Sublease Term The term of the Sublease (“Sublease Term”) commences on the later to occur of (1) Sublandlord’s receipt of Prime Landlord’s written consent to this Sublease, and (2) October 1, 2009 (“Sublease Commencement Date”); and expires on January 28, 2018 (“Sublease Expiration Date”; i.e., the day prior to the Termination Date pursuant to the Prime Lease). Sublandlord shall deliver the Subleased Premises “broom clean” and free of all of Sublandlord’s personal property (other than the F&F (defined in Section 2(f))) and debris, but otherwise in “AS IS, WHERE IS” condition on the Sublease Commencement Date; provided that Subtenant shall not be responsible for, or required to remedy, any violation of any applicable law, or any condition or state of facts, with respect to the Subleased Premises, the Building or the Land existing on or prior to the Sublease Commencement Date. Sublandlord is not required to perform any work to prepare the Subleased Premises for Subtenant’s intended use. If (i) for any reason Sublandlord has not received Prime Landlord’s written consent to this Sublease in form required by Section 15(i) below by the date which is sixty (60) days from the date hereof, or (ii) Prime Landlord elects to terminate the Prime Lease in respect of the Subleased Premises pursuant to Prime Landlord’s recapture right set forth in Section 16.5 of the Prime Lease, then in the case of (i), then Sublandlord and Subtenant each may elect at any time thereafter to terminate this Sublease by written notice to the other, whereupon the parties shall deem this Sublease to be null and void and of no effect (except for those provisions expressly stated herein to survive a termination), and in the case of (ii) the Sublease will be deemed terminated in accordance with Section 16.5 of the Prime Lease.
Landlord’s Option as to Subject Space Notwithstanding anything to the contrary contained in this Article 14, in the event Tenant contemplates a Transfer other than to a Permitted Transferee which, together with all prior Transfers then remaining in effect, would cause fifty percent (50%) or more of the Premises to be Transferred for more than fifty percent (50%) of the then remaining Lease Term (taking into account any extension of the Lease Term which has irrevocably exercised by Tenant), Tenant shall give Landlord notice (the “Intention to Transfer Notice”) of such contemplated Transfer (whether or not the contemplated Transferee or the terms of such contemplated Transfer have been determined). The Intention to Transfer Notice shall specify the portion of and amount of rentable square feet of the Premises which Tenant intends to Transfer in the subject Transfer (the “Contemplated Transfer Space”), the contemplated date of commencement of the Contemplated Transfer (the “Contemplated Effective Date”), and the contemplated length of the term of such contemplated Transfer. Thereafter, Landlord shall have the option, by giving written notice to Tenant within thirty (30) days after receipt of any Intention to Transfer Notice, to recapture the Contemplated Transfer Space. Such recapture shall cancel and terminate this Lease with respect to such Contemplated Transfer Space as of the Contemplated Effective Date. In the event of a recapture by Landlord, if this Lease shall be canceled with respect to less than the entire Premises, the Rent reserved herein shall be prorated on the basis of the number of rentable square feet retained by Tenant in proportion to the number of rentable square feet contained in the Premises, and this Lease as so amended shall continue thereafter in full force and effect, and upon request of either party, the parties shall execute written confirmation of the same. If Landlord declines, or fails to elect in a timely manner, to recapture such Contemplated Transfer Space under this Section 14.4, then, subject to the other terms of this Article 14, for a period of nine (9) months (the “Nine Month Period”) commencing on the last day of such thirty (30) day period, Landlord shall not have any right to recapture the Contemplated Transfer Space with respect to any Transfer made during the Nine Month Period, provided that any such Transfer is substantially on the terms set forth in the Intention to Transfer Notice, and provided further that any such Transfer shall be subject to the remaining terms of this Article 14. If such a Transfer is not so consummated within the Nine Month Period (or if a Transfer is so consummated, then upon the expiration of the term of any Transfer of such Contemplated Transfer Space consummated within such Nine Month Period), Tenant shall again be required to submit a new Intention to Transfer Notice to Landlord with respect any contemplated Transfer, as provided above in this Section 14.4. Tenant shall not be required to provide a separate Intention to Transfer Notice and Tenant’s request for Landlord’s consent to a Transfer shall satisfy Tenant’s obligations in this Section 14.4.
Sublease Rent Limitation Anything contained in this Lease to the contrary notwithstanding, Lessee shall not sublet the Leased Property on any basis such that the rental to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the Rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Code, or any similar or successor provision thereto.
Required Sublease Provisions Any sublease of all or any portion of the Leased Property shall provide (a) that it is subject and subordinate to this Agreement and to the matters to which this Agreement is or shall be subject or subordinate; (b) that in the event of termination of this Agreement or reentry or dispossession of Tenant by Landlord under this Agreement, Landlord may, at its option, terminate such sublease or take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord’s option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that neither Landlord nor any Facility Mortgagee, as holder of a mortgage or as Landlord under this Agreement, if such mortgagee succeeds to that position, shall (i) be liable for any act or omission of Tenant under such sublease, (ii) be subject to any credit, counterclaim, offset or defense which theretofore accrued to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease not consented to in writing by Landlord or by any previous prepayment of more than one (1) month’s rent, (iv) be bound by any covenant of Tenant to undertake or complete any construction of the applicable Property, or any portion thereof, (v) be required to account for any security deposit of the subtenant other than any security deposit actually delivered to Landlord by Tenant, (vi) be bound by any obligation to make any payment to such subtenant or grant any credits, except for services, repairs, maintenance and restoration provided for under the sublease that are performed after the date of such attornment, (vii) be responsible for any monies owing by Tenant to the credit of such subtenant unless actually delivered to Landlord by Tenant, or (viii) be required to remove any Person occupying any portion of the Leased Property; and (c) in the event that such subtenant receives a written Notice from Landlord or any Facility Mortgagee stating that an Event of Default has occurred and is continuing, such subtenant shall thereafter be obligated to pay all rentals accruing under such sublease directly to the party giving such Notice or as such party may direct. All rentals received from such subtenant by Landlord or the Facility Mortgagee, as the case may be, shall be credited against the amounts owing by Tenant under this Agreement and such sublease shall provide that the subtenant thereunder shall, at the request of Landlord, execute a suitable instrument in confirmation of such agreement to attorn. An original counterpart of each such sublease and assignment and assumption, duly executed by Tenant and such subtenant or assignee, as the case may be, in form and substance reasonably satisfactory to Landlord, shall be delivered promptly to Landlord and (x) in the case of an assignment, the assignee shall assume in writing and agree to keep and perform all of the terms of this Agreement on the part of Tenant to be kept and performed and shall be, and become, jointly and severally liable with Tenant for the performance thereof and (y) in the case of either an assignment or subletting, Tenant shall remain primarily liable, as principal rather than as surety, for the prompt payment of the Rent and for the performance and observance of all of the covenants and conditions to be performed by Tenant hereunder. The provisions of this Section 16.2 shall not be deemed a waiver of the provisions set forth in the first paragraph of Section 16.1.
Time of the Essence in This Tenant Work Letter Unless otherwise indicated, all references herein to a “number of days” shall mean and refer to calendar days. If any item requiring approval is timely disapproved by Landlord, the procedure for preparation of the document and approval thereof shall be repeated until the document is approved by Landlord.
Term of Sublease The term (the “Term”) of this Sublease shall commence on the date that Sublessor has received all of the following: (a) a copy of this Sublease Agreement executed by Sublessee and Sublessor; (b) an executed copy of the Lessor’s and Guarantor’s consent to this Sublease; and (c) an executed copy of a Guaranty from Duke University guaranteeing the payment of the Base Rent and Additional Rent (each as defined below) under this Sublease for the time period specified in the Guaranty (the “Commencement Date”), and shall end on the 1st day of September, 2006, (or until such term shall sooner cease or expire as hereinafter provided) (the “Termination Date”). Possession of the Subleased Premises shall be delivered to Sublessee on the Commencement Date. The parties agree that the consent by Lessor and Guarantor shall include (i) a consent to the proposed use by Sublessee of the Subleased Premises as set forth in Section 4 of this Sublease; (ii) a consent to the upfit of the Shell Space at Sublessee’s sole cost and expense, subject to (A) the approval of Lessor of the plans for such upfit; (B) the plans shall provide that the upfit will be performed and Sublessee shall perform the upfit in a good and workmanlike manner using materials that are substantially similar and of better or equal quality to those presently contained in the Subleased Premises; (C) the plans shall provide and Sublessee shall use contractors and engineers that are licensed in North Carolina and are qualified to perform the work to prepare the Subleased Premises for its intended use, each as reasonably acceptable to Lessor; (D) Sublessee shall not commence any such work without first delivering to Lessor a policy or policies of workers’ compensation and commercial general liability insurance naming Lessor as an additional insured; (E) Sublessee and Sublessor warrant that any upfit installed by Sublessee will not violate the permitted use of the Subleased Premises and will materially comply with all applicable building codes and zoning laws and will not impact the structure of the Shell Space; (F) Sublessee shall furnish Lessor with all permits required prior to commencement of the upfit work and all certificates and approvals with respect to the upfit as may be required by any governmental authority and deliver to the Lessor properly executed general and subcontractor affidavits stating that all laborers and materialmen have been paid in full and final waivers of liens and lien releases from all general contractors and subcontractors who have performed the upfit or furnished materials to the Subleased Premises as a result of the upfit; and (G) Sublessee, at its expense, shall deliver within 30 days after completion of the upfit the as built plans for the Shell Space to the Lessor; (iii) a waiver by Lessor of any obligation of Sublessee or Sublessor to restore the Subleased Premises to the condition that existed prior to the Commencement Date or the commencement date of the Lease, respectively; provided, however, that all tenant upfit (including but not limited to Tenant Upfit), case work, the heating, ventilating and air conditioning equipment located on the Subleased Premises, work above the ceiling of the Shell Space installed by Sublessee, and all Lessor Trade Fixtures (as defined below) shall remain on the Subleased Premises at the termination of Sublessee’s occupancy of the Subleased Premises without compensation to Sublessee, unless Lessor requests the removal of same at the time Lessor approves such installations. For purposes of this Sublease, “Lessor Trade Fixtures” means the building management system, flow optometers, manifolds, mirrors, stainless steel tables and stainless steel workbenches located on the Subleased Premises as of the Commencement Date of this Sublease and shall not be deemed to include any enterprise management systems, including without limitation any material resource planning systems or any manufacturing execution systems installed by Sublessee. In addition, on or before November 10, 2000, Lessor shall have delivered to Sublessee an agreement to lease the Subleased Premises directly from Lessor upon the expiration of the term of this Sublease upon terms that are satisfactory to the Sublessee (the “Additional Lease”). If Lessor fails to give such consent and deliver the Additional Lease by December 15, 2000, then Sublessee may cancel this Sublease by giving written notice of cancellation to Sublessor. Neither party shall have liability to the other for any termination or cancellation under this Section 2, unless such party by its willful act caused Lessor to refuse timely to consent to this Sublease.
Option to Extend Lease Term At the expiration of the original Lease Term, Tenant may extend this Lease as to the entire Premises or a portion of the Premises for two (2) extended terms of five (5) years each (each an “Extended Term”) by giving Landlord written notice (the “Option Notice”) of its intention to do so not later than twelve (12) months prior to the expiration of the original Lease Term, and thereafter twelve (12) months prior to the expiration of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows:
Initial Lease Term The terms and provisions of this Lease shall be effective as of the date of this Lease except for the provisions of this Lease relating to the payment of Rent. The term of this Lease (the “Lease Term”) shall be as set forth in Section 3.1 of the Summary, shall commence on the date (the “Lease Commencement Date”) that is the earlier to occur of (i) the date Tenant commences to conduct business in any portion of the Premises, and (ii) the of “Substantial Completion”, as that term is defined in this Article 2, of the Premises by Landlord, and shall terminate on the date determined in accordance with Section 3.3 of the Summary (the “Lease Expiration Date”) unless this Lease is sooner terminated as hereinafter provided. For purposes of this Lease, “Substantial Completion” of the Premises shall occur upon the completion of construction, as reasonably determined by Landlord, of the “Tenant Improvements,” as that term is defined in the Tenant Work Letter, in the Premises pursuant to the plans and drawings which are prepared and approved pursuant to the terms of the Tenant Work Letter and the issuance of a temporary certificate of occupancy or legal equivalent, with the exception of any Punchlist Items (as defined below) and any Tenant fixtures, work-stations, built-in furniture, or equipment to be installed by Tenant or under the supervision of Contractor (as defined in Section 3 of the Tenant Work Letter). “Punchlist Items” shall mean only commercially reasonable punchlist items, the non-completion of which does not prevent the issuance of a temporary certificate of occupancy or legal equivalent or unreasonably interfere with Tenant’s use or occupancy of the Premises, and which punchlist items shall be corrected promptly by Landlord (within thirty (30) days following Landlord’s receipt of written notice thereof from Tenant) without unreasonable interference with Tenant’s use of or access to or from the Premises. It is anticipated that the Lease Commencement Date will occur within sixteen (16) weeks after mutual execution of this Lease (such date, the “Target Commencement Date”), but this Lease shall not be void, voidable or subject to termination, nor shall Landlord be liable to Tenant for any loss or damage, resulting from Landlord’s inability to deliver the Premises to Tenant by any particular date, except as hereinafter provided. Notwithstanding anything to the contrary in this Lease, if the Lease Commencement Date does not occur within 60 days after the Target Commencement Date, other than due to Tenant Delay (as defined in the Tenant Work Letter) or Force Majeure, then Tenant, at its option, may terminate this Lease by written notice to Landlord given at any time after the expiration of such 60-day period but before the Lease Commencement Date actually occurs. In the event of such termination by Tenant, the first month’s Base Rent, Tenant’s Share of Direct Expenses paid by Tenant and the Security Deposit shall be fully refunded to Tenant (subject to Landlord’s right to draw upon such Security Deposit as provided in Article 21 below) and neither party shall have any further obligations hereunder. At any time during the Lease Term, Landlord may deliver to Tenant a notice in the form as set forth in Exhibit “C”, attached hereto, as a confirmation only of the information set forth therein, which Tenant shall (absent manifest error) execute and return to Landlord within five (5) business days of receipt thereof.
Lease of Premises for Lease Term Landlord hereby leases the Premises to Tenant, and Tenant hereby rents the Premises from Landlord, for the Term and subject to the conditions of this Lease.
Lease of Property For Lease Term Landlord leases the Property to Tenant and Tenant leases the Property from Landlord for the Lease Term. The Lease Term is for the period stated in Section 1.05 above and shall begin and end on the dates specified in Section 1.05 above, unless the beginning or end of the Lease Term is changed under any provision of this Lease. The "Commencement Date" shall be the date specified in Section 1.05 above for the beginning of the Lease Term, unless advanced or delayed under any provision of this Lease.
