EX-10.37 2 dex1037.htm TRIPLE NET LEASE AGREEMENT DATED AS OF OCTOBER 1, 2008 STATE OF SOUTH CAROLINA ) ) TRIPLE NET LEASE AGREEMENT COUNTY OF BERKELEY )
Exhibit 10.37
STATE OF SOUTH CAROLINA | ) | |||
) | ||||
COUNTY OF BERKELEY | ) |
THIS TRIPLE NET LEASE AGREEMENT (the “Lease”) dated as of the 1st day of October, 2008, to be effective as set forth in Section 25 below (the “Effective Date”), by and between DUCK POND CREEK—SPE, LLC, a South Carolina limited liability company (“Landlord”) and BLACKBAUD, INC., a Delaware corporation, (“Tenant”).
1. Property. The Property is hereby described as that certain real property located in Berkeley County, South Carolina, being approximately seventeen and six hundred seventy eight thousandths (17.678) acres, together with improvements thereon, all as more particularly described in Exhibit A, attached hereto and incorporated by reference herein (the “Property”), which Property does not include the parcel designated as “7.70 Acre Development Parcel” on said Exhibit A. The Property includes all buildings and improvements located or to be located thereon.
1
exercised Option Terms sometimes collectively referred to hereinafter as the “Term”). All terms and conditions of this Lease shall be applicable during the Option Terms except that Base Rent for any such renewal term(s) shall be in the amount set forth on Exhibit B hereto. Tenant may exercise its right to an Option Term under the following terms and conditions:
a. As a condition precedent to Tenant’s exercise of each of the Option Terms all of the following must be true:
i. Tenant is occupying the Premises at the time any Option Term is exercisable by Tenant; and
ii. Tenant is not in default under any terms, conditions, and covenants contained in this Lease at the time any Option Term is exercisable.
b. No later than Three Hundred Sixty (360) days prior to the expiration of the Term or any Option Term, if applicable, the Tenant must submit written notification to Landlord of Tenant’s desire to renew the lease for an Option Term. TIME IS OF THE ESSENCE.
2
vii. Allocation of Utilities, Taxes, and Insurance Costs. To the extent that any costs of or expenses for any utilities, taxes or insurance, as provided above, are charged or billed to Landlord or to Tenant, Landlord and Tenant shall fairly allocate the same as between the Property and any adjacent property. It is the intent of this paragraph that Tenant shall not be responsible for paying any costs or expenses allocable to the adjacent stadium property. In the event that Landlord and Tenant cannot agree on any such allocation, Landlord and Tenant shall agree on and choose, in good faith, an appropriate independent expert or other independent qualified individual to make such allocation, and the determination of such expert or qualified individual shall be conclusive and binding upon Landlord and Tenant.
3
5. Use of Property and Compliance with Laws. Tenant agrees to use the Property as permitted by laws and zoning, with applicable reasonable ancillary uses including coffee bars, vending machines, lunchrooms, cafeteria and kitchen facilities in support thereof, exercise\health facilities and any other legally permitted uses consistent with the character of first-class office buildings in the Tri-County region of Charleston, South Carolina. Blackbaud shall be entitled to use the Building stairwells between all floors comprising the Premises for interfloor traffic. Tenant agrees to comply with and adhere to all laws, whether municipal, state, federal or otherwise, applicable to and effecting the Property, including but not limited to all environmental laws.
4
for office tenants under net leases of first-class offices in the Charleston area and available at customary market rates), and public liability all in form and substance reasonably satisfactory to Landlord, in which Tenant and Landlord shall be named as the Insured and Landlord as the additional insured with the following minimum coverage: replacement cost as to property damage and Five Million Dollars ($5,000,000.00) as to general liability. Said policy or policies shall bear endorsements to the effect that the insurer agrees to notify the Landlord not less than thirty (30) days in advance of any modification or cancellation thereof. Tenant shall provide Landlord with a certificate of insurance prior to Lease commencement. Should Tenant fail to carry such public liability insurance, the Landlord may, at its option (but shall not be required to do so) cause public liability insurance as aforementioned, to be issued, and, in such event, the Tenant agrees to pay the premium for said insurance promptly upon Landlord’s demand.
c. INSURANCE FOR PERSONAL PROPERTY. ALL PERSONAL PROPERTY, MERCHANDISE, FIXTURES, AND EQUIPMENT LOCATED, PLACED OR MOVED INTO THE PROPERTY SHALL BE AT THE RISK OF TENANT OR THE OWNERS THEREOF, AND LANDLORD SHALL NOT BE LIABLE FOR ANY DAMAGES, LOSS OR THEFT OF SAID PERSONAL PROPERTY, MERCHANDISE, FIXTURES, OR EQUIPMENT, EXCEPT TO THE EXTENT SPECIFICALLY SET FORTH IN THIS LEASE..
5
demand by Landlord (other than in the case of emergency), Landlord may (but shall not be required to) make such repairs without liability to Tenant for any loss or damage that may accrue to Tenant’s stock, business, equipment, or fixtures by reason thereof, and if Landlord makes such repairs, Tenant shall pay to Landlord, on demand, as Additional Rent, the cost thereof. Tenant’s failure to pay shall constitute a default under this Lease. Tenant’s failure to give, or unreasonable delay in giving, notice of needed repairs or defects shall make Tenant liable for any loss or damage resulting from delay or needed repairs.
a. Tenant represents, warrants and agrees that: (i) the Property shall be kept free of Hazardous Materials (as defined herein), arising from Tenant’s use or occupancy of the Property (and that of its agents, employees, contractors, and invitees) except for small amount of Hazardous Materials such as copy toner and cleaning supplies used in the ordinary course of Tenant’s business and office use and at all times subject to any applicable Environmental Laws, and shall not be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, produce or process Hazardous Materials; (ii) Tenant shall not cause or permit the installation of Hazardous Materials in, on, over or under the Property or a Release (hereinafter defined) of Hazardous Materials onto or from the Property or suffer the presence of Hazardous Materials in, on, over or under the Property; (iii) Tenant shall comply with, and insure compliance by Tenant’s agents, employees, contractors, and invitees with, all applicable Environmental Laws (as hereinafter defined) relating to or affecting the Property, and Tenant shall keep the Property free and clear of any liens imposed pursuant to any applicable Environmental Laws, all at Tenant’s sole cost and expense; (iv) Tenant shall immediately give Landlord oral and written notice in the event that Tenant receives any notice from any governmental agency, entity, or any other party with regard to Hazardous Materials on, from or affecting the Property and Tenant shall conduct and complete all investigations, studies, sampling and testing, and all remedial soil removal, and other actions necessary to clean up and remove all Hazardous Materials on, from or affecting the Property in accordance with all applicable Environmental Laws.
b. Tenant hereby agrees to indemnify Landlord and hold Landlord harmless from and against any and all liens, demands, actions, suits, proceedings, disbursements, liabilities, losses, litigation, damages, judgments, obligations, penalties, injuries, costs, expenses (including without limitation, reasonable attorney and expert fees and expenses) and claims of any and every kind whatsoever paid, incurred, suffered by or asserted against Landlord and/or the Property for, with respect to, or as a direct or indirect result of the following: (i) the presence in, on, over or under, or the escape, seepage, leakage, spillage, discharge, emission or release on or from, the Property of any Hazardous Materials if caused by or within the control of the Tenant; (ii) the failure by Tenant to comply fully with the terms and provisions of this paragraph. In the event Landlord suspects Tenant has violated any of the covenants, warranties or
6
representations contained in this paragraph, or that the Property is not in compliance with the Environmental Laws for any reason, or that the premises are not free of Hazardous Materials for any reason, Tenant shall take such steps as Landlord requires by written notice to Tenant in order to confirm or deny such occurrences, including, without limitation, the preparation of environmental studies, surveys or reports. In the event Tenant fails to take such action, Landlord may take such action as Landlord deems necessary, and the cost and expenses of all actions taken by Landlord, including, without limitation, Landlord’s attorney’s fees, shall be added as Additional Rent. Notwithstanding the foregoing, in no event shall Tenant be responsible to Landlord for the presence or release of Hazardous Materials at, within, or around the Property or for the violation of any Environmental Laws (i) which existed prior to the commencement of Tenant’s use or occupancy of the Property or (ii) which was not caused in whole or in part by Tenant or its agents, employees, officers, partners, contractors, or invitees.
c. Landlord hereby agrees to indemnify Tenant and hold Tenant harmless from and against any and all liens, demands, actions, suits, proceedings, disbursements, liabilities, losses, litigation, damages, judgments, obligations, penalties, injuries, costs, expenses (including without limitation, reasonable attorney and expert fees and expenses) and claims of any and every kind whatsoever paid, incurred, suffered by or asserted against Tenant and/or the Property for, with respect to, or as a direct or indirect result of the following: (i) the presence in, on, over or under, or the escape, seepage, leakage, spillage, discharge, emission or release on or from the Property of any Hazardous Materials prior to the Commencement Date or (ii) the presence in, on, over or under, or the escape, seepage, leakage, spillage, discharge, emission or release of Hazardous Materials in connection with the use of the Property by Landlord or the employees, agents, tenants, licensees, or invitees of Landlord in connection with the use of the Stadium Property and the easement set forth in Exhibit C hereof.
d. For the purposes of this Agreement Lease: (i) “Hazardous Material” or “Hazardous Materials” means and includes petroleum products, flammable explosives, radioactive materials, asbestos or any material containing asbestos, polychlorinated biphenyls, and/or any hazardous, toxic or dangerous waste, substance or material defined as such or defined as a Hazardous Substance or any similar term, by, in, or for the purposes of the Environmental Laws, including, without limitation section 101(14) of CERCLA (hereinafter defined); (ii) “Release” shall have the meaning given such term, or any similar term, in the Environmental Laws, including, without limitation, Section 101(22) of CERCLA; and (iii) “Environmental Law” or “Environmental Laws” shall mean any “Super Fund” or “Super Lien” law, or any other federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning any Hazardous Materials as may now or at any time hereafter be in effect, including, without limitation, the following, as same may be amended or replaced from time to time, and all regulations promulgated thereunder or in connection therewith: the Super Fund Amendments and Reauthorization Act of 1986 (“XXXX”); The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (“CERCLA”); The Clean Air Act (“CAA”); the Clean Water Act (“CWA”); The Toxic Substances Control Act (“TSCA”); The Solid Waste Disposal Act (“SWDA”), as amended by the Resource Conservation and Recovery Act (“RCRA”); the Hazardous Waste Management System; and the Occupational Safety and Health Act of 1970 (“OSHA”). The obligations and liabilities of Tenant and Landlord under this Paragraph shall survive this Lease and any eviction of, or abandonment by, the Tenant.
7
b. All Other Alterations. Tenant shall be allowed to make reasonable non-capital alterations to the Property provided any such alterations are in accordance with all applicable building codes, are approved by Landlord IN WRITING and IN ADVANCE, which approval shall not unreasonably be withheld or delayed. All such improvements made with or without Landlord’s written consent shall become part of the Property unless Landlord requires Tenant to remove the improvements at the expiration or earlier termination of the Lease, such election to be made solely by Landlord and at the time of approving said alterations. If Landlord elects to require removal, the Tenant will return the Property to the same condition it was in immediately prior to the improvements.
Trade fixtures and office furniture shall be installed so as to be readily removable without injury to the Property or any injury caused by said removal shall be repaired immediately at Tenant’s expense. Said trade fixtures shall be removed from the Property before the end of this Lease or shall be deemed abandoned by Tenant. Tenant shall not install or maintain any equipment, partitions, furniture, etc. which the weight or the operation of which would tend to injure or be detrimental to the Property.
Notwithstanding the foregoing, Landlord’s consent shall not be required with respect to any non-capital alterations that (a) cost less than $50,000.00 on a per-project basis; (b) do not materially affect the Property’s systems, structural components, or exterior; and (c) do not adversely affect the market value or utility of the Property. All alterations by Tenant shall be performed with due diligence, in a good and workmanlike manner consistent with industry standards in the Charleston, South Carolina area for design and construction of first-class office buildings, in compliance with all laws (including any Xxxxxx Island restrictions), and shall be promptly paid for by Tenant.
8
satisfactory to Landlord before consent shall be given. Tenant shall not be entitled directly or indirectly to sublet the Property or to assign, sell or transfer this Lease or any portion thereof except pursuant to this Section. Any attempted transfer or sublet other than in accordance with this Section shall be null and void ab initio and shall constitute a default under this Lease. If Tenant desires to transfer any rights hereunder and to request a release from this lease, Tenant may make a written request to Landlord for a release. Tenant acknowledges that Landlord shall have the right to negotiate a new Lease with such third party either under the same terms and conditions of this Lease or upon new terms and conditions. Landlord agrees to begin such negotiations upon the request of Tenant for a release from this Lease. Such request shall include Tenant’s deposit of an amount equal to two (2) months Base Rent in escrow to insure compliance with this Lease during the term of negotiations with any third party introduced to Landlord by Tenant and shall further include the deposit of such other sums, including (1) a sum sufficient in Landlord’s opinion to reimburse Landlord for all out-of-pocket expenses, including legal fees, actually incurred in the work related to the release and to the negotiations with the party to whom the Tenant desires to sell its equipment and (2) all sums agreed upon for the release. If Landlord agrees to execute a new lease for the Premises with a third party and if Tenant has paid Landlord all amounts required for the release, Tenant shall be released. However, if Landlord does not agree to execute a new lease with such third party, in Landlord’s sole discretion, but rather consents (in accordance with this Section) to a sublease under or an assignment of the Lease, Tenant shall not be released from its obligations under the Lease, and Landlord shall retain the necessary amount from the escrowed funds to pay Landlord’s out-of-pocket expenses in connection with such prior negotiation and the assignment or subleasing. If the amount escrowed is insufficient, Tenant shall immediately pay Landlord the deficiency.
Notwithstanding the foregoing and to the extent permitted by Landlord’s then mortgagee, Tenant shall have the right to mortgage its leasehold interest hereunder, provided, however, that Landlord shall not be required to subordinate its fee interest to any such leasehold mortgagee. Subject to Landlord obtaining the consent of its then mortgagee, Landlord agrees to consent in writing to the reasonable and customary rights of Tenant’s leasehold mortgagee. Landlord shall reasonably cooperate with Tenant in obtaining the consent of Landlord’s mortgagee any transaction described in this Section for which the consent of Landlord’s mortgagee is required, provided, however, that Landlord shall not be responsible to Tenant if Landlord’s mortgagee refuses to grant such consent or somehow conditions its consent, and further provided that, in any event, Tenant shall reimburse Landlord for its reasonable attorneys’ fees incurred in connection with any such request. Notwithstanding anything in this Section 14 to the contrary, in no event shall Landlord consent to any sublease, or assignment, or leasehold mortgage where Landlord’s mortgagee has refused or refrained from giving its consent to the same pursuant to its rights under applicable loan documents that are binding and enforceable against Landlord.
9
Notwithstanding the foregoing, in the event of any such damage and (a) Landlord reasonably has determined that Landlord shall not be provided sufficient insurance proceeds to repair,
10
restore, and replace the improvements as required hereunder or (b) the Property and the improvements located thereon shall be damaged to the extent of fifty (50%) percent or more of the cost of replacement, then, in either event, Landlord may elect either to repair or rebuild (in the manner provided in the preceding sentence) the improvements located on the Property or to terminate this Lease upon giving notice of such election in writing to Tenant within ninety (90) days after the occurrence of the event causing the damage (such notice to specify, in good faith, whether Landlord is terminating the Lease pursuant to subsection (a) and/or (b), above). In the event one of Landlord’s stated reasons for terminating the Lease is subsection (a), Tenant shall have the option of providing notice to Landlord (the “Notice”), within twenty (20) days of Landlord’s notice to Tenant, that Tenant, itself, shall pay the difference between the total amount of Landlord’s insurance proceeds made available to Landlord for such repair, restoration, and replacement and the Landlord’s total cost for the same. If Tenant provides the Notice to Landlord, the Lease and Landlord’s obligation to repair, restore and replace the damaged improvements as provided hereunder shall not terminate, provided that Tenant also provides to Landlord within twenty (20) days of the Notice reasonable evidence satisfactory to Landlord that it has sufficient funds available (including, without limitation, a binding commitment for a loan from a bank or other institutional lender). Notwithstanding that Tenant has provided the Notice and such reasonable evidence, Landlord shall not be required to commence construction of any repairs, replacements, or restorations the cost of which would be in excess of Landlord’s available insurance proceeds until Tenant has made available to Landlord its additional funds.
Notwithstanding anything to the contrary in this Section, and provided that the casualty to the Property does not arise from the acts or omissions of Tenant, its agents, employees, contractors, or invitees and further provided that such, casualty materially adversely affects Tenant’s use and occupancy of the Property, if the time necessary to repair any casualty (as reasonably estimated by an independent architect in the Charleston area mutually designated by Landlord and Tenant) following such casualty exceeds twelve (12) months from the date of casualty, then Tenant shall have the right to terminate this Lease upon written notice given to Landlord. If the casualty, repairing, or rebuilding shall render the Property untenantable, in whole or in part, and the damage shall not have been due to the default or neglect of Tenant, a proportionate abatement of Base Rent shall be allowed from the date when the damage occurred until the date Landlord completes its work and Tenant is permitted to occupy the affected area, said proportion to be computed on the basis of the relation which the gross square foot area of the space in the building rendered untenantable bears to the entire building. If the time to cure exceeds the time remaining on the balance of the Lease, Tenant may promptly give written notice and vacate Property with no penalties. This abatement shall not apply unless there is sufficient insurance payable to Landlord to cover all of Landlord’s loss of Rent.
11
which shall be required to restore the Property to a safe and usable condition, provided, however, that Landlord shall not be obligated to expend for such repair an amount in excess of the net condemnation award received by Landlord, and that in no event shall Landlord be required to repair or replace Tenant’s stock-in-trade, fixtures, furniture, furnishings, floor coverings and equipment, and Tenant shall be entitled to a proportionate abatement of Base Rent during the restoration period as provided for herein.
12
was at the beginning of the Term (subject to reasonable wear and tear and damage by casualty (to the extent not caused by Tenant or its employees, agents, contractors, or invitees) or condemnation) and free from any toxic or hazardous substances arising from Tenant’s acts. Tenant will pay to Landlord one and one-half (1.5) times the Base Rent until such clean up is completed. Tenant will indemnify and save Landlord harmless from and against all claims made by any succeeding Tenant of the Property against Landlord because of delay in delivering possession of the Property, so far as such delay is occasioned by failure of Tenant to so surrender the Property in such condition.
If to Landlord:
Duck Pond Creek-SPE, LLC
c/o DPC–SPE, LLC, its Managing Member
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
With a Copy to:
Xxxxxxxx X. Xxxxx, Esq.
Xxxxx, Xxx & Associates, LLP
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000
For Overnight Deliveries:
000 Xxxx Xxx Xxxxxx, Xxx. 000
Xxxxxxxxxx, XX 00000
Ph: 000-000-0000
Fax: 000-000-0000
If to Tenant:
Blackbaud, Inc.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
Blackbaud, Inc.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
13
29. Estoppel Certificates. Financial Statements.
Tenant or Landlord shall from time to time, within twenty (20) days following written notice from the other, execute, acknowledge and deliver to the requesting party a written statement certifying that this Lease is in full force and effect. This statement should also state whether or not the requesting party is in default in performance of any covenant and shall constitute an acknowledgment by the non-requesting party that this Lease is unmodified and in full force and effect, and shall constitute a waiver of any defaults by the non-requesting party which may have existed prior to the date of such notice. Time is of the essence in complying with this provision.
To the extent such information is otherwise publicly available, if requested by Landlord in writing to the Tenant, Tenant shall furnish to Landlord within one hundred twenty (120) days after the close of each fiscal year a balance sheet, as well as a profit and loss statement on Tenant for such fiscal year certified by Tenant to be correct and accurate and prepared in accordance with generally accepted accounting principles consistently applied and a quarterly profit and loss statement of Tenant.
14
The prevailing party shall also be entitled to its attorneys’ fees, costs, and expenses incurred in any post-judgment proceedings to collect and enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement.
15
The trier of fact shall determine the identity of the prevailing party..
36. Applicable Law. The parties executing this Lease acknowledge that the negotiations and anticipated performance of this Lease occurred or shall occur, and that this Lease is executed in the State of South Carolina; therefore, the parties irrevocably and unconditionally agree that South Carolina law shall govern the interpretation of this Lease and the rights and duties of the parties hereto.
40. Heirs, Successors and Assigns. This Lease shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective heirs, successors and assigns.
16
17
48. Memorandum of Lease. Upon request, either party shall execute, deliver and record in the land records of Berkeley County, South Carolina, a Memorandum of this Lease, the form and substance of which shall be mutually acceptable to the parties. At Landlord’s request, upon the expiration or earlier termination of this Lease, Tenant shall execute in recordable form and deliver to Landlord a Notice of Termination of Lease to be recorded in the land records of Berkeley County, South Carolina. If Tenant shall fail to comply with Landlord’s request within ten (10) days of Landlord’s request therefore, Landlord is entitled to execute the same on behalf of Tenant.
THIS IS A LEGALLY BINDING CONTRACT. TENANT IS ADVISED TO SEEK FURTHER ASSISTANCE IF THE CONTENTS ARE NOT UNDERSTOOD. TENANT ACKNOWLEDGES THE RECEIPT OF A COPY OF THIS AGREEMENT.
WITNESS: | LANDLORD: | |||||||
DUCK POND CREEK – SPE, LLC, a South Carolina limited | ||||||||
liability company | ||||||||
By: | DPC—SPE, LLC, a South Carolina Limited liability company, its managing member | |||||||
/s/ Xxxxxxxx Xxxxxxxx | By: | /s/ Xxxxxxx X. Xxxxxx | ||||||
/s/ Xxxxxxxx Xxxxx | Its: | Authorized Agent | ||||||
TENANT: | ||||||||
BLACKBAUD, INC., a Delaware corporation | ||||||||
/s/ Xxx X. Xxxxx | By: | /s/ Xxxxxxx X. Xxxxxxxx | ||||||
/s/ Xxxx Xxxxx-Xxxxxx | Its: | Chief Financial Officer |
18
EXHIBIT A
PROPERTY DESCRIPTION
19
EXHIBIT B
RENT
Tenant shall pay to Landlord Base Rent calculated at $16.75 Triple Net (“NNN”) per square foot (“SF”) at an agreed square footage of the building located on the Property (the “Building”) of Two Hundred Seventeen Thousand, Five Hundred Fifty Six (217,556) net SF in an amount equal to Three Million Six Hundred Forty-Four Thousand Sixty-Three and 00/100 Dollars ($3,644,063.00) payable in equal monthly installments of Three Hundred Three Thousand Six Hundred Seventy-One and 91/100 Dollars ($303,671.91).
The Base Rent shall escalate annually (including during any Option Term) at a rate equal to the percentage increase in the CPI (as hereinafter defined) for a given lease year over the CPI for the prior lease year (but in no event shall the Base Rent increase exceed 5.5% for any single year). The increase shall take effect beginning with the Rent payment due on the first anniversary date of the Lease and shall continue on each anniversary of the Lease thereafter, and shall be calculated based on the increase in the CPI published in July of the lease year for which the increase in Base Rent is being determined, over that published July one year before. “CPI” shall mean the Consumer Price Index – U.S. City Average for Urban Wage Earners and Clerical Workers, all Items (1982-84 = 100) of the United States Bureau of Labor Statistics, Series Id: CWUR0000SAO . In no event shall Base Rent for a given lease year ever be less than the Base Rent for the prior lease year.
As an example:
217,556 | total sqft | |||||||||
$ | 15.00 | $/sqft-current | ||||||||
June 2006 CPI | June 2007 CPI | % increase | ||||||||
198.6 | 203.906 | 2.67 | % | |||||||
persqft adjustment | $ | 0.40 | ||||||||
new sqft cost | $ | 15.40 | ||||||||
new annualized cost | $ | 3,350,526.72 | ||||||||
New Monthly cost | $ | 279,210.56 |
To calculate the October 2007 increase from a base cost of $15.00, using the data published by BLS, will result in a cost per sqft of $15.40 per sqft.
180 days prior to the end of the Initial Term or the first Option Term, as the case may be, Landlord and Tenant shall select a MAI appraiser (the “Agreed Appraiser”) satisfactory to both parties. Such Agreed Appraiser shall prepare an appraisal to determine the fair market value for renewal purposes (the “FMV”) and provide a written appraisal to both parties within thirty (30) days after such appointment.
20
If the parties are unable to agree on an Agreed Appraiser, each party shall, no later than twenty (20) days thereafter: 1) at its own cost, appoint a real estate appraiser (each an “Appointed Appraiser”) who is a member of the American Institute of Real Estate Appraisers, with at least ten (10) years’ full-time, commercial appraisal experience in Charleston County, South Carolina, including experience reasonably sufficient to appraise values in such area, to appraise and determine the FMV, and 2) notify the other party in writing of its selection. If any party does not appoint an Appointed Appraiser within such twenty (20) day period, the single Appointed Appraiser appointed by the other party shall be the sole appraiser and shall determine the FMV as described herein within thirty (30) days of his appointment.
If the two Appointed Appraisers are appointed by the parties, they shall each perform an appraisal (each an “Appointed Appraisal”) to determine the FMV of the leased space. Such Appointed Appraisals shall be completed and copies thereof submitted to both parties on or before the date which is forty-five (45) days after the appointment of the first Appointed Appraiser.
If the difference between the two Appointed Appraisals is equal to or less than 5% of the Appointed Appraisal which produced the lower FMV, then the average of the two Appointed Appraisals shall constitute the FMV.
If the difference between the two Appointed Appraisals is greater than 5% of the Appointed Appraisal which produced the lower FMV, then the two Appointed Appraisers shall attempt to select a third appraiser (the “Third Appraiser”) meeting the qualifications stated in this section within ten (10) days after the date of submission of the Appointed Appraisals. If the two Appointed Appraisers are unable to agree on the Third Appraiser, either of the parties, by giving ten (10) days notice to the other party, can submit the decision to arbitration. Landlord and Tenant shall each bear the cost of the Appointed Appraiser it has selected and one-half of the cost of appointing the Third Appraiser and of paying the Third Appraiser’s fee. The Third Appraiser, however selected, shall be a person who has not previously acted in any capacity for either party.
Within thirty (30) days after the selection of the Third Appraiser, the Third Appraiser shall prepare its own appraisal of the Commercial Tract in accordance with the requirements of this section (the ‘Third Appraisal”). If the FMV as determined by the Third Appraisal is between the amounts determined by the Appointed Appraisals, the amount determined by the Third Appraisal shall be the FMV. If the FMV as determined by the Third Appraisal is lower than the amount as determined by both of the Appointed Appraisals, the FMV shall be the lower of the amounts determined by the Appointed Appraisals. If the FMV as determined by the Third Appraisal is higher than the amount as determined by both of the Appointed Appraisals, the FMV shall be the higher of the amounts determined by the Appointed Appraisals.
21
EXHIBIT C
EXISTING EASEMENT
22
EXHIBIT D
STATE OF SOUTH CAROLINA
COUNTY OF BERKELEY | DECLARATION OF ACCESS AND PARKING EASEMENT |
THIS DECLARATION OF ACCESS AND PARKING EASEMENT (the “Declaration of Easement”) is made this day of , by DUCK POND CREEK-SPE, LLC, a South Carolina limited liability company (“Declarant”).
WHEREAS, Declarant is the landlord under that certain Triple Net Lease Agreement (the “Lease”) dated as of October 1, 2008, whereby Declarant leases to Blackbaud, Inc. (“Blackbaud”) as tenant certain real property consisting of approximately seventeen and six hundred seventy eight thousandths (17.678) acres, more or less, (the “Leased Parcel”) which is owned by Declarant; and
NOW, THEREFORE, Declarant hereby declares as follows:
1. | Recitals. The recitals set out above are incorporated herein by reference. |
2. |
23
3. |
4. |
5. |
24
25
WITNESSES | DUCK POND CREEK-SPE, LLC, a South | |||||||
Carolina limited liability company | ||||||||
By: | DPC–SPE, LLC, a South Carolina limited liability company, its managing member | |||||||
/s/ Xxxxxxxx Xxxxx | By: | /s/ Xxxxxxx X. Xxxxxx | ||||||
/s/ Xxxxxxxx Xxxxxxxx | Its: | Authorized Agent |
SOUTH CAROLINA
ACKNOWLEDGMENT
BERKELEY COUNTY
I, the undersigned Notary Public do hereby certify that Xxxxxxx Xxxxxx personally appeared before me this day and acknowledged that he is the authorized agent of DPC-SPE, LLC, a South Carolina limited liability company and managing member of DUCK POND CREEK-SPE, LLC, a South Carolina limited liability company, and that by authority duly given as the act of the limited liability company, the foregoing instrument was signed by him as its Manager under seal. Witness my hand and official seal this 5 day of December, 2008.
/s/ Xxxxxxxx Xxxxxxxx |
Notary Public for |
My Commission Expires: 2-21-17 |
26
WITNESSES | BLACKBAUD, INC., a Delaware corporation | |||||
/s/ Xxx X. Xxxxx | By: | /s/ Xxxxxxx X. Xxxxxxxx | ||||
/s/ Xxxx Xxxxx-Xxxxxx | Its: | CFO |
SOUTH CAROLINA
ACKNOWLEDGMENT
BERKELEY COUNTY
I, the undersigned Notary Public do hereby certify that Xxx Xxxxxxxx personally appeared before me this day and acknowledged that he is the CFO of BLACKBAUD, INC., a Delaware corporation, and that by authority duly given as the act of the corporation, the foregoing instrument was signed by him as its Representative under seal. Witness my hand and official seal this 24th day of October, 2008.
/s/ Xxxxxx Xxxx |
Notary Public for |
My Commission Expires: 1/17/2017 |
27
(PAGE FOR ANY OTHER LESSEE OR MORTGAGEE)
WITNESSES | ________________________________________________, | |||||
a corporation | ||||||
| By: | |||||
Its: | ||||||
|
STATE OF
ACKNOWLEDGMENT
COUNTY OF
I, the undersigned Notary Public do hereby certify that personally appeared before me this day and acknowledged that he is the of , a corporation, and that by authority duly given as the act of the corporation, the foregoing instrument was signed by him as its under seal. Witness my hand and official seal this day of , .
|
Notary Public for |
My Commission Expires: |
28
EXHIBIT A
TO
DECLARATION OF ACCESS AND PARKING EASEMENT
29
EXHIBIT B
TO
DECLARATION OF ACCESS AND PARKING EASEMENT
00
XXXXXXX X
XXXXX XX XXXXX XXXXXXXX | ) | |||
) | CAPITAL REPLACEMENT | |||
COUNTY OF BERKELEY | ) | ESCROW AGREEMENT |
THIS CAPITAL REPLACEMENT ESCROW AGREEMENT (the “Agreement”) is made this day of , 2008 by and between DUCK POND CREEK - SPE, LLC, a South Carolina limited liability company (“Landlord”) and BLACKBAUD, INC., a Delaware corporation (collectively referred to hereinafter as “Tenant”).
R E C I T A L S
A) | Landlord currently leases certain property together with improvements thereon (the “Property”) located in Berkeley County, South Carolina, said Property currently referred to as the Blackbaud building, pursuant to that certain lease dated , 1999 (the “Lease”). |
B) | The Lease is being re-negotiated, and Landlord and Tenant are entering into a new lease (the “New Lease”) effective October 1, 2008, the terms and conditions of which have been negotiated by the parties. |
C) | As a condition of the New Lease, Landlord has agreed to provide Tenant with this Agreement, which establishes an escrow account for capital improvements to the Property. |
In consideration of the New Lease from Tenant to Landlord, the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows:
1. | Definitions. As used in this Agreement, the following terms shall have the meanings indicated, unless the context otherwise requires. |
a) | Capitalized Repair and Maintenance shall mean those certain items of the Property, the costs of which are normally capitalized under generally accepted accounting principles, but specifically excluding routine maintenance items. Capitalized Repair and Maintenance shall also include Replacement Property (hereinafter defined). |
b) | Replacement Property shall mean all installed machinery and fixtures (including fire sprinklers, alarm systems, air conditioning, heating, |
31
refrigerating, and electronic monitoring), generator, kitchen equipment, roof, carpet and floor coverings, but specifically excluding all personal property, office furniture, office equipment and supplies of any nature whatsoever. |
2. | Deposits to Escrow Account. During the New Lease term (including renewals thereof) Landlord will make available to Tenant the sum of Four Million and 00/100 Dollars ($4,000,000.00) for Capitalized Repair and Maintenance (the “Escrow Account”). The funds for the Escrow Account will be drawn down as needed from a Letter of Credit (the “LOC”) provided by Landlord for the benefit of Tenant. The issuer of the LOC shall be a financial institution with assets of not less than Two Billion Five Hundred Million Dollars ($2,500,000,000.00) acceptable by Tenant, such acceptance not to be unreasonably withheld. All sums deposited into the Escrow Account are sometimes referred to hereinafter as deposits (“Deposits”). The Escrow Account and the respective Deposits shall be held in the name of Tenant but shall be disbursed or applied only as specifically set forth herein. |
3. | Periodic Disbursements from Escrow Account. Upon written notice from Tenant to Landlord and Tenant’s satisfaction of all requirements and conditions hereinafter set forth, Tenant shall make periodic disbursements of Deposits from the Escrow Account to pay for the actual costs of Capitalized Repair and Maintenance. |
a) | Tenant shall submit to Landlord (not less than 30 days prior to the proposed date of any disbursement) a written request for disbursement and a certificate (“Certificate”) executed by Tenant describing the Capitalized Repair and Maintenance desired by Tenant together with a certification of the total costs to be incurred and drawn down as a Deposit (the “Replacement Costs”). Tenant shall also certify that the Capitalized Repair and Maintenance will be completed: (i) in accordance with all applicable laws, ordinances and regulations of any governmental office or authority having jurisdiction over the Property; (ii) in a good and workmanlike manner in accordance with any plans and specifications previously approved by Landlord; and (iii) in accordance with applicable insurance requirements including those of insurance underwriters. In cases of safety, power restoration, facility restoration, building infrastructure Time is of the Essence and will override the 30 day notice period. |
b) | The Certificate or supplement thereof shall be accompanied by copies of all invoices and work orders, purchase orders, checks and all other documentation explaining any work to be performed, the costs of the materials and labor therefore, or other evidence satisfactory to Landlord supporting the purchase of such materials or labor. |
32
c) | Tenant shall submit to Landlord copies of executed mechanic’s lien waivers by all contractors or suppliers whose contracts, invoices or purchase orders exceed $25,000.00. |
d) | Landlord shall have the right, but not the obligation, at Landlord’s sole cost and expense, to have the Property inspected to verify that all work has been completed to Landlord’s satisfaction and is consistent with the applicable Certificate. |
e) | Tenant shall not make a request for a periodic disbursement from the Escrow Account more frequently than every three (3) months. Tenant shall not request any disbursement from the Escrow Account in an amount less than $100,000.00. |
f) | Prior to disbursing funds from the Escrow Account, Landlord may require that Tenant provide Landlord any documentation necessary for the issuance of any applicable title insurance endorsements as reasonably required by Landlord and Landlord’s lender. |
4. | Performance of Capitalized Repair and Maintenance. |
a) | Tenant represents and warrants all work constituting Capitalized Repair and Maintenance shall be performed in a good and workmanlike manner, and the quality of the work shall be commensurate and consistent with the quality of work performed in connection with the original construction of the improvements on the Property. All such items shall comply with all applicable laws, ordinances, rules and regulations of all governmental authorities having jurisdiction over the Property, including applicable building codes, special use permits, environmental regulations and applicable insurance requirements, including those of insurance underwriters. |
b) | Landlord shall have the right to approve all contracts or work orders which aggregate $100,000.00 or more with contractors, subcontractors, suppliers or other parties providing labor or materials in connection with such Capitalized Repair and Maintenance. Landlord shall not unreasonably withhold approval. |
c) | Tenant warrants, represents and covenants that each item of Capitalized Repair and Maintenance shall be constructed, installed or completed, as applicable, free and clear of any mechanic’s, materialmen’s or other liens of any nature whatsoever. |
33
d) | Nothing in this paragraph or in this Agreement shall make Landlord responsible for making or completing any item of Capitalized Repair and Maintenance, require Landlord to expend funds in excess of the Escrow Account or require Landlord to warrant any such work after it is completed except for those items Landlord is responsible in section 10 of the Lease. |
5. | Entry onto Property; Inspections. Tenant shall permit Landlord or Landlord’s representatives (including an independent engineer, architect or inspector) in connection with any item of Capitalized Repair and Maintenance to enter onto the Property during normal business hours and reasonable prior notice to: (i) inspect the progress of any items and all materials being used in connection therewith; (ii) examine all plans and shop drawings relating to such item; and (iii) inspect all books, records, contracts, subcontracts and other files of Tenant respecting such item. Tenant agrees to use its best efforts to cause all contractors and subcontractors to cooperate with Landlord, Landlord’s representatives, and such other persons as may enter the Property as described in this section. |
6. | Prohibited Disbursements from Escrow Account. There will be no disbursement requests for any Capital Repair and Maintenance within six (6) months of the end of any lease term or renewal term thereof, as defined in the New Lease, unless: 1) such disbursement is necessary for heating or cooling the Property, or 2) the Tenant has exercised a renewal right under the New Lease. |
7. | Default. In the event of default, the non-defaulting party shall be able to pursue any and all available remedies at law or equity with the non-prevailing party paying all reasonable costs and attorneys’ fees. The trier of fact shall determine who is the prevailing party. |
8. | Indemnity of Landlord. Tenant is in total control of all aspects of the work contemplated herein; therefore, Tenant shall save, defend, indemnify and hold Landlord and its agents, employees, contractors, and managers harmless from and against any and all cost, expense, liability, damage, claim or assertion, including attorneys’ fees and litigation expenses that may be incurred by or made against Landlord or any such persons or entities arising from or related to any item of Capitalized Repair and Maintenance or by reason of this Agreement, including any claims of mechanic’s liens. Should Landlord incur any such liability, then Tenant shall promptly reimburse Landlord any and all cost, expense, liability or damage arising therefore, including, but not limited to, reasonable attorneys’ fees. |
34
9. | Tenant’s Records. Tenant shall furnish such financial statements, invoices, records, papers and documents relating to the Capitalized Repair and Maintenance as Landlord may reasonably require. |
10. | Successors and Assigns Bound. This Agreement shall be binding upon Tenant and Landlord and their respective successors and assigns, and shall inure to the benefit of and may be enforced by the Landlord and its successors, transferees and assigns. Tenant shall not assign any of its rights and obligations under this Agreement without the prior written consent of Landlord which consent will not be unreasonably withheld, conditioned or delayed. |
11. | No Third Party Beneficiary. This Agreement is intended solely for the benefit of Tenant and Landlord and their respective successors and assigns, and no third party shall have any rights or interest in the Deposits, the Escrow Account or this Agreement. Nothing contained in this Agreement shall be deemed or construed to create an obligation on the part of Landlord to any third party nor shall any third party have a right to enforce against Landlord any right that Tenant may have under this Agreement. |
12. |
13. |
14. |
35
not be reasonable for either of them to rely on any alleged, non-written amendment to this Agreement; (ii) irrevocably waive any and all right to enforce any alleged, non-written amendment to this Agreement; and (iii) expressly agree that it shall be beyond the scope of authority (apparent or otherwise) for any of their respective agents to agree to any non-written modification of this Agreement. No specific waiver of any of the terms of this Agreement shall be considered as a general waiver. |
15. |
16. |
17. |
18. | Time of Essence. Time is of the essence with respect to all provisions in this Agreement. |
19. |
a) | All references herein to numbered Articles or Sections or to lettered exhibits are references to the Articles and Sections hereof and the exhibits annexed to this Agreement unless expressly otherwise designated in context. |
b) | The terms “include,” “including” and similar terms shall be construed as if followed by the phrase “without being limited to.” |
c) | Words of masculine, feminine, or neuter gender shall mean and include the correlative words of the other genders, and words importing the singular number shall mean and include the plural number, and vice versa. |
36
d) | The terms “person” and “party” shall mean any individual, sole proprietorship, partnership, joint venture, trust, unincorporated organization, association, corporation, institution, entity or government (whether Federal state, county, city, municipal or otherwise, including an instrumentality, division, agency, body or department thereof). |
e) | All Article, Section and Exhibit captions herein are used for convenience and reference only and in no way define, limit or describe the scope or intent of, or in any way affect, this Agreement. |
f) | No inference in favor of, or against, any party shall be drawn from the fact that such party has drafted any portion hereof. |
g) | The cover page, if any, and all recitals set forth in, and all Exhibits to, this Agreement are hereby incorporated in this Agreement. |
20. |
WITNESSES: | LANDLORD: | |||||||||
DUCK POND CREEK – SPE, LLC, a South Carolina limited | ||||||||||
liability company | ||||||||||
By: | DPC–SPE, LLC, a South Carolina Limited liability company, its managing member | |||||||||
/s/ Xxxxxxxx Xxxxxxxx | By: | /s/ Xxxxxxx X. Xxxxxx | ||||||||
Name: | Xxxxxxx X. Xxxxxx | |||||||||
/s/ Xxxxxxxx Xxxxx | Its: | Authorized Agent | ||||||||
WITNESSES: | TENANT: | |||||||||
BLACKBAUD, INC., a Delaware corporation | ||||||||||
/s/ Xxx X. Xxxxx | By: | /s/ Xxxxxxx X. Xxxxxxxx | ||||||||
Name: | Xxx Xxxxxxxx | |||||||||
/s/ Xxxx Xxxxx-Xxxxxx | Its: | CFO |
37