Exhibit 10(r)
LEASE AGREEMENT FOR 000 XXXXX XXXXX XXXXXX
IJL FINANCIAL CENTER
NATIONSBANK, NATIONAL ASSOCIATION,
a national banking association, as Landlord,
and
INTERSTATE/XXXXXXX LANE, INC.
a North Carolina corporation, as Tenant
DECEMBER 19, 1997
TABLE OF CONTENTS
LEASE DEFINITIONS ............................................................ 1
CONSIDERATION ................................................................ 7
I. LEASE OF PREMISES .................................................... 7
1.1 Premises ..................................................... 7
1.2 Option To Expand ............................................. 8
1.3 Right of First Offer.......................................... 8
1.4 Delivery of Space ............................................ 8
1.5 Common Areas. ................................................ 8
11. TERM; RENT ........................................................... 8
2.1 Term. ........................................................ 8
2.2 Use .......................................................... 9
2.3 Base Rent .................................................... 9
2.4 Base Rent Adjustment. ........................................10
2.5 Additional Rent ..............................................10
2.6 Tenant's Audit Rights . ......................................10
2.7 Holding Over .................................................11
2.8 Late Charges .................................................11
III. GENERAL MATTERS ..............................................11
3.1 Initial Construction of the Premises .........................11
3.2 Services to Be Furnished by Landlord .........................11
3.3 Keys .........................................................11
3.4 Graphics .....................................................12
3.5 Repairs by Landlord ..........................................12
3.6 Peaceful Enjoyment ...........................................12
3.7 Landlord's Additional Representations and Warranties .........12
IV. TENANT'S OCCUPANCY OF PREMISES .......................................13
4.1 Care and Surrender of the Premises ...........................13
4.2 Legal Use and Violation of Insurance Coverage.................13
4.3 Hazardous Materials ..........................................14
4.4 Nuisance .....................................................14
4.5 Rules of the Buildinq ........................................14
4.6 Repairs by Tenant. ...........................................14
4.7 Alterations, Additions, Improvements..........................14
4.8 Entry for Repairs and Inspection .............................15
4.9 Assignment or Sublease .......................................16
4.10 Subordination to Mortgage ....................................17
4.11 Estoppel Certificate .........................................18
4.12 Defaults by Landlord .........................................18
V. INSURANCE ............................................................18
5.1 Casualty Insurance ...........................................18
5.2 Liability Insurance ..........................................18
5.3 Insurance Standards; Waiver of Subrogation....................19
5.4 Other Tenants; Parking Garage. ...............................19
5.5 Indemnity for Insurance Coverage. ............................19
5.6 No Release ...................................................19
5.7 Casualty Damage ..............................................19
5.8 Additional Rights Regarding Restoration. .....................20
5.9 Application of Insurance Proceeds ............................20
5.10 Self-Insurance. ..............................................20
5.11 Other Insurance ..............................................21
Vl. CONDEMNATION .................................................21
6.1 Effect of Condemnation .......................................21
6.2 Proceedings in Condemnation...................................21
6.3 Notice of Execution ..........................................21
Vll. TENANT'S DEFAULT .............................................21
7.1 Default by Tenant ............................................21
7.2 Landlord's Remedies ..........................................22
7.3 Remedies Cumulative ..........................................23
7.4 Cure Rights ..................................................23
7.5 Rights Upon Possession .......................................23
7.6 Prevailing Party; Venue. .....................................23
i
VII. MISCELLANEOUS PROVISIONS ......................................23
8.1 Force Majeure .................................................23
8.2 Sale of Building ..............................................24
8.3 name of Building ..............................................24
8.4 Notices .......................................................24
8.5 No Waiver .....................................................25
8.6 Commissions ...................................................25
8.7 Rights of Light, View or Air ..................................25
8.8 Severability ..................................................25
8.9 Recordation ...................................................25
8.10 Binding Effect ................................................25
8.11 Entire Agreement ..............................................25
8.12 Amendments ....................................................26
8.13 Counterparts ..................................................26
8.14 Governing Law .................................................26
8.15 Intentionally Omitted .........................................26
8.16 Base Building Plans and Specification .........................26
8.17 Move-In........................................................26
8.18 Equipment Access ..............................................26
8.19 Limits on Certain Liabilities .................................27
8.20 Status as Sublease ............................................27
8.21 Intentionally omitted .........................................27
8.22 Tenant's Existing Lease .......................................27
8.23 Receive-Only Communications Dish ..............................27
8.24 Survival ......................................................28
8.25 Drafting ......................................................28
LIST OF EXHIBITS
Exhibit A Description of the Premises
Exhibit B Commencement Date and Construction of the Premises
Schedule 1 - Landlord's Work
Schedule 2 - Tenant's Work
Schedule 3 - Tenant's Plans
Exhibit C Cleaning Specifications
Exhibit D Rules and Regulations
Exhibit E Option to Expand
Exhibit F Right of First Offer
Exhibit G Renewal Term
Exhibit H Services to be Provided by Landlord
Exhibit I Tenant's Parking Rights and Charges
Schedule 1 - Initial Location of Reserved Spaces
Exhibit J Punch List
Exhibit K Schedule of Building Measurements
Exhibit L Schedule of Controllable and Non-Controllable Expenses
Exhibit M Signage
ii
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into on this the
19th day of December, 1997 between NATIONSBANK, NATIONAL ASSOCIATION, a national
banking association ("Landlord"), whose address for purposes hereof is Real
Estate Services, Transamerica Square, Attn: Headquarters Real Estate Asset
Manager, NC1-021-06-05, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx,
00000, and Interstate/Xxxxxxx Lane, Inc., a North Carolina corporation
("Tenant"). Tenant's address is as set forth in Section 8.4.
LEASE DEFINITIONS
As used in this Lease, the following specified terms shall have the
meanings ascribed below unless the context clearly requires otherwise:
Actual Expenses. With respect to each calendar year during the Term, the
actual Expenses for such year.
Actual Expense Rate. The Actual Expenses for each calendar year during
the term divided by the Rentable Area in the Building.
Additional Allowance. As set forth in Exhibit B.
Additional Rent. As set forth in Section 2.5.
Alterations. As defined in Section 4.7.
Approved Architect. TBA2 Architects, or any other reputable
architectural firm as shall be agreed upon by Landlord and Tenant.
Base Expense Rate. The Actual Expenses, accounted for on a modified cash
basis in accordance with generally accepted accounting principles as further
described in subparagraph n. of the definition of Expenses set forth below,
during the calendar year 1998, divided by the Rentable Area in the Building.
Base Rent. As defined in Section 2.3.
Base Rent Adjustment. As defined in Section 2.4.
Block. The city block located in Charlotte, North Carolina and bounded
by North Xxxxx Street, East Sixth Street, North Church Street and East Fifth
Street.
Broker. Don Deutsch of Xxxxxxxx Xxxx Company has served as Landlord's
real estate broker in connection with this Lease. Xxx Xxxxxxx of the Xxxxxx
Group has served as Tenant's real estate broker in connection with this Lease.
Any commission due the Xxxxxx Group shall be by separate agreement between the
Xxxxxx Group and Xxxxxxxx Xxxx Company.
Buildinq. Collectively, the twenty-nine (29) story Office Tower
constructed by or for Landlord, subject to alterations made in the final plans,
and the Common Areas, both located on the Block in the City of Charlotte, North
Carolina, which is included in the Project. Tenant acknowledges the Building
contains no floor number "13." The Building's office floors will be numbered 2
through 12 and 14 through 30.
Certificate of Occupancy. A certificate of occupancy or a temporary
certificate of occupancy issued by the Building Standards Department or other
appropriate Governmental Authority of the City of Charlotte, North Carolina.
Commencement Date. As set forth in Section 2.1.
Common Areas. Common Areas shall be located on the Block and shall
include the lobby of the Building, outdoor plazas within the Project (including
outdoor plazas owned by any other third party but shared in whole or in part,
for one or any number of purposes, with the owner of the Building), driveways,
loading docks, corridors, communication shafts, building manager's offices,
escalators, elevators, elevator shafts and elevator foyers, stairwells,
entrances, lobbies, public restrooms, mechanical rooms, water holding areas,
janitorial closets, vending rooms, telephone rooms, mail rooms, electrical
rooms, elevator mechanical rooms located above the elevator shafts, and other
similar areas of the Building provided for Building systems or for the common
use or benefit of all tenants primarily or the public generally; provided,
however, that the identity and location of such Common Areas is subject to the
further provisions of Section 1.5.
Comparable Space. Comparable office space of similar floor height and
located in first-class, high-rise office buildings (including, without
limitation, the Building) with similar attendant parking facilities, with
consummated leases achieved in the central business district of uptown
Charlotte, North Carolina in such buildings as the Building, NationsBank
Corporate Center and One First Union Center. The parties agree that all of the
foregoing buildings are reasonably equivalent and comparable to the Building as
of the date of this Lease.
Construction Allowance. As set forth in Exhibit B.
Contract Rate. A rate of interest equal two percent (2%) above the rate
of interest announced from time to time as the "prime rate" by NationsBank, N.A.
or its successors at its home office in Charlotte, North Carolina.
Controllable Expenses. Those items of Expenses (hereafter defined) for
which Landlord has a reasonable ability to control the amount of any increases,
such items being limited to management fees, wages, salaries, and labor costs,
but excluding costs of materials, utilities, taxes, assessments, insurance
premiums, and any capital costs permitted by this Lease to be charged to
tenants, in accordance with Exhibit L.
Delivery Date. As defined in Section 2.1.2.
Environmental Laws. Any applicable current or future federal, state, or
local law, regulation, ordinance, order, guidance document, policy document, or
ruling applicable to health or environmental conditions on, under or about the
Building, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act, the Hazardous Materials Transportation
Act, the Resource Conservation and Recovery Act, the Toxic Substances Control
Act, the Water Pollution Control Act, the Clean Air Act, the Federal
Insecticide, Fungicide and Rodenticide Act, and analogous state and local laws.
Expansion Space. Any additions to the Premises pursuant to the
provisions of Exhibit E.
Exclusions. As defined in the definition of Expenses.
Expenses. Except as otherwise limited by the terms of this Lease, all
costs and expenses directly and reasonably incurred by Landlord (the nature,
character and extent of which are customarily incurred by landlords of
Comparable Space) in the operation and maintenance of the Building to the extent
owned by Landlord. Such costs include, without limitation, the following items:
a. All ad valorem or real property taxes and assessments, general or
special, which are levied, assessed or imposed by any Governmental Authority
upon any legal or equitable interest of Landlord in this Lease, Landlord as the
landlord of the Building, the Building, or the underlying real estate (whether
or not owned by Landlord), or any improvements, fixtures, equipment or other
property of Landlord, real or personal, located in or on the Building and used
in the operation or maintenance of the Building. Taxes shall also include any
levy, assessment or imposition in addition to or in lieu of such real or
personal property taxes; license fees; sales taxes imposed on supplies purchased
for the operation of the Building; business privilege taxes; and ad valorem
taxes measured by or imposed upon rents, but shall not include: (i) any federal,
state or local income taxes, (ii) franchise, estate, or inheritance taxes, and
(iii) real estate transfer taxes imposed by reason of the sale of the Project or
any portion thereof or any interest therein. Tenant shall only be responsible
for its share of taxes accruing during the Term of this Lease, including any
extensions thereof, notwithstanding the date of payment or collection. Any "tax
year" shall mean a calendar year, notwithstanding the use of
2
any different period for assessment or collection. Notwithstanding the foregoing
definition, Expenses for taxes shall not include any penalties or interest for
Landlord's failure to comnIv with the obligation for the payment thereof.
b. The cost (without markup or profit to Landlord) of electricity (up to
three and one-half (3 1/2) xxxxx per square foot of Rentable Area in the
Building), gas, water, sewer, power, heating, lighting, air conditioning,
ventilating and all similar services, which are or will be consumed by the
Building, but excluding special requirements of individual tenants above those
general requirements set forth in Section 3.2 and Exhibit H, whether or not
Landlord is being or has the right to be separately reimbursed therefor. Any use
of electricity by Tenant in excess of three and one-half (3 1/2) xxxxx per
square foot of Rentable Area and, except as otherwise provided in this Lease,
any use of HVAC by Tenant outside Normal Business Hours shall be considered as
special requirements of Tenant which are excluded from Expenses and separately
billed to Tenant;
c. All wages, salaries, benefits, fees and other costs, including,
without limitation, uniforms, payroll and social security taxes, and insurance
directly borne by Landlord (or on its behalf) for all of its employees from time
to time located at the Building or the Project and engaged in the management,
operation, repair, replacement (other than capital replacement), maintenance and
supervision of the Building;
d. All supplies, materials, noncapital tools and equipment used in the
management, operation, repair, replacement (other than capital replacement),
cleaning, painting, maintenance and supervision of the Building;
e. All commercially reasonable maintenance and service agreements on
equipment in the Building, including, without limitation, alarm service and
elevator maintenance;
f. To the extent required of Landlord under Article V hereof, all
premiums for hazard insurance (including, without limitation, premiums for fire
and extended coverage and other casualty insurance), public liability insurance
for the Building and such insurance identified in Article V which Landlord
actually obtains, or in the event of self-insurance, would otherwise be in
force. In the event NationsBank, N.A., its affiliated companies, or a successor
to substantially all of its assets, as Landlord elects to self-insure, the
amount which would have been paid as premiums by Landlord but for the
self-insurance;
g. All repairs, noncapital replacements and general maintenance of the
Building;
h. All commercially reasonable service or maintenance contracts with
independent contractors for the operation, repair, maintenance, servicing or
supervision of the Building not included under subparagraph e. of this
definition of Expenses;
i. All janitorial services for the Building other than those of any
retail tenant in the Building; provided, however, special janitorial services
for other tenants above the Building's standard janitorial services as set forth
in Exhibit C shall not be included herein;
j. The proportionate, amortized cost of any capital improvements to the
Building or the Common Areas (which are classified as capital expenditures under
generally accepted accounting principles consistently applied) which (i) are
made for the purpose of reducing operating expenses if, in the reasonable
expectation of the Landlord, the anticipated savings over the amortization
period will equal or exceed the cost on an amortized basis; or (ii) are mandated
by Governmental Authority under any law or regulation relating to life safety
systems that was not applicable to the Building as of the Commencement Date;
provided, however, if any portion of the cost of capital improvements for life
safety systems results from the inadequacy of life safety systems required by
any Governmental Authority under any law or regulation that was in effect as of
the date of Certificate of Occupancy for the Building, such portion of the
capital expenditure shall not be included in Expenses; and provided further,
that the requirement to comply with any such law or regulation is not
necessitated by any request or application for any permit, license, approval,
variance or authorization from any such Governmental Authority; and provided
further, Expenses shall not include the costs of compliance with The Americans
With Disabilities Act Of 1990 (the "ADA"), and any rules and regulations
promulgated thereto and currently in effect to the extent such act and rules and
regulations affect the Building and the Common Areas but excluding any
improvements within the Premises designed or constructed by Tenant, its agents
or contractors. This cost shall be amortized over the useful or economic life of
the capital improvements as determined in accordance with generally accepted
accounting principles consistently applied, together with interest on the
unamortized balance at the lower of (1) the actual rate incurred by Landlord;
or (2) the Contract Rate at the time the expense is incurred;
3
k. All reasonable management fees incurred by Landlord, which shall be
comparable to management fees customarily incurred by landlords of Comparable
Space;
l. All reasonable legal, accounting and other professional fees,
professional trade association memberships dues for the Building personnel,
including managers and organizers; costs and other expenses for the Building
incurred by Landlord in the ordinary course of the management, operation,
maintenance and promotion of an office building containing Comparable Space;
m. All reasonable fees incurred in the performance of any audit or
review of expenses and the computation and proration thereof undertaken by
Landlord; provided, however, any such audits or reviews conducted in excess of
one such audit or review annually shall not be included in Expenses;
n. For purposes only of determining Expenses and the Base Expense Rate,
all additional expenses (the "Variable Operating Costs") which Landlord
reasonably determines Landlord would have incurred had the Building been
ninety-five percent (95%) leased and occupied with all tenant improvements
constructed, and without regard to any abatements, curtailments or reductions in
any form of rent allowed under any lease of any portion of the Building, for
purposes of determining operating expenses or fees related to Building
management; provided, however, that (i) Variable Operating Costs shall
specifically include, but shall not be limited to, Landlord's direct costs in
supplying gas, electricity, heating, ventilating, air conditioning, water, and
any other utilities, waste disposal, supervision and janitorial services to the
Building, all of which vary based upon occupancy; (ii) no adjustment under this
subparagraph n. shall result in profit to Landlord and no cost allocable to
construction of any portion of the Common Areas and construction of any portion
of the Building shall be included in determining Variable Operating Costs; and
(iii) such costs shall specifically include all costs which Landlord would have
incurred but for the existence of warranties on any portion of the Project,
including, without limitation, any equipment or machinery used therein.
In addition to any items excluded from Expenses as set forth above, the
following items (collectively, "Exclusions") also shall be excluded from
Expenses: (1) expenses for any capital improvements except as provided elsewhere
herein; (2) expenses incurred in leasing space or procuring new tenants (e.g.,
lease commissions, advertising expenses, marketing studies, advertising and
promotional funds (except as permitted elsewhere herein) and expenses of
preparing, upfitting or renovating space for new tenants); (3) legal or
accounting expenses in negotiating or enforcing the terms of any space lease or
related to the sale of the Building or to any ground lease related to all or any
portion of the Building; (4) interest, amortization payments, late charges, fees
and other charges on any mortgage or other evidence of indebtedness, whether or
not secured by all or any portion of the Project except as provided in
subparagraph j. above; (5) extraordinary costs arising from the use by others of
the Common Areas for shows, promotions and other public or special events; (6)
Landlord's !ocal, state or federal income or gross receipts taxes or gift,
succession, franchise, inheritance or estate taxes; (7) wages, salaries and
benefits of executives or employees above the level of Senior Building Manager
of the Building; (8) costs incurred by Landlord for repairs or other work caused
by fire, windstorm or other casualty for which Landlord is required to maintain
insurance pursuant to this Lease, except costs incurred by Landlord in restoring
the Building in accordance with this Lease resulting from commercially
reasonable deductibles as provided in Article V; (9) the costs of contract
services provided by Landlord or its subsidiaries or affiliates, together with
overhead and profit increments paid to subsidiaries or affiliates of Landlord
for services on or to the Project, to the extent the costs, overhead or profit
related to such services to the Project exceeds the costs of such services
rendered on a competitive basis for Comparable Space by unaffiliated parties of
similar skill, competence and experience who are capable of providing such
services; (10) any rental or other payments due under any ground or underlying
lease or leases; (11) any syndication, financing or refinancing costs and
expenses (including interest on debt or amortization payments on debt) incurred
in connection with any mortgage or mortgages or any other debt instrument
encumbering all or any portion of the Project; (12) depreciation and
amortization, except as otherwise expressly provided in subparagraph j. of this
definition of Expenses; (13) rentals and other related operating expenses, if
any, incurred in leasing air conditioning systems, elevators or other equipment
ordinarily considered to be of a capital nature, except: (a) to the extent
capital costs are permitted to be included in Expenses pursuant to subparagraph
j. of the definition of Expenses, and (b) temporary rentals and related expenses
for a reasonable period to keep permanent systems in operation while Landlord
procures necessary repairs; (14) costs of initially constructing the base
Building work and the Common Areas of the Project; (15) costs of correcting any
defects in (a) the base Building work, (b) any tenant improvements, (c) Common
Areas and (d) other improvements installed by Landlord, Tenant's contractor or
Landlord's contractor; (16) except for necessary repair and maintenance expenses
of the Common Areas that are expressly included as Expenses herein, costs
incurred in renovating or otherwise altering, improving, decorating or
redecorating space in the Common Areas, or incurred in renovating or otherwise
altering, improving, decorating or redecorating vacant rentable space; (17) any
4
bad debts loss, rent loss or reserves for bad debts or rent loss; (18) costs
associated with the operation of the business of the legal entity which
constitutes Landlord or of persons or entities which constitute or are
affiliated with Landlord or its partners, as such costs are separate and apart
from costs associated with the operation of the Building, including legal entity
formation, internal entity accounting and internal legal matters; (19)
attorneys' fees and other costs and expenses incurred in connection with
negotiations or disputes with present or prospective tenants or other occupants
of the Project or incurred by negotiating or enforcing any lease at the Project
or attorneys' fees awarded to any tenant pursuant to any lease, or incurred as a
result of Landlord's negligence, misconduct or failure to maintain any insurance
required of Landlord under this Lease or any other lease; (20) costs of repair,
abatement, removal or clean-up of any Hazardous Materials under laws in effect
as of the date of this Lease; (21) any costs or expenses that are incurred
directly or indirectly with respect to Landlord's indemnity obligations under
this Lease or any other lease related to the Project; (22) expenses for which
Landlord has received a credit, refund or rebate from any party; and (23) unless
Tenant consents in writing (which consent will not be withheld if such
management results in cost savings to Tenant), management fees and all other
costs associated with any building within the Project other than the Building.
In addition to the Exclusions set forth above, Expenses shall be reduced
by the amount of any insurance reimbursement and other reimbursement,
recoupment, payment, discount, credit, reduction, allowance or the like not
enumerated above but received by Landlord in connection with such Expenses that
are allocable to any Expenses payable in whole or in part by Tenant.
The following matters shall be taken into account when determining
Expenses: (1 ) The Parking Garage will be economically and operationally
independent from the remainder of the Project, although there will be
cross-easements for construction, for operation and repair of utilities, for
access and for other purposes between each part of the Project and the Parking
Garage; (2) any Expenses associated with usage of the Parking Garage or the
Common Areas by any third party, including but not limited to the owners,
managers, employees, tenants, contractors, agents, or visitors of or to any
Third Party Development, will be borne by such third party; (3) any Expenses
associated with the joint use of the Common Areas or the Parking Garage by the
owners, managers, employees, tenants, contractors, agents or visitors of or to
the Project, on the one hand, and the owners, managers, employees, tenants,
contractors, agents or visitors of or to any Third Party Development, on the
other hand, will be shared ratably between the Project and such Third Party
Development (the portion of such Expenses attributable to the Project being
considered to be "Expenses" for all purposes hereunder, including, without
limitation, allocation thereof to the tenants of the Project); (4) the Building,
Parking Garage and, to the extent applicable, various Third Party Developments,
may or will share the Building's central plant, but each such area will be
separately metered or submetered and the tenant in each such area shall be
solely responsible for its pro rata costs of utilities (including chilled water)
which it uses; (5) third parties, including; without limitation, Third Party
Developments, will be charged for any usage of the Building which creates
incremental costs attributable to such usage by such third parties. Each of the
Third Party Developments otherwise is created as a separate entity which, except
for the obligation to pay costs as set forth in the preceding sentence, has no
obligation to share any costs related to the Expenses of the Building and,
conversely, no tenant of the Building shall have any obligation to pay any
expenses of any Third Party Development except as otherwise provided herein; (6)
the outdoor plazas will be operated as integral portions of the Building; (7)
retail tenants in the Building shall be responsible for the costs of cleaning
and maintaining their space and other costs directly related to or arising out
of use of the retail areas of the Building after Normal Business Hours or
attributable to services in excess of those provided to office tenants (except
as otherwise provided herein) or attributable to any janitorial or related
services associated with the sale or consumption of food or other food handling
activities in the Building during Normal Business Hours; and (8) total Expenses
will be reduced by payments towards Expenses (as set forth in item (5) above)
that are or should be received from other tenants or from any Third Party
Development.
Additional Rent and Expenses shall be determined on a modified cash
basis consistently applied. "Modified cash basis" shall mean including all cash
basis accounting transactions for the year as they relate to Expenses and
modifying those balances to include twelve (12) months of activity. Modified
cash basis accounting differs from accrual basis accounting in that it attempts
to account for one (i) year's activity as opposed to analyzing exact work dates
and invoice dates to determine inclusion in a given year.
Final Documents. As defined in Exhibit B.
Force Majeure. As defined in Section 8.1.
Governmental Authoritv. The government of the United States of America,
the State of North Carolina and any political subdivision thereof, or any local,
state or national public authority, agency, department, commission, board,
bureau or instrumentality with authority over the Building or the Project. With
respect to matters pertaining to insurance, boards of fire underwritefs shall be
a Governmental Authority to the extent they have power to impose conditions on
the issuance of policies or the coverage thereof.
5
Hazardous Materials. Polychlorinated biphenyls, petroleum and any
fraction thereof, radioactive materials, urea formaldehyde, asbestos, and any
waste, pollutant, contaminate, chemical compound, substance or material defined
or regulated as "hazardous" "extremely hazardous" or "toxic" under any
Environmental Law or by any federal, state, or local governmental agency or
authority.
Holidays. New Year's Day, Memorial Day (observed), Independence Day,
Labor Day, Thanksgiving Day and Christmas Day.
HVAC. As defined in Exhibit H.
IJL Financial Center. The name by which the Project will become known on
the of execution of this Lease.
Landlord. NationsBank, National Association, a national banking
association.
Landlord's Work. Those items of Building and Premises construction which
are landlord's responsibility to complete in accordance with Exhibit B, Schedule
1.
Lease. As defined on Page 1.
Master Lease. As of the Commencement Date of this Lease, a special
purpose entity has been formed to own the Building and the entire Building is
subject to a lease between the special purpose entity and Landlord, said lease
being deemed the "Master Lease" for purposes hereunder.
Minor Sublet. Any sublease(s) of any portion(s) of the Premises which do
not exceed (a) as to any such sublease, including all extension and renewal
options, the lesser of (i) a term of five (5) years and zero (0) months, or (ii)
the remaining term of the Lease including any extension options which Tenant has
actually exercised; and (b) as to all subleases then in effect for any portion
of the Premises, an aggregate rentable area of twenty three thousand, seven
hundred sixty-three (23,763) square feet.
NationsBank Corporate Center. The sixty (60) story office tower located
on the northeastern corner of North Xxxxx Street and East Trade Street, having
an address of 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx.
Normal Business Hours. As defined in Exhibit H. Owner. That entity which
owns the Building as of the Commencement Date of this
Parkinq Garage. The parking areas associated with the Project on the
Block, including, without limitation, any walkway connecting the Parking Garage
to the Building, stairways, elevators and mechanical systems. The Parking Garage
and the Building may be owned or managed separately.
Parking Rights and Charges. If Tenant is granted any rights to parking
in the Parking Garage, such rights and all charges to Tenant for same are
described in Exhibit I attached hereto and incorporated herein by this
reference.
Premises. That portion of the Building shown or described in Exhibit A
and further designated in Section 1.1.1 together with any changes made thereto
in accordance with this Lease.
Project. The mixed use development owned and constructed by Landlord and
others on the Block in the City of Charlotte, North Carolina. The Project
includes the Building, the Common Areas, the Parking Garage, exterior plazas,
walkways and additional land for undesignated development.
Projected Expense Rate. As defined in Section 2.5.
Ready for Occupancy. The condition of the Premises, as set forth in
Section 2.1.1 hereof, upon completion of so much of Landlord's Work as is
reasonably necessary for Tenant to commence construction in the Premises. The
Premises may be deemed Ready for Occupancy prior to substantial completion of
Landlord's Work, defined in Section 2.1.1 herein and Exhibit B, Schedule 1.
Rent. The Base Rent payable under Section 2.3 as adjusted by the Base
Rent Adjustment set forth in Section 2.4 plus all Additional Rent described in
Section 2.5, parking
6
charges, if any, described in Exhibit I, and any and all other sums owed by
Tenant to Landlord under this Lease.
Rentable Area. The rentable portion of any leasable premises in the
Building expressed in square feet or fractions thereof, whether or not such
premises are to be used for office, retail or service-related uses.
Reserved Parking. As defined in Exhibit I.
Rentable Area in the Building. The aggregate Rentable Area in the
Building irrespective of the designated use of such Rentable Area for office,
retail or service related uses. Landlord and Tenant agree that the Rentable Area
in the Building is stipulated to be six hundred and sixty-nine thousand, four
hundred ninety-four (669,494) square feet.
ROFO Space. As defined in Exhibit F.
Rules and Regulations. Attached as Exhibit D.
Standard Buildinq Capacity. As defined in Exhibit H.
Supporting Documents. As defined in Exhibit B.
Tenant. As defined on Page 1.
Tenant Affiliate. Any entity owned or controlled by Tenant constituting
at a minimum a majority of the ownership interests in such entity. "Owned or
controlled by" shall mean ownership of more than a fifty percent (50%) interest
in such entity.
Tenant Improvement Allowance. As set forth in Exhibit E and Exhibit F.
Tenant's Plans. As defined in Exhibit B.
Tenant's Work. Those items of Premises construction which are Tenant's
respon to complete in accordance with Exhibit B, Schedule 2.
Term. As set forth in Section 2.1.2.
Third Party Development. Any office, retail or condominium development
(other than the Building and the Parking Garage) which may be located from time
to time on the Block, whether or not owned by Landlord.
Variable Operating Costs. As defined in subparagraph n. of the
definition of Expenses.
Year, Calendar Year, Lease Year. A year shall be any period of 365/366
consecutive days. Calendar year shall mean the period from January 1 to December
31. Lease Year shall refer to each year beginning on the Commencement Date.
CONSIDERATION
In consideration of the mutual promises and agreements set forth herein,
the legal sufficiency of which the panties hereto expressly acknowledge,
Landlord and Tenant agree as follows:
1.
LEASE OF PREMISES
1.1 Premises.
1.1.1 Demise of Premises. Subject to and upon the terms, provisions and
conditions hereinafter set forth, and each in consideration of and conditioned
upon the duties, covenants and obligations of the other hereunder, Landlord does
hereby lease, demise and let to Tenant, and Tenant does hereby lease from
Landlord, the Premises more particularly described as the twentieth,
twentyfirst, twenty-second, twenty-third and a portion of the twenty-fourth
(20th, 21st, 22nd, 23rd and a portion of the 24th) floors of the Building as
reflected on the floor plans attached hereto as Exhibit A and incorporated
herein by reference.
1.1.2 Warranty of Title. Landlord warrants and represents to Tenant that
Landlord has the right, power, authority and ability to lease all of the
Premises and to undertake all other obligations of Landlord set forth herein.
7
1.1.3 Stipulations Regarding Rentable Area. For the purposes of this
Lease the Rentable Area of the Premises is stipulated to be one hundred ten
thousand, seven hundred seventy-seven 4110,777) square feet, distributed by
floor as follows:
Floor Rentable Area
20 23,652
21 23,652
22 23,652
23 23,321
24 16,500
1.2 Option To Expand. The option to expand to be granted by Landlord to
this Lease shall be set forth in Exhibit E hereto.
1.3 Right of First Offer. The right of first offer to be granted by
Landlord to Tenant under this Lease shall be set forth in Exhibit F hereto.
1.4 Delivery of Space. Subject to Landlord's obligations to deliver the
Expansion Space and ROFO Space described in Exhibits E and F to Tenant with
Landlord's Work therein substantially completed and to provide the applicable
Tenant Improvement Allowances, Landlord shall deliver any Expansion Space and
ROFO Space to Tenant in its "as is" condition and shall not be obligated to
perform any demolition.
1.5 Common Areas. Tenant, its employees and invitees shall have the
non-exclusive right to use the Common Areas as constituted for general use of
occupants of the Building from time to time (except for mechanical rooms and
janitorial closets), such use to be in common with Landlord, other tenants of
the Project and other persons and subject to the Rules and Regulations set forth
in Exhibit D attached hereto and by this reference made a part hereof, as such
Rules and Regulations may be amended from time to time provided such amendments
are nondiscriminatory in nature. Subject to t he limitations set forth in the
next sentence, Landlord reserves the right from time to time to undertake any or
all of the activities described below, provided such reservation of rights shall
not: (i) materially affect Tenant's use or enjoyment of or access to the
Premises, the Parking Garage or Tenant's other rights under this Lease, or
increase the amount of Rentable Area in the Premises; (ii) increase Tenant's
Rent or proportionate share of Expenses; (iii) reduce the number of Tenant's
parking privileges set forth herein; or (iv) materially, adversely affect any
signage rights of Tenant expressly granted to Tenant in this Lease or the
visibility of Tenant's Premises from the interior of the Building. In connection
therewith, Landlord reserves the following rights: to add to, or subtract from,
or change from time to time, the dimensions and location of the Common Areas, it
being understood that Landlord may, at its option, add any areas located within
the Block to the Common Areas; to create any additional improvements in the
Common Areas or to alter or remove any improvements in the Common Areas; to
convert areas previously designated by Landlord as part of the Common Areas to
an area leased to one or more tenants or to designate previously leased space as
part of the Common Areas provided equitable adjustments are made to the Rentable
Area in the Building and the Rentable Area in the Premises; to make alterations
or additions to the Building and to any other buildings or improvements within
the Project; to operate and/or maintain such Common Areas in conjunction with
other parties; and to construct, or permit others to construct, other buildings
or improvements within the Project. Landlord is not obligated to construct or
provide for Tenant any improvements outside the Building except as otherwise
provided in this Lease.
11.
TERM; RENT
2.1 Term.
2.1.1 Premises Ready for Occupancy. Landlord shall proceed to construct
improvements upon the Premises in substantial compliance with the "Landlord's
Work" as described in Exhibit B attached hereto, with such minor variations as
Landlord in its sole discretion may deem advisable, and tender the Premises to
Tenant by written notice (the "Ready for Occupancy Notice"). The Premises shall
be deemed to be Ready for Occupancy when Landlord tenders same to Tenant for
commencement of Tenant's Work, subject to Tenant's walk-through rights described
below. In no event shall the determination of the date upon which the Premises
are deemed Ready for Occupancy be predicated upon the construction of any of
Tenant's Work as described in Exhibit B. Upon Tenant's request, which request
shall be made within five (5) days following Landlord's delivery to Tenant of
the Ready for Occupancy Notice set forth above, Landlord agrees to participate
in a joint walk-through and inspection of the Premises with Tenant, which
inspection shall thereafter occur within five (5) days of such request. Tenant
shall have an additional period of five (5) days after the inspection to provide
a list of "punch-list" items to Landlord. Upon determination by Landlord's
architect that the punch list
8
items have been satisfactorily completed, Landlord shall again deliver a Ready
for Occupancy notice in the manner provided above. If Landlord's and Tenant's
architects cannot thereafter reach agreement as to any remaining punch list
items, then Landlord and Tenant shall mutually select a third architect,
licensed in the State of North Carolina, to review the punch list items and
shall equally share the cost of such third architect. The determination of such
third architect shall thereafter become binding upon both Landlord and Tenant.
It is acknowledged and agreed that the standard to be used in determining punch
list items is not whether the Premises are substantially complete, but whether
Landlord's Work in the Premises has advanced to a stage that would permit
Tenant's contractors to begin their work in the Premises along with Landlord's
contractors. If the Premises are not Ready for Occupancy within sixty (60) days
after full execution hereof, Landlord shall not be deemed to be in default
hereunder or otherwise liable in damages to Tenant, nor shall the term of this
Lease be affected except as provided in Section 2.1.2 hereof; provided, however,
if the Premises are not Ready for Occupancy within eight (8) months following
the full execution hereof, Tenant may at its option terminate this Lease by
written notice to Landlord delivered within thirty (30) days following the
expiration of such eight (8) month period, in which event neither party shall
have any further liabilities or obligations hereunder, except the Landlord shall
repay to Tenant any Security Deposit paid by Tenant. When the Premises are Ready
for Occupancy, Tenant agrees to accept possession thereof and to proceed with
due diligence to perform the work described as "Tenant's Work" in Exhibit B, all
of such work to be performed in compliance with Exhibit B, and with all
applicable governmental taws, rules, regulations and ordinances, and to install
its fixtures, furniture and equipment. By failing to respond to a Ready for
Occupancy notice in the manner provided and within the time period described
above, or by failing to timely deliver to Landlord a punch list of incomplete or
unsatisfactory items, Tenant shall be deemed to have accepted the Premises and
to have acknowledged that the same fully complies with Landlord's covenants and
obligations hereunder. In the event of any dispute as to work performed or
required to be performed by Landlord or Tenant pursuant to Exhibit B, the
certificate of Landlord's architect or engineer shall be conclusive. By
initiating Tenant Work, Tenant shall be deemed to have accepted the Premises and
to have acknowledged that the same fully complies with Landlord's covenants and
obligations hereunder (irrespective of whether Landlord has certified to Tenant
that the Premises are Ready for Occupancy). Tenant agrees to furnish to Landlord
a Certificate of Occupancy from applicable local authorities on or before the
Commencement Date; provided, however, Tenant's failure to do so shall not delay
the Commencement Date.
2.1.2 Commencement Date. Subject to and upon the terms and conditions
set forth herein, or in any exhibit or addendum hereto, this Lease shall
continue in force for a term of approximately one hundred seventeen (1 17)
months, beginning on the earlier to occur of (i) March 1, 1998 or (ii) actual
occupancy of the Premises by Tenant (other than for the purpose of constructing
Tenant's Work) for the normal conduct of Tenant's business (the "Commencement
Date") and ending November 30, 2007 (the "Term"). Tenant acknowledges that, as
of the date of full execution of this Lease, (the "Delivery Date") Landlord has
delivered the Premises to Tenant, subject only to the punch list items set forth
in the letter from X.X. Xxxxxxxx Company attached hereto as Exhibit K, which
punch list items shall not delay the Commencement Date. If Tenant's Work is
delayed by reason of force majeure, then the Commencement Date shall be delayed
by one day for each day of such delay. A delay in the Commencement Date shall
not extend the length of the initial Term but may, at Tenant's election,
proportionately extend the length of the Renewal Term. Upon mutual agreement,
either party will, upon request, execute and deliver a declaration specifying
the Commencement Date.
2.1.3 Election to Extend Term. By delivering written notice to Landlord
not earlier than one ( 1 ) month following the Commencement Date of this Lease
and not later than six months following the Commencement Date of this Lease,
Tenant shall have the right to extend the Term of this Lease for an additional
period of sixty-three (63) months, for a total Lease Term of approximately one
hundred eighty (180) months.
2.2 Use. The Premises are to be used and occupied by Tenant solely for
general office purposes including securities brokerage and professional business
offices and uses incidental thereto which are consistent with general office
purposes.
2.3 Base Rent. During the initial Term of this Lease, Tenant hereby
agrees to pay to Landlord base annual rental (as specified, the "Base Rent") at
the rate of $21.45 per square foot of Rentable Area in the Premises, subject to
annual adjustment beginning with the first anniversary of the Commencement Date,
in the manner provided in Section 2.4 and subject to any adjustments based on
Additional Allowance if granted to Tenant in accordance with Exhibit B. If
Tenant elects to extend the Term of this Lease to one hundred eighty (180)
months as provided in Section 2.1.3 above, then the initial Base Rent shall be
$20.80 per square foot of Rentable Area in the Premises subject to annual
adjustment beginning with the first anniversary of the Commencement Date as
provided in Section 2.4 and subject to any adjustments based on Additional
Allowance, if granted to Tenant in accordance with Exhibit B. Any overpayment of
Base Rent based upon Tenant's election to so extend shall be refunded by
Landlord within sixty (60) days of receipt of Tenant's election notice.
9
The Base Rent, and any Additional Rent then in effect shall be due and
payable in twelve (12) equal monthly installments on the first day of each
calendar month during the Term. Except as elsewhere provided in this Lease,
Tenant agrees to pay Rent to Landlord monthly in advance without demand,
reduction, abatement, counterclaim or setoff at Landlord's designated address.
If the Term commences on a day other than the first day of a month or terminates
on a day other than the last day of a month, then the Rent for such month or
months shall be prorated in accordance with the actual number of days in the
relevant month and the installment or installments so prorated shall be paid in
advance.
2.4 Base Rent Adjustment. The Net Base Rent shall be increased effective
on each anniversary of the Commencement Date during the Term by an amount (the
"Base Rent Adjustment") equal to three and one-half percent (3-1/2%) over the
Net Base Rent in effect for the immediately preceding period, rounded to the
nearest cent. The "Net Base Rent" for purposes of this Section 2.4 shall mean
the Base Rent as adjusted on the immediately preceding adjustment date less the
Actual Expense Rate for the immediately preceding calendar year. Landlord shall
endeavor to provide Tenant with thirty (30) days advance notice of each Base
Rent Adjustment, but Landlord shall have no obligation to notify Tenant of the
Base Rent Adjustment amount, and Landlord's failure to provide such notice shall
not excuse performance by Tenant.
2.5 Additional Rent. Additional Rent shall be calculated on the basis of
the 1998 calendar year as the Base Year, but Tenant's obligation to pay adjusted
Additional Rent shall occur on each anniversary of the Commencement Date.
Additional Rent shall be due during any year or partial year of the Lease Term,
beginning with the first anniversary of the Commencement Date, during which the
Actual Expense Rate is greater than the Base Expense Rate. Beginning with the
first anniversary of the Commencement Date (or as soon thereafter as reasonably
possible), Landlord shall provide to Tenant a statement of Landlord's reasonable
estimate of the Expense Rate (calculated by dividing Landlord's reasonable
estimate of Expenses for the current calendar year, by the Rentable Area in the
Building) projected by Landlord for the calendar year in which such calculation
occurs (the "Projected Expense Rate"). Beginning on the first anniversary of the
Commencement Date, Tenant shall pay to Landlord on the first day of each month
one-twelfth (1/12th) of the product of (a) the positive difference (if any)
obtained by subtracting the Base Expense Rate from the Projected Expense Rate
for the calendar year in which such calculation occurs, and (b) the Rentable
Area in the Premises. Until Tenant has received the statement of the Projected
Expense Rate from Landlord, Tenant shall pay or continue to pay Additional Rent
to Landlord in the same amount (if any) as required for the last month of the
prior Lease year. After Tenant receives the statement, on the next date when
Base Rent is due, Tenant shall pay to Landlord, or Landlord shall credit to
Tenant (whichever is appropriate), the difference between the amount paid by
Tenant and the amount payable by Tenant as set forth in such statement. Not more
than twice during any Lease year, Landlord may in good faith revise the
Projected Expense Rate and provide Tenant with a revised statement, and
thereafter Tenant shall pay Additional Rent on the basis of the revised
statement. Landlord shall provide to Tenant, within one hundred fifty (150) days
after the end of each Lease year a statement of the Actual Expenses, the Actual
Expense Rate and the Additional Rent for such year. Landlord shall provide to
Tenant upon request, an itemized statement specifying actual expenses by major
category. Tenant shall pay to Landlord, within thirty (30) days after Tenant's
receipt of such statement, the uncollected Additional Rent for such Lease year.
If the actual Additional Rent payable by Tenant for any Lease year is less than
the aggregate of the actual Additional Rent collected by Landlord for such Lease
year, Landlord shall promptly refund the amount of such excess (or, at
Landlord's option, apply such excess against the next ensuing payments of Rent
due or to become due hereunder). Failure of Landlord to provide the statement
called for hereunder shall not relieve Tenant from its obligations under this
Section 2.5 or elsewhere in this Lease.
Provided, however, that for each calendar year subsequent to the calendar year
1998, the Controllable Expenses component of Actual Expenses shall not increase
by more than the (i) actual increase; or (ii) five percent (5%) in the aggregate
over the Controllable Expenses component of Actual Expenses for the previous
calendar year, whichever is less.
2.6 Tenant's Audit Rights. Tenant or its duly authorized representative
may, upon reasonable prior notice during regular business hours, inspect the
records of expenses kept by Landlord provided such inspection is commenced
within ninety (90) days after the receipt of a statement from Landlord; and is
limited to the period covered by such statement, and is conducted by a "Big
Five" accounting firm on a non-contingent basis. If Tenant's audit shall
disclose an overpayment or an underpayment of the Actual Expenses for such
period, then, unless Landlord disputes the correctness of such audit, Tenant
shall pay the amount of such underpayment or shall be credited for the amount of
such overpayment, as the case may be. Any such audit shall be at Tenant's
expenses, provided, however, that if such audit shall disclose an overpayment by
Tenant for the period covered by such statement in excess of five percent (5%),
the costs of such audit shall be paid by Landlord. Landlord may dispute the
results of Tenant's audit by referring the dispute to binding arbitration in
accordance with the rules of a nationally recognized arbitration association
within sixty (60) days after receipt of
10
Tenant's audit. If one party is solely successful in arbitration, the
non-successful party shall bear the costs of arbitration; otherwise, such costs
are to be divided equally between the parties. Each party shall bear its own
attorney's fees.
2.7 Holding Over. In the event of holding over by Tenant after
expiration or termination of this Lease without the written consent of Landlord,
Tenant shall (i) pay Landlord, within thirty (30) days after Landlord's written
demand therefor, all damages caused by Tenant's holding over (including, without
limitation, all claims for damages by any other tenant to whom Landlord may have
leased all or any part of the Premises and all losses suffered by Landlord
arising out of other agreements concerning the Premises which Landlord is unable
to honor, in whole or in part, as a result of Tenant's holding over) and all
attorneys' fees incurred by Landlord as a result of Tenant's holding over and
(ii) pay to Landlord, for the first month's holdover, one hundred twenty-five
percent (125%) of all Rent owed by Tenant to Landlord in accordance with the
Lease, and thereafter, one hundred fifty percent (150%) of all Rent owed by
Tenant to Landlord in accordance with the terms of this Lease. Any holding over
with Landlord's written consent shall constitute a lease from month to month
under all the terms and provisions of this Lease, and unless otherwise agreed in
writing, either Landlord or Tenant may terminate this Lease upon at least thirty
(30) days prior written notice to the other.
2.8 Late Charges. If at any time any Rent is not received by the
fifteenth (15th) day following the date on which or period within which any
monetary obligation of Tenant under this Lease becomes due (including dishonored
checks), then in addition to the amount owed, Tenant shall pay to Landlord a
late charge equal to five percent (5%) of the past due obligation, except that
for the first such late payment, if any, in a given calendar year, the late
charge shall be One Hundred Dollars ($100.00). This provision shall not be
deemed to condone the late payment of any monetary obligation, and shall not be
construed as giving Tenant an option to pay late by paying the late charge.
Instead, all funds are due at the times specified in this Lease without any
grace period. Failure to pay shall subject Tenant to all applicable default
provisions provided hereunder or by law, and Landlord's remedies shall not be
abridged by claiming or collecting a late charge.
III.
GENERAL MATTERS
3.1 Initial Construction of the Premises. Prior to the Commencement
Date, Landlord, at Landlord's sole cost and expense, shall install, furnish and
perform all facilities, materials and work required for the Common Areas and the
core and shell of the Building and shall provide substantial completion of
Landlord's Work as described in Exhibit B, including, but not limited to, the
Building standard HVAC system, sprinkler system, Building standard ceiling
system and light fixtures. Subject to Landlord's obligation to provide certain
allowances to or for the benefit of Tenant, Tenant's Work in the Premises shall
be at Tenant's sole cost and expense and shall be provided in accordance with
the provisions of Exhibit B. Except with respect to latent defects and any
uncured items contained in an inspection punchlist delivered by Tenant to
Landlord within forty-five (45) days following Tenant's Commencement Date.
Tenant's occupancy of the Premises shall conclusively establish that the
Premises are at such time in satisfactory condition, order and repair. Landlord
shall be responsible for and shall rectify (i) any patent defects in the core
and shell of the Building identified in writing by Tenant or Tenant's
consultants within thirty (30) days of Tenant's possession of the Premises, and
(ii) any latent defects in, or deteriorations of, the core and shell of the
Building upon discovery by Tenant or Landlord. Landlord agrees to commence any
necessary remedial work within a reasonable time after receipt of Tenant's or
Tenant's consultant's identification of defects and thereafter shall diligently
pursue completion of any necessary remedial work. All delays prior to the
Commencement Date resulting from such defects shall be deemed Landlord delays
for the purposes of determining the Commencement Date of this Lease. With
respect to latent or patent defects in the Premises or in the Building of which
they form a part, Landlord's liability shall in no event extend beyond one (1)
year from the date the Premises are deemed Ready for Occupancy, whether or not
such defects are discovered within such one (1) year period.
3.2 Services to Be Furnished by Landlord. During the Term Landlord shall
manage the Project, operate the Building, and provide supervision, janitorial
and other services substantially the same or greater in service and quality to
those provided for Comparable Space. Landlord shall cause public utilities to
furnish electricity and water to the Building and the Premises and shall furnish
Tenant with the other services described in Exhibit H below during the Term.
3.3 Keys. Landlord shall furnish Tenant at no cost sufficient keys for
each of the Tenant's employees as of the Commencement Date, not to exceed three
hundred (300) keys or access cards for entering the Building and the Premises
and additional keys at a charge not to exceed Landlord's cost for each such key
without markup on an order signed by Tenant. All keys shall remain the property
of Landlord. No additional locks shall be allowed on any door of the Premises
without Landlord's written permission. If Tenant receives Landlord's permission
and installs locks requiring keys other than the keys provided by Landlord,
Tenant shall immediately provide Landlord with copies
11
of such keys. Tenant shall not make, or permit to be made, any duplicate keys
except those furnished by Landlord. Landlord shall have the right to maintain
master keys and pass keys to all doors to and within the Premises. Upon
termination of this Lease, Tenant shall surrender to Landlord all keys related
to the Premises, and give to Landlord the combination of all locks for safes,
safe cabinets and vault doors, if any, to remain in the Premises.
3.4 Graphics. Landlord shall provide and install Tenant's name and suite
numerals of the Premises in Building standard graphics at the main entrance
doors to the Premises. All graphics of Tenant visible in or from public
corridors or the exterior of the Premises shall be subject to Landlord's
approval; provided, however, Tenant may not display any signs or graphics of
Tenant visible from the exterior of the Building except as may be permitted in
accordance with Section 8.3 hereof. Landlord, at Landlord's expense, will also
identify Tenant in the directory located in the main lobby of the Building and
on any other appropriate directory which may be part of the Project. The space
to be made available to Tenant in such directories shall be reasonably
proportionate to the space allotted other tenants with similar size Rentable
Area in the Building.
3.5 Repairs by Landlord. Landlord shall make all repairs necessary to
maintain the Building, the Common Areas, the plumbing, HVAC and electrical
systems installed or furnished by Landlord (excluding any special electrical
equipment or other fixtures installed or furnished by Landlord at Tenant's
request and not as part of Landlord's Work unless the maintenance and repair was
necessitated by the misrepresentation, negligence or misconduct of Landlord or
caused by the act, omission, accident or negligence of Landlord, its agents,
employees, invitees, licensees, subtenants or contractors, in which case such
maintenance or repairs shall be made at Landlord's sole cost and expense if not
otherwise reimbursed to Tenant by insurance carried by Landlord or Tenant), the
glass curtain walls, windows, flooring installed or furnished by Landlord, and
all other structural elements of the Premises installed or furnished by
Landlord. Tenant shall promptly notify Landlord of any condition which requires
repair. Landlord shall undertake such repairs with due diligence within a
reasonable time after written notice from Tenant that such repair is needed. In
no event shall Landlord be obligated to repair any nonstructural system damage
or any damage to systems not provided in base Building plans unless such damage
is caused by the act, omission, accident or negligence of Landlord or its
employees, agents, invitees, licensees, tenants, subtenants or contractors in
such capacity. Tenant shall not be required to make structural repairs or
repairs to the systems of the Building, but such repairs shall be made by
Landlord, and the costs of such repairs shall be Expenses to the extent
permitted in this Lease, unless the repairs were necessitated by the act,
omission, accident, negligence or misconduct of Tenant or its employees, agents,
invitees, licensees, subtenants or contractors, in which case such repairs shall
be at Tenant's sole cost and expense. Tenant shall not be required to maintain
or repair Building standard finishes within restrooms, drinking fountains and
other Building systems, all of which shall be maintained by Landlord and the
cost thereof shall be included in Expenses to the extent permitted in this
Lease. Any special leasehold improvements may, at Tenant's written request and
at Landlord's option, be maintained by Landlord at Tenant's expense which shall
be an amount equal to Landlord's actual cost plus an additional charge of
fifteen percent (15%) of such cost. Notwithstanding the provisions of this
Section 3.5 to the contrary, Landlord shall, at Landlord's sole cost and expense
and not as part of Expenses, repair any defects in the construction of the (i)
base Building work or any Tenant's Work installed by Landlord, or Landlord's
contractor, which are discovered by Tenant and communicated in writing by Tenant
to Landlord within the time period specified in Section 3.1 above, and (ii) the
base Building work and Tenant's Work installed by Landlord or Landlord's
contractor necessitated by the failure of Landlord or Landlord's contractor to
comply with the Building plans and Tenant's Plans for such work and all codes,
legal requirements and other applicable laws in effect at the time of
construction of the base Building work and Tenant's Work. If, within a
reasonable time after discovery, Tenant notifies Landlord of such defects,
Landlord shall thereafter, with reasonable diligence, proceed to repair such
defects to a reasonably satisfactory condition. Landlord shall not be liable to
Tenant, except as expressly provided in this Lease, for any damage or
inconvenience, and Tenant shall not be entitled to any damages nor to any
abatement or reduction of rent by reason of any maintenance, repairs,
replacements, alterations or additions made by Landlord under this Lease, except
as specified in paragraph 11 of Exhibit H attached hereto and incorporated
herein by reference.
3.6 Peaceful Enjoyment. Landlord warrants and represents to Tenant that
Tenant shall and may peacefully have, hold and enjoy the Premises, subject to
the other terms hereof. The parties hereto agree that said letting and hiring is
upon and subject to the terms, covenants and conditions herein set forth, and
each party covenants as a material part of the consideration for this Lease to
keep and perform each and all of the terms, covenants and conditions required to
be kept and performed by it, and that this Lease is made upon the condition of
such performance.
3.7 Landlord's Additional Representations and Warranties. In addition to
Landlord's other representations and warranties set forth in this Lease,
Landlord hereby represents, warrants and covenants to Tenant as follows:
(a) Landlord has full and lawful authority to enter into this Lease.
12
(b) The Project has been and will be constructed in accordance with
all applicable laws, codes, ordinances, rules and regulations in effect as of
the time of obtaining the applicable building permits, including applicable
environmental regulations. Landlord shall be responsible for correcting any
violation of the foregoing, at Landlord's expense (which expense shall not be
included in Expenses).
(c) On the date of delivery of possession of the Premises to Tenant
and throughout the Term of this Lease, the Building (excluding Tenant's Work in
the Premises) will be in substantial compliance with all applicable federal,
state and local laws, ordinances, orders, rules, regulations and other
requirements of Governmental Authorities relating to the use, condition and
occupancy and the Building and all applicable rules, orders, regulations and
requirements of any board of fire underwriters or insurance service office or
any similar body having jurisdiction over the Building; provided, however,
Landlord has informed Tenant that the Building may not comply in some immaterial
respects with ADA or other applicable laws, but not to the extent which would
materially impair Tenant's use and occupancy of the Premises or the health or
safety of Tenant's employees or invitees.
(d) Landlord shall maintain, repair, operate, manage and lease the
Building at a standard consistent with the maintenance, repair, operation,
management and leasing of Comparable Space.
IV.
TENANT'S OCCUPANCY OF PREMISES
4.1 Care and Surrender of the Premises.
4.1.1 Damage; Load Capacity. Tenant shall not commit any waste or
damage, or allow any waste or damage, on any portion of the Premises or the
Project. Tenant also agrees that Tenant will not place upon or load any floor of
the Building with a load exceeding its design capacity. Landlord certifies that
the floors of the initial Premises are each designed generally to bear fifty
(50) pounds live load and fifty (50) pounds for partitions, per square foot of
floor space. Tenant shall take into account such load-bearing capacities when
locating all safes and heavy installations which Tenant wishes to place in the
Premises, which location must be approved by Landlord. Tenant shall notify
Building Manager and seek Building Manager's approval prior to any increase in
load or change in location of heavy installation throughout the Term.
4.1.2 Condition of Premises at End of Term. At the end of the Term,
by lapse of time or otherwise. Tenant shall deliver the Premises to Landlord
broom clean and in good order and repair except for ordinary wear and tear and
damage caused by insured casualty losses and acts of God. If Tenant does not so
deliver the Premises, Landlord may restore the Premises to such condition
following Tenant's surrender of possession and Tenant shall pay the cost
thereof, plus an administrative fee equal to fifteen percent (15%) of the cost
thereof. Unless the same are removed by Tenant prior to the end of the Term, all
installations, alterations, additions and improvements, including partitions
which may have been installed by either Landlord or Tenant, shall remain upon
the Premises and shall become Landlord's property, all without compensation,
allowance or credit. If Tenant elects to remove any alterations, additions or
improvements at the expiration or termination of this Lease, Tenant shall repair
all damage caused by such removal. Tenant shall be obligated to remove, at the
expiration or termination of this Lease all, alterations, additions or
improvements the installation of which was not consented to by Landlord.
Tenant's movable office equipment, furniture, furnishings and artwork shall
remain Tenant's property, and Tenant shall have the right prior to the end of
the Term to remove the same, if no uncured event of default then exists.
Tenant's goods, effects, personal property, business and trade fixtures,
machinery and equipment not removed at the end of the Term (or within one (1)
week after entry of a final unappealable order of possession of the Premises to
Landlord by a court of competent jurisdiction, and provided that during such
time Landlord has not hindered or impeded Tenant's efforts to remove such
property from the Premises by reason of Tenant's default) shall be considered
abandoned, and Landlord may dispose of the same in such commercially reasonable
manner as Landlord deems expedient after ten (10) days' prior written notice to
Tenant.
4.2 Legal Use and Violation of Insurance Coverage. Tenant shall comply
with all applicable laws, ordinances, orders, rules and regulations of any
Governmental Authority relating to the use, condition or occupancy of the
Premises. However, Landlord agrees that substantial compliance by Tenant shall
be sufficient for the purposes of Landlord's enforcement of this paragraph, but
only to the extent that failure to strictly comply does not adversely affect
Tenant's occupancy of the Premises, does not increase Landlord's insurance
premiums, will not have an impact on Landlord's Work, building systems,
aesthetics, Landlord's compliance with other Tenant leases or Landlord's
compliance with applicable laws. The foregoing exception shall in no event
excuse performance by Tenant as required by any applicable governmental
regulation or relieve Tenant of the obligation to maintain the Premises in first
class condition and in a safe manner. Landlord shall cause the original
construction of
13
Landlord's Work in the Premises to comply with all applicable laws, ordinances,
rules and regulations of any Governmental Authority as the same may be amended
from time to time to the extent necessary to permit Tenant to enjoy all rights
and privileges hereunder. Landlord shall comply with all applicable laws,
ordinances, rules and regulations of any Governmental Authority relating to the
construction, ownership, leasing and management of the Building; provided,
however, Tenant agrees that the scope of Landlord's compliance with laws,
ordinances, orders, rules and regulations of any Governmental Authority
applicable to construction of the Building is limited to those in effect when
approvals, permits and licenses for construction of the Building were obtained
or issued or to the extent needed to not materially impair Tenant's use and
occupancy of the Premises or the health or safety of Tenant's employees or
invitees. Tenant shall not occupy or use, or permit any portion of the Premises
to be occupied or used, for any business or purpose which is unlawful,
disreputable or deemed to be extra-hazardous on account of fire. Tenant shall
not permit anything to be done in the Premises which would increase the rate of
fire insurance coverage on the Building.
4.3 Hazardous Materials.
4.3.1 No Storage. For the purposes of this Section 4.3, "Premises"
shall include the Premises and all space over which Tenant has the right to
exclusive use and control. Except for general office and cleaning supplies
typically used in the ordinary course of Tenant's business, without Landlord's
prior written consent, Tenant shall not knowingly use, release, generate, store
or dispose of on, under or about the Project or transport to or from the same
any Hazardous Materials or permit or allow any third party to do so.
4.3.2 Compliance; Citation. All of Tenant's activities on the
Project shall comply with Environmental Laws. As soon as practical after receipt
of same, Tenant shall furnish Landlord with a copy of any and all citations,
orders, notices, reports, subpoenas or requests concerning or having an impact
on the environmental condition of the Premises from any federal, state or local
governmental authority and a copy of any and all information, documents or
reports submitted to any Governmental Authority by or on behalf of Tenant
regarding the environmental condition of the Premises. Tenant shall provide
Landlord with written notice of any environmental condition affecting the
Premises which must be reported to any Governmental Authority no later than
twenty-four (24) hours after occurrence of the event which triggers the
reporting obligation.
4.4 Nuisance. Tenant shall conduct its business and shall use its best
efforts to control its officers, managers, agents, employees, invitees and
visitors in such manner as not to create any nuisance, or interfere with any
other tenant of the Building or with Landlord in its operation of the Project.
4.5 Rules of the Building. Tenant and its officers, managers, employees,
agents, visitors, contractors, assigns and licensees shall comply with the Rules
and Regulations of the Project attached as Exhibit D, as the same may be
reasonably amended from time to time. Landlord shall use reasonable efforts to
enforce all Rules and Regulations uniformly against all Building tenants.
4.6 Repairs by Tenant. At Tenant's own cost and expense, Tenant shall
repair or replace any damage or injury done to the Project or any part thereof
caused by Tenant or its contractors, subcontractors, officers, managers, agents,
employees, invitees or visitors (other than Landlord or its contractors,
subcontractors, agents, employees, invitees or visitors) to the extent such
damage or injury is not covered by insurance. If Tenant has not undertaken such
repairs or otherwise diligently pursued all actions preparatory to such repairs
within thirty (30) days after notice from Landlord of Tenant's obligation to do
so or if Tenant is not diligently pursuing completion of any repair undertaken
within the thirty (30) day period, Landlord may, at its option, make such
repairs or replacements, and Tenant shall repay to Landlord the cost thereof,
plus an administrative cost of fifteen percent (15%) to Landlord on demand.
4.7 Alterations, Additions, Improvements.
4.7.1 Right to Make Alterations. Tenant shall not make any
alterations, additions or improvements to the Premises without the prior written
consent of Landlord, except for Tenant's Work as described in Exhibit D and the
installation of unattached, moveable trade fixtures which may be installed
without drilling, cutting or otherwise defacing the Premises, and any other work
which does not exceed a cost of $20,000.00 per job or an aggregate cost of
$20,000.00 in any twelve (12) month period and which does not impact the
Building exterior, structural components, Building equipment or systems, alter
the appearance of the Premises as seen from the Building or elevator lobby, or
significantly impact the appearance of any public areas within the Premises. Any
Work which is divided into more than one phase for the purposes of avoiding the
$20,000.00 limit herein specified shall be deemed to be aggregated with the
other phases, regardless of the time period which separates the phases. In each
instance where Landlord's approval is required hereunder, Tenant shall reimburse
Landlord for all reasonable out of pocket costs and expenses incurred by
Landlord in engaging third parties to conduct such review or any portion
thereof, regardless of whether the request is approved, in accordance with
Section 4.7.3. As further specified in Article 20 below, Tenant is hereby
prohibited
14
from creating or placing, or allowing to be created or placed, any lien or
encumbrance upon the Premises or the Building as a result of any alterations,
additions, improvements, equipment and/or fixtures which may be made or
installed upon the Premises. Landlord shall respond to any written request by
Tenant for consent pursuant to this paragraph within seven (7) days of receipt.
Landlord's failure to respond to such request within seven (7) days shall not be
deemed consent. However, if Landlord fails to respond within such seven (7) day
period, Tenant may send a second written request to Landlord, and Landlord's
failure to respond within three (3) days of any such second request delivered in
accordance with Section 8.4 hereof shall be deemed consent if and only if the
second request does not propose any new items (i.e., items not already presented
or not as presented in the first request.)
4.7.2 Agreements; Permits. Tenant shall enter into an agreement for
the performance of such approved Alterations with such contractors and
subcontractors selected by Tenant and approved by Landlord, such approval not to
be unreasonably withheld or delayed. Tenant's contractors shall obtain, on
behalf of Tenant and at Tenant's sole cost and expense, all necessary
governmental permits and approvals for the commencement and completion of such
Alterations and Tenant shall provide true copies of same to Landlord prior to
commencement of such Alterations.
4.7.3 Review by Landlord; Completion. If any Alterations require
Landlord's approval, Tenant shall pay to Landlord, as additional Rent, the
reasonable actual costs incurred by Landlord if third party consultants are
retained to review Tenant's plans. Such payment shall be made within thirty (30)
days after Tenant's receipt of invoices from Landlord, or at Landlord's option,
prior to the commencement of the Alteration. All Alterations shall be performed:
(i) in accordance with the approved plans, specifications and working drawings;
(ii) lien-free and in a good and workmanlike manner; (iii) in compliance with
all laws, ordinances, rules and regulations of all Governmental Authorities; and
(iv) in such a manner so as not to materially interfere with the use or
occupancy of the Building by any other tenant in the Building or its employees
or invitees, nor impose any additional expenses upon, nor delay Landlord in, the
maintenance and operation of the Building, nor endanger the health or safety of
any party in the Building.
4.7.4 Compliance With Laws. All work and materials installed in the
Premises by Tenant or at Tenant's request shall comply with all Rules and
Regulations of the Project, all insurance requirements, and with all laws,
ordinances, rules and regulations of all Governmental Authorities. Tenant agrees
to hold Landlord forever harmless from any and all claims and liabilities of
every kind and description which may arise out of or be connected in any way
with Alterations to the extent such claims and liabilities are not covered by
insurance, including Landlord's attorneys fees.
4.7.5 Insurance Requirements. In the event Tenant shall employ any
contractor to do any work in the Premises, Tenant shall provide Landlord with
certificates naming Landlord and such other parties as Landlord may designate as
additional insured(s) under policies of builder's risk and general liability
insurance in amounts and with insurers reasonably satisfactory to Landlord.
Tenant shall also provide evidence of satisfactory worker's compensation
coverage in accordance with statutory requirements.
4.7.6 Lien Waivers; Liens. Upon completion of such Alterations,
Tenant shall arrange to have its contractor deliver to Landlord a lien waiver
sufficient to assure Landlord that no statutory lien could be filed against the
Building relating to such Alterations. Notwithstanding the foregoing, if any
statutory lien shall be filed against the Premises or the Project purporting to
be for labor or materials furnished or to be furnished at the request of Tenant,
then Tenant shall at its expense cause such lien to be discharged by payment, by
posting of a cash or surety bond reasonably satisfactory to Landlord or by other
assurances reasonably satisfactory to Landlord, within fifteen (15) days after
Tenant's receipt of actual notice of the filing thereof. If Tenant shall fail to
take such action within such fifteen (15) day period, upon written notice to
Tenant, Landlord may cause such lien to be discharged by payment, bond or
otherwise. Tenant shall indemnify and hold harmless Landlord against any and all
claims, costs, damages, liabilities and expenses (including attorneys' fees)
incurred by Landlord by reason of any such lien or its discharge, and all such
sums properly paid by Landlord as permitted in this Section 4.7 shall be deemed
to be Additional Rent due and payable upon demand. No part of this Lease shall
be deemed or construed in any way as constituting the consent of or request by
Landlord to any contractor, subcontractor, laborer or materialman for the
performance of any labor or the furnishing of any materials to the Premises or
the Project, or any part thereof, or against the estates of Landlord or Tenant.
4.8 Entry for Repairs and Inspection. Tenant shall permit Landlord or
Landlord's agents or representatives to enter into and upon any part of the
Premises at all reasonable hours without notice (oral or written) to Tenant to
inspect same, make repairs, alterations or additions thereto in accordance with
the terms of this Lease or to exhibit the Premises (a) upon reasonable advance
notice, to prospective tenants during the last six (6) months of the Lease Term;
or (b) upon reasonable advance notice, to prospective purchasers or to others,
or for other reasonable purposes. If Landlord's access is for the purposes of
exhibiting the Premises to prospective tenants or purchasers, Landlord shall
provide Tenant with the opportunity to accompany Landlord's agents during such
exhibition. In the
15
event of emergencies, Landlord shall use commercially reasonable efforts to
provide Tenant notice (oral or written) thereof prior to entering the Premises.
Except as otherwise expressly provided in this Lease, Tenant shall not be
entitled to any abatement or reduction of Rent or any other sums due under this
Lease by reason of such access afforded to Landlord. if representatives of
Tenant shall not be present to open and permit entry into the Premises at any
time when such entry by Landlord is necessary or permitted hereunder, Landlord,
its employees, contractors and agents may enter by means of a master key or key
card (or forcibly in the event of an emergency) without such entry constituting
an eviction of Tenant or termination of this Lease.
4.9 Assignment or Sublease.
4.9.1 Rights of Assignment and Sublease. Except with respect to an
assignment to a Tenant Affiliate as hereinafter provided, which shall not
require Landlord's consent, and except with prior written notice of at least ten
(10) business days and the written consent of Landlord, which consent Landlord
shall not unreasonably or arbitrarily withhold, condition or delay, Tenant shall
not voluntarily (i) assign or in any manner transfer this Lease or any estate or
interest therein, (ii) permit any assignment of this Lease or any estate or
interest therein by operation of law or otherwise, (iii) sublet the Premises or
any part thereof, (iv) grant any license, concession or other right of occupancy
of any portion of the Premises other than for services which are incidental to
office work (e.g., copying, vending machines, etc.), or (v) permit the use of
the Premises by any parties other than Tenant, its managers, agents, employees,
officers, licensees or invitees. If Tenant is a corporation, then any transfer
of the Lease from Tenant by merger, consolidation or dissolution or any change
in ownership or power to vote a majority of the voting stock in Tenant
outstanding on the date of this Lease shall not constitute an assignment for
purposes of this Section 4.9. If Tenant is a general or limited partnership, the
transfer of any partnership interest, or a change in the constitution of the
partnership by death, withdrawal or retirement of a partner, or interests
constituting a majority or the reallocation of partnership interests, in each
case provided that the partnership remains in existence, shall not constitute an
assignment for the purposes of this Section 4.9. Tenant shall not mortgage,
pledge or otherwise encumber its interest in this Lease or in the Premises.
Consent by Landlord to one or more assignments or sublettings shall not be a
waiver of Landlord's rights as to any subsequent assignments and sublettings.
Assignment of this Lease or subletting of all or any part of the Premises to an
affiliate or subsidiary of Tenant (a "Tenant Affiliate") will require that at
least ten (10) business days notice, as hereinafter described, be given to
Landlord, but consent or approval of Landlord shall not be required.
4.9.2 Matters Affecting Transfer. Any approved transfer shall be
expressly subject to the terms and conditions of this Lease. In the event of an
assignment or subletting, Tenant and any guarantors under this Lease shall
remain fully responsible and liable for the payment of Rent and for compliance
with all of Tenant's other obligations under this Lease and any guaranty
delivered under this Lease shall remain in effect. If an event of default occurs
following any approved transfer, Landlord, in addition to any other available
remedies, may collect directly from Tenant's assignee or sublessee all rents
becoming due to Tenant and apply such amount against any sums due to Landlord by
Tenant. Tenant authorizes and directs any assignee or sublessee to pay rent
directly to Landlord upon receipt of notice of default from Landlord. No direct
collection by Landlord from any assignee or sublessee shall constitute a
novation or a release of Tenant or any guarantor from the further performance of
its remaining obligations under this Lease, nor shall receipt by Landlord of
Rent from any assignee, sublessee or occupant of the Premises be a waiver of the
covenant in this Lease prohibiting assignment and subletting. If such default
occurs as set forth in this Section 4.9.2, Landlord is authorized and empowered,
on behalf of Tenant, to endorse the name of Tenant upon any check, draft or
other instrument payable to Tenant evidencing payment of Rent, or any part
thereof, and to receive and apply the proceeds as provided above.
4.9.3 Consent to Assignment or Sublease. If Tenant requests
Landlord's consent to an assignment of this Lease or subletting of all or a part
of the Premises, Tenant shall submit to Landlord, in writing, (i) the name of
the proposed assignee or sublessee, (ii) current financial statements, if any,
available to Tenant disclosing the financial condition of the proposed assignee
or subtenant, (iii) the nature of the business of the proposed assignee or
sublessee, and its proposed use of the Premises (any assignment or subletting
being subject to restrictions on use contained in this Lease or in other leases
of space served by the same elevator bank in the Building as the Premises,
violation of such restrictions by the proposed assignee or sublessee
constituting absolute grounds for Landlord's denial of the requested assignment
or subletting, such grounds not being the exclusive grounds for denial under
clause (iii)), and (iv) the proposed commencement date of the assignment or
subletting, together with a copy of the proposed assignment or sublease. Within
fifteen (15) days after its receipt of such notice, Landlord shall either
approve or disapprove such proposed assignment in writing. Landlord's failure to
notify Tenant within such fifteen (15) day period shall be deemed a denial of
such proposal. In the event of (a) any proposed assignment; (b) any proposed
sublease to an existing tenant of the Building; or (c) any proposed sublease
which is not a Minor Sublet as defined in this Lease, Landlord, at its option
and at its sole discretion, shall have the right to cancel this Lease in the
event of an assignment or sublease of the entire Premises or to terminate this
Lease with respect to that portion of the Premises proposed for subletting, if
less than the entire Premises, and to lease
16
the Premises or any portion of the Premises to be assigned or sublet to the
proposed assignee or sublessee under the terms of its existing lease with
Landlord. Provided, however, that prior to exercising its right to terminate,
Landlord shall provide Tenant with ten (10) days prior written notice of its
intent to so terminate and Tenant shall have the right and opportunity to avoid
termination by withdrawing its request within such ten (10) day period. Landlord
reserves the right to withhold consent to any proposed assignment or sublease to
any third party other than a Tenant Affiliate or a Minor Sublet if the
creditworthiness of such third party is not comparable to Tenant's
creditworthiness at the time this Lease was executed.
4.9.4 Additional Limitations Relative to Assignment and Subletting.
Notwithstanding anything in this Lease to the contrary Tenant further agrees
that any assignment or sublet shall be subject to the following additional
limitations: (i) in no event may Tenant assign this Lease or sublet all or any
portion of the Premises to an existing tenant of the Building or of the
NationsBank Corporate Center, or any subtenant or assignee of such existing
tenant; (ii) in no event shall the proposed subtenant or assignee be a person or
entity with whom Landlord or its agent is negotiating and to or from whom
Landlord, or its agent, has given or received any written proposal within the
immediately preceding six (6) months period regarding a lease of space in the
Building or in the NationsBank Corporate Center; and (iii) Tenant shall not
publicly advertise the rate for which Tenant is willing to sublet the space; and
all public advertisements of the assignment of the Lease or sublet of the
Premises, or any portion thereof, shall be subject to prior approval in writing
by Landlord, such approval not to be unreasonably withheld or delayed. Said
public advertisements shall include, but not be limited to, the placement or
display of any signs or lettering on the exterior of the Premises, or on the
glass or any window or door of the Premises, or in the interior of the Premises
if it is visible from the exterior.
4.9.5 Effect of Assignment or Sublease. If Landlord consents to any
subletting by Tenant and subsequently any rents received by Tenant under such
sublease are in excess of the Rent payable by Tenant under this Lease, or any
additional consideration is paid to Tenant by the assignee under the assignment,
then Landlord shall be entitled to retain such excess, less the cost to Tenant,
amortized without interest over the primary term of the sublease (which term
shall not exceed the primary term of the Lease.) Cost to Tenant as referenced in
the immediately preceding sentence shall include only the reasonable, actual
cost of subtenant upfit and brokerage commissions incurred by Tenant. Landlord
shall be entitled to receive copies of paid invoices supporting such costs and
to demand a full accounting.
4.9.6 Assumption by Assignee. Each permitted assignee shall assume,
and be deemed to have assumed, this Lease and be and remain liable jointly and
severally with Tenant for all payments and for the due performance of all its
terms, covenants and conditions. No approved assignment shall be binding upon
Landlord unless Landlord shall receive an instrument in recordable form
containing a covenant of assumption by the assignee, but the failure or refusal
of an assignee to execute the same shall not release it from its liability as
set forth herein. Tenant agrees to pay Landlord's reasonable counsel fees not to
exceed One Thousand and No/100 Dollars ($1,000) per sublease or assignment in
connection with the review and approval of any proposed assignment or
subletting. In the event that the proposed assignee or sublessee is an existing
tenant of the Building, Landlord, at its option and its sole discretion, shall
have the right to cancel this Lease and lease the Premises or any portion of the
Premises to be assigned or sublet to the proposed assignee or sublessee under
the terms of its existing lease with Landlord.
4.9.7 Termination of Rights. Except with respect to (a) an
assignment or a sublet to a Tenant Affiliate as provided in Section 4.9.1; or to
(b) an entity resulting from merger or acquisition of Tenant, but only if the
resulting entity shall have equal or greater financial strength as Tenant has on
the date of execution of this Lease, all expansion rights, rights of first
refusal, and renewal options, if any, granted to Tenant under this Lease and all
building naming rights of Tenant pursuant to Section 8.3, shall terminate
effective immediately upon assignment or sublet of this Lease or any portion
thereof, except for a Minor Sublet.
4.10 Subordination to Mortgage. Within a reasonable time after the
delivery of this Lease by Tenant to Landlord, Landlord shall provide to Tenant
an executed nondisturbance and attornment agreement from all lenders having an
interest in all or any portion of the Project as beneficiaries of any deeds of
trust on record as of the date of delivery of such Lease and from NationsBank
Corporation as Master Lessee. Should any such lender or beneficiary reasonably
condition such nondisturbance and attornment on an amendment to any provision(s)
of this Lease which do not conform to the preapproved form of Office Lease for
the Building, Tenant shall cooperate fully with Landlord in providing such
documentation as shall be reasonably required in order to procure the
nondisturbance and attornment. Subject to the condition precedent that Landlord
provide to Tenant a nondisturbance agreement in favor of Tenant from any ground
lessor, mortgagee, trustee or beneficiary, and subject to the consent of the
mortgagee, trustee or beneficiary under any prior mortgage or deed of trust
encumbering the Building, this Lease shall be subject and subordinate to any
mortgage or deed of trust which may now or hereafter encumber the Building and
to all renewals, modifications, consolidations, replacements and extensions
thereof. In confirmation of such subordination, however, Tenant shall
17
at Landlord's request execute and deliver promptly any appropriate certificate
or instrument that Landlord may request, including the Subordination,
Nondisturbance and Attornment Agreement with such changes as any mortgagee,
trustee or the beneficiary under any mortgage or deed of trust encumbering the
Building may reasonably request. In the event of the enforcement by the
mortgagee, trustee or the beneficiary under any such mortgage or deed of trust
of the remedies provided by law or by such mortgage or deed of trust, Tenant
will automatically become the tenant of the new owner under all the terms of
this Lease. However, the new owner shall not be bound by (i) any payment of Rent
for more than one (1) month in advance except prepayments of Expenses pursuant
to any budget provided by Landlord to Tenant with respect thereto and
prepayments in the nature of security for the performance by Tenant of its
obligations under this Lease, or (ii) any amendment or modification of this
Lease made by Landlord and Tenant, which modification or amendment is made
without the prior written consent of the new owner or the mortgagee, trustee or
beneficiary through whom the owner derived its interest and the new owner shall
not be liable for any actions, omissions or obligations of any prior landlord,
including Landlord which are to be performed after the Commencement Date. Tenant
shall execute and deliver any instrument or instruments confirming the
attornment described above in such form as Landlord may request.
4.11 Estoppel Certificate. Landlord and Tenant shall, at any time and
from time to time, within ten (10) days following receipt of written request
from the other, execute, acknowledge and deliver a written statement certifying,
if true, that this Lease is in full force and effect and unmodified (or, if
modified, stating the nature of such modification), certifying the date to which
Rent has been paid, certifying whether or not, to the best knowledge of either
party, there are any uncured defaults by the other or specifying such defaults
if any are claimed, and certifying such other matters as may be reasonably
requested. Any such statement may be relied upon by a prospective purchaser or
mortgagee of all or any part of the Building or a prospective lender or acquirer
of Tenant, as the case may be. Failure by either party to deliver such statement
within said ten (10) day period shall constitute such party's certification that
this Lease is in full force and effect and unmodified, and that there are no
uncured defaults by the other.
4.12 Defaults by Landlord.
4.12.1 Landlord's Default. Breach of any covenant or agreement or
undertaking to be performed by Landlord under this Lease shall constitute a
default by Landlord hereunder. Notwithstanding the foregoing, Landlord shall not
be in default hereunder with respect to: (i) any obligation of Landlord to pay
money to Tenant hereunder unless Landlord has failed to pay such money to Tenant
within the applicable time period specified herein, and such failure continues
for a period of thirty (30) days after written notice from Tenant to Landlord;
and (ii) any other obligation of Landlord under this Lease, unless Landlord
fails to perform the obligation within thirty (30) days after Tenant has
delivered written notice thereof to Landlord; provided, however, that if the
nature of Landlord's obligation is such that more than thirty (30) days are
reasonably required for its performance, then Landlord shall not be in default
if Landlord commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion. Said thirty (30) day
period shall be extended by the period of time during which Landlord is actually
prevented from performing such obligation as a result of Tenant delays or Force
Majeure delays, provided that Landlord is at all times diligently prosecuting
such performance to completion.
V.
INSURANCE
5.1 Casualty Insurance. During the Term, Landlord shall insure the
Building and the Project against loss or damage by fire, or other insurable
hazards and contingencies through all risk insurance (which sometimes may be
referenced in the insurance industry as special cause of loss insurance),
including fire and extended coverage, in amounts, coverages and with deductibles
as are commercially reasonable and as are in effect for Comparable Buildings.
Landlord shall not be obligated to insure any furniture, equipment, machinery,
goods or supplies which Tenant may bring or obtain upon the Premises or any
leasehold improvements which exceed in value, or quantity the Building standards
for doors, lighting, partition walls and floor covering which Tenant may
construct. If the premiums for any casualty insurance exceed the standard rates
because Tenant's operations result in increased premiums, then Tenant shall,
promptly upon receipt of appropriate invoices, reimburse Landlord for same.
Tenant shall maintain at its expense, in an amount equal to full replacement
cost, fire and extended coverage insurance on all leasehold improvements and on
all of its personal property, including removable trade fixtures, located in the
Premises plus such additional insurance as may be required to meet Tenant's
obligations under Section 5.2.2.
5.2 Liability Insurance.
5.2.1 Landlord's Obligation. During the Term, Landlord shall obtain
and keep in force comprehensive general liability insurance in amounts,
coverages and with deductibles as are
18
commercially reasonable and as are in effect for Comparable Buildings (but not
less than Three Million Dollars ($3,000,000.00) combined single limit for bodily
injury and property damage).
5.2.2 Tenant's Obligation. During the Term, Tenant shall procure,
and shall maintain, at Tenant's sole cost and expense, general public liability
insurance against claims for personal and bodily injury, death or property
damage occurring upon, in or about the Premises with carriers and in amounts
reasonably satisfactory to Landlord (but not less than Three Million Dollars
($3,000,000.00) combined single limit for bodily injury and property damage).
5.3 Insurance Standards; Waiver of Subrogation.
5.3.1 All such policies and renewals thereof as are required in
Sections 5.1 through 5.2 shall name Landlord and Tenant as additional insureds.
All policies of insurance shall provide (i) that no material change or
cancellation of said policies shall be made without thirty (30) days' prior
written notice to Landlord and Tenant, and (ii) that the insurance company
issuing the same shall have waived any right of subrogation against Landlord or
Tenant. All policies of insurance which are secured by Landlord and Tenant as
required by this Lease shall include appropriate deductible amounts so that
insurance premiums therefor are commercially reasonable. Before Tenant's initial
entry into the Premises and thereafter at least thirty (30) days prior to the
expiration dates of said policy or policies, both Landlord and Tenant shall
provide each to the other copies of policies or certificates of insurance
evidencing all coverages required of Landlord or Tenant or either of them by
this Lease. Al1 the insurance required under this Lease shall be primary and
non-contributory, issued by companies which are rated at least A/X in Best's
Insurance Reports and authorized to do business in North Carolina. Insurance
requirements may be reasonably increased from time to time by Landlord in order
to protect its interest.
5.3.2 Neither Landlord nor Tenant shall be liable to the other or to
any insurance company (by way of subrogation or otherwise) insuring the other
party for any loss or damage to the Premises, the Building or other tangible
property of Landlord or Tenant, or any resulting loss of income, or losses under
worker's compensation laws and benefits, even though such loss or damage might
have been occasioned by the negligence of such party, its agents, employees,
invitees or contractors, if and to the extent that any such loss or damage is
required by this Lease to be covered by insurance benefiting the party suffering
such loss or damage or was covered by insurance pursuant to this Lease and
proceeds from insurance are collectible.
5.4 Other Tenants; Parking Garage. Landlord shall exercise commercially
reasonable efforts to assure that other tenants in the Building and the operator
of the Parking Garage will carry comprehensive general liability insurance at
commercially reasonable levels.
5.5 Indemnity for Insurance Coverage. Because the Landlord is required
to maintain casualty insurance pursuant to this Lease, and Tenant compensates
Landlord for such insurance as part of Tenant's Expenses, and because of the
existence of waivers of subrogation set forth in this Lease, Landlord shall
indemnify, defend and hold Tenant harmless from and against any indemnified
claims resulting in or arising from any damage to any property outside of the
Premises to the extent such indemnified claims are covered by such insurance, or
would have been covered by such insurance had Landlord obtained the same as
required by this Lease, even if resulting from the negligent acts or omissions
of Tenant or Tenant's agents, contractors, employees, subtenants, invitees or
licensees together with reasonable attorney's fees incurred in connection
therewith. Similarly, since Tenant must carry casualty insurance pursuant to
the Lease to cover its personal property within the Premises, Tenant shall
indemnify, defend and hold Landlord harmless from and against any indemnified
claims resulting in or arising from any damage to any property inside the
Premises, to the extent such indemnified claims are covered by such insurance,
or would have been covered by such insurance had Tenant obtained the same as
required under this Lease, even if resulting from the negligent acts or
omissions of Landlord or Landlord's agents, contractors, employees, assignees,
invitees or licensees together with reasonable attorney's fees incurred in
connection therewith.
5.6 No Release. Tenant's and Landlord's indemnification obligations in
this section shall survive the expiration or earlier termination of this Lease.
Tenant's and Landlord's covenants, agreements and indemnity obligations in this
Lease are not intended to and shall not relieve any insurance carrier of its
obligations under policies required to be carried by Landlord or Tenant,
respectively, pursuant to the provisions of this Lease.
5.7 Casualty Damage. If the Premises shall be damaged by fire or other
casualty. Tenant shall give prompt written notice to Landlord. If the Building
or any part thereof or access thereto shall be so damaged or destroyed by fire
or other casualty that substantial alteration or reconstruction of the Building
and access thereto shall, in the good faith and reasonable determination of
Landlord's Architect, be required with such repair taking longer than one
hundred eighty (180) days (whether or not the Premises shall have been damaged
by such casualty), or in the event any mortgagee should require that the
insurance proceeds be applied to the payment of the mortgage debt, or in the
event of any material uninsured loss to the Building, or in the event of any
substantial damage to the Buildinq
19
within the final two (2) years of the Term, Landlord may, at its option,
terminate the Lease by notifying Tenant in writing within thirty (30) days after
the date of such damage. In case the Premises shall be so damaged by fire or
other casualty that substantial alteration or reconstruction of the Building
shall, in the mutual good faith and reasonable determination of Landlord's
Architect, be required, Tenant shall have the right to terminate this Lease upon
thirty (30) days prior written notice to Landlord if Landlord (i) has not
completed, (ii) cannot complete or (iii) in the opinion of Landlord's Architect,
cannot reasonably be expected to complete substantially the making of any
required repairs and restorations within one hundred eighty (180) days from the
date of such damage or destruction. In addition, if any such damage or
destruction shall occur during the last two (2) Lease Years of the Term, Tenant,
at its option, may terminate this Lease by giving prior written notice to
Landlord within thirty (30) days after the events specified in clauses (i),
(ii), or (iii) above occur or become determinable. Rent shall xxxxx and be
prorated as of the date such damage occurs and during any period of repair and
restoration to the extent the Premises or any material part thereof are rendered
unusable or access thereto is denied Tenant. If Landlord or Tenant does not thus
elect to terminate this Lease, Landlord shall commence and diligently proceed to
restore and repair the Building or the Project and the Premises to substantially
the same condition in which it was immediately prior to the happening of the
casualty except that Landlord's obligation to restore shall not exceed the scope
of Landlord's Work and the applicable Construction Allowance, both adjusted in
accordance with the Construction Cost Index published by Means for the Charlotte
metropolitan area, in originally constructing the Building. When the Landlord's
Work with respect to such reconstruction or restoration has been completed,
Landlord and Tenant shall complete the restoration of the Premises, including
the reconstruction of all leasehold improvements and the restoration of Tenant's
furniture and equipment. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting in any way
from such damage or repair, except that Landlord shall allow Tenant a fair
diminution of Rent during the time and to the extent the Premises or any
material portion thereof are unfit for occupancy. If the casualty results from
the fault or gross negligence of Tenant or any of Tenant's agents, employees or
invitees, Rent shall not be diminished during the repair of such damage and
Tenant shall be liable to Landlord for the cost of the repair and restoration of
the Building to the extent such cost and expense is not covered by insurance
proceeds.
5.8 Additional Rights Regarding Restoration. If neither Tenant nor
Landlord has elected or has the right to terminate this Lease pursuant to
Section 5.7 above, and if Landlord shall not have substantially repaired or
restored the Project and Premises and access thereto (to the extent such items
are required to be repaired pursuant to Section 5.7) within the later of: (i)
the applicable time periods set forth in Section 5.7 after such damage or
destruction (which time periods shall be extended by the amount of any
construction delays caused by Force Majeure and/or Tenant delays); or (ii)
thirty (30) days after the time period that the parties mutually estimate would
be required to substantially complete such repairs pursuant to Section 5.7 above
(which time periods shall be extended by the amount of any construction delays
caused by Force Majeure and/or Tenant delays), then Tenant shall again have the
right to terminate this Lease by delivering written notice thereof to Landlord
within thirty (30) days thereafter, which termination shall be effective as of
the date Landlord receives such notice. However, such termination notice shall
have no force or effect if Landlord performs such substantial repairs at any
time within thirty (30) days after Landlord's receipt of Tenant's termination
notice. For purposes of this section, the Premises shall be deemed
"substantially" repaired or restored if the only items remaining to be repaired
or restored are "punch-list" items which Landlord shall promptly repair
thereafter. Unless Tenant or Landlord elects to terminate this Lease pursuant to
this Section 5.8, this Lease shall continue in full force and effect, except for
the abatement of Rent to the extent provided in Section 5.7 in this Lease.
5.9 Application of Insurance Proceeds. If this Lease is terminated by
reason of damage or destruction! each party shall be entitled to retain the
insurance proceeds awarded to such party by that party's insurer. If this Lease
is not terminated by reason of any such damage or destruction, then all
insurance proceeds payable by reason of damage or destruction to the Premises,
Tenant's Work or Alterations or to the Project or access thereto shall be
disbursed to the party making such repairs in a manner reasonably satisfactory
to Landlord, Tenant, any mortgagee or beneficiary under any mortgage or deed of
trust encumbering the Project, the Building, the Building or Premises for use in
reconstruction of the Project, Building, Building or Premises, or access
thereto. Upon completion of the repairs or reconstruction of such building, any
remaining insurance proceeds shall be paid to the parties whose policies
provided such proceeds. Except as otherwise expressly set forth in this Article
V, Landlord's obligations to repair or reconstruct under this section shall in
no event be dependent or contingent upon whether adequate insurance proceeds are
made available under the policies of insurance that Landlord is required to
maintain under this Lease, or when or how the damage or destruction occurs;
provided, however, that any cost not covered by Landlord's or Tenant's insurance
proceeds or by the insurance coverage Landlord or Tenant is obligated to
maintain under this Lease shall be borne by Tenant if caused by the gross
negligence or willful misconduct of Tenant.
5.10 Self-Insurance. Notwithstanding anything herein to the contrary, so
long as the Landlord is NationsBank, N.A., its affiliated entities, or a
successor to substantially all the assets of NationsBank, N.A., Landlord
reserves the right for itself, to self-insure against any risk required herein
to be insured or otherwise assumed by Landlord.
20
5.11 Other Insurance. Landlord shall obtain (i) Worker's Compensation
and Employer's Liability insurance as required by law; and (ii) additional
rental income insurance ("Additional Rental Income Insurance") as an endorsement
to Landlord's all risk policy.
VI.
CONDEMNATION
6.1 Effect of Condemnation. If the whole or substantially the whole of
the Premises or access thereto should be taken for any public or quasi-public
use, under any statute or by right of eminent domain or otherwise or should
title to the Building or access thereto be taken or be sold by private purchase
in lieu of condemnation, then this Lease shall terminate as of (i) the date when
physical possession of the Premises is taken or access thereto is substantially
impaired-by the condemning authority; or (ii) the date that the Premises, or
access thereto is adversely affected by the taking and Tenant's use or enjoyment
of the Premises is substantially impaired. If less than the whole Building or
Premises is thus taken or sold, or in the event of a temporary taking of less
than two hundred seventy (270) days, Landlord (whether or not the Premises are
affected thereby) may not terminate this Lease but Tenant's Rent shall be abated
during the period of such partial taking and Landlord shall proceed with due
diligence to make all necessary repairs and alterations. If this Lease is not so
terminated upon any such taking or sale, Rent shall be reduced by an equitable
amount. Landlord shall restore the Building and the Premises to substantially
their former condition, and except to the extent Landlord is required to insure
Tenant's improvements to the Premises, such work shall not exceed the scope of
Landlord's Work and the applicable Construction Allowance, both adjusted in
accordance with the Construction Cost Index published by Means for the Charlotte
metropolitan area, in originally constructing the Building and the Premises.
6.2 Proceedings in Condemnation. Landlord and Tenant shall use their
best commercially practicable efforts to have the court in any proceeding in
connection with any taking pursuant to Section 6.1 allocate any award in the
manner specified in this Section 6.2. Tenant shall have the right to participate
in any such proceeding and to request that the court allocate any award in the
manner specified in this Section 6.2. Landlord shall be entitled to receive the
entire amount of any compensation awarded or paid upon any taking described in
or governed by Section 6.1, except that Tenant shall be entitled to the
following portions of such compensation or award: (i) all costs of relocating
Tenant's business (severance damages) and (ii) the value of Tenant's trade
fixtures taken and the portion of tenant improvements paid for by Tenant.
6.3 Notice of Execution. Immediately upon service of process or other
notice upon either party in connection with any appropriation, taking or
temporary taking relating to the Project, the Building, the Premises, or access
thereto, such party shall give written notice thereof to the other. Each party
agrees to execute and deliver to the other all instruments that may be required
to effectuate the provisions of this section. Each party reserves the right to
appear in any proceedings in connection with any taking or temporary taking.
VII.
TENANT'S DEFAULT
7.1 Default by Tenant. Each of the following events shall be deemed to
be an event of default by Tenant under this Lease, if such event continues for a
period of five (5) days after written notice thereof is delivered to Tenant (or
such longer cure period as may be specifically permitted by the applicable
subparagraph); provided, however, that no notice need be provided to Tenant if
Tenant has received a notice of default or noncompliance more than twice in the
immediately preceding twelve (12) month period:
(a) If Tenant shall fail (i) to pay any installment of Rent or any
other amount payable to Landlord hereunder as and when herein
provided, (ii) to obtain the insurance coverage required
hereunder or (iii) to comply with the provisions of Section 4.3
regarding Hazardous Materials.
(b) If Tenant or any Guarantor of Tenant's obligations under this
Lease shall become insolvent, or shall make a transfer in fraud
of creditors, or shall make an assignment for the benefit of
creditors.
(c) If Tenant, Tenant's Guarantor or any permitted sublessee or
assignee, shall (i) make an assignment for the benefit of
creditors, (ii) file or acquiesce in a petition in any court
(whether or not pursuant to any statute of the United States
or of any State) in any bankruptcy, reorganization, composition,
extension, arrangement or insolvency proceedings, (iii) make an
application in
21
any such proceedings for or acquiesce in the appointment of a
trustee, receiver or similar officer for it or all or any
portion of its property, or (iv) have been a "debtor" in any
voluntary or involuntary bankruptcy proceeding on the date of
execution of this Lease without having disclosed the same to
Landlord in writing prior to such date.
(d) If any petition shall be filed against Tenant, Tenant's
Guarantor or any permitted sublessee or assignee (whether or
not pursuant to any statute of the United States or any State)
in any bankruptcy, reorganization, composition, extension,
arrangement or insolvency proceedings and such proceedings shall
not be dismissed, discontinued, or vacated within sixty (60)
days after such petition is filed.
(e) If in any proceedings, pursuant to the application of any party
other than Tenant or Tenant's Guarantor in which neither of them
acquiesce, a receiver, trustee or other similar officer shall be
appointed for Tenant or Tenant's Guarantor or for all or any
portion of the property of either and such receivership or
trusteeship shall not be set aside within sixty (60) days after
such appointment.
(f) If a receiver or Trustee shall be appointed for all of the
Premises or for all or substantially all of the assets of Tenant
or any Guarantor of Tenant's obligations under this Lease.
(g) Intentionally omitted.
(h) If Tenant shall create or suffer the creation of a lien upon
the Premises in violation of the provisions of Section 4.7.6
of this Lease.
(i) If Tenant shall refuse to take possession of the Premises
when Ready for Occupancy.
(j) If Tenant shall fail to commence promptly Tenant's Work in
the Premises as required in Section 2.1.1 hereof, or shall fail
to prosecute the same diligently to completion in accordance
with such Section 2.1.1.
(k) If Tenant shall be a corporation and shall fail to remain in
good standing in the state in which the Building is located or
the state of its incorporation, or shall, if a foreign
corporation, fail to qualify to transact business and/or
maintain a duly registered agent in the state in which the
Building is located.
(1) If any execution, levy, attachment, or other process of law
shall occur upon Tenant's fixtures or interest in the Premises.
(m) If Tenant shall fail to deliver an estoppel certificate to
Landlord within ten (10) days after Landlord's request therefor,
pursuant to the requirements of Section 4.1 1 hereof.
(n) If Tenant shall at any time be in breach or default in the
observance or performance of any of the other covenants and/or
agreements required to be performed and/or observed by Tenant
hereunder.
Provided, however, that if any default by Tenant for which a
time to cure is not specifically addressed in the preceding subparagraphs (b)
through (n), which default is curable but shall reasonably require more than ten
(10) days to cure, Tenant shall be afforded an additional time period to effect
such cure, not to exceed thirty (30) days or such additional time as shall be
reasonably required to complete the cure, provided Tenant commences to cure the
default within the initial ten (10) day period and diligently prosecutes the
same to completion.
Subparagraphs (c) and (d) above notwithstanding, bankruptcy,
receivership or other voluntary or involuntary liquidation or reorganization
proceedings brought by or against a permitted sublessee or assignee (other than
a Tenant Affiliate) shall not constitute a default of Tenant if and so long as
the agreement between Tenant and such permitted sublessee or assignee provides
that such proceedings are a default under the sublease or assignment, and Tenant
takes reasonable steps to enforce such provision of the sublease or assignment.
7.2 Landlord's Remedies. Upon the occurrence of any event of default and
the lapse of any grace or cure periods without cure thereof, Landlord shall have
the option to pursue any one or more of the following remedies upon notice to
Tenant:
22
7.2.1 Termination. Terminate this Lease or terminate Tenant's
right to possession, and in either event, accelerate the present value at the
Contract Rate of all obligations owed by Tenant to Landlord under the Lease
together with interest at the Contract Rate from the date of acceleration until
payment and force Tenant to immediately surrender the Premises to Landlord.
Tenant agrees to pay to Landlord on demand the costs which Landlord may suffer
by reason of such termination. Immediately upon any termination Landlord shall
be entitled to recover from Tenant all outstanding and unpaid Rent as of the
date of such termination plus the present value at the Contract Rate of all
future rent due.
7.2.2 Possession. Enter upon and take possession of the Premises
and expel or remove Tenant and any other person who may be present, by force if
necessary (to the extent allowed by law), without terminating the Lease or being
liable for prosecution or any claim for damages, and, if Landlord so elects,
relet the Premises on such terms as Landlord may determine shall best mitigate
its damages and receive the rent therefor. Tenant agrees to pay to Landlord on
demand any deficiency that may arise by reason of such reletting.
7.2.3 Entry. Enter upon the Premises, by force if necessary (to the
extent allowed by law), without being liable for prosecution or any claim for
damages, and do whatever Tenant is obligated to do under the terms of this
Lease. Tenant agrees to reimburse Landlord on demand for any expenses which
Landlord may incur in effecting compliance with Tenant's obligations.
7.2.4 Intentionally omitted.
7.3 Remedies Cumulative. Pursuit of any one or more of the remedies
provided in this Lease shall not preclude pursuit of any other remedies provided
hereunder or by law, which shall be cumulative, nor shall pursuit of any remedy
constitute a forfeiture or waiver of any Rent due or of any damages accruing to
Landlord by reason of the breach. Actions to collect amounts due Landlord may be
brought from time to time, on one or more occasions without the necessity of
Landlord's waiting until the expiration of the Term.
7.4 Cure Rights. Landlord may cure, at any time, without notice except
as otherwise herein provided, any default by Tenant under this Lease. Whenever
Landlord so elects, all unrecovered costs and expenses incurred by Landlord in
curing a default, including, without limitation, reasonable attorneys' fees,
together with interest on the amount of costs and expenses so incurred at the
Contract Rate, shall be paid by Tenant to Landlord on demand, and shall be
recoverable as Rent.
7.5 Rights Upon Possession. Upon the occurrence of an uncured event of
default by Tenant and exercise of Landlord's remedies hereunder, Landlord may
make such alterations, repairs, replacements and/or decorations in the Premises
as Landlord, in its commercially reasonable judgment, considers advisable and
necessary for reletting the Premises. Such undertakings shall not operate or be
construed to release Tenant from its liability. Except as may be required to
mitigate damages, Landlord shall in no event be liable in any way whatsoever for
failure in good faith to relet the Premises, or in the event that the Premises
are relet, for failure to collect the rent under such reletting. Subject to
Landlord's obligation to mitigate damages, the failure of Landlord to relet the
Premises or any part or parts thereof shall not release or affect Tenant's
liability for damages. In no event shall Tenant be entitled to any excess rent
obtained by reletting. In determining the amount of loss or damage which
Landlord may suffer by reason of termination of this Lease or the deficiency
arising by reason of any reletting of the Premises, Landlord shall be entitled
to recover, in addition to any other damages elsewhere provided in this Lease,
at law or in equity, such unrecovered reasonable expenses as Landlord may incur
in connection with reletting of the Premises (including, without limitation,
court costs, attorneys' fees and disbursements, brokerage expenses and expenses
for putting and keeping the Premises in good order or for preparing the same for
reletting as herein provided).
7.6 Prevailing Party; Venue. If either party places in the hands of an
attorney the enforcement of this Lease, or any part thereof, or the collection
of any Rent due or to become due hereunder, or recovery of the possession of the
Premises, or files suit upon the same, the nonprevailing (or defaulting) party
shall pay the other party's reasonable attorneys' fees (based upon normal hourly
rates in effect in the Uptown Charlotte area at the time of enforcement) and
court costs. The parties agree that any litigation concerning this Lease may be
brought before the Superior Court of North Carolina and that Mecklenburg County,
North Carolina shall be the proper venue for any such action.
VIII.
MISCELLANEOUS PROVISIONS
8.1 Force Majeure. Whenever a period of time is prescribed for the
taking of any action by Landlord or by Tenant, neither Landlord nor Tenant shall
be liable or responsible for, and there shall be excluded from the computation
of such period of time, any delays due to strikes, fire, earthquakes, floods,
acts of God, governmental regulations, shortages or delay of labor or materials,
war,
23
governmental laws, regulations or restrictions, or any other cause whatsoever
beyond the control of Landlord or Tenant, as applicable (all of which are
sometimes referenced collectively in this Agreement as "Force Majeure")
excluding however the financial condition or the unavailability or cost of funds
of either party.
8.2 Sale of the Building. Landlord shall have the right to transfer and
assign, in whole or in part, all its rights and obligations hereunder, and in
the Building and leasehold improvements, and upon the transferee's assumption of
Landlord's obligations hereunder, no further liability or obligations shall
accrue against Landlord. Any and all covenants of Landlord contained in this
Lease shall be binding upon Landlord and its successors only with respect to
breaches occurring during its and their respective ownerships of Landlord's
interest hereunder.
8.3 Name of Building. Landlord agrees that during the Lease Term, for so
long as Tenant remains in possession and continuous occupancy of the Premises
pursuant to the terms of this Lease, and provided that Tenant has not assigned
or sublet all or any portion of the Premises, other than in a Minor Sublet, or
vacated or abandoned more than twenty percent (20%) of the Premises for a period
in excess of six (6) months, and further provided that Tenant is not in default
of this Lease beyond any applicable cure periods, Landlord shall name the
Building the "IJL Financial Center." Landlord and Tenant shall mutually agree
upon signage, which shall be designed by Landlord at Landlord's expense and
subject to Tenant's approval. Exhibit "M" attached hereto depicts the signage
package that has been agreed to between Landlord and Tenant, subject to
Landlord's approval of actual installation and further subject to applicable
governmental codes and regulations. Tenant shall cause the manufacturing of such
approved sign at Tenant's expense in strict compliance with the approved design,
and shall install same in a prominent location at street level on North Xxxxx
Street, such location to be subject to mutual agreement, and all elements of the
sign's design, location and installation to be subject to applicable
governmental rules, regulations and ordinances. Subject to the sign provisions
set out elsewhere in this Lease, Landlord shall have exclusive control over all
signs, graphics or other wall ornamentation or displays in the entrance lobby to
the Building and in all Common Areas. Under no circumstances shall Landlord have
any obligation to re-name the Building for any reason whatsoever unless Tenant
requests that Landlord recapture the Building naming rights because the name
"Interstate/Xxxxxxx Lane" is no longer in usage by Tenant and Landlord has
declined to consent to a change of Building name requested by Tenant, but in
such event, the new name of the Building shall be in the sole discretion of
Landlord. Should Landlord recapture the Building naming rights due to a request
by Tenant, or should Landlord, in its sole and absolute discretion, elect to
consent to a request by Tenant to a name change, Tenant shall bear all costs
associated therewith, including by way of example and not as a limitation, costs
of designing, fabricating and installing new Building signage (which shall be
reasonably comparable in size, type and quality to the Building signage in place
prior to the requested change) and changes in stationery of Landlord, Manager,
and all other affected Building tenants. Provided, further, that Landlord shall
provide a good faith estimate of the cost of such name change and Tenant shall
have ten (10) days from receipt of such estimate to retract its request for a
Landlord recapture of the name.
For so long as the Building Name is the IJL Financial Center, Landlord
shall not permit any Building tenant which does not have premises located on the
ground floor of the Building to have any signage on the exterior of the
Building. Additionally, no tenant except for Tenant or any entity which is owned
or controlled by Landlord, its parent company, affiliates or subsidiaries, shall
have the right to advertise on the Building exterior the name of any company
whose primary business is securities brokerage. However, Landlord may identify
the address of the Building on exterior signage, in addition to identifying the
name "IJL Financial Center."
8.4 Notices. All notices required under this Lease shall be in writing
unless expressly permitted otherwise. Any notice by either party to the other
shall be deemed to be duly given if either personally delivered with written
receipt to the respective addresses set forth below for each party or sent by
first-class mail, postage prepaid, return receipt requested, or by a nationally
recognized overnight courier service addressed as set forth below:
If to Tenant (for any Interstate/Xxxxxxx Xxxx
notice delivered prior Interstate Tower
to the Commencement X.X. Xxx 0000
Date): Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Director of Facilities
If to Tenant (for any Interstate/Xxxxxxx Lane
notice delivered after IJL Financial Center
the Commencement Date): 000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Director of Facilities
24
If to Landlord: Real Estate Services
Transamerica Square
000 X. Xxxxx Xxxxxx
XX 1-021-06-05
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Headquarters Real Estate Asset Manager
Either party which desires to change the address as set forth above shall do so
by notice to the other party which complies with the requirements of this
Section 8.4.
8.5 No Waiver. Neither Landlord's nor Tenant's failure to enforce or
delay in exercising any of the provisions, rights or remedies in this Lease
shall be a waiver, nor in any way affect the validity of this Lease or any part
hereof, or their respective right thereafter to enforce each and every such
provision, right or remedy. No waiver of any breach of this Lease shall be held
to be a waiver of any other or subsequent breach. The receipt by Landlord of
Rent, or any other payment by or to Tenant at a time when the Rent or the
payment of any other sum due hereunder is in default, shall not be construed as
a waiver of such default. The receipt by Landlord of a lesser amount than the
Rent, or by Landlord or Tenant of any other sum due, shall not be construed to
be other than a payment on account which may be applied in such manner as such
party deems appropriate. Either Landlord or Tenant may accept any such payment
without prejudice to its right to recover the balance due or to pursue any other
remedies. No act or thing done by Landlord or its agents or employees during the
Term, including acceptance of keys or card keys, shall be deemed an acceptance
of a surrender of the Premises, and no agreement to accept such a surrender
shall be valid unless signed by Landlord.
8.6 Commissions. Landlord and Tenant hereby indemnify and hold each
other harmless against any loss, claim, expense or liability with respect to any
commissions or brokerage fees claimed on account of the execution and/or renewal
of this Lease due to any action of the indemnifying party. Landlord hereby
agrees to pay any commissions owed to Broker pursuant to separate agreement
between Landlord and Broker in connection with this Lease; provided, however,
that Broker's right to such commissions shall vest only upon full execution of
this Lease by both parties and no commission shall be due if, for any reason,
the lease transaction contemplated hereunder is not consummated. Landlord
acknowledges that Tenant is represented by Xxx Xxxxxxx of The Xxxxxx Group. Any
commissions owing to Xxx Xxxxxxx or The Xxxxxx Group shall be paid by Broker in
accordance with the terms of a separate agreement between Broker and The Xxxxxx
Group and shall not be a separate obligation of Landlord.
8.7 Rights of Light, View or Air. This Lease does not grant any rights
to light, view or air over adjacent property, and any diminution or shutting off
of light, view or air by any structure that may be erected adjacent to the
Building shall not affect this Lease or impose any obligation or liability upon
Landlord.
8.8 Severability. If any term or provision of this Lease, or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provisions to persons or circumstances other than those as to which it is
invalid or enforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and shall be enforceable to the extent permitted by
law.
8.9 Recordation. Landlord and Tenant agree not to record this Lease. At
Tenant's sole cost and expense, the parties shall prepare, execute and record a
memorandum hereof which shall include a summary of the following terms of this
Lease: the names and addresses of the parties; the Term rights of first refusal
and options, if any; a description of the Premises; and such easements as may be
required by this Lease.
8.10 Binding Effect. This Lease, including all exhibits attached hereto,
shall be binding upon and shall inure to the benefit of Landlord, its successors
and assigns, and Tenant, its successors, and to the extent assignment and
subletting may be approved by Landlord hereunder, Tenant's assigns and
sublessees. Each individual executing this Lease on behalf of the respective
parties represents and warrants that (s)he is duly authorized to execute and
deliver this Lease on behalf of said party in accordance with the duly adopted
resolution of the Board of Directors of said corporation or in accordance with
the pertinent partnership agreements and that this Lease is binding upon said
party in accordance with its terms.
8.11 Entire Agreement. The following lettered exhibits are attached
hereto and incorporated herein and made a part of this Lease for all purposes:
Exhibit A - Description of the Premises
25
Exhibit B - Commencement Date and Construction of the Premises
Schedule 1 Landlord's Work
Schedule 2 Tenant's Work
Schedule 3 Tenant's Plans
Exhibit C - Cleaning Specifications
Exhibit D - Rules and Regulations
Exhibit E - Option to Expand
Exhibit F - Right of First Offer
Exhibit G - Renewal Term
Exhibit H - Services to be Provided by Landlord
Exhibit I - Tenant's Parking Rights and Charges
Exhibit J - Memorandum of Sublease
Exhibit K - Punch List
Exhibit L - Schedule of Controllable and Non-Controllable Expenses
Exhibit M - Signage
This Lease and the attached exhibits set forth all the covenants,
promises, agreements, conditions and understandings between Landlord and Tenant
concerning the Premises. Tenant agrees that Landlord and its agents made no
representations or promises with respect to the Premises, the Building, the
Project or property of which the same are part except as herein expressly set
forth. Tenant shall make no claim on account of any representations, whether
made by any renting agent, broker, officer or other representative of Landlord
or which may be contained in a circular, prospectus or advertisement related to
the Project or otherwise, unless the same is specifically set forth in this
Lease.
8.12 Amendments. Except as expressly provided herein, no subsequent
alteration, amendment, change or addition to this Lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed by them.
8.13 Counterparts. This Lease may be executed in counterparts. Each
fully executed counterpart shall be an original and it shall not be necessary in
making proof of this Lease to produce or account for more than one such
counterpart.
8.14 Governing Law. This Lease is declared to be a North Carolina
contract, and all of the terms hereof shall be governed by, construed and
enforced according to the laws and judicial decisions of the State of North
Carolina.
8.15 Intentionally Omitted.
8.16 Base Building Plans and Specifications. Tenant has reviewed and
accepted Landlord's base Building plans and specifications affecting the
Premises prior to execution of this Lease. Material changes to the applicable
portions of the Premises that adversely affect Tenant's intended use of the
Premises or Tenant's plans and designs for the Premises shall be subject to
Tenant's prior approval, which shall not be unreasonably withheld. Landlord
represents and warrants to Tenant that, as of the Commencement Date, the
Project, to the extent constructed by Landlord or Landlord's contractor, has
been constructed substantially in compliance with the applicable requirements of
the base Building plans reviewed by Tenant pursuant to this Section 8.16 as well
as Tenant's final plans for the Premises and, to the best of Landlord's
knowledge, the Project, to the extent constructed by Landlord or Landlord's
contractor, has been constructed substantially in accordance with all applicable
laws in effect as of the date Landlord received its first Certificate of
Occupancy.
8.17 Move-In. Tenant shall be charged its proportionate share of any
costs for elevator operators if required during Tenant's move-in to the
Building. Tenant will have access to the freight elevators during construction
and move-in.
8.18 Equipment Access. Tenant shall be provided with reasonable access
to the equipment rooms, telephone rooms, condensers and other areas on the
floors of the Premises in which Tenant's equipment may be placed. Tenant agrees
that Tenant shall not be given access to the roof of the Building, except as
provided in Section 8.2.3.
26
8.19 Limits on Certain Liabilities. Notwithstanding any other provision
of this Lease, neither Landlord nor Tenant nor any partner (including those
holding a partnership interest in Landlord or Tenant), director, officer, agent
or employee of Landlord or Tenant shall be liable for any indemnified claims
caused by or arising from the actions or omissions of other tenants in or about
the Building or Project, or caused by any public work. Tenant specifically
agrees to look solely to Landlord's equity in the Building for the recovery of
any judgment against Landlord and shall not be entitled to deduct the amount of
any such judgment from Rent. Landlord, or if Landlord is a partnership, its
partners, whether general or limited, or if Landlord is a corporation, its
directors, officers or shareholders, shall never be personally liable for any
such judgment. The terms and provisions of this Section 8.19 shall survive the
expiration or earlier termination of this Lease. Provided, however, that
NationsBank, N.A. shall indemnify Tenant against actual losses suffered by
Tenant, but not to exceed Two Million Dollars ($2,000,000.00), due to Tenant's
inability to locate suitable replacement premises, if (a) the Premises are not
delivered to Tenant as provided in Section 2.1.1 hereof within eight (8) months
of the full execution of this Lease; and (b) such failure to deliver is not due
to Tenant's fault or delay or to force majeure; such obligation of NationsBank,
N.A. to survive the termination of the Lease but not to be binding upon to any
lenders or beneficiaries of deeds of trust on the Building.
8.20 Status as Sublease. Both Landlord and Tenant hereby recognize and
acknowledge that Owner owns the Project of which the Building is a part and that
Landlord's interest in the Building is that of a sub-tenant under a master
sublease between Owner and NationsBank Corporation, and this Lease is, in fact,
a sub-sublease, under which Landlord is a sub-sublessor and Tenant is a
sub-sublessee. For purposes of identification and to facilitate the reading and
preparation of the instrument, the parties are referred to as "Landlord" and
"Tenant" and the instrument as "Lease".
Any rights or remedies provided to Tenant under this Lease can be
exercised only against Landlord and Tenant shall have no claim, right or remedy
against Owner or NationsBank Corporation, except for obligations accruing to
Owner or NationsBank Corporation if either such party becomes direct lessor to
Tenant due to cancellation of the master sublease between NationsBank
Corporation and NationsBank, N.A. or due to foreclosure or deed in lieu of
foreclosure, in the manner described in Section 4.10 hereof, after the date of
any such transfer or succession.
8.21 Renewal Option. Subject to the further provisions of this Lease,
Landlord grants to Tenant one option to renew for one consecutive period of five
(5) years on the terms and conditions contained in Exhibit G attached hereto.
8.22 Tenant's Existing Lease. As additional consideration for
Interstate/Xxxxxxx Xxxx, Inc. (hereafter "IJL") entering into this Lease,
NationsBank has agreed to sublease (subject to any approval rights of the owner
of the Interstate Tower Building) from IJL, IJL's existing space of
approximately 85,000 rentable square feet located in the Interstate Tower
Building at 000 Xxxx Xxxxx Xxxxxx in Charlotte, North Carolina for the remaining
term, which will expire on October 14, 2000, at a rate of $10.00 per square foot
per year, inclusive of common area charges, operating expenses, utilities and
taxes and any and all increases in Common Area charges, operating expenses,
utilities and taxes through the end of the remaining Term (i.e., the rate
payable by NationsBank shall not for any reason exceed Ten Dollars ($10.00) per
square foot per year during the remainder of IJL's initial lease term (through
October 14, 2000) at the Interstate Tower Building). Such sublease shall
commence on the date IJL delivers the Interstate Tower Building to NationsBank
in broom clean condition. IJL shall provide at least thirty (30) days prior
written notice of the intended delivery date. NationsBank's rent in the
subleased premises shall commence on the date which is sixty 160) days after the
date IJL delivers the subleased premises. At NationsBank's sole option (subject
to any approval rights of the owner of the Interstate Tower Building),
NationsBank may elect or cause Tenant to elect to exercise any renewal or
expansion rights under IJL's existing lease, but IJL shall have no financial
responsibility to NationsBank for any such extended or expanded lease rights,
and NationsBank agrees to indemnify Tenant against any financial obligations
which might accrue from and after October 14, 2000 based on the exercise of such
renewal rights if exercised on NationsBank's behalf and at NationsBank's
request. If Tenant reaches final agreement with the owner of the Interstate
Tower Building to an early termination, Tenant shall share equally with
NationsBank all buyout fees or similar payments or incentives received by
Tenant.
8.23 Receive-Only Earth Station Dishes. Subject to Landlord's approval
(which approval shall not be unreasonably withheld) of a location on the roof of
the Building or other mutually agreeable location, Landlord and Tenant agree to
enter into a communications facility site agreement for not more than three (3)
receive-only earth station dishes and related equipment, approved by Landlord
(which approval shall not be unreasonably withheld), for Tenant's internal use
only. Tenant shall not install any such dishes or related equipment until such
communications facility site agreement is fully executed by Landlord and Tenant.
As long as such receive-only dishes are used for Tenant's internal purposes only
and do not interfere with Landlord's ability to license or lease space on the
roof of the Building to third parties, there shall be no license fee or rent
payable by Tenant for such dishes and related equipment. Tenant acknowledges
that certain rights to a receive-only microwave dish have
27
previously been granted to an existing Building tenant, and Tenant's dish must
be installed in such a manner so as to not create noise or interference with the
rights of the existing tenant or the installations previously installed or
currently planned on behalf of NationsBank as Building tenant.
8.24 Survival. The provisions of this Lease shall survive the expiration
or termination of this Lease.
8.25 Drafting. Landlord and Tenant acknowledge that this Lease was
negotiated at arms length and that no presumptions in favor of or against the
drafter shall apply to the interpretation of this Lease.
IN TESTIMONY WHEREOF, the parties, by authority duly given, have
executed this Lease as of the date set forth on the first page of this Lease.
ATTEST: LANDLORD:
By: /s/ XXXXXXX X. XXXXXX NATIONSBANK, NATIONAL ASSOCIATION,
----------------------- a national banking association
its Asst. Secretary
By: /s/ ''SIGNATURE ILLEGIBLE''
------------------------------
Name: /s/ ''SIGNATURE ILLEGIBLE''
------------------------------
Title: Sr. Vice President
ATTEST: TENANT:
By: /s/ ''SIGNATURE ILLEGIBLE'' INTERSTATE/XXXXXXX LANE, INC.,
------------------------------ a North Carolina corporation
its Asst. Secretary
By: /s/ ''SIGNATURE ILLEGIBLE''
------------------------------
Name: /s/ ''SIGNATURE ILLEGIBLE''
------------------------------
Title: Vice President & CFO
28
