EXHIBIT 10.10
LEASE AGREEMENT
BY AND BETWEEN
LAKE PARTNERS, L.L.C.
LESSOR
AND
RSA COMMUNICATIONS, INC.
LESSEE
Dated as of: July 1, 1998
ARTICLE I - LEASED PREMISES
1.01 Leased Premises.
ARTICLE 2 - BASIC LEASE PROVISIONS
2.01 Basic Lease Provisions.
ARTICLE 3 - TERM AND POSSESSION
3.01 Term.
3.02 Commencement.
3.03 Lessee's Delay.
3.04 Lessee's Possession.
3.05 Confirmation of Dates.
3.06 Holdover.
ARTICLE 4 - RENT AND SECURITY DEPOSIT
4.01 Base Rent.
4.02 Payment of Rent.
4.03 Additional Rent.
4.04 Operating Expense Adjustment.
4.05 Cost of Living Adjustment.
4.06 Intentionally Deleted.
4.07 Late Charge.
ARTICLE 5 - SERVICES
5.01 Services.
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ARTICLE 6 - USE AND OCCUPANCY
6.01 Use.
6.02 Care of the Leased Premises.
6.03 Entry for Repairs and Inspection.
6.04 Compliance with Laws; Rules of Building.
6.05 Access to Building.
6.06 Peaceful Enjoyment.
ARTICLE 7 - CONSTRUCTION, ALTERATIONS AND REPAIRS
7.01 Construction.
7.02 Alterations.
7.03 Repairs by Lessor.
7.04 Repairs by Lessee.
ARTICLE 8 - CONDEMNATION, CASUALTY, INSURANCE AND INDEMNITY
8.01 Condemnation.
8.02 Damages from Certain Causes.
8.03 Fire Clause.
8.04 Insurance Policies.
8.05 Hold Harmless.
8.06 Waiver of Subrogation Rights.
8.07 Limitation of Lessor's Personal Liability.
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ARTICLE 9 - LESSOR'S LIEN, DEFAULT, REMEDIES AND SUBORDINATION
9.01 Intentionally Deleted.
9.02 Default by Lessee.
9.03 Non Waiver.
9.04 Attorney's Fees.
9.05 Subordination; Estoppel Certificate.
9.06 Attornment.
10.01 Assignment or Sublease.
10.02 Assignment by Lessor.
ARTICLE 11 - NOTICES AND MISCELLANEOUS
11.01 Notices.
11.02 Miscellaneous.
ARTICLE 12 - ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES
12.01 ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES.
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EXHIBITS
A-1 Floor Plan(s) of the Leased Premises [DIAGRAM]
A-2 The Land
B Acceptance of Leased Premises Memorandum
C Tenant Improvements
D Building Rules
E Form of Estoppel Certificate
F HVAC Schedule
C Renews I Option
H Intentionally Deleted
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into on this
_____________ day of ____________________________ 1998, by and between Lake
Partners, L.L.C. a North Carolina limited liability company ("Lessor") and RSA
Communications Inc., a Delaware corporation ("Lessee"), on the terms and
conditions set forth below.
ARTICLE I - LEASED PREMISES
1.01 LEASED PREMISES.
Lessor leases to Lessee and Lessee leases from Lessor the space (the
"Leased Premises") set forth in Subsections (a) and (b)) of the Basic Lease
Provisions below and shown on the floor plan(s) attached hereto as Exhibit A-1
upon the terms and conditions set forth in this Lease. The office building in
which the Leased Premises are located, the land on which the office building is
located (described on Exhibit A-2 attached hereto), the parking facilities and
all improvements and appurtenances to the building are collectively referred to
as (the "Building". The Building and any larger complex of which the Building is
a part are collectively referred to as the "Project".
ARTICLE 2 - BASIC LEASE PROVISIONS
2.01 BASIC LEASE PROVISIONS.
The following provisions set forth various basic terms of this Lease and
are sometimes referred to as the "Basic Lease Provisions."
(a) Building Name: Lake Plaza West
Address: 000 Xxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
(b) Floor(s): First
Suite #: 100
Square Feet Area: 12,944
(c) Total Area of Building: approximately 77,000 square feet
(d) Annual Base Rent: $239,463.96 ($18.50 per square foot)
Monthly Base Rent: months 1 through 3 = $0.00
months 4 through 63 = $19,955.33
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(e) Base Operating Expense
Factor: $5.50 per square foot
(f) Parking: 4 spaces per 1,000 square feet of space,
which shall include three (3) reserved,
covered parking spaces at no charge to
Lessee
Monthly Rent per Parking
Space: N/A
(g) Term: 5 Year(s) 3 Month(s) 0 Day(s)
(h) Target Commencement Date: August 15, l99-
Target Expiration Date: November 30, 2003
(See Exhibit B for confirmation of the actual Commencement Date and
Expiration Date of this Lease.)
(i) Security Deposit: Intentionally deleted
(j) Permitted Use: General business office and computer
laboratory for software development company
(k) Addresses for notices and other communications under this Lease:
Lessor
------
Lake Partners, L.L.C.
c/o Capital Associates
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx 00000
Lessee
------
RSA Communications, Inc.
000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, President
(l) Outside Broker(s): Xxxxxx Commercial, Inc.
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ARTICLE 3 - TERM AND POSSESSION
3.01 TERM.
This Lease shall be and continue in full force and effect for the term set
forth in Subsection 2.01(g). Subject to the remaining provisions of this
Article, the Term shall commence on the Target Commencement Date shown in
Subsection 2.01(h) and shall expire, without notice to Lessee, on the Target
Expiration Date shown in Subsection 2.01(h), provided, however, that if the
Commencement Date is other than the first (1st) day of the month, the Expiration
Date shall nevertheless be the last day of the last month of the Term. Such
term, as it may be modified, renewed and extended as set forth in Exhibit G is
herein called the "Term".
3.02 COMMENCEMENT
Subject to Section 3.03 hereof, if on the Target Commencement Date any of
the work described in this Lease that is required to be performed by Lessor at
Lessor's expense to prepare the Leased Premises for occupancy has not been
substantially completed, or if Lessor is unable to tender possession of the
Leased Premises to Lessee on the specified date due to any other reason beyond
the reasonable control of Lessor, the hereinafter defined Commencement Date (and
commencement of installments of Base Rent) shall be postponed until the work to
be performed in the Leased Premises at Lessor's expense is substantially
completed, and the postponement shall operate to extend the Expiration Date in
order to give full effect to the stated duration of the Term. The deferment of
installments of Base Rent shall be Lessee's exclusive remedy for postponement of
the Commencement Date, and Lessee shall have no, and waives any, claim against
Lessor because of any such delay. Notwithstanding the foregoing, if Lessor is
unable to tender possession of the Leased Premises to Lessee on or before
October 21, 1998, due solely to delays cased by Lessor, then Lessor must provide
Lessee with written notice as to the cause(s) for the delay in possession of the
Leased Premises, and if Lessor is unable to tender possession of the Leased
Premises to Lessee on or before October 2 1,1998. due solely to delays caused by
Lessor, then Lessee may, with ten (10) days' written notice to Lessor, terminate
this Lease if the Leased Premises is not substantially completed during that ten
(10) day period. The Leased Premises shall be deemed to be substantially
completed upon the issuance by the City of Raleigh, North Carolina of a
certificate of occupancy.
3.03 LESSEE'S DELAY.
No delay in the completion of the Leased Premises resulting from delay or
failure on the part of Lessee in furnishing information or other matters
required in this Lease, and no delay resulting from the completion of work, if
any, that is to be performed at Lessee's expense pursuant to this Lease, shall
delay the Commencement Date, Expiration Date or commencement of payment of Rent
(as defined in Subsection 4.02 below.)
3.04 LESSEE'S POSSESSION.
If, prior to the Commencement Date, Lessee shall enter into possession of
all or any part of the Leased Premises, the Term, the payment of monthly
installments of Base Rent and all
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other obligations of Lessee to be performed during the Term shall commence on,
and the Commencement Date shall be deemed to be, the date of such entry,
provided, no such early entry shall operate to change the Expiration Date.
3.05 CONFIRMATION OF DATES.
The actual commencement date ("Commencement Date") and actual expiration
date ("Expiration Date") shall be confirmed by Lessee by execution of the
Acceptance of Leased Premises Memorandum attached hereto as Exhibit B. If the
Memorandum is not executed, the Commencement Date and Expiration Date shall be
conclusively deemed to be the Target Commencement Date and the Target Expiration
Date set forth in Subsection 2.01(h).
3.06 HOLDOVER.
If Lessee shall remain in possession of the Leased Premises after the
expiration or earlier termination of this Lease, without the execution of a new
lease or an amendment to this Lease, Lessee shall be deemed a tenant-at-
sufferance, and for a period of sixty (60) days after such termination or
expiration, as the case may be, and shall pay daily rent at one and one-half
(1-1/2) times the per day Rent payable with respect to the last full calendar
month immediately prior to the end of the Term or termination of this Lease, and
shall be subject to all of the terms, conditions, provisions and obligations of
this Lease and such tenancy may be terminated by Lessor as of the end of any
calendar month upon fifteen (15) days' prior written notice. After such sixty
(60) day period, Lessee shall continue to be a tenant-at-sufferance and shall
pay daily rent at double the per day Rent payable with respect to the last full
calendar month immediately prior to the end of the Term or termination of this
Lease, but otherwise shall be subject to all of the obligations of Lessee under
this Lease, and such tenancy shall be terminable at any time by Lessor on one
(1) days notice. Additionally, Lessee shall pay to Lessor all reasonable damages
sustained by Lessor as a result of the holding over by Lessee. The terms and
conditions of this Section 3.06 shall survive the expiration or other
termination of the terms of this Lease
ARTICLE 4 - RENT AND SECURITY DEPOSIT
4.01 BASE RENT.
Lessee agrees to pay to Lessor rent ("Base Rent") throughout the Term in
the amount of the Annual Base Rent set forth in Subsection 2.01(d), subject to
adjustment as provided in this Lease. Base Rent shall be payable in monthly
installments in the amount set forth in Subsection 2.01(d) ("Monthly Base Rent")
in advance and without demand, on the first day of each calendar month during
the Term. If the Commencement Date is not the first day of a month, Lessee shall
be required to pay on the Commencement Date a pro rata portion of the Monthly
Base Rent for the first partial month of the Term. Notwithstanding the
foregoing, the payment of Base Rent shall be waived for months one (1) through
three (3) of the Term, and Lessee shall thereafter commence paying Base Rent, in
month four (4) of the Term, in the amount and on the terms set forth in this
Lease.
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4.02 PAYMENT OF RENT.
As used in this Lease, "Rent" shall mean the Base Rent, Additional Rent
(defined below) and all other amounts required to be paid by Lessee in this
Lease. The Rent shall be paid at the times and in the amounts provided herein in
legal tender of the United States of America to Lessor at its address specified
in Subsection 2.01 (see above, or to such other person or at such other address
as Lessor may from time to time designate in writing. The Rent shall be paid
without notice, demand, abatement, deduction or offset except as may be
expressly set forth in this Lease.
4.03 ADDITIONAL RENT
The term "Additional Rent" shall mean the "Operating Expense Adjustment",
as such term is defined below, and any other amounts in addition to Base Rent
which Lessee is required to pay to Lessor under this Lease.
4.04 OPERATING EXPENSE ADJUSTMENT
If the Operating Expenses (defined below) for the Building for any calendar
year, expressed on a per square foot basis, exceed the Base Operating Expense
Factor specified in Subsection 2.01(e) Lessee shall pay to Lessor increased Rent
(an "Operating Expense Adjustment") in an amount equal to the product of such
excess times the square feet of the Leased Premises as stated in Subsection 2.01
(b)). The Operating Expense Adjustment shall be payable in monthly installments
on the first day of each calendar month based on Lessor's estimate of the
Operating Expenses for the then current year. Lessor may at any time give Lessee
written notice specifying Lessor's estimate of the Operating Expenses for the
then current calendar year or the subsequent calendar year and specifying the
Operating Expense Adjustment to be paid by Lessee for each such year. Within one
hundred twenty (120) days after the end of each calendar year, Lessor shall give
written notice to Lessee specifying the actual Operating Expenses for the prior
calendar year and any necessary adjustment to the Operating Expense Adjustment
paid by Lessee for that calendar year. Lessee shall pay any deficit amount to
Lessor within fifteen (15) days after receipt of Lessor's written notice. Any
excess payment by Lessee for the prior calendar year shall reduce the Operating
Expense Adjustment for the following calendar year. (For purposes herein, for
any calendar year, any such deficit amount Lessee is to pay Lessor, or any
excess payment Lessee may reduce its Operating Expense Adjustment for the
following calendar year by shall be deemed the "tru-up".) In the event the tru-
up for any calendar year is five percent (5%) of the Operating Expenses or less.
Lessee shall tru-up its Operating Expenses as set forth above; provided,
however, if the tru-up for any calendar year is greater than five percent (5%)
of the Operating Expenses, then Lessee may amortize such amount into its
Operating Expense payments for the following calendar year. The provisions of
this paragraph shall survive the cancellation or termination of this Lease
Lessee shall have the right, one (1) time per year. with written notice to
Lessor, to request Lessor to provide Lessee with a detailed itemization of the
Operating Expenses for any calendar year.
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The term "Operating Expenses" shall mean, except as otherwise specified in
this definition, all expenses, costs, and disbursements of every kind and
nature, computed on an accrual basis, which Lessor shall pay or become obligated
to pay because of or in connection with the ownership and operation of the
Building, including, without limitation: (1) wages and salaries of all employees
below and including the level of property manager, to an extent commensurate
with such employees' involvement in the operation, repair, replacement,
maintenance, and security of the Building, including, without limitation,
amounts attributable to the employer's Social Security Tax, unemployment taxes,
and insurance, and any other amount which may be levied on such wages and
salaries, and the cost (if all insurance and other employee benefits related
thereto: (2) all supplies and materials used in the operation, maintenance,
repair, replacement and security of the Building; (3) the rental costs of any
and all leased capital improvements and the annual costs of any and all capital
improvements made to the Building which, although capital in nature, can
reasonably be expected to reduce the normal operating costs of the Building, to
the extent of the lesser of such expected reduction in operating expenses or the
annual cost of such capital improvements, as well as all capital improvements
made in order to comply with any legal requirement hereafter promulgated by any
governmental authority relating to the environment, energy, conservation, public
safety, access for the disabled or security, as amortized over the useful life
of such improvements by Lessor for federal income tax purposes; (4) the cost of
all utilities, other than the cost of electricity supplied to tenants of the
Building which is separately metered and reimbursed to Lessor by such tenants:
(5) the cost of all maintenance and service agreements with respect to the
operation of the Building or any part thereof, including, without limitation,
alarm service, equipment, window cleaning, elevator maintenance, landscape
maintenance, and parking area maintenance and operation: (6) the cost of all
insurance relating to the Building, including, without limitation, casualty and
liability insurance applicable to the Building and Lessor's personal property
used in connection therewith: (7) all taxes and assessments and governmental
charges, whether federal, state, county, or municipal, and whether by taxing
districts or authorities presently taxing or by others, subsequently created or
otherwise, including all taxes levied or assessed against or for leasehold
improvements and any other taxes and assessments attributable to the Building
and/or the operation thereof, excluding, however, federal and state taxes on
Lessor's income, but including all rental, sales, use and occupancy taxes or
other similar taxes, if any, levied or imposed by any city, state, county, or
other governmental body having jurisdiction: and (8) the cost of all repairs.
replacements, removals and general maintenance with respect to the Building.
Specifically excluded from Operating Expenses are expenses for capital
improvements made to the Building, other than capital improvements described in
clause (3) of this definition and except for items which, though capital for
accounting purposes, are properly considered maintenance and repair items, such
as painting of common areas, replacement of carpet in elevator lobbies and like
items; expenses for repair, replacement and general maintenance paid by proceeds
of insurance or by Lessee or other third parties; alterations attributable
solely to tenants of the Building other than Lessee; depreciation of the
Building; leasing commissions; and federal and state income taxes imposed on
Lessor.
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If, during all or part of any calendar year, the Building is less than 95%
occupied, or if Lessor is providing less than 95% of the Building with any item
or items of work or service which would constitute an Operating Expense
hereunder, then the amount of the Operating Expenses for such period shall be
adjusted to include any and all items enumerated under the definition of
Operating Expenses set forth in this Subsection which Lessor reasonably
determines Lessor would have incurred if the Building had been at least 95%
leased and occupied with all tenant improvements constructed or if Lessor had
been providing such item or items of work or service to at least 95% of the
Building. If the actual occupancy of the Building is between 95% and 100%, then
the actual occupancy percentage shall be used for this computation.
4.05 COST OF LIVING ADJUSTMENT
At the end of each Lease year during the Term, the Monthly Base Rent for
the following Lease year shall be increased by three percent (3%) in accordance
with the following formula (and shown on the Rent chart set forth below):
(Annual Base Rent (net of the Base Operating Expense Factor set forth in
Subsection 2.01(e)1 for the current Lease year x 1.03) + twelve = Monthly Base
Rent for the following Lease year
ANNUAL MONTHLY
DATE(S) SQUARE FEET BASE RENT BASE RENT
---------------------------- ----------- ----------- ----------
8/15/98 to 11/14198 12,944 $ 0.00 $ 000
11/15/98 to 11/14/99 12,944 $239,463.96 $ 19,955.33
11/I5/99 to 11/14/00 12,944 $244,512.12 $ 20,376.01
11/15/00 to 11/14/01 12,944 $249,71I.72 $ 20,809.31
11115/01 to 11/14/02 12,944 $255,067.32 $ 21,255.61
11/15/02 to 11/30/03 12,944 $260,583.60 $ 21,715.30
The resulting figure will be the Monthly Base Rent for the following Lease
year, and Lessee shall adjust its payments of Monthly Base Rent accordingly
beginning on the first day of the first month in the following Lease year.
4.06 INTENTIONALLY DELETED.
4.07 LATE CHARGE.
If Lessee fails or refuses to pay any installment of Rent when due, Lessor.
at Lessor's option, shall be entitled to collect a late charge of five percent
(5%) of the amount of the late payment to compensate Lessor for the additional
expense involved in handling delinquent payments and not as interest; provided,
however, that Lessee shall be allowed one (1) late
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payment of Rent in each calendar year of the Term, which late payment shall not
be subject to a late charge hereunder so long as the Rent then due is paid
within five (5) days of the due date. If the payment of a late charge required
by this Section is found to constitute interest notwithstanding the contrary
intention of Lessor and Lessee, the late charge shall be limited to the maximum
amount of interest that lawfully may be collected by Lessor under applicable
law, and if any payment is determined to exceed such lawful amount, the excess
shall be applied to any unpaid Rent then due and payable hereunder and/or
credited against the next succeeding installment of Rent payable hereunder. If
all Rent payable hereunder has been paid in full, any excess shall be refunded
to Lessee, Lessee shall reimburse Lessor for any processing fees charged to
Lessor as a result of Lessee's checks having been returned for insufficient
finds.
ARTICLE 5 - SERVICES
5.01 SERVICES.
Lessor shall furnish Lessee while occupying the Leased Premises:
(a) Subject to curtailment as required by governmental laws, rules or
regulations, central heat and air conditioning in season, at such times as
Lessor normally furnishes these services to other tenants in the Building and at
such temperatures and in such amounts as are considered by Lessor to be
standard, but such service on Saturday afternoons, Sundays and holidays to be
furnished only upon request of Lessee, who shall bear the entire cost thereof as
provided in Exhibit F attached hereto; elevator service; and routine maintenance
and electric lighting service for all public areas and special service areas of
the Building in the manner and to the extent deemed by Lessor to be standard.
Lessor will furnish janitor service on a five (5) day week basis at no extra
charge. Failure by Lessor to any extent to furnish these services, or any
cessation thereof, resulting from causes beyond the control of Lessor shall not
render Lessor liable in any respect for damages to either person or property,
nor be construed as an eviction of Lessee, nor work an abatement of rent, nor
relieve Lessee from its obligation to fulfill any covenant or agreement hereof.
Should any of Lessor's equipment or machinery break down, or for any cause cease
to function properly, Lessor shall use reasonable diligence during normal
business hours to repair same promptly, but Lessee shall have no claim for
rebate of rent or damages on account of any interruptions in service occasioned
thereby or resulting therefrom.
(b) Proper electrical facilities to furnish sufficient power for personal
computers, fax machines, desktop computer printers, calculating machines and
other machines of similar low electrical consumption, but not including
electricity required for electronic data processing equipment which (singly)
consumes more than 0.25 kilowatts per hour at a rated capacity or requires a
voltage other than 120 volts single phase; provided, however, upon Lessee's
written request and at Lessee s sole cost and expense, Lessor can provide 220
volt electric service to the Leased Premises. Lessee shall pay to Lessor,
monthly as billed, such charges as may be separately metered or as Lessor's
engineer shall reasonably compute for any electrical service usage in excess of
that stated above. If Lessee uses any heat generating machines, equipment,
fixtures or other devices of any nature whatsoever in the Leased Premises which
affect the
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temperature otherwise maintained by the Building standard air conditioning,
Lessee shall pay the additional cost necessitated by Lessee's use of such
machines, equipment, fixtures or other devices, including the cost of
installation of any necessary additional air conditioning equipment and the cost
of operation and maintenance thereof.
ARTICLE 6 - USE AND OCCUPANCY
6.01 USL
The Leased Premises are to be used and occupied by Lessee (and its
permitted assignees, subtenants, invitees, customers, and guests) solely for the
purpose specified in Subsection 2.01(f)) with no more than one (1) person per
two hundred fifty (250) square feet of space; provided, however, that Lessee may
change such purpose upon Lessor's prior written agreement Lessee agrees not to
occupy or use, or permit any portion of the Leased Premises to be occupied or
used for any business or purpose which is unlawful, disreputable or deemed to be
extra-arduous on account of fire or exposure to or interference from
electromagnetic rays and/or fields, or permit anything to be done which would in
any way increase the rate of fire insurance coverage on the Building and/or its
contents. Lessee further agrees to conduct its business and control its agents,
employees, invitees and visitors in such manner as not to create any nuisance,
or interfere with, annoy or disturb any other tenant or Lessor in its operation
of the Building.
6.02 CARE OF THE LEASED PREMISES.
Lessee shall not commit or allow to be committed any waste or damage to any
portion of the Leased Premises or the Building and, at the termination of this
Lease, by lapse of time or otherwise. Lessee shall deliver up the Leased
Premises to Lessor in as a good condition as existed on the date of possession
by Lessee, ordinary wear and tear excepted. Upon such termination of this Lease,
Lessor shall have the right to re-enter and resume possession of the Leased
Premises.
6.03 ENTRY FOR REPAIRS AND INSPECTION.
Lessee shall, upon reasonable prior notice by Lessor, except in the case of
an emergency, permit Lessor and its contractors, agents and representatives to
enter into and upon any part of the Leased Premises at all reasonable hours to
inspect and clean the same, make repairs, alterations and additions thereto,
show the same to prospective tenants or purchasers. and for any other purpose as
Lessor may deem necessary or desirable. Lessee shall not be entitled to any
abatement or reduction of Rent by reason of any such entry. Any damage caused
by Lessor in entering the Leased Premises shall be repaired at Lessor's cost and
expense. Notwithstanding the foregoing, in the event of an emergency, when entry
to the Leased Premises shall be necessary, and if Lessee shall not be personally
present to open and permit entry into the Leased Premises, Lessor or Lessor's
agent may enter the same by master key, code, card or switch, or may forcibly
enter the same, without rendering Lessor or such agents liable therefor, and
without, in any manner, affecting the obligations and covenants of this Lease.
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6.04 COMPLIANCE WITH LAWS; RULES OF BUILDING.
Lessee shall comply with and Lessee shall cause its visitors, employees,
contractors, agents and invitees to comply with, all laws, ordinances, orders,
rules and regulations (state, federal, municipal and other agencies or bodies
having any jurisdiction thereof) relating to the use, condition or occupancy of
the Leased Premises, including, without limitation, all local, state and federal
environmental laws, and the rules of the Building reasonably adopted and altered
by Lessor from time to time, all of which Building rules will be sent by Lessor
to Lessee in writing and shall thereafter be carried out and observed by Lessee,
its employees, contractors, agents, invitees and visitors. The initial rules of
the Building are attached hereto as Exhibit D.
6.05 ACCESS TO BUILDING.
Subject to the terms and conditions set forth below and in this Lease,
Lessee and its employees shall have access to the Building and the Leased
Premises twenty-four (24) hours a day, three hundred sixty-five (365) days per
year. Lessor shall have the right to limit access to the Building after normal
business hours; provided, Lessor shall have no responsibility to prevent, and
shall not be liable to Lessee for, and shall be indemnified by Lessee against,
liability and loss to Lessee, its agents, employees and visitors, arising out of
losses due to theft, burglary and damage and injury to persons and property
caused by persons gaining access to the Building or Leased Premises, and Lessee
waives and releases Lessor from all liability relating thereto. Lessor expressly
reserves the right, in its sole discretion, to temporarily or permanently change
the location of, close, block and otherwise alter any entrances, corridors,
skywalks, tunnels, doorways and walkways leading to or providing access to the
Building or any part thereof and otherwise restrict the use of same provided
such activities do not unreasonably impair Lessee's access to the Leased
Premises. Lessor shall not incur any liability whatsoever to Lessee as a
consequence thereof. Such activities shall not be deemed to be a breach of any
of Lessor's obligations hereunder. Lessor agrees to exercise good faith in
notifying Lessee a reasonable time in advance of any alterations, modifications
or other actions of Lessor under this Section.
6.06 PEACEFUL ENJOYMENT.
Lessor covenants that Lessee shall and may peacefully have, hold and enjoy
the Leased Premises without interference from any party claiming by or through
Lessor, subject to the terms of this Lease, provided Lessee pays the Rent and
other sums required to be paid by Lessee and performs all of Lessee's covenants
and agreements herein contained. It is understood and agreed that this covenant
and any and all other covenants of Lessor contained in this Lease shall be
binding upon Lessor and its successors only with respect to breaches occurring
during its and their respective ownership of Lessor's interest in the Building.
Lessor shall not be responsible for the acts or omissions of any other lessee or
third party that may interfere with Lessee's use and enjoyment of the Leased
Premises; provided, however, that Lessor shall use its best efforts to enforce
the rules and regulations of the Building.
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ARTICLE 7 - CONSTRUCTION, ALTERATIONS AND REPAIRS
7.01 CONSTRUCTION.
Prior to the start of the Term, Lessor shall, using Lessor's contractors
and Building standard materials and finishes, make the alterations and complete
the work as shown on (i) Exhibit C, which is attached hereto and incorporated
herein by reference in its entirety, or (ii) the construction drawings to be
prepared by Lessor's designer and agreed to by the parties and made a part
hereof by reference (the "Tenant Improvements"). Any changes or modifications to
the approved plan and drawings for the Tenant Improvements shall be made and
accepted by written change order signed by Lessor and Lessee and shall
constitute an amendment to this Lease. Lessor shall provide Lessee with an
estimate of cost for any such change(s), and Lessee shall provide written notice
to Lessor within ten (10) days of receipt of Lessor's estimate, whether to
proceed with such change(s) or not. All additional costs necessitated by any
such change order, if any, shall be paid by Lessee within ten (10) days of
receipt of Lessor's invoice therefore.
7.02 ALTERATIONS.
Lessee shall make no alterations, installations, additions or improvements
in, on or to the Leased Premises without Lessor's prior written consent, which
consent shall not be unreasonably withheld, conditioned or delayed. All such
work shall be designed and made in a manner, and by architects, engineers.
workmen and contractors, satisfactory to Lessor. All alterations, installations,
additions and improvements (including, without limitation, paneling, partitions.
millwork and fixtures) made by or for Lessee to the Leased Premises shall remain
upon and be surrendered with the Leased Premises and become the property of
Lessor at the expiration or termination of this Lease or the termination of
Lessee's right to possession of the Leased Premises; provided, Lessor may
require Lessee to remove any or all of such items that are not Building standard
upon the expiration or termination of this Lease or the termination of Lessee's
right to possession of the Leased Premises; further provided, Lessor to notify
Lessee, in writing, at least thirty (30) days prior to the expiration of the
Lease of any such removal requirement, in order to restore the Leased Premises
to the condition existing at the time Lessee took possession. Lessee shall bear
the costs of removal of Lessee's property from the Building and of all resulting
repairs thereto. All work performed by Lessee with respect to the Leased
Premises shall: (a) not alter the exterior appearance of the Building or
adversely affect the structure, safety, systems or services of the Building; (b)
comply with all Building safety, fire and other codes and governmental and
insurance requirements; (c) not result in any usage in excess of Building
standard of water, electricity, gas, heating, ventilating or air conditioning,
(either during or after such work) unless prior written arrangements
satisfactory to Lessor are entered into; (d) be completed promptly and in a good
and workmanlike manner; (e) be performed in such a manner that does not cause
interference or disharmony with any labor used by Lessor, Lessor's contractors
or mechanics or by any other tenant or such other tenant's contractors or
mechanics; and (f) not cause any mechanic's, materialman's or other similar
liens to attach to Lessee's leasehold estate. Lessee shall not permit, or be
authorized to permit, any liens (valid or alleged) or other claims to be
asserted against Lessor or Lessor's rights, estates and interests with respect
16
to the Building or this Lease in connection with any work done by or on behalf
of Lessee, and Lessee shall indemnify and hold Lessor harmless against any such
liens.
7.03 REPAIRS BY LESSOR.
Unless otherwise expressly stipulated herein, Lessor shall not be required
to make any improvements or repairs of any kind or character to the Leased
Premises during the Term, except such repairs to Building standard improvements
as may be deemed necessary by Lessor in the exercise of Lessor's good-faith
judgment for normal maintenance operations. Non-Building standard leasehold
improvements will, at Lessees written request, be maintained by Lessor at
Lessee's expense, at a cost or charge equal to the costs incurred in such
maintenance plus an additional charge of fifteen percent (15%). Notwithstanding
any provisions of this Lease to the contrary, all repairs, alterations or
additions to the base Building and its systems (as opposed to those involving
only Lessee's leasehold improvements), and all repairs, alterations and
additions to Lessee's non-Building standard leasehold improvements which affect
the Building's structural components or major mechanical, electrical or plumbing
systems, made by, for or on behalf of Lessee and any other tenants in the
Building shall be made by Lessor or its contractor only, and, if on behalf of
Lessee, shall be paid for by Lessee in an amount equal to Lessor's costs plus
fifteen percent (15%). Lessor shall not be liable to Lessee, except as
expressly provided in this Lease, for any damage or inconvenience, and Lessee
shall not be entitled to any abatement or reduction of rent by reason of any
repairs, alterations or additions made by Lessor under this Lease.
7.04 REPAIRS BY LESSEE.
Lessee shall, at its own cost and expense, repair or replace any damage or
injury done to its leasehold improvements or any other part thereof caused by
Lessee or Lessee's agents, contractors, employees, invitees, and visitors. If
Lessee fails to make such repairs or replacements to its leasehold improvements
promptly, Lessor may, at its option, make such repairs or replacements, and
Lessee shall repay the cost thereof plus a charge of fifteen percent (15%) to
the Lessor on demand. Any damage or injury to the Leased Premises or the base
Building and its systems (as opposed to those involving only Lessee's leasehold
improvements) and any damage or injury to Lessee's leasehold improvements which
affects the Building's structural components or major mechanical, electrical or
plumbing systems caused by Lessee, its agents, contractors, employees, invitees
and visitors, shall be repaired or replaced by Lessor, but at Lessee's expense
plus a charge of fifteen percent (15%).
ARTICLE S - CONDEMNATION, CASUALTY, INSURANCE AND INDEMNITY
8.01 CONDEMNATION.
If all or substantially all of the Leased Premises is taken by virtue of
eminent domain or far any public or quasi-public use or purpose, this Lease
shall terminate on the date the
17
condemning authority takes possession. If only a part of the Leased Premises is
so taken, or if a portion of the Building not including the Leased Premises is
taken, this Lease shall, at the election of Lessor, either (i) terminate on the
date the condemning authority takes possession by giving notice thereof to
Lessee within thirty (30) days after the date of such taking of possession or
(ii) continue in lull force and effect as to that part of the Leased Premises
not so taken and Rent with respect to any portion of the Leased Premises taken
or condemned shall be reduced or abated on a square footage basis. All proceeds
payable from any taking or condemnation of all or any portion of the Leased
Premises and the Building shall belong to and be paid to Lessor, and Lessee
hereby expressly assigns to Lessor any and all right, title and interest of
Lessee now or hereafter arising in and to any such awards. Lessee shall have
no, and waives any, claim against Lessor and the Condemnor for the value of any
unexpired term.
8.02 DAMAGES FROM CERTAIN CAUSES.
Lessor and Lessee each shall not be liable or responsible to the other for
any loss or damage to any property or person occasioned by theft, fire, act of
God, public enemy, injunction, riot, strike, insurrection, war, court order,
requisition order of governmental body or authority, or any cause beyond such
party's control, and Lessor shall not be liable to Lessee for any damage or
inconvenience which may arise through repair or alteration of any part of the
Building.
8.03 FIRE CLAUSE
In the event of a fire or other casualty in the Leased Premises, Lessee
shall immediately give notice thereof to Lessor. If at least twenty-five percent
(25%) of the Leased Premises or the Building is destroyed by fire or other
casualty, Lessor shall have the right to terminate this Lease or to repair the
Leased Premises with reasonable dispatch, subject to delays resulting from
adjustment of the loss and any other cause beyond Lessor's reasonable control;
provided, Lessor shall not be required to repair or replace any furniture,
furnishings or other personal property which Lessee may be entitled to remove
from the Leased Premises or any installations in excess of Building standard.
Lessor shall provide written notice to Lessee within thirty (30) days after the
date of any casualty as to Lessor's election to terminate or repair. The notice
shall provide Lessor's reasonable estimate as to whether the repair or
restoration can be completed within ninety (90) days after the date of such
notice. In the event Lessor's notice provides that repair or restoration will
take more than ninety (90) days from the date of such notice, Lessee shall have
the right to terminate this Lease, provided that Lessee must deliver written
notice of its election to terminate within ten (10) days after receipt of
Lessor's notice thereof. If Lessee fails to deliver such notice in the time
period specified above, Lessee shall be deemed to have waived its right to
terminate. Until Lessor's repairs are completed the Rent shall be abated in
proportion to the portions of the Leased Premises, if any, which are
untenantable or unsuited for the conduct of Lessee's business, and Lessor will
use reasonable efforts to assist Lessee in securing a temporary space in the
event Lessee is forced to relocate from the Building during the time Lessor
completes its repairs to the Building. Notwithstanding anything contained in
this Section, Lessor shall only be obligated to restore or rebuild the Leased
Premises to a Building standard condition and Lessor shall not be required to
expend more funds than the amount received by Lessor from the proceeds of any
insurance carried by Lessor. Further notwithstanding, in the event the
18
Building is untenantable as defined as condemned by the City of Raleigh, North
Carolina, either party may terminate this Lease.
8.04 INSURANCE POLICIES.
(a) Lessee shall, at its expense, maintain (i) standard fire and extended
coverage insurance on all of its personal property, including removable trade
fixtures, located in the Leased Premises and on its non-Building standard
leasehold improvements and all other additions and improvements (including
fixtures made by Lessee: and (ii) a policy or policies of comprehensive general
liability insurance, such insurance to afford minimum protection (which may be
effected by primary and/or excess coverage) of not less than $2,000,000.00 for
personal injury or death in any one occurrence and of not less than
$l,000,000.00 for property damage in any one occurrence. In the event Lessee
shall change the use of the Leased Premises from that set forth in Subsection
2.01(i), and such change warrants an increased level of insurance, then Lessor
shall have the right to request Lessee to carry such greater limits of liability
coverage as Lessor may reasonably deem necessary. All insurance policies
required to be maintained by Lessee shall (a) be issued by and binding upon
solvent insurance companies licensed to conduct business in the State of North
Carolina, (b) have all premiums fully paid on or before the due dates, (c) name
Lessor as an additional insured, and (d) provide that they shall not be
cancelable and/or the coverage thereunder shall not be reduced without at least
ten (10) days advance written notice to Lessor. Lessee shall deliver to Lessor
certified copies of all policies or certificates of insurance in a form
satisfactory to Lessor not less than thirty (30) days prior to the Commencement
Date or the expiration of current policies.
(b) Lessor shall obtain and keep in force during the Term of this Lease a
policy or policies of insurance covering loss or damage to the Leased Premises,
in the amount of the full replacement value thereof, providing standard property
protection against all perils included within the classifications of fire,
extended coverage, vandalism, and malicious mischief.
8.05 HOLD HARMLESS.
Subject to the provisions of Section 8.06, neither party shall be liable to
the other party or its respective agents, servants, employees, contractors,
customers or invitees, for any damage to person or property caused by any act,
omission or neglect of such party and its respective agents, servants,
employees, contractors, customers or invitees, including any claims which may be
made for compensation or damages based upon exposure to or interference from
electromagnetic rays and/or fields emanating from the Leased Premises, and each
party hereby agrees to indemnify and hold harmless the other party and its
partners, members, managers, agents, directors, officers, and employees from all
liability and claims for any such damage, including, without limitation, court
costs, attorneys' fees and costs of investigation. Any indemnification and
hold harmless obligation is expressly conditioned on the following: (i) that the
indemnifying party shall be notified in writing promptly of any such claim or
demand, and if said claim or demand is made by a third party; (ii) that the
indemnifying party shall have sole control of the defense of any action or
settlement or compromise; and (iii) that Lessor and Lessee shall
19
cooperate with each other in a reasonable way to facilitate the settlement or
defense of such claim or demand.
8.06 WAIVER OF SUBROGATION RIGHTS.
Anything in this Lease to the contrary notwithstanding, Lessor and Lessee
each hereby waives to the extent that such waiver will not invalidate any
insurance policy maintained by Lessor or Lessee nor increase any premiums
thereon, any and all rights of recovery, claims, actions or causes of action,
against the other, its agents, members, managers, servants, partners,
shareholders, officers and employees, for any loss or damage that may occur to
the Leased Premises or the Building, or any improvements thereto, or any
personal property of such party therein, by reason of fire, the elements, and
any other cause which is insured against under the terms of the standard fire
and extended coverage insurance policies referred to in Section 8.04 hereof, to
the extent that such loss or damage is recovered under said insurance policies,
regardless of cause or origin, including negligence of the other party hereto,
its agents, members, managers, officers, partners, shareholders, servants or
employees, and covenants that no insurer shall hold any right of subrogation
against such other party. If the respective insurers of Lessor and Lessee do not
permit such a waiver without an appropriate endorsement to such party's
insurance policy, Lessor and Lessee covenant and agree to notify the insurers of
the waiver set forth herein and to secure from each such insurer an appropriate
endorsement to its respective insurance policy concerning such waiver.
8.07 LIMITATION OF LESSOR'S PERSONAL LIABILITY.
Lessee agrees to look solely to Lessor's interest in the Building and the
Land for the recovery of any judgment against Lessor, and Lessor, its partners,
members, managers, officers, directors and employees, shall never be personally
liable for any such judgment. The provisions contained in the foregoing sentence
are not intended to, and shall not, limit any right that Lessee might otherwise
have to obtain injunctive relief against Lessor or Lessor's successors in
interest or any suit or action in connection with enforcement or collection of
amounts which may become owing or payable under or on account of liability
insurance maintained by Lessor.
ARTICLE 9 - LESSOR'S LIEN, DEFAULT, REMEDIES AND SUBORDINATION
9.01 INTENTIONALLY DELETED.
9.02 DEFAULT BY LESSEE.
If Lessee shall default in the payment of any Rent or other sum to be paid
by Lessee under this Lease when due; provided, however that Lessor shall not
declare Lessee in default so long as any Rent due is paid within five (5) days
of the due date. Lessor's obligation to provide Lessee with such five (5) day
notice shall not affect Lessee's obligation to pay any late charges set forth in
Section 4.07. If Lessee shall default in the performance of any of the other
covenants
20
or conditions which Lessee is required to observe and to perform under
this Lease and such default shall continue for thirty (30) days after written
notice to Lessee; or the interest of Lessee under this Lease shall be levied on
under execution or other legal process; or any petition shall be filed by or
against Lessee to declare Lessee a bankrupt or to delay, reduce or modify
Lessee's debts or obligations; or any petition shall be filed or other action
taken to reorganize or modify Lessee's debts or obligations: or any petition
shall be filed or other action taken to reorganize or modify Lessee's capital
structure; or Lessee is declared insolvent according to law; or any assignment
of Lessee's property shall be ioade for the benefit of creditors; or if a
receiver or trustee is appointed for Lessee or its property; or Lessee shall
vacate or abandon the Leased Premises or any part thereof at any time during the
Term for a period of fifteen (15) or more continuous days; or Lessee is a
corporation and Lessee shall cease to exist as a corporation in good standing in
the State of its incorporation; or Lessee is a partnership or other entity and
Lessee shall be dissolved or otherwise liquidated; then Lessor may treat the
occurrence of any one or more of the foregoing events as a breach of this Lease
(provided, no such levy, execution, legal process or petition filed against
Lessee shall constitute a breach of this Lease if Lessee shall vigorously
contest the same by appropriate proceedings and shall remove or vacate the same
within thirty (30) days from the date of its creation, service or filing).
Thereupon, at Lessor's option and in addition to all other rights and remedies
provided at law or in equity, Lessor may terminate this Lease and repossess the
Leased Premises and be entitled to recover as damages a sum of money equal to
the total of (a) the cost of recovering the Leased Premises (including
reasonable attorneys' fees and costs of suit), (b) the unpaid rent earned at the
time of termination, (c) the present value (discounted at the rate of eight
percent (18%) per annum) of the balance of the rent for the remainder of the
Term less the present value (discounted at the same rate of the fair market
rental value of the Leased Premises for said period, (d) the amount of any
unamortized leasing commissions or any allowances or concessions previously made
by Lessor to Lessee, (e) any other sum of money, and damages owed by Lessee to
Lessor and (f) interest on (a) (b) (c) (d) and (e) above at the rate of the
lesser of eighteen percent (18%) per annum or the highest rate allowed by
applicable law.
9.03 NON WAIVER.
Failure of Lessor to declare any default immediately upon occurrence
thereof, or delay in taking any action in connection therewith, shall not waive
such default and Lessor shall have the right to declare any such default at any
time and take such action as might be lawful or authorized hereunder, either in
law or in equity.
9.04 ATTORNEY'S FEES.
Should either party hereto institute any action or proceeding in court to
enforce any provision hereof or for damages by reason of any alleged breach of
any provisions of this Lease or for any other judicial remedy, the prevailing
party shall be entitled to receive from the non-prevailing party all actual
reasonable attorneys' fees and all court costs in connection with said
proceeding.
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9.05 SUBORDINATION; ESTOPPEL CERTIFICATE.
This Lease is and shall be subject and subordinate to any and all ground or
similar leases affecting the Building, and to all mortgages which may now or
hereafter encumber or affect the Building and to all renewals, modifications,
consolidations, replacements and extensions of any such leases and mortgages;
provided, at the option of any such lessor or mortgagee, this Lease shall be
superior to the lease or mortgage of such lessor or mortgagee. Consistent with
this Section, Lessee agrees, however, to execute and return any estoppel
certificate, consent subordination, non-disturbance and attornment agreement or
other agreement reasonably requested by any such lessor or mortgagee, or by
Lessor, within ten (10) days after receipt of same. The form of such estoppel
certificate is attached hereto as Exhibit E. Lessee shall, at the request of
Lessor or any mortgagee of Lessor secured by a lien on the Building or any
lessor to Lessor under a ground Lease of the Building, furnish such mortgagee
and/or lessor with written notice of any default or breach by Lessor at least
sixty (60) days prior to the exercise by Lessee of any rights and/or remedies of
Lessee hereunder arising out of such default or breach.
9.06 ATTORNMENT.
If any ground or similar lease or mortgage is terminated or foreclosed,
Lessee shall, upon request, attorn to the lessor under such lease or the
mortgagee or purchaser at such foreclosure sale, as the case may be, and execute
such reasonable instrument(s) requested by Lessor from time to time confirming
such attornment. In the event of such a termination or foreclosure and upon
Lessee's attornment as aforesaid, Lessee will automatically become the tenant of
the successor to Lessor's interest without change in the terms or provisions of
this Lease; provided, such successor to Lessor's interest shall not be bound by
(i) any payment of rent for more than one month in advance except prepayments
for security deposits, if any, or (ii) any amendments or modifications of this
Lease made without the prior written consent of such lessor or mortgagee.
ARTICLE 10 - ASSIGNMENT AND SUBLEASE
10.01 ASSIGNMENT OR SUBLEASE.
Lessee shall not, voluntarily, by operation of law, or otherwise, assign,
transfer, mortgage, pledge, or encumber this Lease or sublease the Leased
Premises or any plan thereof, or allow any person other than Lessee, its
employees, agents, servants and invitees, to occupy or use the Leased Premises
or any portion thereof, without the express prior written consent of Lessor,
such consent not to be unreasonably withheld, and any attempt to do any of the
foregoing without such written consent shall be null and void and shall
constitute a default under this Lease. Lessee agrees that it shall be deemed
reasonable for Lessor to deny consent to any proposed assignee or subtenant
based on the following criteria: (a) in the case of an assignment, current
financial statements indicate a net worth of less than five million dollars
($5.000.000) based on Generally Accepted Accounting Principals; (b) a proposed
assignee's or subtenant's business will impose a burden on the facilities,
common areas, parking or utilities that is greater
22
than imposed by Lessee; (c) the use of the Leased Premises by the proposed
assignee or subtenant would be in conflict with Lessor's rights or obligations
to other tenants (existing or future) in the Building, (i): to a competitor of
Xxxxx Xxxxxx Inc., or a discount stock brokerage firm, or a firm that is engaged
primarily in the securities brokerage business, or a competitor of Medical
Mutual Insurance Company of North Carolina, or a firm that is engaged primarily
in the insurance brokerage business), or will not be within the Permitted Use,
as defined in this Lease; and (d) Lessor has ever evicted or been involved in
litigation or has other past bad experiences with the proposed assignee or
subtenant. Notwithstanding the foregoing, in no event shall Lessee assign this
Lease or sublease the Leased Premises to any entity engaged in the commercial
real estate business, property management or the brokerage, ownership or
development of competitive properties. Lessor's consent to any assignment or
sublease hereunder does not constitute a waiver of its right to consent to any
further assignment or sublease. If Lessee desires to assign this Lease or sublet
the Leased Premises or any part thereof, Lessee shall serve Lessor written
notice of such desire at least thirty (30) days in advance of the date on which
Lessee desires to make such assignment or sublease. Lessor shall then have a
period of thirty (30) days following receipt of such notice within which to
notify Lessee in writing that Lessor rejects (a) to terminate this Lease as to
the space so affected as of the date so specified by Lessee, in which event
Lessee shall be relieved of all further obligations hereunder as to such space,
or (b) to permit Lessee to assign this Lease or sublet such space (provided,
however, if Lessor refuses to consent to an assignment to a particular entity
and subsequently consents to a sublease with such entity, and the rent agreed
upon between Lessee and sublessee is greater than the Monthly Base Rent that
Lessee is obligated to pay Lessor, Lessee is entitled to keep any such excess
amount), or (c) to refuse to consent to Lessee's assignment or subleasing such
space and to continue this Lease in full force and effect as to the entire
Leased Premises, such consent shall not be unreasonably withheld and shall be
based on the guidelines set forth in Section 10.01. Lessor shall notify Lessee
in writing of any such election within the thirty (30) day period. Lessee agrees
to pay Lessor's actual reasonable attorney's fees, not to exceed Five Hundred
Dollars ($500.00), associated with Lessor's review and documentation of any
requested assignment or sublease hereunder regardless of whether Lessor consents
to any such assignment or sublease. No subletting by Lessee shall relieve Lessee
of any oblations under this Lease, and Lessee shall remain fully liable
hereunder. If Lessee is not a public company that is registered on a national
stock exchange or that is required to register its stock with the Securities and
Exchange Commission under Section 12(g) of the Securities and Exchange Act of
1934, any change in a majority of the voting rights or other controlling rights
or interests of Lessee shall he deemed an assignment for the purposes hereof.
Lessee shall also have the right to assign the Lease, without giving rise to
Lessor's right to terminate the Lease, to (a) any entity resulting from a merger
or consolidation with Lessee; (b) any entity succeeding to the business and
assets of Lessee; and (c) any subsidiary or affiliate of Lessee with the same
net-worth value and credit-worthiness of Lessee. Notwithstanding the foregoing,
Lessor hereby gives its consent to the assignment of the Lease to Virata
Acquisition Sub., Inc. (to be renamed RSA Communications, Inc.), a newly formed.
wholly-owned subsidiary of Virata, Ltd., Inc., a United Kingdom corporation.
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10.02 ASSIGNMENT BY LESSOR.
Lessor shall have the right to transfer and assign, in whole or in part,
all its rights and obligations hereunder and in the Building and all other
property referred to herein, and in such event and upon such transfer (any such
transferee to have the benefit of, and be subject to, the provisions of Section
6.06 and Section 8.07 hereof) no further liability or obligation shall
thereafter accrue against Lessor under this Lease.
ARTICLE 11 - NOTICES AND MISCELLANEOUS
11.01 NOTICES.
Except as otherwise provided in this Lease, any statement, notice, or other
communication which Lessor or Lessee may desire or is required to give to the
other shall be in writing and shall be deemed sufficiently given or rendered if
hand delivered or if sent by registered or certified mail, postage prepaid,
return receipt requested, or Federal Express or similar overnight courier with
evidence of delivery, to the addresses for Lessor and Lessee set forth in
Subsection 2.01(k) or at such other address(es) as either party shall designate
from time to time by ten (10) days prior written notice to the other party.
11.02 MISCELLANEOUS.
(a) This Lease shall be binding upon and inure to the benefit of the legal
representatives, successors and assigns of Lessor, and shall be binding upon and
inure to the benefit of Lessee, its legal representatives and successors, and,
to the extent assignment may be approved by Lessor hereunder, Lessee's assigns.
Pronouns of any gender shall include the other genders, and either the singular
or the plural shall include the other.
(b) All rights and remedies of Lessor under this Lease shall be cumulative
and none shall exclude any other rights or remedies allowed by law. This Lease
is declared to be a North Carolina contract, and all of the terms thereof shall
be construed according to the laws of the State of North Carolina.
(c) This Lease may not be altered changed or amended, except by an
instrument in writing executed by all parties hereto. Further, the terms and
provisions of this Lease shall not be construed against or in favor of a party
hereto merely because such party is the "Lessor" or the "Lessee" hereunder or
such party or its counsel is the draftsman of this Lease.
(d) The terms and provisions of Exhibits A-1 described herein and attached
hereto are hereby made a part hereof for all purposes provided, however, that,
unless otherwise expressly stated, in the event of a conflict between the terms
of this Lease and the terms of any Exhibit attached hereto, the terms of this
Lease shall control.
(e) If Lessee is a corporation, partnership or other entity, Lessee
warrants that all consents and approvals required of third parties (including,
without limitation, its Board of Directors or partners) for the execution,
delivery and performance of this Lease have been
24
obtained and that Lessee has the right and authority to enter into and perform
its covenants contained in this Lease.
(f) Whenever in this Lease there is imposed upon Lessor the obligation to
use its best efforts, reasonable efforts or diligence, Lessor shall be required
to do so only to the extent the same is economically feasible and otherwise will
not impose upon Lessor extreme financial or other business burdens.
(g) Any term or provision of this Lease, or the application thereof to any
person or circumstance, shall to any extent be invalid or unenforceable, the
remainder of this Lease, or the application of such provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each provision of this Lease shall be valid and
shall be enforceable to the extent permitted by law.
(h) If applicable in the jurisdiction where the Leased Premises are
situated, Lessee shall pay and be liable for all rental, sales and use taxes or
other similar taxes, if any, levied or imposed by any city, state, county or
other governmental body having authority, such payments to be in addition to all
other payments required to be paid to Lessor by Lessee under the terms of this
Lease. Any such payment shall be paid concurrently with the payment of the rent
upon which the tax is based as set forth above.
(i) Lessor and Lessee each agrees not to handle, store or dispose of any
hazardous or toxic waste or substance at the Project which is prohibited by any
federal, state, or local statutes, ordinances or regulations. Lessor and Lessee
each hereby covenants to indemnify and hold the other party, its successors and
assigns, harmless from any loss, damage, claims, costs, liabilities or cleanup
costs arising out of Lessor's or Lessee's, as the case may be, use, handling,
storage or disposal of any such hazardous or toxic wastes or substances at the
Project.
(j) Lessee or Lessor may record this Lease or any memorandum thereof, in a
form attached hereto as Exhibit.
(k) Lessor agrees to provide Lessee with 4 parking spaces per 1,000 square
feet of space within the Leased Premises at no additional charge, which shall
include three (3) reserved, covered parking spaces at no charge to Lessee.
Lessee agrees to notify Lessor promptly of any additional parking needs which
shall be handled on a case-by-case basis.
(l) "Square feet" or "square foot" as used in this Lease includes the area
contained within the space occupied by Lessee (as measured by the June 7, 1996,
BOMA standard for measuring OFFICE AREA), multiplied by a common area percentage
factor.
(m) Lessor agrees to pay to the Broker(s) named in Subsection 2.01 (1), a
real estate brokerage commission only as set forth in separate listing and/or
commission agreement(s) between Lessor and the named Broker(s). Lessor and
Lessee each hereby represent and warrant to the other that they have not
employed any other agents, brokers or other parties in connection with this
Lease, and each agrees that it shall hold the other harmless from and against
any and all
25
claims of all other agents, brokers or other parties claiming by, through or
under the respective indemnifying party.
(n) Lessee understands and agrees that the Property Manager for the
Building is the agent of Lessor and is acting at all times in the best interest
of Lessor. Any and all information pertaining to this Lease that is received by
the Property Manager shall be treated as though received directly by Lessor.
(o) This Lease may be executed in any number of counterparts, each of which
shall be an original, but all of which taken together shall constitute one and
the same instrument.
(p) Lessee shall have the right to have its name placed on a monument sign
to be erected at the main driveway to the Building, provided the City of
Raleigh, North Carolina permits Lessor to design, install and maintain such
monument sign, and further provided Lessee shall be responsible for all cost and
expense of having its name installed on any such monument sign.
ARTICLE 12 - ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES
12.01 ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES.
LESSEE AGREES THAT THIS LEASE AND THE EXHIBITS ATTACHED HERETO CONSTITUTE
THE ENTIRE AGREEMENT OF THE PARTIES AND ALL PRIOR CORRESPONDENCE, MEMORANDA,
AGREEMENTS AND UNDERSTANDINGS (WRITTEN AND ORAL) ARE MERGED INTO AND SUPERSEDED
BY THIS LEASE AND THERE ARE AND WERE NO VERBAL REPRESENTATIONS, WARRANTIES,
UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES MADE BY LESSOR IN
CONNECTION WITH THIS LEASE, LESSEE FURTHER AGREES THAT THERE ARE NO, AND LESSEE
EXPRESSLY WAIVES ANY AND ALL WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET
FORTH IN THIS LEASE OR IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE.
IN TESTIMONY WHEREOF, the parties hereto have executed this Lease as of the
date aforesaid.
LESSOR:
Lake Partners, L.L.C., a North Carolina limited
liability Company
(SEAL)
26
By: Capital Associates Limited Partnership,
a North Carolina limited liability company
(SEAL)
By: /s/ Xxxx X. Xxxxxx (SEAL)
----------------------
Xxxx X. Xxxxxx. General Partner
LESSEE:
RSA Communications, Inc., a Delaware corporation.
By /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: President
(Corporate Seal)
Attest:
By:
27
EXHIBIT A-2
THE LAND
---------
Lying and being in the City of Raleigh, Wake County, North Carolina, and being
more particularly described as follows:
Beginning at a point located at the intersection of the southeastern right-
of-way line of Spring Forest Road and the southern right-of-way line of
Ridgefield Drive; runs thence with the southern right-of-way line of
Ridgefield Drive: South 59 degrees 00 minutes 00 seconds East 98.81 feet to
a point, South 62 degrees 24 minutes 35 seconds East 100.00 feet to a
point, and in a generally easterly direction along a curve to the left
(said curve having an exterior chord bearing and distance of South 72
degrees 21 minutes 05 seconds East 82.22 feet) having a radius of 380.00 an
arc distance of 82.38 feet to a point; runs thence leaving the southern
right-of-way line of Xxxxxxxxxx Xxxxx Xxxxx 00 degrees 53 minutes 57
seconds East 176.85 feet to a point; runs thence South 49 degrees 53
minutes 57 seconds East 17.21 feet to a point; runs thence in a generally
southeasterly direction along a curve to the left (said curve having an
exterior chord bearing and distance of South 49 degrees 53 minutes 57
seconds East 110.00 feet) having a radius of 55.00 feet an arc distance of
172.79 feet to a point; runs thence South 27 degrees 36 minutes 36 seconds
East 215.64 feet to a point in the line of that property now or formerly
belonging to Northbend; runs thence with the northern line of that property
now or formerly belonging to Xxxxxxxxx, Xxxxx 00 degrees 53 minutes 41
seconds West 818.63 feet to a point; runs thence North 01 degree 34
minutes 34 seconds West 6.67 feet to a point in the southeastern right-of-
way line of Spring Forest Road; runs thence with the Southeastern right-
of-way line of Spring Forest Road in a generally northeasterly direction
along a curve to the left (said curve having an exterior chord bearing and
distance of North 35 degrees 20 minutes 19 seconds East 275.53 feet) having
a radius of 1,821.07 feet an arc distance of 275.79 feet to a point;
continues thence with the southeastern right-of-way line of Xxxxxx Xxxxxx
Xxxx Xxxxx 00 degrees 00 minutes 00 seconds East 346.59 feet to a point,
and in a generally northeasterly direction along a curve to the right (said
curve having an interior chord bearing and distance of North 31 degrees 47
minutes 22 seconds East 31.83 feet) having a radius of 1, 155.00 feet an
arc distance of 31.83 feet to the point and piece of Beginning, containing
5.814 acres as shown on that plat entitled Plat of Survey for Linpro North
Carolina Offices II Limited, dated October 27, 1986, and prepared by Xxxxxx
Yells Associates, Registered Land Surveyors.
14
EXHIBIT B
ACCEPTANCE OF LEASED PREMISES MEMORANDUM
----------------------------------------
Lessor and Lessee hereby agree that:
1. Except for those items shown on the attached "punch list", which Lessor
shall use reasonable efforts to remedy within ______________ (___) days
after the date hereof, Lessor has fully completed the construction work
required of Lessor under the terms of the Lease.
2. The Leased Premises are tenantable, Lessor has no further obligation for
construction (except as specified above), and Lessee acknowledges that the
Leased Premises are satisfactory in all respects.
3. The Commencement Date of the Lease is hereby agreed to be _______________,
19__.
4. The Expiration Date of the Lease is hereby agreed to be _______________,
19__.
All other terms and conditions of the Lease are hereby ratified and
acknowledged to be unchanged.
Agreed and Executed this ____ day of __________________, 19__.
LESSEE:
RSA Communications, Inc., a Delaware corporation
By:_____________________________________________
(Corporate Seal)
Name: __________________________________________
Title: _________________________________________
Attest:
By: ____________________
15
EXHIBIT C
TENANT IMPROVEMENTS
-------------------
000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Improvements by Lessor pursuant to the construction drawings dated 6/10/98, as
submitted by Lessee:
1. Install Building standard walls.
2. Install Building standard doors and hardware.
3. Install Building standard acoustical hung ceiling throughout.
4. Install Building standard recessed fluorescent light fixtures.
5. Install Building standard electrical switches, receptacles and voice data
jacks.
6. Install Building standard plumbing, sink, shelving, and cabinetry in break
room and file-fax-copy room.
7. Furnish and install projection screen in conference room.
8. Install Building standard carpet and vinyl composite tile throughout.
9. Paint walls with Building standard paint throughout.
10. All appliances to be furnished by Lessee.
Construction drawings for the Leased Premises dated 6/10/98 titled T-1, T-2, A-0
through A-7; P-1 and P-2, M-1 and M-2 and E-1, E-2 and E-3 are attached hereto.
16
EXHIBIT D
BUILDING RULES
--------------
(1) The sidewalks, walks, plaza entries, corridors, concourses, ramps,
staircases, escalators and elevators shall not be obstructed or used by Lessee,
or the employees, agents, servants, visitors or licensees of Lessee, for any
purpose other than ingress and egress to and from the Leased Premises. No
bicycle or motorcycle shall be brought into the Building or kept on the Leased
Premises without the prior written consent of Lessor.
(2) No freight, furniture or bulky matter of any description shall be
received into the Building or carried into the elevators except in such a
manner, during such hours and using such elevators and passageways as may
be approved by Lessor, and then only upon having been scheduled in advance;
provided, however, Lessee may receive normal, daily deliveries from an overnight
courier (ie: Federal Express), without Lessor's prior approval.
(3) Lessor shall have the right to prescribe the weight, position and
manner of installation of safes, concentrated filing/storage systems or other
heavy equipment which shall, if considered necessary by Lessor, be installed in
a manner which shall insure satisfactory weight distribution. All damage done to
the Building by reason of a safe or any other article of Lessee's office
equipment being on the Leased Premises shall be repaired at the expense of
Lessee: provided, however, if Lessee follows Lessor's guidelines for the moving
and installation of safes, concentrated filing/storage systems or other heavy
equipment. Lessee shall not be responsible for any damage to the Building. The
time, routing and manner of moving safes or other heavy equipment shall be
subject to prior written approval by Lessor.
(4) Lessee shall use no other method of heating or cooling than that
supplied by Lessor.
(5) Lessee, and the employees, agents, servants, visitors, or licensees of
Lessee, shall not at any time place, leave or discard any rubbish, paper,
articles or objects of any kind whatsoever outside the doors of the Leased
Premises or in the corridors or passageways of the Building. No animals, except
for dogs trained to assist disabled persons, shall be brought or kept in or
about the Leased Premises or the Building without the prior written consent of
Lessor .
(6) Lessor shall have the right to prohibit any advertising by Lessee
which, in Lessor's opinion, tends to impair the reputation of the Building or
its desirability for offices, and, upon written notice from Lessor, Lessee shall
refrain from or discontinue such advertising. Lessor shall have the right to
use Lessee's name in advertising announcements.
(7) Lessee shall not place, or cause or allow to be placed, any sign or
lettering whatsoever, in or about the Leased Premises except in and at such
places as may be designated by Lessor and consented to by Lessor in writing. All
lettering and graphics on corridor doors and walls shall conform to the Building
standard prescribed by Lessor. No trademark shall be displayed on corridor
doors and walls in any event, except on any floor fully leased by Lessee. Lessee
may display trademarks on interior walls and doors of the Leased Premises.
Lessor shall provide and maintain an alphabetical directory board in the ground
floor lobby of the Building.
(8) Canvassing, soliciting or peddling in the Building is prohibited and
Lessee shall cooperate to prevent same.
(9) Subject to the provisions of Section 6.05, Lessor shall have the right
------------
to exclude any person from the Building other than during customary business
hours, and any person in the Building shall be subject to identification by
employees and agents of Lessor. All persons in or entering the Building shall
be required to comply with the security policies of the Building. If Lessee
desires any additional security services for the Leased Premises, Lessee shall
have the right (only with the advance written consent of Lessor) to obtain
such additional services at Lessee's sole cost and expense. Lessee shall keep
doors to unattended areas locked and shall otherwise exercise reasonable
precautions to protect property from theft, loss, or damage.
(10) Only workmen employed, designated or approved by Lessor may be
employed for repairs, installations, alterations, painting, moving company and
other similar work that may be done to the Leased Premises.
(11) Lessee shall not do any cooking or conduct any restaurant,
luncheonette, automat or cafeteria for the sale or service of food or beverage
to its employees or to others, nor shall Lessee provide any vending machines
without the prior written consent of Lessor. Lessee may, however, operate coffee
bars by and for its employees and invitees. Notwithstanding the foregoing,
Lessee shall be permitted to install the following in the breakroom of the
Leased Premises: a microwave oven and up to three (3) vending machines.
(12) Lessee shall not bring or permit to be brought or kept in or on the
Leased Premises any inflammable, combustible, corrosive, caustic, poisonous,
toxic or explosive substance or any substance deemed to be a hazardous substance
under applicable environmental laws, or cause or permit any odors to permeate or
emanate from the Leased Premises.
(13) Lessee shall not xxxx, paint, drill into or in any way deface any part
of the Building or the Leased Premises. No boring, driving of nails or screws,
cutting or stringing of wires shall be permitted, except with the prior written
consent of Lessor, and as Lessor may direct. Lessee shall not install coat hooks
or identification plates on doors nor any resilient tile or similar floor
covering in the Leased Premises except with the prior written approval of
Lessor. The use of cement or other similar adhesive
material is expressly prohibited.
(14) Lessee shall not place any additional locks or bolts of any kind on
any door in the Building or the Leased Premises or change or alter any lock on
any door therein in any respect. Lessor shall furnish Lessee with up to twenty-
five (25) keys, or more as requested by Lessee for additional employees, for
doors to and within the Leased Premises. Lessor shall also furnish Lessee with
as many access card keys to the Building as requested, at no additional charge;
provided however, there will be a charge to Lessee to replace lost or stolen
access card keys. Lessee shall not make any duplicate keys. Lessor shall, upon
request by Lessee, and at Lessor's sole cost and expense, provide Lessee with
additional, duplicate door keys to and within the Leased Premises. All keys
shall be returned to Lessor upon the termination of the Lease, and Lessee shall
give to Lessor the explanation of the combination of all safes, vaults and
combination locks in the Leased Premises. Lessor may at all times keep a pass
key to the Leased Premises. All entrance doors to the Leased Premises shall be
left locked when the Leased Premises are not in use.
(15) Lessee shall give immediate notice to Lessor in case of theft,
unauthorized solicitation or accident in the Leased Premises or in the Building
or of defects therein or in any fixtures or equipment, or of an known emergency
in the Building.
(16) Lessee shall place a water-proof tray under all plants in the Leased
Premises and shall be responsible for any damage to the floors and/or carpets by
over-watering such plants.
(17) Lessee shall not use the Leased Premises or permit the Leased
Premises to be used for photographic, multilith or multigraph reproductions,
except in connection with its own business and not as a service for others,
without Lessor's prior written permission.
(18) Lessee shall not use or permit any portion of the Leased Premises to
be used as an office for a public stenographer or typist, offset printing, the
sale of liquor or tobacco, a xxxxxx or manicure shop, an employment bureau, a
labor union office, a doctor's or dentist's office, a dance or music studio, any
type of school, or for any use other than those specifically granted in this
Lease .
(19) Lessee shall not advertise for laborers giving the Leased Premises
as an address, nor pay such laborers at a location in the Leased Premises.
(20) Employees of Lessor shall not perform any work or do anything
outside of their regular duties, unless under special instructions from the
management office in the Building.
(21) Lessee shall not place a load upon any floor of the Leased Premises
which exceeds the load per square foot which such floor was designed to carry
and which is allowed by law. Business machines and mechanical and electrical
equipment belonging to Lessee which cause noise, vibration, electrical or
magnetic interference, or any other nuisance that may be transmitted to the
structure or other portions of the Building or to the Leased Premises to such a
degree as to be objectionable to Lessor or which interfere with the use or
enjoyment by other tenants of their leased premises or the public portions of
the Building shall be placed and maintained by Lessee, at Lessee's expense, in
settings of cork, rubber, spring type or other vibration eliminators sufficient
to eliminate noise or vibration.
(22) Intentionally deleted.
(23) No solar screen materials, awnings, draperies, shutters or other
interior or exterior window coverings that are visible from the exterior of the
Building or from the exterior of the Leased Permises within the Building may be
installed be Lessee.
(24) Lessee shall not place, install or operate within the Leased
Premises or any other part of the Building any engine, stove or machinery, or
conduct mechanical operations therein, without the written consent of Lessor.
(25) No portion of the Leased Premises or any other part of the Building
shall at any time be used or occupied as sleeping or lodging quarters.
(26) For purposes of the Lease, holidays shall be deemd to mean and
include the following: (a) New Year's Day; (b) Good Friday; (c) Memorial Day;
(d) Independence Day; (f) Thanksgiving day and the Friday following; and (g)
Christmas Day.
(27) Lessee shall at all times keep the Leased Premises neat and orderly.
(28) Intentionally deleted.
(29) Lessor reserves the right to rescind, add to and amend any rules or
regulations, to add new rules or regulations, and to waive any rules or
regulations with respect to any tenant or tenants, provided such new rules or
requlations do not materially affect the operation of Lessee's business.
(30) Corridor doors, when not in use, shall be kept closed.
(31) All permitted alteratons and additions to the Leased Premises must
conform to applicable building and fire codes.
Lessee shall obtain approval from the office of the Building with respect to any
such modifications and shall deliver "as-built" plans therefor to the office of
the Building on completion.
(32) It is the intent of both Lessor and Lessee that any portion of the
Leased Premises visible to the public hold a high quality professional image at
all times. If, at any time during the Term, Lessor or Lessor's agent deems such
visible area to hold less than a high quality professional image, Lessor will
advise Lessee of desired changes to be made to such area to conform to the
intent of this paragraph. Within three working days, Lessee will cause the
desired changes to be made, or present Lessor with a plan for accomplishing such
changes. Lessee shall have such additional time as is reasonably required to
implement the plan, not to exceed 2 months; provided, however, that if Lessee is
not diligently pursuing the plan for accomplishing such changes within ten
working days, Lessor will provide draperies or blinds for the glassed area at
Lessee's expense; Lessee will keep such draperies or blinds closed at all times.
The carpet and wall coverings, which are to be located in the
lobby of any Leased Premises that are visible to the public, must be consistent
in color and style with the carpet and wall coverings located in the lobby area
of the Building, and must be approved by Lessor prior to installation.
(33) The Building has been designated a "non-smoking" building. Lessee and
its employees, agents, servants, visitors and licensees are prohibited from
smoking in the common areas both inside and outside of the Building, except in
those areas designated as smoking areas. Lessee may designate the Leased
Premises a "non-smoking" area.
(34) Lessee shall not play nor permit the playing of loud music in the
Leased Premises or common areas.
(35) No firearms, whether concealed or otherwise, shall be allowed in the
Building at any time.
19
EXHIBIT E
FORM OF ESTOPPEL CERTIFICATE
----------------------------
The undersigned ___________________________________________ ("Lessee"), in
consideration of One Dollar ($1.00) and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, hereby certifies to
_______________________________________ ("Lessor"), (the holder or prospective
holder of any mortgage covering the property) (the "Mortgagee") and (the vendee
under any contract of sale with respect to the Property) (the "Purchaser") as
follows:
1. Lessee and Lessor executed a certain Lease Agreement (the "Lease"), dated
_________________, 19__, covering the ___________ floor(s) shown attached on the
plan annexed hereto as Exhibit A-1 (the "Leased Premises") in the building
-----------
located in the ___________________________ known as and by the street number
_______________________________ (the "Building"), for a term commencing on
__________________, 19__, and expiring on ______________________________.
2. The Lease is in full force and effect and has not been modified, changed,
altered or amended in any respect.
3. Lessee has accepted and is now in possession of the Leased Premises and is
paying the full Rent under the Lease.
4. The Base Rent payable under the Lease is $___________ per month. The Base
Rent and all Additional Rent and other charges required to be paid under the
Lease have been paid for the period up to and including ____________________.
5. Lessee had paid to Lessor the sum of $0.00 as security deposit under the
Lease.
6. No Rent under the Lease has been paid for more than thirty (30) days in
advance of its due date.
7. All work required under the Lease to be performed by Lessor has been
completed to the full satisfaction of Lessee.
8. There are no defaults existing under the Lease on the part of either Lessor
or Lessee.
9. There is no existing basis for Lessee to cancel or terminate the Lease.
10. As of the date hereof, there exist no valid defenses, offsets, credits,
deductions in rent or claims against the enforcement of any of the agreements,
terms, covenants or conditions of the Lease.
11. Lessee affirms that any dispute with Lessor giving rise to a claim against
Lessor is a claim under the Leased only and is subordinate to the rights of the
holder of all first lien mortgages on the Building and shall be subject to all
the terms, conditions and provisions thereof. Any such claims are not offsets to
or defenses against enforcement of the Lease.
12. Lessee affirms that any dispute with Lessor giving rise to a claim against
Lessor is a claim under the Lease only and is subordinate to the rights of the
Purchaser pursuant to any contract of sale. Any such claims are not offsets to
or defense against enforcement of the Lease.
13. Lessee affirms that any claims pertaining to matters in existence at the
time Lessee took possession and which are known to or which were then readily
ascertainable by Lessee shall be enforced solely by money judgment and/or
specific performance against the Lessor named in the Lease and may not be
enforced as an offset to or defense against enforcement of the Lease.
14. There are no actions, whether voluntary or otherwise, pending against or
contemplated by Lessee under the bankruptcy laws of the United States or any
state thereof.
15. There has been no material adverse change in Lessee's financial condition
between the date hereof and the date of the execution and delivery of the Lease.
16. Lessee acknowledges that Lessor has informed Lessee that an assignment of
Lessor's interest in the Lease has been or will be made to the Mortgagee and
that no modification, revision, or cancellation of the Lease or amendments
thereto shall be effective unless a written consent thereto of the Mortgagee is
first obtained, and that until further notice payments under the Lease may
continue as heretofore.
17. Lessee acknowledges that Lessor has informed Lessee that Lessor has entered
into a contract to sell the Property to Purchaser and that no modification,
revision or cancellation of the Lease or amendments thereto shall be effective
unless a written consent thereto of the Purchaser has been obtained.
20
18. This certification is made to induce Purchaser to consummate a purchase
of the Property and to induce Mortgagee to make and maintain a mortgage loan
secured by the Property and/or to disburse additional funds to Lessor under
the terms of its agreement with Lessor, knowing that said Purchaser and
Mortgagee rely upon the truth of this certificate in making and/or maintaining
such purchase or mortgage or disbursing such funds, as applicable.
19. Except as modified herein, all other provisions of the Lease are hereby
ratified and confirmed.
LESSEE:
RSA Communications, Inc., a Delaware corporation
By:____________________________________________
(Corporate Seal)
Name:__________________________________________
Title:_________________________________________
Date:__________________________________________
Attest:
By: _______________________
EXHIBIT F
HVAC SCHEDULE
---------------
Subject to the provisions of Section 5.01 of the Lease and excluding
------------
holidays, Lessor will furnish Building standard heating, ventilating and air
conditioning between 8:00 a.m. and 6:00 p.m. on weekdays (from Monday through
Friday, inclusive) and Saturdays beween 8:00 a.m. and 1:00 p.m. Upon request of
Lessee made in accordance with the rules and requlations for the Building,
Lessor will furnish air conditioning and heating at other times (that is, at
times other than the specified above), in which event Lessee shall reimburse
Lessor for furnishing such services on the following basis:
Lessee shall reimburse Lessor at the rate of Twenty and No/10 Dollars
($20.00) per hour which is activated to provide the requested air conditioning
or heating service; provided, such rate is based upon the "Kilowatt Hour
rate"(as hereinafter defined) for electricity as of January 1, 1995 (the "Base
Rate"), and if and when the Kilowatt Hour Rate increases over the Base Rate, the
aforesaid rate of Twenty and No/100 Dollars ($20.00) per hour thereof shall
automatically increase proportionately. For example, if the Kilowatt Hour Rate
increases by 10% over the Base Rate, said rate shall automatically increase by
10%. The "Kilowatt Hour Rate" shall mean the actual average cost per kilowatt
hour charged by the public utilities providing electricity to the Building, or
if said public utilities shall cease charging for electricity on the basis of a
kilowatt hour, the Kilowatt Hour Rate shall mean the actual average cost per
equivalent unit of measurement substituted therefor by said public utilities.
The Base Rate is hereby stipulated to be $.0600 per kilowatt hour.
EXHIBIT G
RENEWAL OPTION
--------------
As long as Lessee is not in default in the performance of its covenants
under this Lease at the time of exercise of this renewal option or at the time
of commencement of the renewal, Lessee is granted the option to renew the Term
of this Lease for a period of five (5) additional years ("Renewal Term"), to
commence at the expiration of the initial Term of this Lease. Lessee shall
exercise its option to renew by delivering written notice of such election to
Lessor at least twelve (12) months prior to the expiration of the initial Term.
The renewal of this Lease shall be upon the same terms and conditions of this
Lease, except (a) the Base Rent during the Renewal Term shall be the prevailing
Market Base Rent Rate (defined below) for similar space in the Building at the
time the Renewal Term commences, but in no event less than the Base Rent plus
Additional Rent that Lessee is then paying under the terms of this Lease, (b)
Lessee shall have no option to renew this Lease beyond the expiration of the
Renewal Term, (c) Lessee shall not have the right to assign its renewal rights
to any sublessee of the Leased Premises, nor may any such sublessee exercise
such renewal rights, and (d) the leasehold improvements will be provided in
their then existing condition (on an "as is" basis) at the time the Renewal Term
commences.
As used in this Lease, the term "Market Base Rent Rate" shall mean the
annual rental rate then being charged in Raleigh, North Carolina for space
comparable to the space for which the Market Base Rent Rate is being determined
(taking into consideration use, location and/or floor level within the
applicable building, base rent, base operating expense factor, tenant
improvement allowance, definition of net rentable area, leasehold improvements
provided, quality and location of the applicable building, rental concessions
(such as abatements or Lease assumptions) and the time the particular rate under
consideration became effective). It is agreed that bona fide written offers to
lease the Leased Premises or comparable space made to Lessor by third parties
(at arm's-length) may be used by Lessor as an indication of Market Base Rent
Rate.
Whenever in this Lease a provision calls for a rental rate to be, or be
adjusted to, the Market Base Rent Rate, Lessee shall continue to pay Base Rent
and the Additional Rent as provided in this Lease.
EXHIBIT H
Intentionally Deleted
24
EXHIBIT I
MEMORANDUM OF LEASE
-------------------
WHEN RECORDED MAIL TO:
________________________
________________________
________________________
STATE OF NORTH CAROLINA
COUNTY OF WAKE
MEMORANDUM OF LEASE
-------------------
This Memorandum of Lease is by and between Lake Partners, L.L.C., a North
-------
Carolina limited liability company ("Lessor") and RSA Communications, Inc., a
----------------------------------
Delaware corporation ("Lessee"), pursuant to which Lessor, for consideration,
the receipt and sufficiency of which are hereby acknowledged, has demised to
Lessee, and Lessee has accepted such demise from Lessor, the Leased Premises
upon the following terms:
Date of Lease: _______________________, 1998
Description of Premises: approximately 12,944 square feet of space (as
shown on Exhibit A-I, which is attached hereto) located in Suite 100 in the
-----------
building known as Lake Plaza West and located at 000 Xxxxxx Xxxxxx Xxxx,
Xxxxxxx, Xxxxx Xxxxxxxx 00000 (this "Building").
Term: 5 years and 3 months
Target Commencement Date: August 15, 1998
Target Expiration Date: November 30, 2003
Renewal Option: One (1) five (5) year term.
The purpose of this Memorandum of Lease is to give record notice of the
Lease and of the rights created thereby, all of which are hereby confirmed and
all terms of which are incorporated into this Memorandum of Lease by reference.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as
of the dates set forth in their respective acknowledgments.
LESSOR:
Lake Partners, L.L.C., a North Carolina limited
liability company (SEAL)
By: Capital Associates Limited Partnership, a
North Carolina limited partnership, its
Manager (SEAL)
By:___________________________________(SEAL)
Xxxx X. Xxxxxx, General Partner
LESSEE:
RSA Communications, Inc., a Delaware corporation
By:_______________________________________________
(Corporate Seal)
Name: ____________________________________________
Title: ___________________________________________
Attest:
By: _________________
25
Lessor:
STATE OF NORTH CAROLINA
COUNTY OF ___________________
I, _________________________, a Notary Public for said County and State, certify
that _______________________ personally came before me this day and acknowledged
the due execution of the foregoing instrument on behalf of said _______________.
Witness my hand and official seal, this _______ day of ________________, 19__.
My commission expires: _____________________, 19__.
_______________________________________ (Official Seal)
Notary Public
Lessee: (if a corporation)
STATE OF NORTH CAROLINA
COUNTY OF ___________________
I, ______________________, a Notary Public for said County and State, certify
that __________________, personally came before me this day and acknowledged
that he/she is __________________ Secretary of ______________________, and that
by authority duly given and as the act of the corporation the foregoing
instrument was signed in its name by its President, sealed with its corporate
seal, and attested by him/her as its _______________ Secretary.
Witness my hand and official seal, this __________ day of ______________, 19__.
My commission expires: ________________________, 19__.
__________________________________ (Official Seal)
Notary Public
26
