOCUMENTS, IS
THE ENTIRE AGREEMENT OF THE PARTIES; THAT THERE ARE, AND
WERE, NO VERBAL REPRESENTATIONS, WARRANTIES,
UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES
PERTAINING TO THE SUBJECT MATTER OF THIS LEASE OR OF ANY
EXPRESSLY MENTIONED EXTRINSIC DOCUMENTS THAT ARE NOT
INCORPORATED IN WRITING IN THIS LEASE OR IN SUCH DOCUMENTS.
SHOULD THERE HAVE BEEN ANY SUCH ORAL OR VERBAL
COMMUNICATION OF ANY TYPE OR SORT WHATSOEVER WHICH IS NOT
INCORPORATED IN WRITING IN THIS .LEASE, SAID IS HEREBY DEEMED
RESCINDED AND NULL AND VOID AND OF NO FURTHER FORCE IN
AFFECT AND COUNTY HEREBY SPECIFICALLY RELEASES AND HOLDS
LANDLORD HARMLESS FROM AND AGAINST ANY AND ALL SUCH VERBAL
COMMUNICATION.
(b) DELETED
43. OPTION TO PURCHASE
Landlord does hereby grant to County the option (the "Option") to purchase
that certain parcel of real estate upon which the building containing the
Leased Premises is located, and being all of Orange •County PIN Number
9864-80-7829, and TMBL # 4.40.A.1A, less an approximately one acre parcel
to be retained by Landlord, as more fully described by metes and bounds
description on Exhibit A attached hereto and incorporated ,herein by this
reference (the "Shopping Center") upon the terms and provisions set forth
herein.
1. O tio~n Period. The Option commences on the date of this Lease and
continues until the earlier of termination of this Lease or February 1, 2012.
Such period of time is hereinafter referred to as the "Option Period."
2. Exercise of Orption. At any time during, the Option Period, County
may exercise t~Option to purchase the Shopping Center by giving. written
notice to Landlord in accordance with the terms of this Lease stating that
County is exercising the Option by giving such notice. Such notice of exercise
shall be effective on the date notice is deemed to be given under the terms of
this Lease.
3. Failure to Exercise _O~tio~n. If County fails to exercise the Option
within the Option Peno , t is Agreement shall automatically terminate; the
parties shall have no further obligations or liabilities to one another hereunder;
and County shall have no right whatsoever to purchase the Shopping Center
or any portion thereof .or interest therein. Time is of -the essence with respect
to exercise of the Option and with respect to each and every term .of this
Lease regarding the Option and purchase and sale of the Shopping Center.
4. Purchase Price. The purchase price (the "Purchase Price") for the
Shopppln Centers al a Fifteen Million Four Hundred Eighty-Nine Thousand
and No/100 Dollars ($15,489,000.00)) payable at Closing, less a credit
calculated as follows: If, and only if, °Closing" as defined below) occurs on or
before the last day of the Option Period (i.e., ~ebruary 1, 2012), County shall
30
County of Orange, in North Carolina -Hillsborough Commons 07/02/08
Ir1ITlALS
RD
receive a credit of Fifteen Thousand and no/100's Dollars ($15,000.00),
multi lied by the number of monthly installments of rent paid by County to
Landlpord under the terms of the Lease during the Option Period, beginrnng on
the Effective Date and ending on the date of Closing. Such credit shall be
prorated for the month in which Closing occurs. If the Closing occurs after the
Option Period, County shall not be entitled to any such credit.
5. Closing If County exercises the Option, County and Landlord shall
close on the Shoppin Center within thirty ~30) days after the date County
exercises the Option the "Closing"), but no ater than March 1, 2012, at the
offices of County's counsel or closing agent in Orange County,. North
Carolina, or at such other place as the parties may agree upon, in writing. At
Closing, County shall pay .to Landlord the Purchase Price less any
adjustments as provided herein in the form of cash or wire transfer to one or
more bank accounts designated by Landlord, and contemporaneously
Landlord shall deliver to County (a) the Deed (as defined in Paragraph 7 of
this Exhibit); (b~ an affidavit for the benefit of County and its title insurer (the
"Affidavit°),, stating that (i) no right to a mechanic's or materialman's lien has
accrued with respect to the Shopping Center as a result of any act by
Landlord and (ii) there are no outstanding leases or agreements with regard
to, or other parties in or entitled to possession of, the Shopping Center,
except those leases the "Shopping Center Leases") listed on a current rent
roll furnished by Lan lord; (c) a Certificate of Non-Foreign Status as required
by Section 1445 of the Internal Revenue Code; and (d) a settlement or closing
statement. At Closing, Landlord and County shall execute an assignment and
assumption agreement whereby Landlord will assign the Shopping .Center
Leases to County, and County shall agree to assume all obligations of
Landlord under the Shopping Center Leases effective as of the date of
Closing.. As a condition precedent to the County's obligation in this
Subsection 43(5), Landlord shall furnish certificates to County no less than
fifteen days prior to the Closing from each Tenant under each Shopping
Center Lease stating the following information: (i) that this Lease constitutes
the entire agreement between Landlord and the tenant and is unmodified and
in full force and effect (or if there have been modifications, that the same is in
full force and effect as modified and stating the modifications); (ii) the dates to
which the Minimum Rent, and other charges there under have been paid, and
the amount of any security deposited with Landlord; (iii) that the leased
premises. have been completed on or before the date of such letter and that
all conditions precedent to this Lease taking effect have been carried out; (iv)
that tenant has accepted possession, that the Lease Term has commenced,
that tenant is occupying the leased premises, that tenant knows of no default
under the Lease by Landlord and that there are no defaults or offsets which
tenant has against enforcement of the Lease by Landlord; (v) the Rent
Commencement Date of this Lease and the expiration date of this Lease; and
(vi) that tenant's office is open for business, provided such facts are true and
ascertainable.
6. Possession. Exclusive possession of the Shopping Center shall be
delivere to County at Closing, subject to the Shopping Center Leases.
'1. Deed. At Closing, Landlord shall deliver to County a special warranty
deed (the deed"). conveying to County fee simple title to the Shoppin
Center, subject to (i) the lien for real estate taxes not yet due and payable; (i~
all easements, covenants, conditions, restrictions and other matters as
appear of record; (iii) the Shopping Center Leases; and (iv) the reserved
easements described in Paragraph 17 below.
8. Coosin Ad'ustments. Ad valorem taxes on the Shoppingg Center, if
any, for the ca~ year in which the closing occurs shall be paid by
Landlord. The credit for pro-rated ad valorem taxes on the Property that
would be due Seller if Buyer were not a North Carolina local government shall
be added to the purchase price for the fee simple interest in the Property.
Landlord shall pay any Orange County ad valorem taxes on personal property
of Landlord for the entire year of the closing. Seller shall pay all ad valorem
taxes on the Shopping Center for calendar years prior to the calendar year in
which the closing occurs and all deferred taxes and any tax penalties
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INITIALS
~ ~ 1~~~
including late listing ppenalties. All rents under the Shopping Center Leases
and all utilities shall be prorated at Closing. ~ Landlord shall pa the costs of
preparing the Deed. Tenant shall pay all and any excise tax on the Deed. and
all costs and expenses incurred in connection with its examination of title to
the Shopping Center, including all premiums charged by County's title
insurance company. Each party shall pay its, own legal, accounting and other
expenses incurred In connection with the Option or Closing hereunder.
9. Condemnation. If, after exercise of the Option and prior to Closing,
any taking pursuant to the power of eminent domain is proposed or occurs, as
to all or any portion of the Shopping Center, or a sale occurs In lieu thereof,
County shall be entitled to elect either to (l) terminate its agreement to
purchase the Shoppping Center by giving Landlord notice of such termination
within fifteen 15) days after County, receives written notice of such
occurrence, or ~ii) proceed with Closing, In which event all proceeds, awards
and other payments arising from any such taking or sale shall be paid to
County, with no adjustment of the Purchase Price.
10..Default. If County fails to close on that date required 'in Paragraph 5
above after exercise of the Option, then Landlord shall be entitled to exercise
any and all remedies available to It at law or in equity for breach of a contract
to purchase real estate.
In the event of default by Landlord, Buyer shall be entitled, as Buyer's
sole and exclusive remedy, either to: ((a) terminate it agreement to purchase
the Shoppping Center upon written nofiee to Landlord, or (b) demand and
compel by an action for specific performance or similar legal proceedings, if
necessary, the immediate conveyance of the Shopping Center by Landlord in
compliance with the terms and conditions set forth on this Exhibit.
11.Costs of Litigation. In the event of litigation between County and
Landlord ansi-~ of the Option, each party shall pay its own costs and
attorneys' fees.
12.A ents and Brokers. Each party hereunder represents and warrants
that it l not consult o~ deal with any broker or agent, real estate or
otherwise, with regard to the purchase and sale of the Shopping Center, and
each party hereto agrees to indemnif~yy and hold harmless the other party from
all liability, expense, loss, cost or damage, including reasonable attorneys'
fees, tha may arise by reason of any.clalm, demand or suit of any agent. or
broker arising out of facts constituting a breach. of the foregoing
representations and warranties.
13.Entire A reement~ Modification. This Exhibit contains the entire
agreement etween the parties ereto relating to the Option and the purchase
and sale of the Shopping Center, and supersedes all prior and
contemporaneous ne~otiatlons, understandings and agreements, written or
oral, between the parties hereto.
14.Assignment. County shall have no right to assign the Option without
the prior express written approval of Landlord, which approval may be grantee
or denied by Landlord in its sole and absolute discretion.
15.Time of the Essence. The parties agree that time is of the essence
with respect to t e pe ormance of all obligations: the exercise of the Option
and all other time or deadline related matters herein.
16.Memorandum of~A ree~ment. Landlord agrees that, at the request of
County: a~C ndlo w i prol mptly: execute and deliver a memorandum of the
Option In recordable form sufficient to provide record notice of the Option, and
County shall be entitled to record such memorandum in the Orange County
Register of Deeds, at County's sole cost and expense. If County makes such
a request to Landlord, County will, at that time, deliver to Landlord's counsel,
to be held In escrow by such counsel, an executed Release, in form
32
County of Orange, in North Carolina -Hillsborough Commons 07/02/08
LORD CO
satisfactory for recordation in the Orange Coun Register of Deeds, releasing
such memorandum from record in the even that County fails to timely
exercise the Option or the Option otherwise terminates. Landlord's counsel
may .release the escrowed Release document, or record it in the Orange
County Register of Deeds, in the event of such termination or non-exercise.
17.Easements. At Closing, Landlord may, subject to the review and
approval o~ tTCounty which approval shall not be unreasonably withheld,
reserve easements for ingress and egress over the Shopping Center to
provide access by pedestrian and vehicular traffic over all drive aisles,
entrances, exits, and curb cuts, and for installation and operation of utilities
over the Shopping Center at locations reasonably acceptable to the owner of
the Shopping Center, for the benefit of Landlord's one acre retained parcel, as
shown on Exhibit A attached hereto.
18.Disclaimer. County acknowledges and agrees that Landlord has not
made, oed snot make, and will not make, and specifically negates and
disclaims, any representations, warranties (other than the warranty of title as
set out in the Deed), promises, covenants, agreements or guaranties of any
kind or character whatsoever, whether express or implied, oral or written,
past, present, or future, of, as to, concerning or with respect to a) the value,
nature, quality or condition of the Shopping Center, inclu ing, without
limitation, the water, soil and geology, (b) the income to be derived from the
Shopping Center, (c the suitability of the Shopping Center for any, and all
activities and uses which County may conduct thereon, (d) the compliance of
or by the Shopping Center or its operation with any laws, rules, ordinances or
regulations of any applicable governmental authority or body, (e) the
habitability, merchantabili ,marketability, profitability or fitness for a particular
purpose of the Shopping enter, (f) the manner or quality of the construction
or materials, if any, incorporated into the Shopping Center, (g) the manner,
quality, state of repair or lack of repair of the Shopping Center, or (h) any
other matter with respect. to the Shopping Center, and specifically, that
Landlord has not made, does not make and specifically disclaims any
representations regarding compliance with any environmental protection,
pollution or land use laws, rules, regulations, orders or requirements,
including the existence in or on the property of hazardous materials (as
defined below). County further acknowledges and agrees that having been
given the opportunity to inspect the Shoppin Center, County is and will be
relying solely on_ its own investigation of the Shopping Center and not on any
information provided or to be provided by Landlord and at the Closing agrees
to accept the Shopping Center and waive all objections or claims against
Landlord (including, but not limited to, any right or claim of contribution)
arising from or related to the prope~ or to any hazardous materials on the
Shopping Center. Landlord is not liab a or bound in any manner by any verbal
or written statements, representations or information pertaining to the
property, or the operation thereof, furnished by any real estate broker, agent, ~ ,.
employee, servant or other person. County further acknowledges and agrees
that to the maximum extent permitted by law, the sale of the Shopping Center
as provided for herein is made on an "as is" condition and basis with all faults.
19.Landlord represents and warrants, as of the date of this Lease
Agreement, that it has not granted any other entity an option to purchase the
Shopping Center other .than County, nor has Landlord entered into a
purchase agreement or any other agreement or arrangement whatsoever that
would prohibit Landlord from selling the Shopping Center to County.
20. If County exercise the Option, then Landlord shall obtain any and all
required regulatory a provals and permits (including but not limited to special
use permits, modifcations of existing special use permits, subdivision
approval and zoning approval) from the applicable authority prior to the
Closing in order to effectuate the sale contemplated by the Option and in
order to legally subdivide Outparcel A from the Shopping Center, The
procurement of said approvals and permits shall be at the sole cost and
expense of Landlord and shall be a prerequisite to County's Closing obligation
contained with Subsection 43(5) above of this Lease.
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21. Landlord hereby grants to County a right of entry upon the shopping
center for the purpose of making surveys, engineering studies, tests and such
other investigations and inspections as County may elect to make, or the
period of time beginning on December 1, 2011 and ending on February 1,
2012. Notwithstanding, should County be desirous of exercising their
Purchase Option prior to February 1, 2012, then in that event, County shall be
entitled to complete all due diligence during the period beginning ninety (90)
days prior to such exercise date and ending on the date of such exercise. All
inspections, tests and ~ examinations shall be conducted by parties qualified
and, where applicable, licensed to conduct such inspections, tests and/or
examinations. County shall pay the costs of all such tests, inspections,
examinations, and investigations. After the performance of any tests,
inspections; examinations, and investigations, county shall promptly restore
any damage to the shopping center to substantial)y the same condition as
existed prior to the conduct of said tests, inspections, examinations, and
investigations. County shall indemnify, (to the extent of insurance policies
owned by the County and to the extent of applicable law) defend (to the
extent of insurance policies owned by the County and to the extent of
applicable law) and hold Landlord harmless from any and.all costs or liens
arising or claimed as a result of any such activity on or with respect to the
shopping center and from and claims, loss or damage (including, without
limitation, reasonable attorneys fees and costs)) suffered b Landlord as a
result of the activities of County or of any party employedyor engaged by
County to perform any test, .inspection, examination, or investigation on the
shopping center. In conducting its investigation, County and County's agents
shall conduct all operations on the shopping center in a reasonable manner
and so as not to unreasonably interfere with the operation of the shopping
center by Landlord nor with the conduct of business or operations by tenants
and occupants. Furthermore, all such tests and inspections shall be
permitted upon reasonable prior notice to Landlord, affording. landlord the
opportunity to have a representative present . at any test, inspection or
examination conducted on the shopping center. County shall not conduct any
environmental testing of the shopping center beyond a phase I environmental
site assessment without the prior written approval of Landlord. County shall
not perform any subsurface or destructive testing of any kind at the shopping
center, without the prior written consent of Landlord. If such testing is
required, county shall provide reasonable notice thereof. Notwithstanding the
foregoing, or anything to the contrary contained in this Lease, County and/or
County's representatives shall not enter the shopping center for the purposes
of pperforming any inspections without providing Landlord at least twenty-four
(24) hour notice of such scheduled entry upon the shopping center.
22.Landlord agrees not to enter into a Lease for any .portion of the
Shopping Center whatsoever during the term of this Lease which w"ill result in
a lease term that extends beyond March 1, 2012 without the prior approval of
the County, which approval shall not be unreasonably withheld.
23. Landlord re resents and warrants that there are no current leases
applicable to the Shopping Center that extend beyond February 1, 2012,
except and other than units 03, B-04, and Kiosk spaces.
24. At closing Landlord shall provide County estoppel certificates from all
tenants then occupying the Shopping Center.
44. Local Government Commission A royal. Landlord and County
acknow a get at t is ease is su sect tot a approval. of the North Carolina Local
Government Commission. Therefore, as a condition precedent to County's
obligations under this Lease, including the Option contained herein, County must
receive North Carolina Local Government Commission (LGC) approval of the terms
of this Lease, including the Option contained herein.
45. Title Exce L~ion~s. As a further condition precedent to the County's
obligations un~c- er this Lease, no additional deeds of trust, easements, covenants or
other encumbrances or restrictions whatsoever, other than those included on
Attachment G of this Lease, shall exist as of the date and time of the recording of
this Lease in the office of the Orange County Register of Deeds. This Lease shall
34
County of Orange, in North Carolina -Hillsborough Commons 07/02/08
TNiTiAi 5
LORD
be recorded in the office of the Orange County Register of Deeds
contemporaneously with approval hereof by the LGC as evidenced by the
secretary's certificate hereon.
IN WITNESS WHEREOF, and intending that this Lease be a sealed instrument,
Landlord and County have executed this Lease under seal on the date
hereinabove set forth.
LANDLORD:
HI~I.SBOR000H COMMONS LIMITED PARTNERSHIP
By: HILLSBOROUGH SHOPPING CENTER INC.,
GENERAL PARTN
By:
c le, CEO
STATE OF ~oridCt
COUNTY OF ~~2~--
I, VIVIG~n f~u.~..rs a Notary Public of the County and State
aforesaid, certify that the following person personally appeared before me this
day, and ackrowledged to me that he signed the foregoing document: Marc
Hagle, as Chief Executive Officer of Hillsborough Shopping Center, Inc., the
General Partner of Hillsborough Commons Limited Partnership. Witness my
hand and officiaC seal, this the ~ day of ~~ , 2008..
~ Notary Publ'~c State of Fbrida
;~' Vivian Powers
MY Commission DD609166 ~~1, ~ l91L>~t/b-
wa 1res10126/1010
Notary Public
My commission expires: iu)2r~12oly '
couNTY:
.Orange County, North Carolina
By: ~--
Bony Jaco h it B rd of Commissioners
ATTEST:
Donna .Baker, Clerk to the
Board of Commissioners
STATE OF ~ati~~~ '~---~
COUNTY OF .~-~sr
I, ,~ f~ ~L~'f',,~t" a Notary Public of the County and State
aforesaid, ce~ Donna S. Baker personally came before me this day
Y
and acknowledged that she is Clerk to the Board of Commissioners for
ORANGE COUNTY and that by authority duly given and as the act of said
County, the foregoing instrument was signed in its name by Barry Jacobs,
Chair of the Board of Commissioners, and attested by her as Clerk to said
35
County of Orange, in North Carolina -Hillsborough Commons 07/02/08
lI~TIAI.S
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f
Board of Commissioners. Witness my hand and official seal, this the ~~
day of _~c~~;~ , 2008.
Nota ublic
My commission expires:lU~3 aDC~S
This instrument has been pre-audited in the manner required by the Local
Government Budget and Fiscal Control Act.
~_.
Fina_ ervices Director
STATEOF~ Cuc`d~~na
COUNTY OF C~~ a n a ~ (_ y
I, fir-' ~ a, ~ ~ ~ _ ~ Qs U~ a ~N'otary Public of the County and State
aforesaid, certify that the following person personally appeared before me this
day, and acknowledged to me that he signed the foregoing document: Gary
Humphreys, as •Orange Count. Financial Ser~v~ices Director. Witness my hand
and official seal, this the ~ day of ~~,==`~_' 2008.
Notary Public •
My commission expires: ~r- / ~- a, d) d
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IlvTTIA]LS
LORD CO
EXHIBIT A -LEGAL DESCRIPTION
I~~SSORpUt3H COMMONS SHOPPINt# C:SC`TI'1~
Caatainil~g appraximatoly 11.8230 saes as shaven on ALTA/ACSM Land Title Sluvey ~rapared
yy Bey ~Y~ arat Mapping Oor. dacod 9.1996 p'ob No. 948).
Less and excluding that parcel of land as diagrammatically shown on Exhibit
B to the Lease and labeled as "Outparcel A".
A METES AND BOUNDS DESCRIPTION OF OUTPARCEL A SHALL BE ATTACHED HERETO
AND BECOME A PART HEREOF UPON COMPLETION OF SAME AND APPROVAL OF THE
PARTIES.
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County of Orange, in North Carolina -Hillsborough Commons 07/02/08
INITIALS
ORD
EXHIBIT B -SITE PLAtd
(PAGE 1 OF 2)
~N
~,
o~
~.,~~i~
~~~,
~ BYflDS
FOOD
STDRI
unit of
County hereby acknowledges Outparcel A is presently paved as parking and agrees to
the reconfiguration of the Shopping Center to allow for the re-platting of the property
to provide Outparcel A as a separate parcel from that of the Shopping Center and not
included as part of the Legal Description for this Lease. County further acknowledges
Outparcel A may be sold, leased or transferred separately from the Shopping Center
and agrees to cross easement agreements as may be necessary for drainage,
ingress/egress, and all utilities.
TffiS SITE PLAN IS USED FOR REFERENCE PURPOSES ONLY TO SHOW THE
LOCATION OF COUNTY'S UNPT. THE EXACT LAYOUT MAY BE MODIFIED
PER THE REQU7ItEMENTS OF TSE ARCHITECT AND LANDDLORD. THE
BUILDING CONFIGURATION SHALL BE SUBSTANTIALLY AS SHOWN
HEREIN, BUT MAY BE MODIFIED SLIGHTLY TO OBTAIN THE AESTHETIC
QUALITY REQUIltED BY LANDLORD.
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County of Orange, in North Carolina - Hillsborough Commons 07/02/08
17Y1TIALS
RD O
EXHIBIT B -SITE PLAN
(PAGE 2 OF 2)
~~
~~
i
o~
os
~a~
f
' t
Unit Ol
THIS SITE PLAN IS USED FOR REFERENCE PURPOSES ONLY TO SHOW 'IME
LOCATION OF COUNI'Y'5 UNIT. THE EXACT LAYOUT MAY BE MODIFIED
PER THE REQUIltEMENTS OF THE ARCHITECT AND LANDLORD. THE
BIT.Q.DING CONFIGURATION . SHALL BE SUBSTANTIALLY AS SHOWN
HEREIN, BUT MAY BE MODIFIED SLIGHTZY TO OBTAIl~T THE AESTHETIC
QUALITY REQUIltED BY LANDLORD,
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IlVITiAi C
~~~~
EI~TT C - AS IS CONDITION
County hereby acknowledges the Demised Premises has been previously occupied by another
Tenant and as a material consideration to this Lease, County shall accept possession of the
Demised Premises, subject to Landlord's maintenance obligations outlined elsewhere herein, in
an "as is" condition. Landlord shall have no obligation to perform or cause the performance of
construction of any improvements to the Demised Premises prior to delivery thereof to County.
County hereby acknowledges that Landlord has made no representations or warranties to
County with respect to the condition of the Demised Premises or the working order of any
systems or improvements therein existing as of the date of delivery.
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Connty of Orange, in North Carolina -Hillsborough Commons 07/02/08
INiT'IALS
LAND
EXHIBIT D -COUNTY'S 1~-OR6C
County, at its sole cost and expense, shall perform all work other than that to be performed by
Landlord as set forth in Exhibit "C" required to complete the Demised Premises to a fuushed
condition ready for the conduct of business therein. All plumbing vents must exit the Demised
Premises so as to avoid any odor problems.
Prior to commencement of County's work, County shall submit to Landlord for Landlord's
approval two 2 complete 11" x 17" sets of plans and specifications for such work and, upon
Landlord's approval of same, said plans and specifications shall be incorporated into and
become a part of this Lease Agreement..
County shall not use the Shopping Center or other County's trash receptacles for construction
debris. If so used, County will be charged two (2) times the normal dump fee and container
rental, plus ten percent (10%) of such amount for Landlord's overhead and administrative
expense which will be due upon demand.
County will diligently prosecute such application until approved. County shall not modify
County's plans and specifications approved by Landlord without Landlord's prior written
consent.
County shall not commence any work in the Demised Premises until County obtains insurance
coverage pursuant to NC statutes for publicly bid and constructed construction projects and
delivers proof of said insurance to Landlord.
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INITIAIS
)tD ~~~11~TY
E~CHIBTT E -COMPLETION ALLOWANCE RIDER
Upon completion of construction of the County Improvements within the Demised Premises
and upon County commencing business and paying rent therein, Landlord shall pay unto the
County the Completion Allowance in the amount of 600 ODO for the completion and
construction of County's Work. Should the cost of construction of County's Work exceed the
Completion Allowance, County shall pay any and all such cost, and Landlord shall not be
responsible and shall be released and held harmless by County for any and all such cost in
excess of said Completion Allowance. Prior to Landlord making such payment unto County,
and as apre-condition thereto, County shall provide Landlord the following documentation:
(i) Copies of all permits and other governmental licenses, permits and approvals, final
inspections, and certificates of occupancy required for the construction, use, operation,
and occupancy of County's Demised Premises for its intended use.
(ii) Final Lien Waivers from all contractors, sub-contractors, sub/subcontractors,
material suppliers, and the like, who have provided labor, services, or materials on behalf
of the County for the subject project. ~ ,
(iii) Certification by the design architect that the County's building, interior finish and
other County upfit work has been completed in accordance with plans and specifications
and that the project is suitable for occupancy without further construction or
modification.
County shall have constructed the County Improvements on the Demised Premises
pursuant to the plans and specifications approved by Landlord and County and contracts with
architects and contractors chosen by County. County will non-exclusively transfer all
contractor and supplier warranties in their possession to Landlord.
42
County of Orange, in North Carolina - HilLsborongh Commons 07/02/08
IN117ALS
LORD
EI~TT F
RENEWAL OPTION
Landlord grants to Tenant the right and option to extend this Lease for Four 4 additional
period(s) of five 5 year(s) each (hereinafter called "renewal period") on the terms and
conditions as set forth in this Lease agreement for such Renewal Period. The option shall be
exercised by Tenant upon Tenant giving written notice to Landlord pursuant to section 41(b)
and sent at least ninety (90) days before the expiration of the term then in effect, of Tenant's
desire to renew said Lease and upon such notice, the Renewal Period shall become part of
the Term.
43
Connty of Orange, in Nortb Carolina -Hillsborough Commons 07/02/08
INITTALS
~,~~~ ~ .
EI~TT G
RESTRICTIONS
Deeds of Trust, Easements, Covenants and Other Restrictions Encumbering the
Shopping Center
Title Exceptions
1. Ad valorem property taxes not yet due and payable.
2. Memorandum of Lease in favor of Subway Restaurants, Inc., recorded in Book 764 at page 190 of the
Orange County Registry.
3. Lease to Byrd Food Stores as recorded in Book 726 at page 256 of the Orange County Registry.
4. Easement in favor of Duke Power Company recorded in Book 782 at page 87 of the Orange County
Registry.
5. Such matters as would be shown by an accurate survey and inspection of the premises.
6. Fixture filings evidencing security interests of credits of various tenants.
7. Rights or claims of tenants in possession, as tenants only, under space leases in the Shopping Center, and
any and all exclusive use rights and restrictions set forth therein.
8. Zoning, subdivision, and land development ordinances, regulations, and laws, and any noncompliance of
the Shopping Center therewith.
9. A declaration of covenants, conditions, easements and restrictions (the "Declaration") which, among
other things, shall provide for the following:
a. Restrictions on use, prohibiting uses which would violate provisions of any existing leases of
space on improvements on the Shopping Center, and prohibiting uses of the Shopping Center and
the adjoining outpazcel to be retained by Landlord which would be inconsistent with a first class
retail shopping center.
b. Cross access and cross utility easements, and cross pazking easements, as between the Shopping
Center and the adjoining outpazcel to be retained by Landlord
10. Memorandum Of Lease in favor of Critics Choice, Inc., recorded in Book 834 at page 231 of the
Orange County Registry.
11. Lease to Wahnart recorded in Book 726 at Page 253 of the Orange County Registry.
44
County of Orange, in North Carolina - Hillsborough Commons 07/02/08
INITIALS
LORD C~9C~ "/
RIGHT OF RECAPTURE AND TERiVIINATION RIDER
RECAPTURE OF PREMISES. "Abandonment" hereunder shall be deemed to include but
shall not be limited to either (a) any vacancy of the Demised Premises by Tenant for ten
(10~consecutive days without Landlord's prior written consent, or (b) non-operation of
Tenant's business in the Demised Premises for a period of ten (10) consecutive days
without Landlord's prior written consent. In the event of Tenant's Abandonment of the
Demised Premises as herein defined, Landlord shall provide Tenant with five (5) days'
written notice of Landlord's intention to reenter and repossess the Demised Premises,
without recourse to further legal proceedings, unless Tenant objects within said five (5) day
period. Should Tenant not object within the said five (5) day period, Landlord shall have
the absolute right to reenter the Demised Premises without legal proceedings and without
being liable for any prosecution therefore or damages resulting therefrom, and repossess
and enjoy the Demised Premises, together with all additions; alterations, and
improvements, to which remedies and acts Tenant specifically consents. The date upon
which Landlord reenters the Demised Premises and takes possession thereof shall be
deemed Recapture Date. Upon the Recapture Date this Lease shall terminate subject to
survival of: (1) all rights of Landlord pursuant to this Lease as to any defaults of Tenant
which occurred prior to Recapture Date; (2) any deferred maintenance discovered by
Landlord following Landlord's access to the Demised Premises after the Recapture Date
pursuant to an inspection completed by Landlord within thirty (30) days following the
Recapture Date, which deferred maintenance may be repaired by Landlord and charged to
Tenant in accordance with the provisions in this Lease; and (3) Tenant shall remain liable
to all third parties for any goods, services, cost expenses or other incurred by Tenant and
Tenant shall indemnify, defend and hold harmless Landlord from and against any and all
such third party claims.
4S
County of Orange, in North Carolina -Hillsborough Commons 07/02/08
INIT'IAtS
L~~~~~~aRl3
AFFIDAVIT
The undersigned has, this date, signed a lease ,with HILLSBOROUGH COMMONS
LIMITED PARTNERSHIP, for the occupancy of Unit No. 01, Hil/sborouah Commons
in Hillsborou4h, North Carolina. The Lease business terms were negotiated with
Shoppin4 Center Grouu, as a representative of Landlord. Except as expressly
provided in this Lease, (i) no representative, agent or employee of Landlord
represented, suggested, promised or implied that the undersigned would be given an
exclusive use in the Shopping Center for the operation of the business to be
conducted in the Demised Premises, or that Landlord would not lease space in the
Shopping Center to a competing or other County, (ii) no representative, agent or
employee of Landlord made any representations, inducements or promises about the
Demised Premises or the entry into the Lease, and (iii) no representative, agent or
employee of Landlord made any representations, inducements or promises about the
characteristics or conditions of or pertaining to the Demised Premises or the Shopping
Center. The undersigned ,has independently investigated the potential of the success
of its operations in the Shopping..Center and has not relied upon any representations,
inducements or promises by Landlord's representatives, agents or employees, other
than those contained in the Lease.
Dated this --~~=f- day of , 20Q~.
CO NTY:
County of Orange, in North Carolina
By:
S
(Print Na
Its:
STATE OF i'~L~~~~ ~
COUNTY OF ~~~~~
State of resaid, certify that __~
appeared before me this day and a
instrument.
a Notary Public for the County and
-~ 'personally
the execution of the foregoing
WITNESS m hand and official stamp or seal, this day of
20~~
_ ,/~ z`~:~1" (NOTARY SEALiSTAMI~)
Notary P-
46
County of Orange, in North Carolina -Hillsborough Commons 07/02/08
INITIALS
RD ~~)1~
Local Government Commission
Signature page for Lease Agreement by and between Orange County, North Cazolina and
Hillsborough Commons Limited Partnership dated as of July 25, 2008.
'This Agreement has been approved by the Local Government Commission under the provisions
of Article 8, Chapter 159 of the General Statutes of North Cazolina.
T. Vance Holloman, Secretary