LAND USE — z y _ Initial Application Date: // Application # go `!/ 9 . ?
DRB# CU#
COMMERCIAL
COUNTY OF HARNETT LANG USE APPLICATION
Central Permitting 108 E. Front Street l! Lill li ington, NC 27548 Phone: (910) 893 -7525 Fax: (910) 893-2793 yI www.hameti.org /permits
LANDOWNER: G C in 4 1 h A C Mailing Address: O.73 O (9 / ' 1'v -2 C / 0 4€ l 5N'I x"-(
cit Fn t ft., /14 state: We zip: Pg36/,�'onntta!dd # 1# m izut . Email: �J
APPLICANT*: CO1'X/illatU� -X 0Q y foil L�I�JU7�Ma8menddes ,3/ ( ( R Opp W, m M ,61
i City: State: c V _ Zip: Contact # Email: e 7 :507v7 9 -- b
'Please fill out applicant information if different than landowner t✓e7i. r ('
CONTACT NAME APPLYING IN OFFICE: 7 75 )1.1 0 Phone # `11 3° / - ;9- 2
PROPERTY LOCATION: Subdivision: / & 4 49 7// r r 47 r e /t4dc)l 4 oot r Lot #: ✓45 J4.olSizeir? O (P
State Road # fY 9 17 State Road
/ q / Map BookBPage: 2Q0 , /6274r
Parcel: 0� 94 Oo 4 /�P PIN:_ !i r7 � �f 9 — 1 Zt� r106'
Zoning: Flood Zone: /t Watershed: . ff" Deed BookBPage: 1�
/ ../ i L. /i Power Comp any':
New structures with Progress Energy as service provider need to supply premise number from Progress Energy.
i
SPECIFI DIRECTIONS TO THE PROPERTY FROM LILLINGTON: (2 1) 7 .• i . . d a� /�/ .
o oc2 --ken �-�'aj',a+ ,�.�ctu
PROPOSED USE:
❑ Multi - Family Dwelling No. Units: No. Bedrooms/Unit:
�1
O Business Sq. Ft. Retail Space: �.2OO) Type: / 7" A /7 - # Employees: S Hours of Operation: /C -,9m — PA 41
❑ Daycare # Preschoolers: # Afterschoolers: # Employees: Hours of Operation:
❑ Industry Sq. Ft: Type: # Employees: Hours of Operation:
❑ Church Seating Capacity: # Bathrooms: Kitchen:
❑ Accessory/Addition /Other (Size _x_) Use:
Water Supply: p— _ County Existing Well _ New Well (# of dwellings using well ) 'MUST have operable water before final
Sewage Supply: t ew Septic Tank (Complete Chec1dist) _ Existing Septic Tank (Complete Checklist) County Sewer
Comments:
� � ; sir .76/ ‘ - j
If permits are granted I agree to conform to all ordinances pnd laws of the State of North Carolina regulating such work and the specifications of plans submitted.
I hereby state that foregoing statements are a�curiite and zoned to the best of my knowledge. Permit subject to revocation if false information is provided.
C I 1 \ x o
Signature of Ow r Owner's Agent , Date
. "This application expires 6 months from the Initial date N permits have not been Issued"
A RECORDED SURVEY MAP, RECORDED DEED (00 OFFER TO PURCHASE) AND PLAT ARE REQUIRED WHEN APPLYING FOR LAND USE APPLICATION
Commercial Land Use Application Page 1 of 1 • 03/10
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4 h - 7670747
rti a'.:.., ETi T. R. thompeoe•, Attorney et Lev, Aurora, North`Caro2lae ,
q�
t I II HBRTH CAROLINA
y ' ; ` 0 OF HARNETT
a - i � THIS DEED, Made and executed this Bth day of June ,
7 IMP
5 • and between WEYERHAEUSER REAL ESTATE COMPANY, a corporation of 1
a , "''F"h ofyd4ltington and duly . authorized to do business in the State
i, Z� 1W
S H S S 0
•rt a f. party of the first part, to H. 11. CAGLE and wife,
Mat +nee CA• :. LE, parties of the second part;
1AM„e i
W1TNESSETH:
1(iIIIT{1:1'
V h Sal. 1 rty of the first part, for and in consideration 1
tr° t ° 13 of the � .J of ', t. OD (310.00) DOLLARS and other good and value 1.
° N id j a considera to hand paid by the parties of the second part, the
M
't1 W oa receipt of - - Is hereby • ledged, has bargained and sold and by
f j, ",*1)",11 ' hese presents don ba.•sin, 1) nd convey unto the parties of the
second part, their eirs sig s, subject to the mineral reservation
5
t— 4 r and encumbrance as er er t forth, that certain tract or parcel
oQ
p
Z ¢ ' 'f1 n of • land lying and be •e in ' • r - owiship, Harnett County, State of -
m e5 North Carolina, and more p - rtl. ly described as follows:
, .S E•3 SD
a9nAe That certain tr ct • rc of land containing 4013.6E7 acres
uinarn and being bound -• on t - .• • a creek or branch, on the
West by Babcock • , • the •rth by the property now or
formerly belonging to art1 and Carolina Lakes, and
being bounded on the -st by t •- o••rty now or formerly
belonging to Stewart, .nd Win, f rt er described as follows:
BEGINNING at a centre - m• • nt 1, a line of Carolina
•
a. MCI! CIF Lakes, and running the al.. g- d h the line. of Carolina
wumwve Lakes, North 46 degrees . .• s -- •nds West 604.56 feet
M U * to a set iron stake, thence nn g •n end with the property
• a;" line of that property now o fo • y • . by Charles Haire,
South 44 degrees 05 minutes s ' ond • 3,004.00 feet to .a
concrete monument, thence run r g a •n .nd- Ith Babcock -
goo's •. tlE 7 .517 •
JDL 10 . P
HARNETT COU • 0; c
LEASE
THIS LEASE AGREEMENT (the "Lease ") is made this 1 `7 l day of
March 2010, between GCMMB, LLC., a North Carolina Limited
Liability Company, having its principal office at 238 N. McPherson Church Road, City of
Fayetteville, Cumberland County, North Carolina 28303 (hereinafter called "Landlord ")
and JC's Sports Pub & Restaurant Inc., having it principal office at 177 Lakeland Port,
Sanford, NC 27332, (hereinafter called "Tenant ").
WITNESSETH:
That in consideration of the rents, covenants and conditions herein set forth,
Landlord and Tenant do hereby covenant, promise and agree as follows:
1. PREMISES. Landlord hereby lets and leases unto Tenant, and Tenant
hereby leases from Landlord, the interior of a store space located in a building (the
"Building ") located in the Shopping Center, as defined in Paragraph 3 hereof, which
Shopping Center is located in the Johnsonville Township, Spout Springs community in
Harnett County, North Carolina, such store space currently has an address of 165 &169
Mittie Haddock Drive, Cameron, North Carolina 28326, and which contains 3,200 square
feet of Gross Leasable Square Footage, as defined in Paragraph 3 hereof as shown on
Exhibit A attached hereto (the "Demised Premises').
/, INITIAL TERM. The initial term of this Lease shall be five (5) years,
,r 4 encing on the Rent Con en Date as defined in Paragraph 7 hereof (which
is estimated to be on or about nuiety (O d the effective date of this lease or the
date Tenant opens for business whichever occurs first, and ending at the end of the Fifth
(5th) Lease Year, as defined in Paragraph 3 hereof (the "Initial Term "). The Initial Term,
as may be extended by any Option Term(s) which are exercised by Tenant in accordance
with the provisions hereof may be referred to herein as the "Term ".
3. DEFINITIONS. As used herein, except only where the context requires a
different meaning, the word "Premises" shall mean and refer to the above described
Demised Premises; "Shopping Center" shall mean and refer to that certain parcel of land
consisting of approximately 9.31 acres located on 133 Mittie Haddock Drive, Northwest
quadrant of H. M. Cagle Drive and Highway 24/87 in Johnsonville Township, in the
Spout Springs Community, in Harnett County, North Carolina and known as Spout
Springs Plaza, as more particularly described on Exhibit B hereto, and as depicted on
Exhibit A hereto, and the improvements thereon; "Gross Leasable Square Footage" or
"GLSF" shall be the square footage of the Demised Premises, measured from the middle
of common walls and the exterior of outside walls. "Lease Year" shall mean the twelve
(12) full calendar months following the Rent Commencement Date, plus any partial
calendar month in which the Rent Conunencement Date occurs, and thereafter each
subsequent period of twelve (12) full calendar months thereafter; and "Effective Date"
shall mean the date on which the last party executes this Lease, which date shall be
inserted into the first paragraph of this Lease by the last party to execute.
4. DATE OF OCCUPANCY. Landlord shall deliver possession of Premises
to Tenant, upon final execution of this Lease and delivery of the executed Lease to
Landlord. Landlord estimates that the Premises shall be substantially completed and
ready for delivery to Tenant on or about the date of Lease execution.
5. ADVANCED POSSESSION FOR FIXTURING. Upon final execution of
this Lease, Tenant shall have the right and privilege (but at its own risk) to receive, store
and install its trade fixtures in or on the Premises; provided, however,' that prior to Tenant
entering the Premises Tenant shall notice Landlord, and provide to Landlord a certificate
by Tenants liability insurance carrier showing that Tenant's liability, insurance is in full
force and effect and that Landlord is named as an additional insured thereunder.
6. SECURITY DEPOSIT. Tenant shall deposit with Landlord the sum of
Three Thousand Four Hundred and Sixty Six Dollars and 67/100 ($3,466.67) hereinafter,
the "Deposit") upon its execution and delivery of this Lease. Said Deposit shall be held
by Landlord, without liability for interest payable to Tenant, as security for the faithful
performance by Tenant of all the terms of this Lease. In an Event of Default (hereafter
defined) in performance or observance of the terms, covenants, or conditions of this
Lease by Tenant, Landlord may apply the Deposit or any part thereof toward the curing
of any such Event of Default and /or toward compensating Landlord for any loss or
damage arising from any such default. Upon the surrender of the Demised Premises at the
expiration or other termination of this Lease, if there is no existing Event of Default and
if Tenant is not .then otherwise liable to Landlord, the Deposit or the unapplied balance
thereof shall be returned to Tenant.
Landlord shall always have the right to apply the Deposit, or 'any part thereof, as
aforesaid in the case of any Event of Default, without prejudice to any other remedy in
lieu of applying said Deposit or any part thereof if Landlord shall apply the Deposit or
any part thereof as aforesaid, Tenant shall upon demand pay Landlord the amount so
applied by Landlord, to restore the Deposit to its original amount. Whenever the holder of
Landlord's interest in this Lease, whether it be the Landlord named in this Lease or any
transferee of said Landlord, shall sell or transfer its interest in this Lease, said Landlord
shall tum over to its transferee the Deposit or the unapplied balance thereof, and
thereafter such Landlord shall be released from any and all liability to Tenant with
respect to the Deposit or its application or return, it being understood that Tenant shall
thereafter look only to the transferee for such return. By execution of this Lease, Tenant
acknowledges and agrees that Landlord may commingle the Deposit with other funds of
Landlord in any account or accounts as Landlord may from time to time in its sole
discretion elect, and that Landlord shall not be obligated to place the Deposit in any trust
account or otherwise advise Tenant or account to Tenant for the location of such Deposit,
except as expressly provided herein.
7. RENTAL. Tenant's obligation to pay rent under this Lease shall
commen a on the "Rent Commencement
/ e cement Date "
,which is defined as the earlier of (i)
T "`",r (W1 day from the effective date of this lease, or (ii) the day Tenant opens for
e business in the Premises.
For each Lease Year (as defined in Paragraph 3), Tenant shall pay a
guaranteed annual amount of rent ( "Guaranteed Annual Minimum Rent ") in the amounts
as follows:
Initial Term:
Years 1 — 5: $41,600.00 per annum
($13.00 per square foot of GLSF)
Option Term
Years 6 -10: $48,000.00 per annum
($15.00 per square foot of GLSF)
Option Term:
Years 11 -15: $54,400.00 per annum
($17.00 per square foot of GLSF)
On or before the first day of each month the Tenant shall pay as Minimum Rent
the sum of
Initial Term:
Years 1 -5: $3,466.67 per month
Option Term:
Years 6 -10: $4,000.00 per month
Option Term:
Years 11 -15: $4,533.33 per month
In the event the Term of the Lease shall commence on a day other than the first
day of a calendar month or end on a day other than the last day of a calendar month, then
the rent payable for such fractional month shall be prorated on the basis of the total
number of days of occupancy during either such month.
Landlord may require at Landlord's sole discretion, in
addition to the annual minimum required in Paragraph 7, above, that Tenant shall submit
annual sales reports. Such reports are required by Landlord shall be submitted by Tenant
in writing no later than 30 days after the end of each month.
8. GROSS SALES. The term "Gross Sales" shall mean the total dollar amount
of the actual sales price, paid or unpaid, and all other revenues and income of any kind
derived directly or indirectly from the business conducted by Tenant and in or from the
Demised Premises. By the term "sales tax" is meant taxes which by law (1) are not
imposed on Tenant or any other party prior to sale at retail to Tenant, but (2) are
imposed on purchasers from Tenant at retail and are collectable by. Tenant from such
purchasers.
9. COMMON AREA MAINTENANCE. The "Common Area" of the
Shopping Center shall be defined as all portion or portions of the Shopping Center on
which at any given time no buildings are located. Landlord covenants that the Common
Area of the Shopping Center, as it may exist from time to time, shall be available for the
non - exclusive use of Tenant during the Term hereof. Notwithstanding the foregoing,
Tenant understands and agrees that Landlord shall have the right to close all or any
portion of the Common Area to the extent as may be necessary, in Landlord's opinion, to
prevent the dedication thereof or the accrual of any rights of any person or the public
therein, or to make improvements or repairs to the Common Area or the Shopping
Center. In addition, Landlord reserves the right to change the entrances, exits, parking
areas, traffic lanes and the boundaries and locations of such, provided Landlord at all
times maintains the minimum parking for the Shopping Center required by governmental
authorities. Landlord shall keep the Common Area in .a neat, clean and orderly condition,
and shall repair any damage to the facilities thereof but subject to payment or
reimbursement by Tenant as provided herein. Tenant shall pay to Landlord its prorata
share of the expenses incurred by Landlord in maintaining, repairing and operating the
parking and the other portions of the Common Area in the Shopping Center (the
"Common Area Maintenance Expenses ", plus the cost of personnel to implement such
services, to direct parking, and to police the common facilities, and fifteen (15 %) percent
of all of the foregoing costs to cover the Landlord administrative and overhead costs as
follows: Tenant shall initially pay in advance on or before the first day of each and every
month of the Term, as a minimum contribution towards Tenant'''s prorata share of
Common Area Maintenance Expenses for the first Lease Year hereunder, the sum of Two
Hundred Eighty Two and 73/100 Dollars (282.73) monthly (the "Initial CAM
Contribution ") if Tenant s prorata share of such expenses for such first Lease Year
exceeds the amount Tenant has prepaid in accordance with the foregoing and Landlord's
year end statement as provided below reflects a sum due from Tenant as a result of such
underpayment, then Tenant shall pay any amount then due to Landlord within fifteen (15)
days after Landlord finishes its year end statement. Landlord shall provide Tenant at the
time Landlord finishes such year -end statement with an estimate of Tenant's prorata
share of Common Area Maintenance Expenses for the ensuing Lease Year, and Tenant
shall pay one - twelfth (1/12th) of such estimate as additional rent with each payment of
Guaranteed Annual Minimum Rent during such Lease Year. If no such revised estimate
is provided, Tenant shall continue to pay the monthly estimated amount which it paid
during the immediately ended Lease Year. Notwithstanding the foregoing, in no event
shall Tenant pay less than the Initial CAM Contribution.
In the event the Term of this Lease shall commence on a day other than the
first day of a calendar month, or end on a,day other than the last day of a calendar
month, then the Common Area Maintenance charges payable by Tenant for such
fractional month shall be prorated on the basis of the total number of days of occupancy
during either such month, and shall be payable when Guaranteed fAnnual Minimum
Rent is due hereunder for such month.
Within ninety (90) days following the.end of each Lease Year during the
Term hereof; Landlord shall furnish to Tenant a statement of the actual amount of
Tenant's prorata share of the Common Area Maintenance Expense, accompanied by an
itemization of such costs, and a statement signed and certified by Landlord to be true
and correct setting forth the total amount paid by Landlord and Landlord's calculation
of Tenants prorata share and any amount then due from Tenant. Tenant shall pay said
amount to Landlord, as additional rent hereunder, within fifteen (15) days following due
receipt of Landlord's statement.
Tenant's prorata share of the Common Area Maintenance Expenses shall be that
percentage thereof determined by dividing the Gross Leasable Square Footage of all
buildings in the Shopping Center into the GLSF of the Demised Premises. Any provision
of this Lease to be contrary notwithstanding, the following shall not be included in the
Common Area Maintenance Expenses in calculating Tenants prorata share thereof
payable under this Article 9:
(a) The cost of any items of a capital nature; provided, however, Common Area
Maintenance Expense may include annual contributions toward the replacement cost,
based on a frill amortization of the replacement cost over the useful life of the item in
question, of the following capital items: (i) parking and driveway area resurfacing, (ii)
governmentally required improvements or alterations (but not those related to hazardous
materials) in connection with laws enacted after the date of this Lease, and (iii) cost
saving items (but only to the extent such items actually reduce Conunon Area
Maintenance Expenses).
(b) Costs charged to Tenant under any other Articles of this Lease, paid to
Landlord by other tenants, or reimbursed by insurance awards or condemnation proceeds.
(c) Legal fees, and leasing commissions, specific tenant improvement costs
or other expenses in connection with leasing space in the Shopping Center.
(d) Initial acquisition, construction, and installation costs (or assessments for
such costs), or for additions or upgrades to the Shopping Center, except as permitted in
(a) above.
(e) Costs and expenses attributable to any personnel except to the extent the
time and energies of such personnel are devoted exclusively to the Shopping Center, or
are allocated to the Shopping Center on a prorata basis in relation to the time devoted to
the Shopping Center by such personnel relative to other properties.
(t) Charges for any item for which Landlord has established a reserve until
such reserve has been depleted.
No more than once each Lease Year, Tenant shall have the right following
1.
reasonable notice to Landlord to inspect and audit Landlord's books and records
pertaining to Common Area Maintenance Expenses. Such inspection or audit shall take
place at Landlord's principal office for the Shopping Center.
10. ADMINISTRATIVE CHARGES FOR LATE PAYMENT. There shall be an
Administrative fee as detailed below for any charge or payment due, including rent, not
received at the office designated as the location of the Landlord to which payments are to
be made.
Fee Schedule:
A. $100.00 if not received within fifteen (15) days 'of due date for
each payment;
B. An additional $100.00 if not received within thirty (30) days of due
date for each payment;
C. An additional $100.00 if not received within forty -five (45) days
of due date for each payment;
D. An additional $100.00 if not received within sixty (60) days of due
date for each payment.
The above fees are necessitated by the additional administrative expenses
incurred in the handling, processing and collection of charges not received when due.
Payment of any administrative fees incurred due to late payment shall not excuse,
negate or constitute a cure of any Event of Default due to such payment not having been
received when due. Additionally, it is understood that the above charges relate to
administrative expenses incurred prior to any litigation and are not in any manner an
offset against legal fees or other expenses to be paid or reimbursed by Tenant in the
event of litigation of any kind and for any reason. Any administrative fees incurred in
accordance with the foregoing shall he due and payable as additional rent immediately,
without prior notice or demand. Administrative fees shall be subject to any limit
imposed by Federal or State law.
11. PAYMENTS TO LANDLORD. Tenant shall pay all rent and other
charges payable to Landlord at the Landlord's principal office at:
238 N. McPherson Church Road
P.O. Box 53646,
Fayetteville, North Carolina 28305
or upon written direction from Landlord, to such other person, firm or corporation or at
such other location as Landlord may from time to time direct.
12. UTILITIES. Tenant shall pay the cost of all water and sewer charges,
telephone, gas, electricity and fuel consumed or used in or at the Demised Premises
during the Term hereof, plus all deposits, connection fees and utility tap fees required for
such service.
13. SPRINKLER SYSTEM. Tenant will not, and will not permit others to,
misuse or abuse any sprinkler system installed in the Demised Premises, and Tenant will
at all times and at its sole expense comply with all regulations issued by Landlord and /or
any governmental authority concerning the use of the sprinkler system.
14. TAXES. Tenant shall pay all taxes, assessments, licenses and other
charges attributable to the stock of goods, trade fixtures and equipment and business
conducted in and on the Premises.
Tenant shall pay to Landlord, as additional rent hereunder, Tenant's
prorata share of the real property taxes and assessments ( "Taxes ") levied or assessed by
any lawful authority against the Shopping Center. Tenant's pro rata share of such Taxes
shall be that percentage which is determined by dividing the Gross Leasable Square
Footage of all buildings in the Shopping Center into the GLSF of the Demised Premises.
On or before the first day of each and every month of the first Lease Year of the Term,
Tenant shall pay one twelfth (1 /12th) of Tenant's initial annual contribution for Taxes for
such year, such initial contribution in the sum of One Hundred Fifty Six and 50 /100
Dollars ($156.50), per month in advance (the "Initial Tax Contribution "). In the event the
Term of this Lease shall commence on a day other than the first day of a calendar month,
or end on a day other than the last day of a calendar month, then the Tax charges payable
for such fractional month shall he prorated on the basis of the total number of days of
occupancy during either such month. In the event that Tenant's actual prorata share of
Taxes exceeds the amount of the Initial Tax Contribution (or the amount Tenant has paid
in any Lease Year in accordance with the following adjustment provision), then an
adjustment shall be made in said charges by Landlord on a calendar year basis when the
actual amount of Taxes for each year have been determined, and Tenant agrees to pay
such increased amount in accordance with Landlord's notice of adjustment. In no event
shall Tenant pay less than the Initial Tax Contribution.
Tenant agrees to pay to Landlord any sales or use tax or excise tax imposed
or levied against rent, or upon any other charge or payment received hereunder to be
made by Tenant which has been imposed or levied by any governmental agency having
jurisdiction thereof
Any provision of this Lease to the contrary notwithstanding, none of the
following shall be included in the definition of "Taxes ", or in other taxes payable by
Tenant under this Lease: (i) assessments in connection with initial utility installations
and other offsite improvements in or development costs of the Shopping Center; (ii)
taxes or assessments attributable to the inventory, furniture, trade fixtures, equipment,
or personal property of other tenants or occupants in the Shopping Center; (iii) interest
and late charges, penalties, or fines in connection with any delinquent payment of Taxes
by Landlord; or (iv) franchise, gift, inheritance, estate, transfer or income taxes of
Landlord. In the event of any general or special assessment against the Shopping Center
and/or the Landlord's improvements thereon or any portion thereof that Landlord can
elect to either pay in full or allow to go to bond (or paid in periodic installments), if
Landlord pays the assessment in full, there shall be included in Taxes each year no more
than the amount that would have been payable (as both principal and interest) had
Landlord allowed the assessment to go to bond (or paid in monthly installments).
15. USE OF PREMISES. During the Term of this Lease, the Demised
Premises shall be used and occupied solely for use as a sports pub and restaurant and for
no other use. A "sports pub and restaurant" shall mean a place of business in which
various sandwich and grill items are sold for on or off premise consumption. Such items
arehamburgers, sandwiches, French fries, and wraps.; Various appetizer items such as
chips and salsa, onion rings, and quesadillas shall also be allowed.: Tenant is prohibited .
from deriving more than 20% of its revenue from the sale of chicken. Tenant must
adhere to a similar: menu as the one attached as Exhibit I.. Further, the Demised
Premises shall be subject to the rights ofcurrent Tenants, leases, and restrictions. A list
of the current Tenants and restrictions are attached as Exhibit J. Tenant will also have
the right to sale alcohol on the premises only while Tenant is in possession of a valid
beer and liquor license. Tenants use is allowed with the approval of Food Lion. Food
Lions approval letter is attached as Exhibit K. Tenant must adhere and abide by the
Food Lion approval letter. The demised premises shall not be used as a food store or
food department or for the sale of groceries, meats, fish, produce dairy products, bakery
products or any of them, for off - premises consumption provided that nothing herein
shall prevent any occupant of the Shopping Center from selling such products as an
incidental part of its principal business.
At Tenant's request, Landlord shall execute and acknowledge a
memorandum of this Lease in recordable form reciting Tenant's use rights and any
other mutually acceptable provisions of this Lease (including Tenant's option to extend
the term). Either party shall have the right to record such memorandum with the
Register of Deeds for the County in which the Shopping Center' is located. Tenant
covenants to execute, on Landlord's request, any documents Landlord deems necessary
or advisable to have such memorandum released of record following the expiration or
earlier termination of this Lease.
Tenant at all times shall fully and promptly comply with all laws, ordinances,
orders and regulations (collectively, "Laws ") of any lawful authority 'having jurisdiction
of the Demised Premises including, but not limited to, such as shall relate to the
cleanliness, safety, occupation and use of the Demised Premises and the nature, character
and manner of operation of the business conducted in or at the Demised Premises.
However, any provision of this Paragraph 17 or any other provision of this Lease to the
contrary notwithstanding, Tenant shall in no event (and Landlord shall) be obligated to
perform or bear the cost of any work or repair of a capital or structural nature in
connection with compliance with any Laws unless required due to Tenant's specific use
of the Demised Premises or the manner of Tenant's operation or use of the Demised
Premises. Landlord represents and warrants that as of delivery of possession of the
Demised Premises to Tenant, the Demised Premises are in compliance with all applicable
Laws and insurance underwriting requirements or recommendations. Tenant shall not
permit, allow nor cause any public or private auction sales to be conducted in or at the
Demised Premises or the adoption or use of any sales promotion devices or practices that
shall tend to mislead or deceive the public or which directly or indirectly would tend to
detract from or impair the reputation or dignity of said business, the Demised Premises,
the Building, the Shopping Center or the general reputation or dignity of the business of
others conducted in the Shopping Center. In no instance shall this clause be interpreted so
as to prevent Tenant from utilizing the Common Area to locate dumpsters or trash
containers, subject to Landlord's prior written approval as to location of such receptacles.
Tenant shall not, without written consent of Landlord, place or maintain outside of the
Premises, on walkways, sidewalks, mall area or other Common Areas, any merchandise,
displays, or vending machines.
Tenant further agrees that all promotions and/or advertising for the business
conducted on the Demised Premises shall be equal to or greater than any promotions
and /or advertising it conducts for any other similar business it operates in Harnett
County, North Carolina, and shall provide documentation of compliance with the
foregoing provision to Landlord on request.
16. VENDING MACHINES AND GAME MACHINES. Tenant will be
allowed to operate two pool tables, one dart board game and one video game such as
"Silver Strike" or "Golden Tee" in the premises. Such games can be coin operated.
Tenant will not install, and will not permit others to install, on, at or in the Demised
Premises any machine used for any type of gambling including coin, card, dollar bill,
token - operated machine, game machine, sweepstakes machine, Internet gambling station,
or any other device used for any type of gambling or games of chance..
17. CONTINUOUS OPERATION. Tenant covenants at its expense, at all
times during the Term: to continuously and uninterruptedly use, occupy and operate for
the purpose set forth and permitted under Paragraph 15 hereof, all of the Demised
Premises other than such minor portions thereof as are reasonably required for storage
and office purposes; to use such storage and office space only in connection with
business conducted by the Tenant in the Demised Premises; to furnish and install all trade
fixtures and permitted signs; to keep the Premises fully lighted; to maintain an adequate
number of trained personnel for effective service to customers. In addition, Tenant
covenants to open the Premises for business to the general public, fully fixtured,
merchandised and staffed, by no later than the Rent Commencement Date.
18. STREETS ALLEYS AND PARKING AREA. Tenant shall have a non-
exclusive right to the use of all streets, parking areas, driveways, alleys and other
Common Areas within the Shopping Center during the term hereof. Parking areas
provided by Landlord in and about the Shopping Center are acknowledged to be and are
reserved for use by customers while shopping in Shopping Center. Tenant shall not, and
shall not
permit its employees to, use said parking areas, the streets, alleys or vacant lands
in the Shopping Center for parking or storage of any automobiles; trucks or vehicles
owned or used by them except as may be approved and designated in writing by
Landlord. Tenant, on request of Landlord, within five (5) days thereof, shall furnish to
Landlord a written statement of the names of all employees, agents, and representatives
employed in or at the Demised Premises by Tenant and the license registration number of
all vehicles owned by or used by Tenant or by such employees, agents or representatives.
The foregoing provision relative to parking applies equally to subtenants of Tenant and
employees of sub - tenants, temporary vendors, and /or person or persons connected in any
way with the business carried on, in or at the Demised Premises. Tenant will be
responsible to bring the foregoing provision to the personal attention of each and every
individual to whom it applies, and hereby accepts the obligation of their compliance. It is
understood the Tenant and employees of same, shall park in areas designated by Landlord
and that Landlord will provide adequate, reasonably proximate parking for Tenant and its
employees. It is also understood that Tenant shall be responsible for keeping the areas in
front and out back of their premises free from any and all types of debris caused by
Tenant and their guests/invitees. Such debris shall include, but not limited to, cigarette
butts, cigar butts, glasses, bottles, napkins, and any other items which are from Tenants
place of business. Failure to keep areas clean and clear from these items shall be a
violation of this Lease and place Tenant in default. If Tenant receives notification from
Landlord more than two times in any calendar year that Tenant has failed to keep areas
clean and clear, Landlord shall have the right to terminate this Lease. Landlord shall
grant Tenant the right to install an outdoor cooler and freezer. Such cooler and freezer
must be approved by landlord. Cooler and freezer specifications attached as Exhibit K
have been approved by Landlord and Tenant may not deviate from specifications.
19. ENTRY OF LANDLORD. Landlord, its agents and representatives, at all
reasonable times . may enter the Demised Premises for the purpose of (a) inspection
thereof including but not limited to, the inspection of fire extinguishing equipment and
for violations of fire protection and prevention regulations and practices, (b) making
repairs, replacements, alterations or additions to the Demised Premises or the Building as
permitted under this Lease, and (c) showing the Demised Premises to any prospective
purchaser or lender of the Shopping Center, or prospective tenant. Arty such entry by or
on behalf of Landlord shall not be or constitute an eviction, partial eviction or deprivation
of any right of Tenant and shall not alter the obligation of Tenant hereunder or create any
right in Tenant adverse to the interest of Landlord. Landlord shall exercise its rights
to enter the Demised Premises under this Paragraph 21 or otherwise (i) only
following reasonable notice to Tenant and only during business hours, except in the
event of an emergency, in which 'case entry may be at any time andi no prior notice to
Tenant shall be required, and (ii) so as to minimize interference with Tenant's business at
the Demised Premises. Landlord shall at its expense repair any damage in connection
with entry by Landlord and /or its representatives, agents, contractors, or employees onto
the Demised Premises.
20. MAINTENANCE. Landlord, at its sole cost expense, shall maintain and
keep in good repair and replace as necessary the roof, subroof, foundation, structural
Y i
components, exterior and supporting walls (with the exception of concrete flooring,
doors, windows, and plate glass), and the electrical wiring and the plumbing to the point
of connection with interior service lines of the Demised Premises; provided, however,
that the cost of any repairs which would otherwise be Landlord's responsibility hereunder
which are required as a result of the negligence or willful act of Tenant, its customers,
licensees, agents, servants or employees, shall be borne by Tenant, and shall be payable
on demand as additional rent hereunder.
Tenant, at its sole cost and expense, whether the same shall be the property of
Tenant or Landlord, shall at all times maintain in good condition the interior of the
Demised Premises and shall promptly repair, restore or replace as necessary all store
fixtures and equipment, electrical installations, interior electrical wiring and plumbing
from point of connection with exterior lines, all plumbing equipment exclusively serving
the Demised Premises, all machinery, all heating and air conditioning equipment
exclusively serving the Demised Premises, whether parts of the same shall be inside or
outside the Demised Premises, all maintenance of hoods and ventilation systems serving
the restaurant including roof maintenance and annual inspections of hood and ventilation
system, all hardware, all interior painting or decorations of every kind, all doors and door
and window screens, all glass and plastic, including window glass and any and all plate
glass including glass in exterior walls. Any replacements shall be made only by persons
approved in writing by Landlord and shall be of equal or better quality. Tenant, at its sole
cost and expense, shall furnish all replacement fluorescent tubes and ballasts used for
lighting fixtures inside the Demised Premises.
21. EQUIPMENT AND FIXTURES Except as provided below and except for
the approved Tenant Upfit Requirements as set forth in Exhibit C hereto, Tenant shall not
install in or about the Premises any interior or exterior lighting or plumbing fixtures,
steps, partitions, walls, fences, shades or awnings, or make any structural or exterior
changes or alterations in or to any part of the Building or the Demised Premises except
upon the prior written consent of Landlord, which consent may be withheld in Landlord's
sole discretion. Display counters and store furniture used in the Demised Premises may
be supplied and installed at the sole cost of Tenant, and shall at all times be and remain
the property of Tenant, and provided no Event of Default then exists, Tenant shall have
the right to remove the same from the Demised Premises at any time during the Term
hereof; provided, however, that Tenant is responsible for and must repair any and all
damages occasioned by such removal. Permanently affixed fixtures and equipment,
including but not limited to paneling, lighting fixtures, shelving and built -in cabinets,
supplied and installed by Tenant shall become the property of Landlord upon expiration
or earlier termination of this Lease, unless Landlord shall, prior to the termination or
expiration of this Lease, have given written notice to Tenant to remove same, in which
event Tenant shall remove such furniture, fixtures and equipment as identified by
Landlord and restore the Premises to the same good order and condition in which they
were at the commencement of this Lease, normal wear and tear excepted. Should Tenant
fail to remove such furniture, fixtures and equipment, Landlord may do so, with the cost
and expense thereof to be paid by Tenant on demand as additional rent hereunder.
Tenant understands and agrees that all permanently affixed fixtures, and
equipment located in the Demised Premises at the time the Lease commences are, and
will remain, the property of Landlord. It is understood the Tenant is making all its
permitted leasehold improvements in the Premises at its expense.
22. CARE OF PREMISES. Tenant shall not permit, allow or cause any act or
deed to be performed or any practice to be adopted or followed in or about the Demised
Premises which shall cause or be likely to cause injury or damage to any person or to the
Demised Premises or the Building or the mall areas, sidewalks, and /or pavements
adjoining the Demised Premises, or the Common Area or any other buildings and
improvements in the Shopping Center. Tenant shall not permit, allow or cause any
noxious, disturbing or offensive' odors, flumes or gases or any smoke, dust, steam or
vapors, or any loud or disturbing noise, sound or vibration to originate or be emitted from
the Demised Premises: Tenant at all times shall keep the entry ways, and sidewalks clean
• and free from trash, dirt, snow and ice. Tenant shall keep the Demised Premises clear and
free of rodents, bugs, and vermin, and at the request of Landlord, participate and
cooperate in carrying out any program of extermination that Landlord may direct and '
Tenant shall bear the cost thereof; or, at Landlord's election if conducted in cooperation
with other tenants, then Tenant shall bear its prorata cost on the basis of relative floor
areas of those participating. Tenant shall not use nor permit the use of any portion of the
Demised Premises as sleeping or living quarters or as lodging rooms, or keep or harbor
therein any live animals, fish or birds or use the same for any illegal purpose. Tenant
shall not permit, allow or cause the sinks, toilets, or urinals in the Demised Premises or
Building to be used for any purpose except those for which they were designed and
installed, and the expense of repairing any breakage, damage or removal of any stoppage
resulting from a contrary use thereof shall be paid by Tenant as additional rent hereunder.
Tenant shall maintain all show windows in a clean, neat and orderly 'condition and keep
the glass thereof clean. Tenant will be solely responsible for all carpet 'care to include, but
not be limited to, cleaning and shampooing. Carpet, if utilized in the flooring of the
space, will be cleaned by Tenant and at Tenant's sole cost and expense at the termination
or expiration of this Lease upon Tenant vacating the Demised Premises. Tenant shall
maintain all kitchen hoods and filters in order to prevent the possibility of excess grease
buildup. Tenant shall maintain protective devices on the roof to prevent roof damage
from kitchen hood exhaust (grease).
Tenant will not place or store flammable material at or near' a furnace or other
source of heat; overload electrical circuits; use or • operate defective appliances or
equipment; or allow any practice which might result in a fire. Tenant at all times, will
follow good fire prevention practices, including any recommendations of Landlord's
insurance carrier(s).
•
Tenant shall store all trash, waste, rubbish and garbage in closed trash containers
approved in advance by Landlord as to material, construction and location, and shall not
burn or otherwise dispose of any trash, waste, rubbish or garbage in or about the Demised
Premises, Building or the Shopping Center, except for disposal in such approved
containers. Tenant shall be responsible for the installation of a grease trap (if required)
and maintaining the grease trap. Tenant shall pay, as a part of Common Area
Maintenance Expenses hereunder, the expense, costs and charges for, or in connection
with, the prompt and regular removal and disposal of all trash, waste, rubbish and
garbage from the approved receptacles and otherwise from the Shopping Center. In the
event it is required by lawful authority having jurisdiction that compactors or other
mechanical devices or equipment be employed or utilized in the preparation of packaging
of trash, waste, rubbish, and garbage, Tenant will, at its sole cost and expense, provide
such required mechanical device or equipment and will be solely responsible for its
maintenance and upkeep. In the event other tenants in the Shopping Center, with
Landlord's consent and subject to reasonable requirements placed thereon by Landlord,
agree jointly to provide compactors, or other mechanical devices for the joint handling of
trash, waste, rubbish, and garbage, Tenant agrees that it will cooperate with other Tenants
and bear its proportionate share of the costs and maintenance of such devices and
equipment provided Tenant does not have its own garbage handling equipment and
disposal service, or Landlord, at its option, may provide such devises for common use
and include all costs associated therewith as Common Area Maintenance Expenses
hereunder.
23. HAZARDOUS MATERIALS. Tenant shall not cause or permit any
"Hazardous Material" (as hereinafter defined) to be brought upon, kept, or used in or
about the Premises by Tenant, its agents, employees, contractors, or invitees. If Tenant
breaches the obligations stated in the preceding sentence, then Tenant shall indemnity,
defend and hold Landlord harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities or losses (including, without limitation, diminution in
value of the Premises, the Shopping Center and /or adjacent property, damages for the
loss or restriction on use of rentable or usable space or of any amenity of the Premises,
the Shopping Center and /or adjacent property, damages arising from and adverse impact
on marketing of the Premises, the Shopping Center and /or adjacent property, and sums
paid in settlement of claims, attorneys' fees, consultant fees and expert fees) which arise
during or after the Term as a result of such breach or violation. This indemnification of
Landlord by Tenant includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal or restoration work
required by any federal, state or local governmental agency or political subdivision
because of Hazardous Material present in the soil or ground water on or under the
Premises and /or adjacent property caused by Tenant or its agents, employees, contractors
or invitees. Without limiting the foregoing, if Tenant causes or permits the presence of
any Hazardous Material on the Premises in violation of the foregoing restriction, Tenant
shall promptly, upon demand of Landlord, take all actions at its sole expense as are
necessary to remove or remediate such Hazardous Materials and return the Premises, the
Shopping Center and /or adjacent property to the condition existing prior to the
introduction of any such Hazardous Material, or Landlord, which removal and /or
remediation shall be performed in strict accordance with all applicable governmental
requirements, and by qualified and licensed abatement contractors approved by Landlord;
and provided in any case that Landlord's approval of such contemplated abatement
actions shall first be obtained prior to Tenant or its contractors undertaking any such
abatement actions. As used herein, the term "Hazardous Material" means a hazardous or
toxic substance, material or waste which is or becomes regulated by any local, state or
federal governmental authority or agency. Upon expiration or earlier termination of this
Lease, Tenant shall duly execute and deliver to Landlord a certificate (the "Hazardous
Waste Certificate ") in the form of Exhibit F attached hereto from a qualified architect or
engineer, certifying the absence of any Hazardous Materials in the Premises. In the event
Tenant shall fail to so deliver the Hazardous Waste Certificate, such failure shall, without
further notice or the passage of time, constitute a default under the Lease and shall entitle
Landlord to retain the entire Deposit held by Landlord, to be applied toward payment of
the cost of assessing the presence of Hazardous Material on the Premises, the Shopping
Center and /or adjacent property, and toward payment of all loss, cost, liability, damage
and expense of Landlord arising as a result of any such contamination and toward such
other costs and expenses of Landlord as Landlord may designate in its sole discretion.
Nothing contained herein shall be deemed or construed to limit the liability of Tenant to
Landlord hereunder for the breach of any covenant of Tenant under this Paragraph 23.
The provisions of this Paragraph 23 shall survive the expiration or earlier termination of
this Lease and Tenant's surrender of the Premises to Landlord. Any provision of this
Lease to the contrary notwithstanding, this Paragraph 23 shall not restrict Tenant's use of
• cleaning solvents and other materials typically used in the Tenant's business provided
Tenant complies with all applicable laws in connection . with such use. Landlord
represents and warrants that, to the best of Landlord's actual knowledge, as of the
delivery of possession of the Demised Premises to Tenant there are no Hazardous
Materials (including without limitation asbestos) in, on, at or about the Demised
Premises.
24. MOVING OF HEAVY ARTICLES. After Tenant opens for business, Tenant
shall not allow, permit or cause to be taken into or removed from the Demised Premises
any heavy or bulky articles, furnishings, fixtures or equipment of such size or weight as
shall require the use of tackle, carts, dollies or other moving aids or 'the service of more
than two (2) men, except' upon the piioi appoval f and at such times as the
Landlord shall specify. Tenant shall be liable for the cost of any damage to the Demised
• Premises, the Building the Shopping Center or sidewalks and pavement adjoining the
Premise or any portion of the Common Area which shall result from the movement of
such articles or objects. Tenant shall not unduly load or overload the floors of any part of
the Demised Premises and any heavy objects or articles stored or used therein shall be
stored and placed only in such place or location as Landlord, if it so elects, shall
designate.
25. LOSS OF PROPERTY. Landlord shall not be liable for any loss of any
property of Tenant from the Demised Premises or for any damages to any property of
Tenant, however occurring. Landlord, without liability to Tenant, shall have the right and
may at any time close the Premises whenever the same may become necessary in order to
comply with any law, order, regulation or direction of any lawful authority or the agents,
officers, or representatives thereof in the event of any public disturbance or like
circumstances which, in the sole judgment of Landlord, may make such closing appear
proper or advisable.
26. ADVERTISING. Except as provided in this Lease, Tenant shall not permit,
allow nor cause to be erected, installed, maintained, painted or displayed on, in or at the
Demised Premises or the Shopping Center or any part thereof any exterior or interior
sign, lettering, placard, announcement, decoration, advertising media, nor advertising
material of any kind whatsoever, visible from the exterior of the Demised Premises,
without prior written approval of Landlord. Tenant shall not permit, allow nor cause to be
used in or at the Demised Premises any advertising media or device such as phonographs,
radios, public address systems, sound production or reproduction devices, mechanical or
moving display devices, motion pictures, television devices, excessively bright lights,
changing, flashing, flickering or moving lights or lighting devices, or similar devices, the
effect of which shall be visible or audible from the exterior of the Demised Premises.
Any provision of this Paragraph 26, Paragraph 30 or any other provision of this Lease to
the contrary notwithstanding, Tenant shall have the right to install, maintain and change
from time to time (i) exterior signage consistent with Tenants prototype sign as shown on
Exhibit E hereto, but subject to compliance with applicable codes and with the sign
criteria then in effect for the Shopping Center, and (ii) professionally prepared signs and
displays in the interior of the Demised Premises consistent with Tenant's standard
signage and promotion programs. Landlord shall not unreasonably withhold, delay or
condition approval of any other signage.
Tenant recognizes that the Shopping Center is not the type of shopping center
known as an "Outlet Mall ", "Factory Outlet Mall ", "Off -Price Mall ", or "Discount Mall,"
Tenant thus will not and will not permit others on its behalf to advertise in any form
including notices, placards, or fliers, the business operated in the Demised Premises using
the words or phrases such as "Discount Store ", "Off- Price ", "Factory Outlet ", "Outlet" or
any word or phrase, printed or spoken, which connotes the foregoing type of discount,
second hand or off -price business, Notwithstanding the foregoing, for special sales and
for very limited times, Tenant may advertise merchandise at "Discount" or "Mark- down"
prices.
Tenant understands that a retail store, service shop, or restaurant located in a
shopping center which ceases to do business may be viewed by the general public as
being a failure, and such failure reflects unfavorably on the Shopping Center and on the
other businesses located in the Shopping Center. Thus, in the event Tenant ceases to do
business in the Demised Premises due to the termination of this Lease or otherwise
during or at the end of the Term, Tenant will not and will not permit others on its behalf,
to advertise in any public or private media such as, but not limited to, newspapers,
magazines, radio, television, direct mail or by way of banners, placards, posters or other
visual or any audio devices located in or on the Demised Premises, Building, or Shopping
Center a "Going Out of Business" sale, `Bankruptcy" sale (except for temporary
bankruptcy sale per order of a bankruptcy court having jurisdiction), "Lost Our Lease"
sales or "Removal" sale or any combination of the above or similar wording which
advertises a sale due to the business conducted in the Demised Premises being closed,
liquidated, moved, or sold.
27. SIGNAGE. Tenant, at its sole cost and expense, and within thirty (30) days
after Tenant opens for business, shall furnish and install at such place on the exterior of
the Demised Premises as Landlord shall approve, a sign of such design, size, content,
form and material as shall be approved by Landlord for the purpose of identifying and /or
locating said business of Tenant. Tenant, at its sole cost and expense thereafter during the
term hereof, shall promptly repair and at all times maintain such sign in good condition.
Requirements for the construction and installation of exterior store front and/or Building
front signs are attached to this Lease as Exhibit E, and Tenant agrees that all signs
installed by Tenant shall conform to the criteria set forth on Exhibit E.
At or prior to the end of the Term of this Lease, Tenant will be responsible for the
removal of all signage, exterior and interior. In the event Tenant does not remove signage
and makes any and all necessary repairs necessitated by such removal and to remove all
identifying marks of Tenant, Landlord may, in addition to its other rights and remedies
hereunder and at law or in equity, remove such signs and make such repairs and charge
Tenant for the reasonable and actual expenses incurred in doing so.
28. FIRE EXTINGUISHERS AND EQUIPMENT. At its sole cost and expense,
Tenant will furnish for each thousand (1,000) square feet of GLSF in the Premises,
not less than one (1) approved hand fire extinguisher. Landlord may designate the type of
extinguisher and the place each is to be installed, and Tenant will not remove nor re-
locate extinguisher without prior approval from Landlord. Tenant will be responsible for
and will bear the reasonable cost of periodic inspection and /or recharging or reloading of
said fire extinguishers.
In the event that automatic or other special fire extinguishers or any additional
prevention equipment is required by any local, State, or Federal governmental authority,
Tenant shall be responsible for the purchase, installation, upkeep, repair, recharging, and
replacement of said equipment by a competent licensed individual or firm approved by
Landlord and pursuant to plans approved by Landlord, and will keep the same in good
working order.
29. FIRE AND OTHER CASUALTY. If the Demised' Premises shall be
damaged by fire or other casualty, Landlord shall elect either: (a) upon written notice
delivered to Tenant within thirty (30) days following the date Landlord is notified of or
becomes aware of such damage, to terminate this Lease, effective as of the date of
Landlord's notice of termination, or (b) if Landlord does not elect to terminate this Lease
under (a) above, to repair, restore or rehabilitate the Demised Premises (exclusive of
Tenant's inventory, trade fixtures, furnishing and equipment, which Tenant shall be
responsible to repair or replace at its cost) at Landlord's expense, such repair to
commence no later than ninety (90) days after the date of Landlord's election to repair
the damage, subject to delays permitted hereof [force majeure], and with Landlord to
diligently prosecute completion of repairs thereafter. In the event Landlord elects (b)
above, this Lease shall not terminate, but Guaranteed Annual Minimum Rent shall abate
on a per diem basis while the Demised Premises shall remain untenantable, if Tenant is
unable to occupy the entire Premises for the purposes permitted herein, and in fact does
not operate in the Premises. If Landlord elects to so repair, restore or rehabilitate the
Demised Premises, but shall fail to substantially complete the same within One Hundred
Eighty (180) days after commencement of repairs, (due allowance being made for delay
due to practical impossibility and force majeure as provide in Paragraph 58(m) hereof),
either Landlord or Tenant, by written notice to the other given within fifteen (15) days
next following the last day of said One Hundred Eighty (180) day period, may terminate
this Lease, effective as of the date of such notice.
In the event of any termination of this Lease pursuant to this Paragraph,
Guaranteed Annual Minimum Rent reserved hereunder shall be apportioned on a per
diem basis and paid to the date of such termination, and Percentage Rental, if any, shall
be paid to the date of termination. The right of termination herein provided is separate
and independent of any other provisions of the Lease relative to termination.
30. INSURANCE. Tenant, during the Term hereof at its sole cost and
expense, shall keep all furniture, fixtures, and equipment, whether supplied or owned by
Tenant or by Landlord, and in addition, all window and door glass forming a part of the
Demised Premises, including but not limited to, plate glass, insured to the full extent of
its insurable value against loss or damage by fire with extended coverage, and Landlord
shall have no obligation to insure the foregoing or any liability to replace or repair same.
in the event that during the Term hereof as the result of any act or neglect of Tenant, its
invitees, agents, employees or representatives, or the nature of the business conducted in
or at the Demised Premises, the fire insurance rate upon the Demised Premises or the
Building or the Shopping Center shall be increased over the rate existing as of the date
hereof; Tenant, on demand, shall pay to Landlord, as additional rent, a sum equal to any
increase in the cost of such insurance.
Tenant shall defend and save Landlord harmless from and against any and all
claims from damage or injury, including death, to the property or person of anyone
resulting from or arising out of the use of the Demised Premises by Tenant, the conduct
of Tenant's business or any act of Tenant, its agents, employees or invitees. Tenant, at its
sole cost and expense, at all times shall maintain and keep in force insurance, with an
insurance company licensed to operate in North Carolina and otherwise reasonably
acceptable to Landlord, which shall protect Landlord from and against any such claim,
which insurance shall be in an amount of not less than One Million Dollars
($1,000,000.00) combined single limit with such insurance coverage amount to be
increased every three (3) years to such an amount as Landlord, in its discretion,
determines is necessary to maintain the present value of such coverage as of the Effective
Date hereof. On or before the date Landlord delivers possession of the Premises to
Tenant, and at all times thereafter, Tenant will provide Landlord proof of insurance
coverage in force in the form of a memorandum or certificate or other written evidence
prepared and forwarded by the insurance company or its agent, showing Landlord as an
additional insured under such insurance policies. Tenant further covenants and agrees that
it will protect, save and keep the Landlord harmless and indemnified against and from
any penalty or damage or charges imposed for any violation of any laws or ordinances,
occasioned by the act or omission of Tenant. All policies required of Tenant hereunder
shall contain an endorsement providing that the insurer will not cancel or materially
change the coverage of said policy or policies without first giving thirty (30) days' prior
written notice thereof to Landlord.
Landlord and Tenant hereby release each other, and their respective officers,
representative, agents, contractors, and employees, from any claim, for damage and /or
injury to the Demised Premises, the Shopping Center, and the improvements, fixtures,
and personal property located thereon to the extent covered by insurance policies then in
effect. Landlord and Tenant shall cause any fire insurance or property damage insurance
it carries to be written so as to include an endorsement of the foregoing waivers by the
insurer and to effect a waiver of all rights of recovery by means of subrogation by the
insurer in connection with losses or damages covered by the foregoing waivers by
Landlord and Tenant.
Tenant may carry any insurance required under this Lease in the form of a so-
called "blanket" policy or policies of insurance covering the Demised Premises along
with other locations of Tenant, provided the applicable insurance requirements of this
Lease are otherwise met, and the amount of coverage available under such policy is not
thereby reduced.
Tenant shall pay to Landlord, as additional rent, Tenant's pro rata share of
insurance premiums for Landlord's liability and fire and extended coverage insurance on
the Shopping Center of which the Demised Premises are a part, including rent loss or
abatement coverage, payable monthly in advance as provided below. For purposes of this
Paragraph, "Tenant's pro rata share" shall be that percentage which is determined by
dividing the Gross Leasable Square Footage of all buildings in the Shopping Center then
under lease into the GLSF of the Demised Premises. Tenant's prorata share of such
insurance costs for the first Lease Year of the Term of this Lease shall be Forty -Two
00 /100 Dollars ($42.00) per month, payable in advance on the first day of each month.
Pro rated on the basis of the total number of days of occupancy during either such month.
In the event that Tenant's actual pro rata share of Landlord's actual costs incurred for the
above referenced insurance in any Lease Year exceeds the amount Tenant has paid for
such year in advance in accordance with the preceding paragraph, then Landlord shall
make an adjustment for said charges on a calendar year basis when the actual costs have
been determined, and Tenant shall thereafter pay such adjusted amount monthly in
advance as provided above, subject to further adjustments.
31. INDEMNITY. Except as specifically provided in this Lease, and to the fullest
extent permitted by law, Tenant shall defend, indemnify and save Landlord harmless
from all liens, claims, liabilities, demands or causes of action, including reasonable
expenses incidental thereto, for injury to or .death of any person and damage to any
property arising within the Premises or elsewhere in the Shopping Center, and related to
the use of the Demised Premises and its facilities, or any repairs, alterations or
improvements (including original construction of the Building, the Premises, and any
improvements and fixtures constructed or installed by Tenant) which Tenant may make
or cause to be made with respect to the Demised Premises, or caused by the negligent
acts or omissions of Tenant or any employee or agent of Tenant. Tenant shall in all cases
•
accept any tender of the defense of any action or proceeding covered by this indemnity in
which Landlord is named or made a party and shall, notwithstanding any allegations of
negligence or misconduct on the part of Landlord, and will defend Landlord as provided
herein. This obligation to indemnity shall include reasonable attorney's fees and
investigation costs and all other reasonable costs, expenses and liabilities incurred by
Landlord.
Landlord shall indemnify, protect, defend and hold Tenant harmless from and
against any and all liability, claims, damages, losses and expenses of' any nature,
including reasonable attorneys' fees, arising out of or related to the negligence of
Landlord and /or Landlord's agents, representatives, contractors or employees.
The liability of either party to the other as set forth above shall not extend to any
matter against which the party seeking indemnity shall be effectively protected by
insurance, provided that, if any such liability shall exceed the amount of the effective and
collectible insurance in question, the liability of the indemnifying party shall apply to
such excess.
32. USE OF NAME AND PICTURES OF PREMISES - BUILDING OR
SHOPPING CENTER. Tenant shall not use, nor permit others on its behalf to use, the
name of the Shopping Center for any purposes other than as the address of the business to
be conducted in or at the Demised Premises or to use any picture or likeness of the
Demised Premises, the Building, or the Shopping Center or any part of any of the same in
any advertisement, notice, correspondence or other type of announcement or
communication without the prior written consent of Landlord, such consent shall not be
unreasonably withheld. Tenant shall not have nor acquire any property right or interest in
or to any name or distinctive designation which may become identified or associated with
the business to be conducted in or at the Demised Premises if such name or distinctive
designation shall contain, as a part thereof, the name or any reference to the Demised
Premises, the Building, the Shopping Center or any part or combination of parts of any of
the same. All property rights or rights of use of such name or distinctive designation shall
be and will remain the property of the Landlord. Tenant understands and agrees that the
use of the name and location of the Shopping Center corporation name or business name
or the use or display of such in any sign or visual or verbal, is a privilege which may be
granted solely by Landlord in its discretion.
33. ALTERATIONS. Except as expressly provided below, Tenant may from time
to time make interior, non - structural alterations to the Demised Premises reasonably
necessary for the business conducted in or at the Demised Premises, provided such
alterations shall be made at the expense of Tenant and under the supervision of Landlord,
and provided Tenant first obtains Landlord's consent to such alterations, which consent
will not be unreasonably withheld, conditioned or delayed. Should Tenant make such
alterations to the Demised Premises or wish to add additional equipment and /or lighting,
or should Tenant alter or change its method of doing business, the result of which
necessitates the addition of or the alteration of the heating and/or air conditioning system
within the Demised Premises, or necessitates the installation of additional electrical
circuits or the relocation of any existing electrical conduits within the Demised Premises,
then Landlord may elect to make such alterations, or may permit Tenant to make such
alterations, with Tenant in either case to bear the fill cost of such additions, changes or
alterations.
Any provision of this Paragraph 33 or any other provision of this Lease to the
contrary notwithstanding, Tenant shall have the right to perform from time to time, on
prior written notice to Landlord, nonstructural improvements, alterations, additions,
painting and /or decorating to the interior of the Demised Premises, the cost of which does
not exceed Five Thousand Dollars ($5,000) in any single instance.
34. EMINENT DOMAIN. In the event that the whole or any material part of the
Demised Premises, as determined by Landlord, shall be taken by any public authority
under the power of Eminent Domain, or like power, or sold under threat of eminent
domain; then this Lease. shall terminate as to the part of the Demised Premises so. taken,
effective as of the date possession thereof is delivered to the condemning authority or
transferee. All damages awarded for the taking of the Demised Premises, or any part
thereof shall be payable in the fiill amount thereof to and the same shall be the property
of Landlord, including but not limited to, any sum paid or payable as compensation for
the loss of value of the leasehold or loss of the fee of any part of the' Demised Premises.
Tenant 'shall be entitled only to that portion of any award expressly stated to have been
made to Tenant for loss of business and loss of value and the cost of removal of stock,
furniture and fixtures owned by Tenant; and, the foregoing notwithstanding Landlord
shall he entitled to any award attributable to the value of any permanent leasehold
improvements. If this Lease is not terminated as provided above, following any partial
taking of the Demised Premises, Landlord at its expenses shall with reasonable diligence
restore the remaining 'portion of the Demised Premises to an . architecturally and
functionally complete unit.
35. ASSIGNMENT AND SUBLETTING. Tenant shall not sell, assign,
mortgage, pledge, sublet or in any manner transfer this Lease, or any interest therein, or
agree to do so without the prior written consent of Landlord, such consent not to be
unreasonably withheld, delayed; or conditioned. Notwithstanding the foregoing, Landlord
may withhold its consent for any of the following reasons, and such withholding shall be
deemed reasonable: (i) any use which would violate an exclusive use or other prohibited
or restricted use pursuant to any agreement between Landlord and any other tenant or
occupant of the Shopping Center in effect as of such date, (ii) incompatibility of the
proposed use with Landlord's desired tenant mix in the Shopping Center, (iii) financial
inadequacy of the proposed sub - lessee or assignee, (iv) any non - retail use or retail use not
typically found in similar first class shopping centers, (v) the proposed transferee does
not have at least 5 years recent experience successfully operating the same or similar
business as the proposed use, (vi) a proposed use or user which would cause a diminution
in the reputation of the Shopping Center or the other businesses therein, (vii) a proposed
use or user whose impact on the Common Areas or other tenants would be
disadvantageous, (viii) if an Event of Default then exists under the Lease. Tenant shall
not permit any transfer of or lien upon this Lease, or any interest therein, by operation of
— ' '•"•:::
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• .. •
- "2 • 2 - ...r.'.... .•.“.'tly.t-t-tii,"--• thin' Parent"), .-----e- ening r; '' • . '''',.;re--7 fthIS,1-'-
h1ti...iiiip,iow.„,er.lii; ityliil• todrez S,..t.!."`.;,,", .„, ....,„ - ,iisioirtnati6.n.E.t..1!:;.,
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method) o
.: Ten,: ...fOlIOWin?'ewi:i. or other P7,...7". ,1.: , ens, other m entity
or e
*:•:',:...b-e: ..-• ;C.'-',-.'•:1:ii.:;:;I:lfktiY:Offlrf::14 :.-itirchaser.,_ ,?. et;angFirPrc. y' person
, "..,:.•,-•,' -- •-....vt. • 1131.......J.,:w.;,` survivor, 97_ 2.; ,":.• '.. • •-''A, , 'r' • ttione?` ("Equ 01 an
.1:41:Z\:,..s..:c...,.c.;;;:d '''''!,;(..=',..'• Y . ! '.. successor, SnrY..,:i,',..2..‘-':: `...i.....,';‘,: _- an goqu's a ("Eqn -...
,?.!tl.2:H.6..,....!....'f,.;;,.... • the POCC.;-„:.:,:r.f„(,-.-,.,13:.1g . .,.,On• (tbron.*9... voting power t
hod) of
,Th4&e(p.o9.!... ; - interests 12.1. power of Tenan • .: •
- : •c!'•,..........:„.2,....i7',i.....;',','•; if::,,ia;.:=';',..",ci- other equity An .-:-. 139w— • • r e, or any o ther met
..,.....t?..'"*.l..:;•,..:;?•-•,..... : ':-,:l....:: ' " ' itarsteC!‘, °,_..ee tithe voting . :ler,. exchange,
„.4..,•i.,. ''.::', 4' : • the ear:
aalo's
Iti in tien,tu - • ' • . an . '. a "
Tenant's
hialt resu . . • (throne)
w . . acquisition
• Th. aoch-7.7.: f Tenant;
b. 1. subsidiary °-
. .
. all oorr ostuh:s
of Tenant
consolidation L
merger, cons°. ... party.
n of t he assets o
a ll 0
A m..1°. is a P k tantially -
• c.
the Equity o f a s
Tenan suns
t - or • • of a
Parent,
acquisition en tity.
The ac9 n or an en reorganization to which Tenant,
d.
t by a person Parent Tenant
. ,.
e. The acquisition of all of substantially all of the assets of an entire
geographic unit, division or subsidiary of Tenant (but comprised of the assets of at least
two store locations), which includes the Demised Premises,.by a person or an entity.
Any event set forth in paragraphs (ii) and (iii) above shall be subject to the
following conditions: (x) Tenant and its successor, survivor or purchaser in or other party
to the transaction shall remain filly liable under this Lease; (y) all the terms, covenants
and conditions of this Lease shall remain in fill force and effect and be binding on such
transferee or successor; and (z) the acquiring entity, and /or Tenant in the event Tenant
survives the transaction, shall have, in the aggregate in Landlord's reasonable business
judgment, a net worth sufficient to operate a successful business in the manner and
quality required by this Lease.
36. OPTION TO RENEW. Tenant shall have the right, to be exercised as
hereinafter provided „to renew the term of this Lease for two (2) additional terms of five
(5) years on the following terms and conditions:
1. No default is existing or continuing in the performance of any of the
terms of this Lease;
2. The renewal terms shall be on the same terms, covenants and conditions
as provided in this Lease except for the rental during the renewal term, Tenant shall
exercise its right to renew in the following manner: ,
• (i) At least one hundred and eighty (180) days prior to the expiration of the
initial term, Tenant shall notify Landlord in writing of its election to exercise a right to
renew the term of this Lease for the renewal term.
(ii) On the giving of such notice of election and the attachment of a rent schedule
as described above, this Lease, subject to the terms of this provision, shall be deemed to
be renewed for a period of five (5) years from the date of the expiration. of the term
during which such notice is given without the execution of any further lease or
instrument.
37. HOLDING OVER. In the event Tenant remains in possession of the Demised
Premises after the expiration of the Term hereof, without the exercise of an option to
renew, if any, Tenant thereby shall not thereby acquire any right, title or interest in or to
the Demised Premises, but such holdover shall constitute a tenancy from month to month,
subject to all the conditions, provisions and obligations of this Lease insofar as the same
shall then be applicable to such tenancy, with the exception that the monthly rent to be
paid during such tenancy (in addition to all items of additional rent due hereunder) shall
be 125% of the monthly Guaranteed Annual Minimum Rent payable by Tenant at the end
of the immediately preceding Term.
In the event Tenant is in possession of the Demised Premises in a holding over
status as provided above, and should either party wish to terminate such tenancy, said
party will give thirty (30) days' advance written notice to the other. If Tenant fails to
vacate the Demised Premises on or before the date such holdover tenancy ends, Tenant
shall be obligated to pay, for the period Tenant remains in possession of the Demised
Premises, in addition to all additional rent and other charges, Minimum rent equal to
200% of the Guaranteed Annual Minimum Rent payable hereunder immediately prior to
the end of the Term hereof.
38. DEFAULT. The happening of any of the following events shall constitute
an "Event of Default" hereunder on the part of Tenant:
(a) Tenant as bankrupt, whether a voluntary or involuntary filing, under any
bankruptcy law or act (and in the ease of an involuntary filing only, which filing is not
vacated within sixty (60) days after the filing thereof);
(b) The commencement in any court or tribunal of any proceeding, whether
voluntary or involuntary, to declare Tenant insolvent or unable to pay its debts (and
which, in the case of an involuntary action only, is not be vacated within sixty (60) days
after the commencement thereof);
(c) Tenant fails to timely pay when due any installment of Guaranteed
Annual Minimum Rent, additional rent, or any charges payable under this Lease, and
such failure continues for a period often (10) days after Landlord gives written notice of
such nonpayment (provided that for the second and each subsequent late payment each
calendar year, no such notice from Landlord shall be required);
(d) The failure of Tenant to fully and promptly perform any other obligation
of Tenant hereunder, and such failure continues for more than thirty (30) days following
Landlord's written notice to Tenant of such failure (provided if the nature of the failure is
such that it cannot reasonably be cured within thirty (30) days, no Event of Default shall
exist if Tenant commences cure within such 30 -day period and thereafter diligently and
continuously prosecutes cure to completion);
(e) The appointment by any court under any law of a receiver, trustee, or
other custodian of the property, assets or business of Tenant, which appointment shall not
be vacated within sixty (60) days of such appointment; or
(0 The assignment by Tenant of all or any part of its property, assets or the
leasehold interest of Tenant by process of law or otherwise in satisfaction of any
judgment, debt or claim.
(g) Tenant closes the Premises for business to the general public or abandons
or vacates the Premises except for renovations. Tenant shall have the one time right to
close during the second option term for a period of no longer than forty five (45) days for
remodeling and renovations. Tenant shall have the one time right to close for a period of
no longer than forty five (45) days each subsequent option period for remodeling and
renovations.
39. LANDLORD'S REMEDIES FOR DEFAULT. Upon the occurrence of any
Event of Default, Landlord may elect any or all of the following remedies, in addition to
its other remedies at law or in equity: (a) terminate this Lease, (b) terminate Tenant's
right to possession and occupancy of the Premises without terminating this Lease
Agreement, and (c) cure Tenant's default for the account and at the expense of Tenant,
and collect from Tenant upon demand the cost of curing Tenant's default. Tenant
hereby grants to Landlord frill and free license to enter into and upon the Demised
Premises upon the occurrence of an Event of Default, and following process of law, to
repossess the Demised Premises as of Landlord's former estate and to expel or remove
Tenant and any others who may be occupying the Demised Premises and to remove
therefrom any and all property. Landlord may use for such purpose such force as may
be necessary without being guilty of or liable for trespass, eviction or forcible entry and
without relinquishing Landlord's right to collect rent due hereunder or any other right
given to Landlord hereunder or by operation of, law. Except as otherwise expressly
provided in this Lease, Tenant hereby expressly waives the service of any demand for
the payment, of rent or for possession of the Demised Premises or to re -enter the
Demised Premises, including any and every form of demand and notice prescribed by
any statute or other law. Tenant expressly waives any rights which are or may be
conferred upon Tenant by any present or future law to redeem the premises in any
action for eviction under provision of law.
If Landlord shall elect to terminate this Lease for an Event of Default, Landlord
upon such termination shall be entitled to recover from Tenant, in addition to all costs of
recovering the Premises, terminating the Lease, all unpaid charges and rents to the date of
termination, damages in an amount equal to the then current value of the Guaranteed
Annual Minimum Rent that would have been payable hereunder for the remainder of the
Term, but for the termination of the Lease, plus all items of additional rent that would
have been due hereunder for the remainder of the Tern based on the amount of such
monthly payments payable by Tenant for such items during the Lease Year in which the
Lease was terminated, less the amount of such loss which Tenant proves could
reasonably be avoided.
If Landlord shall elect to terminate Tenant's right to possession only, without
terminating this Lease, Landlord at its option may enter into the Demised Premises,
remove Tenant's property and other evidence of tenancy and take and hold possessions
thereof without such entry . and possession terminating the Term' of this Lease or
otherwise releasing Tenant in whole or in part from its obligation to pay the rent herein
reserved for the full Term hereof. In any such case, Landlord may elect (a) for Tenant
thereupon to pay to Landlord, in addition to all costs incurred by Landlord to obtain
possession of the Premises, attorneys fees of Landlord, and all costs incurred in making
repairs to the Premises and alterations necessary to relet the Premises and all unpaid rents
and other charges to date, a sum equal to the present value of the entire amount of the
Guaranteed Annual Minimum Rent, additional rent and other charges payable for the
remainder of the Term as provided above, less the amount of such damages that Tenant
proves could reasonably be avoided, or (b) Landlord at its option may elect to collect
from Tenant monthly on demand all rents and other charges due hereunder, after applying
any rents received on any reletting to the payment of any unpaid rents and additional
charges due from Tenant hereunder, and Landlord's other costs and expenses incurred in
obtaining possession of the Premises and making repairs and alterations to the Premises,
and all attorneys fees incurred, and the balance, if any, to rents due hereunder. Upon and
after entry into possession without terminating this Lease, Landlord shall use reasonable
efforts to relet the Demised Premises or any part thereof for the account of Tenant for
such rent, and for such time and upon such terms as Landlord, it its sole discretion, shall
determine. Tenant agrees that Landlord need not give preference in reletting the Premises
over any other space in the Shopping Center which Landlord may be attempting to lease.
In the event of (b) above, if the rent collected from such reletting is more than sufficient
to pay the fill amount of the rent reserved hereunder together with the aforementioned
costs, Landlord, at the end of the Term hereof, shall apply any surplus to the extent
thereof to the discharge of any obligation of Tenant to Landlord under the terms of this
Lease. Tenant agrees that the rights and remedies given to Landlord in this Lease are
distinct, separate and cumulative remedies, and that no one of them, whether or not
exercised by Landlord, shall be deemed to be in exclusion of any of the others.
40. LANDLORD'S DEFAULT. Landlord shall not have committed an "Event of
Default" under this Lease unless Tenant shall have notified Landlord in writing of
Landlord's failure to perform an obligation hereunder and Landlord shall fail to cure the
same within thirty (30) days after receipt of Tenant's notice of Landlord's default (or if
such failure cannot be cured within thirty (30) days, then if Landlord shall fail to
commence to cure the same within such thirty (30) day period and thereafter diligently
prosecute such cure to completion). Tenant shall have all remedies at law or in equity
available to Tenant for Landlord's Event of Default if not in conflict with the provisions
of this Lease. In the event Tenant makes any claim or asserts any cause of action against
Landlord: (a) Tenant's sole and exclusive remedy shall be against the current rents,
issues, profits and other income Landlord receives from Landlord's operation of the
Shopping Center, net of all current operating expenses, liabilities, reserves and debt
service associated with said operation ( "Net Income" for purposes of this Section only),
and subject to the rights of Landlord's mortgagees; (b) no other real, personal or mixed
property of Landlord, or any officers, directors, trustees, employees, partners, members
or agents or property managers of Landlord, wherever located, shall be subject to levy on
any judgment obtained against Landlord. The limitations set forth in this Section shall be
enforceable by Landlord and /or by any partner, trustee, officer, director, member,
employee, agent or property manager of Landlord.
41. WAIVER OF DEFAULT. No waiver by the parties hereto of any Event of
Default or breach of any term, condition or covenant of this Lease shall be deemed to be
a waiver of any subsequent Event of Default or breach of the same or any other term,
condition or covenant contained herein.
42. MERCHANTS ASSOCIATION. In the event there has been established an
association of the merchants engaged in business in the Shopping Center, Tenant agrees
that it shall maintain for the duration of this Lease, membership in said association and
shall pay the annual dues and any assessments and charges thereof as voted by the
members thereof Tenant shall conduct and operate its said business in a manner in
keeping with the dignity and reputation of the Shopping Center and will make all
reasonable efforts to work harmoniously with other merchants in the Shopping Center,
43. IDENTITY OF INTEREST. The execution of this Lease or the performance
of any act pursuant to the provisions hereof shall not be deemed or construed to have the
effect of creating between Landlord and Tenant the relationship of principal and agent or
of partnership or joint venture, and the relationship between them shall he that only of
Landlord and Tenant.
44. NOTICE. All notices required or permitted to be given by this Lease shall be
deemed to be properly given if delivered in writing or personally or deposited in the
United States mail; postage prepaid, certified mail, return receipt requested, to Landlord
or Tenant, as the case may be, at the address given below or to such other address as may
be furnished by either party to the other in writing in accordance with the terms hereof
Notice shall be deemed given on the third day following deposit in accordance with the
foregoing requirements, or on the day after depositing in] overnight mall in the United
States Mail or recognized national express delivery service, or on the date of actual
receipt, if personally delivered.
TO LANDLORD: GCMMB, LLC.
238 N. McPherson Church Rd.
Fayetteville, NC 28303
TO TENANT: Justin Leon and Jay Morris Jr.
177 Lakeland Port
Sanford, NC 27332
TO TENANT: JC's Sports Pub and Restaurant
169 Mittie Haddock Drive
Cameron, NC 28326
45. COVENANT OF NONDISTURBANCE AND OUIET POSSESSION.
Landlord covenants that it is solely vested with fee simple title to the Premises and the
Shopping Center and has good right to lease the Premises to Tenant. Landlord
covenants to keep Tenant in quiet possession of the Premises during the Term of this
Lease, provided Tenant is not in default under this Lease.
46. SURRENDER OF PREMISES. At the termination or expiration of this
Lease, Tenant will surrender the Demised Premises to Landlord "broom clean, in good
order and condition, reasonable wear and tear accepted, and will surrender the keys
thereof to Landlord or his agent.
47. SUCCESSOR. Subject to the terms of Paragraph 37 hereof this Lease
shall inure to the benefit of and bind the parties hereto, their heirs, legal representatives,
successors and assigns. Wherever used herein, and as the context may require, the
singular shall include the plural, the plural the singular, and the use of any gender shall be
applicable to all genders.
48. SECURITY. While this Lease is in effect, Tenant will participate in, and
cannot resign from participation in, any security program now in effect or which may be
instituted to protect the safety of persons and property in the Shopping Center. The
security program is or will be established and operated by the merchants of the Shopping
Center and other merchants in the immediate area, acting as a committee of the whole.
The participation in this security program becomes effective upon the Effective Date of
this Lease, or upon the commencement of the security program, whichever is later.
49. LEASE MODIFICATIONS. Tenant agrees to execute reasonable Lease
modifications if in connection with fmancing by Landlord of the Shopping Center, a
banking, insurance, or other recognized institutional lender shall request such reasonable
modifications of this Lease as a condition to such financing. Tenant will not unreasonably
withhold, delay or defer its consent to such modifications, provided that such Lease
modifications do not increase the obligations of Tenant hereunder or materially adversely
affect the leasehold interest hereby created.
If Tenant fails to execute and deliver any documents as and when required above,
such failure will constitute an Event of Default under this Lease, entitling Landlord to the
same rights and remedies as if such default were with respect to non - payment of
Guaranteed Annual. Minimum Rent.
50. SUBORDINATION. This Lease is and shall be subject and subordinate in all
respects to any deed of trust or mortgage, and to all renewals, modifications,
consolidations, replacements and extensions thereof now or hereafter placed on or against
or affecting the Shopping Center or any part thereof or Landlord's interest or estate
therein. This paragraph shall be self - operative and no further instrument of subordination
shall be required. However, in confirmation of such subordination, Tenant agrees to
promptly execute and deliver any instrument that Landlord or the Trustee or holder of
any such lien or any of their respective successors in interest may request to evidence
such subordination, and Tenant hereby irrevocably appoints Landlord the attorney -in -fact
of Tenant to execute and deliver such instrument on behalf of Tenant, should Tenant
refuse of fail to do so after request.
Tenant is notified of Landlord's assignment of this Lease as security for a
mortgage loan and of the name and address of the holder of such mortgage or deed of
trust, Tenant shall not terminate or cancel this Lease for any default on the part of the
Landlord or pursue any other remedy hereunder or at law or in equity for any Landlord
default hereunder without first: (a) giving notice of its intention to do so to the holder of
such mortgage or deed of trust, the notice to describe in reasonable detail the nature and
extent of the default, and (b) affording the holder of such mortgage or deed of trust a
• i'
reasonable opportunity to perform, but such holder shall be under no duty to perform, on
behalf of Landlord its obligations under this Lease, including such time as may be
necessary for the holder to legally obtain possession of the property from Landlord, if the
holder deems that possession is required in order to effectuate such cure.
51. ATTORNMENT. In the event any proceedings are brought for foreclosure, or
in the event of the exercise of the power of sale under any mortgage or Deed of Trust
made by Landlord covering the Premises or the Shopping Center or any portion thereof,
or should any underlying lease in which Landlord is the tenant be terminated, Tenant
shall atom to the holder, purchaser or underlying landlord under such underlying lease
upon any foreclosure, sale or lease termination, provided that the purchaser or underlying
landlord shall be obligated to acquire and accept the Premises subject to this Lease.
52. ESTOPPEL CERTIFICATES. Recognizing that both parties may fmd it
necessary to establish to third'parties, such as accountants, banks, mortgagees or the like,
the then current status of performance hereunder, either party, on the written request of
one to the othermade from time to time (or from, any lender or prospective lender of
Landlord tO Tenant at any time and from time to time),. will promptly finish a' written
statement to the requesting party conceiving the status of any factual matter pertaining to
this Lease.
Without limiting the generality of the foregoing, Tenant specifically agrees,
within 15 days following the Rent Commencement Date, to execute a written
confirmation in the form of Exhibit G hereto, of the date of Landlord's delivery of
possession of the Premises to Tenant hereunder, the Rent Commencement Date, and the
date of the commencement of the Initial Term hereof and of the expiration of the Initial
Term hereof without limiting the foregoing, at any time within ten (10) days after such
request is made, Tenant shall execute, acknowledge and deliver to Landlord or to any
prospective or actual lender of Landlord a certificate, in the form of Exhibit F hereto,
evidencing: (a) whether this Lease is in full force and effect; (b) whether this Lease has
been amended in any way; (c) whether there are any existing defaults hereunder to the
knowledge of Tenant and specifying the nature of such details, if any; (d) the date to
which rent has been paid; and (e) any other factual matters relating to the Lease or the
Premises which Landlord or its lender may request.
53. CAPTIONS. Any headings or captions preceding the text of the several
articles and paragraphs hereof are inserted solely for convenience and reference and shall
not constitute a substantive part of this Lease, nor shall they affect its meaning,
construction or effect.
54. ATTORNEYS' FEES. In the event of any action or dispute between
Landlord and Tenant arising out of this Lease, the losing party shall pay the prevailing
party a reasonable sum for attorneys fees incurred in bringing or defending such action
and/or enforcing any judgment granted therein.
55. BROKERAGE COMMISSIONS AND FINDERS FEES. Each of the
parties represents and warrants that it has engaged no broker or finder and that no
claims for brokerage commissions or finder's fees will arise in connection with the
execution ofthis Lease and each of the parties agrees to indemnify the other against and
hold it harmless from all liabilities arising from any such claim arising on account of its
acts or omissions (including, without limitation, the cost of attorney's fees in connection
therewith).
56. INTENTIONALLY OMITTED.
57. EXHIBITS. All Exhibits referred to herein shall be considered a part
hereof for
all purposes with the same force and effect as if copies at full length herein. The
Exhibits attached hereto are listed as follows:
Exhibit A (Legal Description)
Exhibit B (Site Plan)'.
Exhibit C (Description of Landlord's Work)
Exhibit D (Tenant's Upfit Requirements)
Exhibit E (Sign Regulations)
Exhibit F (Hazardous Waste Certificate)
Exhibit G (Estoppels Certificate)
Exhibit H (Attomement & Subordination)
58. FRANCHISOR' S RIGHTS. INTENTIONALLY OMITTED.
59. MISCELLANEOUS.
(a) Time is of the essence of this Lease and each and every of its provisions
in which performance is a factor.
(b) If there be more than one person or entity executing this Lease as Tenant,
the obligations hereunder imposed amongst and between such persons or entities shall be
joint and several.
(c) Neither Landlord nor Tenant shall record this Lease, but a short form
memorandum hereof in the form of Exhibit may be recorded at the request of Landlord,
and if so requested Tenant shall execute such memorandum in recordable form.
(d) This Lease contains the entire agreement between the parties hereto and
no representations, inducements, promises or agreements, oral or otherwise, entered into
prior to the execution ofthis Lease, will alter the covenants, agreements and undertakings
herein set forth. This Lease shall not be modified in any manner, except by an instrument
in writing executed by all parties.
(e) If any term or provision of this Lease or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of
this Lease, or the application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be affected thereby
and each term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law. The terms and provisions of this Lease shall not be construed
against or in favor of a party hereto merely because such party or its counsel is the
draftsman of this Lease.
(0 All of the terms and words used in this Lease, regardless of the number
and gender in which they were used, shall be deemed and construed to include any other
number (singular and plural), and any other gender (masculine, feminine or neuter), as
the context or sense of this Lease or any paragraph or clause hereof may require, the
same as if the words had been fully and properly written in the number and gender.
(g) Any reference contained in this Lease to the "Effective Date" or similar
terms shall mean the last date on which any party required to execute or initial this Lease
does so, and such date shall be set forth in the first paragraph of this Lease where
indicated; provided, however, if, within three (3) business days of`the Effective Date, a
fully- executed original of this Lease is not' received by any other party that was not the
last to execute or initial this Lease, the Effective Date shall be extended to the date on
which all such other parties are in actual receipt of a fully- executed original of this Lease.
(h) Tenant and Landlord each warrant and represent that the party signing this
Lease on behalf of each has authority to enter into this Lease and to bind Tenant and
Landlord, respectively, to the terms, covenants and conditions contained herein. Each
party shall deliver to the other, upon request, all documents reasonably requested by the
other evidencing such authority, including a copy of all corporate resolutions, consents or
minutes reflecting the authority of persons or parties to enter into agreements on behalf of
such party.
(i) This Lease shall be governed by and construed and enforced in
accordance with the internal substantive laws (but not the rules governing conflicts of
laws) of the state in which the Premises is located.
0) When used herein, the terms "including" and "includes" and similar
words or phrases shall be deemed to be terms of illustration only and not limitation. As
used in this Lease, the words "hereof," "herein" "hereunder" and words of similar import
shall mean and refer to this entire Lease and not to any particular article or paragraph of
this Lease, unless the context clearly indicates otherwise.
(k)- This Lease may be executed in counterparts, in either original typed
instruments or reproductions thereof; but all counterparts shall constitute one and the
same instrument.
(1) All obligations of Landlord or Tenant which by their nature involve
performance in any particular after the end of the Term, or which cannot be ascertained to
have been fully performed until after the end of the Term, shall survive the expiration or
sooner termination of the Term.
(m) Except as may otherwise be expressly provided to the contrary herein,
Landlord and Tenant shall be excused for the period of any delay in performance of any
obligations hereunder when prevented from doing so by the wrongful or negligent acts or
omissions of the other party or by causes beyond either party's control, which shall
include all labor disputes, civil disturbance, war, warlike operations, invasions, rebellion,
hostilities, military or usurped power, sabotage, governmental regulations or controls,
fires or other casualty, inability to obtain any material or service or acts of God.
Notwithstanding the foregoing, nothing contained in this paragraph shall excuse either
party from paying in a timely fashion any payments due under the terms of this Lease.
(n) In the event either party hereto fails to pay any sum due under this Lease on or
before the due date specified in this Lease, such past due amount shall accrue, and the
failing party shall be liable for, interest from the original due date until paid at an annual
rate equal to the lesser of (0 the prime rate then published in the Wall Street Journal plus
three percent (3 %) or (ii) the maximum rate permitted by law.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed under seal as of the day and year first above written.
LANDLORD:
WITNESS GCMMB, LLC.
S$ Q/ �. C r ' V l6 _ By: 6 . iQ. /...�.�
Its: Member /Manager '
ATTEST TENANT: JC'S SPORTS PUB AND
F s RES T` *.
° — �.a BY: � � S.
416 `��� I� . r' nt /
STATE OF' *RTH CAROLINA
COUNTY OF . :ERLAND
(
I, 1 ler L. II 6 r IS a Not. P : is of 1 id • County and State do
hereby certify that S u C • ! •ersonally ca• e before me this day
and acknowledged that _ e a Member /M. _er of GCMMB, L. C., a North Carolina
•mited Liability Company, an, that by a ority duly given and as e act of the LLC.,
th= foregoing instrument was si: led • ' s name by a Member /Mana• -r, and witnessed
by self as a witness.
TNESS my hand . . Noto . Seal, this 17 day of jj y f
209
at ea A 211 •
otary Public
My Commission Expires: U416 J4 20 I I
STATE OF ok' ??Y CoL?J»
COUNTY OF C u ,b
l � l ./ I AYL .I�IMtn
I, a✓as L !L, �// a Notary Public of said County and State,
certify that fr . J y o personally came before me this date and
acknowledged the due execution of the foregoing instrument.
WITNESS my hand and Notarial Seal this / `relay of
Pit 01 , 20'
y� ..r J9JA I_.
gurep Notary Public
My Commission Expires:JQA/L /6 26//
STATE OF NORTH CAROLINA
COUNTY OF CUMBERLAND
h Jta h /vl , a Nota Public of said County and State do
hereby certify that C rt 4. 2 4rm ! -,_rL personally came before me this day
and acknowledged that sh is a Member/Manager of GCMMB, LLC., a North Carolina
Limited Liability Company, and that by authority duly given and as the act of the LLC.,
the foregoing instrument was signed in its name by a Member/Manager.
WITNESS my hand and Notoral Seal, this 11 day of /4 rcL
201ez
5 pdd M.
diez,‘„,„_ tar,vi
y J
Notary Public A�/6LtG v
nL N COUP
My Commission Expires: N1,st,s 21, 2-0/0
STATE OF
COUNTY OF
I, a Notary Public of said County and State,
certify that personally came before me this date and
acknowledged the due execution of the foregoing instrument.
WITNESS my hand and Notarial Seal this __ day of
, 20_
Notary Public
My Commission Expires:
•
0 0.
EXHIBIT A
L110aL -DESCRIPTION: •
. .
_ - Exhibit" I " —
LEGAL DESCRIPTION
• •
SPOUT- SPRING PLAZA - TRACI' ii it"
COMMENCING, South 60 tepee 08 minutes 22 seconds East 692.62 Rat Gan the northwest Addy cram
of Lot 7 9 B a b c o c k V i l l a g e u r e c o r d e d in Map B o o k 1 1 , P a p 17, Harnett C R egistry to S Pebd Ind Plat I
BEGINNING;
THENCE North 29 degrees 51 dim** 38 seconds Best tbr a dklance of 120.00 Ad to a point
THENCE South 60 degrees 08 mbmbis 22 seconds Ernst fir a distinctof 179.73.1bat to a point.
THENCE/Jodi 29 &grow 5I minder 38.-....' Est Thr • atoms of 23100 Ad to poink
THENCE Edith 60 degrees 08 minutes 22 words Est Si &dim of 331.91 hat to a rib*
TIIENCE south 37 drug 42 dhotis 411 nen* bit Oa dblsdis o(357.52 est to *phi& dis vain 081
THENCE Saudi 52 dogma 1 7adtubts 12 nanda Wad tbr damps 0( 226.15 Ad Ads did west= rani
IoIpcbtt
THENCE dong sown to As Itchy rains of800.20 fiat ind an aro length of 287.051b4 Wine =Mende
• • bp a shad of Sonar 40 dares 33in/tidal 49 10001th Writ Or i &twos of 285.32 tbat along said maim rnargi
wawa Midi 14 &Pad 23 addled 28 liall116 Weisi thr a distend of 4137 that to a point
THENCE North 60 &gram a mina, if _SWStbII 4IIS, a ofSP3.6I &et W a point
THENCE South 74 &pass 51 mkt 38 noon& Wad Ex • *taw o(42.43 lbst to s point
THEM= South 29 darn 51 Stubs 38 numb Wad Thr a timid of 170.00 lbst to a point in the propose
northern right rimy nue of N.0 Ihry. 87;
TIJENCE North 60 dere 08 minutes fl---- Vfed Osr a distance o160.00 fad along sad northern du* t
pbbtk:
Tuna North 29 daps. 51 riddles 31 mane East far a dMance of 400.00 fad to • point
mums South 60 degas 01 newts 22 daands Mut Ow a radon= of 10.00 Met to the pant end plea c
BEOINNINCk
•
Together with and subject to covaanb, Isamu* sad *Madan ofndortl.
Sold propetty aattains 9.31 acres nun or less. . •
•
TMs description prepared by tarry King & Associates, R.L.S, PA on this 1701 flay of Aprk 13
•
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allION
1 EXHIBIT B
EXHIBIT C
TENANT'S WORK
Tenant, at its sole cost and expense, shall perform all work necessary to
accommodate Tenant's retail facility; which Tenant will modify to the extent required by
applicable laws, codes or ordinances and by the nature of the building of which the
Premises is a part -( "Tenant's Work "). Tenant's Work shall be performed by Tenant in
accordance with all requirements, using general contractor licensed to do
business in the State of North Carolina. Such general contractor' shall carry the same
liability insurance required to be carried by Tenant under this Lease; -and: such liability
insurance sha11.. name Landlord as an additional insured Prior to commencing
construction, Tenant shall furnish to Landlord evidence of such insurance, Tenant shall
be responsible for all renovations of their space to include but not limited to electrical,
HVAC and plumbing as required per Tenant's plans. Tenant agrees to provide Landlord,
for Landlord's prior written approval (not to be unreasonably withheld), a copy of the
plans and specifications for such initial interior improvements, storefront work, exterior
signage construction, roof penetrations, HVAC work or electrical. Tenant shall prepare
plans and specifications for Tenant's Work and submit same to Landlord for Landlord's
needs. Tenant, at its sole cost and expense, shall complete all of the Tenant's Work.
Neither Tenant. nor Tenant's employees, agents or contractors shall perform any work
involving the roof of the Demised Premises without taking all steps necessary to preserve
Landlord's roofing warranty (which steps may include, at Landlord's option, using
Landlord's roofing contractor to perform such work). Tenant shall indemnify, defend and
hold harmless Landlord from any claims, cost, loss, liability, damage or expense
(including reasonable attorneys fees) which Landlord may: incur as a result of the
negation or diminution of Landlord's roof warranty as a result of any work performed by
or on behalf of Tenant, which indemnity shall survive closing.
EXHIBIT D
LANDLORD'S WORK
Landlord hereby agrees to perform the following work:
• Have HVAC inspected and make the necessary repairs to make sure the
units are operating properly. Cost of repair not to exceed $500.00.
EXHIBIT E
SIGN CRITERIA
This criteria was designed and developed to create a totally coordinated, planned
and aesthetically pleasing approach to the graphic image of each TENANT and thereby
creating maximum visual effect for the center as a whole. The character, design, color
and layout of all signs, shall be subject to the LANDLORD's written approval, which
approval shall not be unreasonably withheld.
TENANT, at his own expense, shall have one identification sign attached to the
face of the building. The sign shall consist of internally lighted, individual channel letters
installed on a raceway.
Before fabrications, three shop drawings prepared by the sign manufacturer must
be submitted to the LANDLORD for approval. The exact wording and size must be
indicated. No sign may be installed without the LANDLORD's prior written approval.
TENANT shall confine the contents of all its signs to the letters designated the
name or logo.
Since the sign is considered the TENANT's property, the operating and
maintenance costs are the TENANT's responsibility. Furthermore, upon vacating the
premises, TENANT must remove sign at his own expense.
Additional signage, whether permanent or temporary, may be allowed solely at
the LANDLORD's discretion. No sign may be installed without the LANDLORD's
written approval.
No other types of signs will be allowed above TENANT's glass store front, The
LANDLORD will consider additional signage below the top of the glass store front on a
case -by -case basis. No sign may be installed without the LANDLORD's prior written
approval.
All signage must conform to the Harnett County zoning ordinance and all UL
requirements.
EXHIBIT F
HAZARDOUS WASTE CERTIFICATE
, 20
(Name and Address of Landlord)
RE: That certain lease ( "Lease ") dated , 20
between ( "Landlord "), and
("Tenant"), covering certain real property and improvements thereon
located in the County of State of
and more commonly known as
(the "Premises "), as amended.
The undersigned, a
as
Tenant under the above - captioned Lease hereby certifies to Landlord that, as of the date
hereof, there are not Hazardous Materials (as such term is defined in the Lease) in or
about the Premises, except as follows (if none, so state):
Tenant hereby acknowledges its continuing obligation under Paragraph 23 (Hazardous
Materials Provisions) of the Lease, notwithstanding the expiration or other termination of
the Lease term, to indemnify, defend and hold Landlord harmless from and against any
and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (as more
fully set forth in said Paragraph 23) as a result of the presence of Hazardous Material
brought upon, kept, or used in or about the Premises by Tenant, its agents, employees,
contractors or invitees.
The undersigned understand that Landlord will be relying upon the statements of Tenant
contained herein in Landlord's continued maintenance and operation of the Premises.
By:
Its:
By:
Its:
EXHIBIT G
ESTOPPEL CERTIFICATE
EXHIBIT H
ATTORNMENT AND SUBORDINATION
EXHIBIT J
EXISTING TENANTS, LEASES, AND RESTRICTIONS
JC's Sports Pub and Restaurant must abide by and adhere to the existing Tenants, Leases,
and their restrictions. A list of existing Tenants, Leases, and their restrictions are listed
below.
1. Food Lion- Food Lion has granted permission for JC's Sports Pub to be a part of
the shopping center. JC's Sports Pub must adhere to and abide by the approval
letter attached to this Lease as Exhibit K.
2. Family Dollar- No other Tenant in the shopping center can operate as a variety
discount store, discount department store, dollar store, liquidation or close out
store, thrift store, any store selling used clothing, or any store similar to Family
Dollar in operation or merchandising.
3. California Stylin -No other Tenant in the shopping center can operate as a beauty
salon or tanning salon.
4. China Garden- No other Tenant in the shopping center can operate as a Chinese
restaurant.
5. Subway- No other Tenant in the shopping center can sale primarily submarine
sandwiches.
6. Dino's Pizza- No other Tenant in the shopping center can sale primarily pizza.
7. Video Hut- No other Tenant in the shopping center can rent or sale videos or
DVD's.
8. McDonalds- None
9. Kentucky Fried Chicken- No other Tenant can derive more than 20% of their
sales from chicken.
10. Taco Bell — None
EXHIBIT K
FOOD LION APPROVAL LETTER
1fi a1 ro
C S
C0'W NIERC1AL
11 0 1' R 1 1 E
January 28, 2010 Rhs jf � , d
n
Denise Moore r?�i�
Senior Real Estate Coordinator
Delhaize America, LLC
2110 Executive Drive
Salisbury, NC 28147
Re: Permission Request -Spout Springs Shopping Center
Cameron, NC -Food Lion #1237
Dear Denise,
I am writing to request permission from Food Lion to allow for a 3,200 square foot sports pub to be
located in the same shopping center as Food Lion #1237. Article 5 Section C of the Lease dated June 9,
1995 says that "without prior written consent of Tenant, no restaurant, theater (motion picture or
legitimate), health spa, child care center, skating rink, bowling alley, dairy store, establishment which
sells alcoholic beverages for on- premise consumption or other health, recreational or entertainment —
type activity shall be permitted to operate within the boundaries of the Shopping Center".
As you can see we will need your permission to allow a sports pub into the shopping center. Included
are the business plan, a menu, and a site plan depicting the location of the proposed sports pub. Please
review and let me know if you have any questions.
Sincerely,
Brian Armstrong
Vice President
C &S Commercial Properties
/I-pp/Nett afe� rh pa It /-- a/f eI /Welt
(910) 864 -1125 • (910) 964 -0938 FAX
238 N. McPherson Church Road • P.O. Box 53646 • Fayetteville, North Carolina 28305
Store #1237 — Spout Springs, NC
The Sports Pub (including the sale of alcoholic beverages for on- premises consumption,
provided such sales are ancillary to the sale of food and do not exceed fifty percent [50 %]
of the business conducted therein) is hereby approved for Spout Springs Plaza Shopping
Center, with the understanding that this tenant shall be located where indicated on the
attached plan. The space to be occupied shall not exceed 3,200 square feet and shall not
be expanded at any time without the prior written consent of Food Lion, LLC. ( "Food
Lion "). Approval is specifically granted for the Sports Pub in the location indicated and
any change to another prohibited use in the subject location shall require the prior written
consent of Food Lion. In the event the patrons of this establishment should, at any time,
create a nuisance to the customers or the operation of the Food Lion store, you, as
landlord, must retain the right to immediately terminate the tenant's lease, at the sole
discretion of Food Lion. In the event you are notified of any occurrences *hereby the
patrons of this establishment are a' nuisance to Food Lion or its customers, you, as
Landiord, must take immediate action to correct the problem(s) within thirty (30) days of
receipt of Food Lion's written notice. In the event the probletri(s) are not corrected'"
within thirty (30) days to Food Lion's satisfaction, said lease with the Sports Pub must be
terminated within sixty (60) days of receipt of Food Lion's written notice or the Landlord
will be in default under the terms of our Lease Agreement.
FOOD LION, LL
rCal'.:E CHLER
Vrc •resident
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