EXHIBIT 10.18
LEASE AGREEMENT BY AND BETWEEN
DUKE-WEEKS REALTY LIMITED PARTNERSHIP, as Landlord
AND
XXXXXXXX.XXX, INC., as Tenant
AT
ENTERPRISE CENTER II,
MORRISVILLE, NORTH CAROLINA
TABLE OF CONTENTS
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1. PREMISES AND TERM.
2. BASE RENT, EXPENSES, AND LETTER OF CREDIT.
3. UTILITIES.
4. COMPLIANCE WITH LAWS AND USE.
5. REPAIR AND MAINTENANCE.
6. ALTERATIONS.
7. SIGNS.
8. INSPECTION.
9. ASSIGNMENT AND SUBLETTING.
10. FIRE AND CASUALTY DAMAGE.
11. LIABILITY AND INSURANCE.
12. CONDEMNATION.
13. HOLDING OVER AND TERMINATION.
14. QUIET ENJOYMENT.
15. EVENTS OF DEFAULT.
16. REMEDIES.
17. LANDLORD'S LIEN.
18. MORTGAGES.
19. MECHANIC'S LIENS.
20. NOTICES.
21. BROKER'S CLAUSE.
22. LANDLORD'S LIABILITY.
23. RULES AND REGULATIONS.
24. HAZARDOUS MATERIALS.
25. COVENANT OF TENANT.
26. MISCELLANEOUS.
EXHIBIT A - THE LAND
EXHIBIT B - FLOOR PLAN
EXHIBIT C - FINAL PLANS AND SPECIFICATIONS
EXHIBIT C-1 - PRELIMINARY PLANS AND SPECIFICATIONS
EXHIBIT C-2 - PROJECT SCHEDULE
EXHIBIT D - RULES AND REGULATIONS
EXHIBIT E - SIGN CRITERIA
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), is made and entered into as of the 19th
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day of October, 1999, by and between DUKE-WEEKS REALTY LIMITED PARTNERSHIP, an
Indiana limited partnership (the "Landlord"), and XXXXXXXX.XXX, INC. (the
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"Tenant").
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W I T N E S S E T H:
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1. PREMISES AND TERM.
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(a) PREMISES. In consideration of the obligation of Tenant to pay
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rent as herein provided, and in consideration of the other terms,
provisions and covenants hereof, Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord, certain premises as described below
(referred to herein collectively as the "Premises") in a building known as
Enterprise Center II (the "Building") on certain land (the "Land") in the
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County of Wake, Town of Morrisville, State of North Carolina, more
particularly described on Exhibit A, attached hereto and incorporated
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herein by reference, together with all rights, privileges, easements,
appurtenances and immunities belonging to or in any way pertaining to the
Premises. The Premises shall include the following space:
(i) Approximately 17,601 rentable square feet (the "Phase I Expansion
Space")
(ii) Approximately 27,200 rentable square feet (the "Phase II Expansion
Space")
(iii) Approximately 24,175 rentable square feet (the "Phase III Expansion
Space").
(iv) Approximately 24,153 rentable square feet (the "Phase IV Expansion
Space").
All measurements of the Premises shall be performed using the dripline
standard of Landlord.
A floor plan of the Premises is attached hereto and made a part
hereof as Exhibit B. Except as provided herein, Tenant is leasing the
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Premises "as is." The taking of possession by Tenant shall be deemed
conclusively to establish that the Premises and any improvements thereto
are in good and satisfactory condition as of when possession was taken
subject to latent defects, and to a punchlist of items requiring repair
which shall be prepared by Landlord and Tenant on the Phase I Commencement
Date (as defined below). Tenant further acknowledges that no
representations as to the repair of the Premises, nor promises to alter,
remodel or improve the Premises have been made by Landlord, unless such
representations or promises are expressly set forth in this Lease. Within
five days of the Phase I Commencement Date, Tenant shall, upon demand of
Landlord, execute and deliver to Landlord a letter of acceptance of
delivery of the Premises, acknowledging the Commencement and Termination
Dates of this Lease.
Any upfit of the Premises shall be performed by Landlord in
accordance with plans and specifications for the Premises (the "Plans") and
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in a good and workmanlike manner using building standard materials of
Landlord. The Plans are subject to the mutual and reasonable approval of
Landlord and Tenant, and upon the mutual and reasonable approval of
Landlord and Tenant, a copy of the Plans shall be attached hereto and made
a part hereof as Exhibit C. Preliminary plans and specifications for the
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Premises are attached hereto and made a part hereof as Exhibit C-1. Upon
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the attachment of Exhibit C, Exhibit C-1 shall be null and void. A schedule
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for the completion of the upfit of the Premises is attached hereto and made
a part hereof as Exhibit C-2. Each party shall act in good faith and
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respond promptly to any request of the other party hereto for approval of
any portion of the Plans. Landlord shall provide Tenant with an upfit
allowance for the Premises at the rate of $1.00 per rentable square foot
per year of the Lease term to complete the upfit in accordance with the
mutually approved Plans (the "Upfit Allowance"). Any cost and expense
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incurred by Landlord in upfitting the Premises in excess of the Upfit
Allowance (the "Excess") due to modifications to the Plans requested by
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Tenant shall be borne by Tenant and payable by Tenant to Landlord within
thirty days of demand therefor. Failure by Tenant to pay any portion of the
Excess as aforesaid is an event of default hereunder and shall entitle
Landlord to exercise all remedies available at law, or in equity for such
event of default. Each party shall act in good faith and respond promptly
to any request of the other party hereto for approval of any portion of the
Plans.
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Tenant shall have the right to use architectural, engineering, and
contracting providers of its selection for the performance of the design
and construction work at the Premises but Tenant shall allow the related
entities of Landlord to bid to perform such services. Should Tenant hire a
general contractor for the upfit of the Premises other than Duke-Weeks
Construction Services, Inc., Landlord shall charge a three percent
supervisory fee for its review of the work performed at the Premises.
Should Tenant fail to exhaust the Upfit Allowance in its upfit of the
Premises, the base rent over the term of the Lease shall be adjusted in an
equal amount each month as shall be mutually and reasonably determined by
the parties hereto. Tenant shall have no further rights to use the Upfit
Allowance after the first anniversary of the Phase I Commencement Date.
Landlord shall ensure that all Building systems are in good and
working order as of the Phase I Commencement Date.
(b) TERM.
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TO HAVE AND TO HOLD the same for a term as follows:
(i) the term of this Lease for the Phase I Expansion Space shall commence
upon the date that a temporary certificate of occupancy is issued for same
by the Town of Morrisville, NC (the "Phase I Commencement Date"),
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(ii) the term of this Lease for the Phase II Expansion Space shall
commence upon the date which is sixty days after the Phase I Commencement
Date (the "Phase II Commencement Date"), and
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(iii) the term of this Lease for the Phase III Expansion Space shall
commence upon the date which is ninety days after the Phase I Commencement
Date (the "Phase III Commencement Date"), and
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(iv) the term of this Lease for the Phase IV Expansion Space shall commence
upon the end of the term of the sublease by and between Tenant and Applied
Innovation, Inc. which is scheduled for February 9, 2002 (the "Phase IV
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Commencement Date").
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The term of the Lease for the Premises shall end on the date which is
sixty-three (63) months after the Phase I Commencement Date, (the
"Termination Date") unless sooner terminated pursuant to the provisions
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hereof.
The commencement date of any portion of the Premises, and Termination
Date of same may be extended, at the option of the Landlord, due to delays
beyond the control of Landlord, including, but not limited to, permitting,
availability of materials, acts of God, delays caused by Tenant, its
agents, employees, invitees, licensees, or independent contractors, and/or
inclement weather (collectively, "Excused Delays"). In the event the
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Commencement Date for the Phase I Expansion Space has not occurred by March
1, 2000 (with such date being extended for any Excused Delays), Landlord
shall credit against the first installment(s) of base rent due hereunder
from Tenant an amount equal to one day's base rent for each day the
Commencement Date for the Phase I Expansion Space is delayed beyond March
1, 2000. The aforesaid monetary amounts shall act as a full and complete
remedy to Tenant for the delay by Landlord in delivering the Premises. In
the event the Commencement Date for the Phase I Expansion Space has not
occurred by March 1, 2000 due to delays caused by Tenant, its agents,
employees, invitees, licensees, or independent contractors (a "Tenant
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Delay"), including, but not limited to, the failure of Tenant to deliver
the Security (as hereinafter defined) to Landlord in accordance with the
provisions of Paragraph 2(f) below, Tenant shall remit to Landlord on or
prior to the Phase I Commencement Date one day of base rent for each day of
delay beyond March 1, 2000.
(c) OPTION TO RENEW. Tenant shall have the option to renew the term
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of the Lease for one renewal period (the "Renewal Term") of three (3) lease
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years in
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duration, provided that Tenant shall not be in default under the Lease on
the date such rights are exercised, or on the date the Renewal Term shall
commence. The date of the commencement of the Renewal Term shall be the day
after the expiration of the then current term of the Lease, as renewed
(unless sooner terminated as provided herein).
All terms and conditions of this Lease shall be in effect during the
Renewal Term, except that (i) the base rent paid by Tenant during the
Renewal Term shall increase each lease year by three percent over the base
rent paid the previous lease year, as reasonably determined, and (ii) upon
the exercise of the right to renew for the Renewal Term, all rights of
Tenant to renew the term of this Lease shall lapse. Tenant shall deliver
Landlord written notice of its election to exercise its option to renew no
less than nine (9) months prior to the expiration of the then current Lease
term; failing which Tenant's right to renew for the Renewal Term shall be
null and void. Notwithstanding the foregoing, in no event shall the base
rent due and payable by Tenant during the Renewal Term be less than the
base rent paid the final year of the initial term hereof. This option to
renew is personal to Tenant and shall not inure to the benefit of any
successor or assign of Tenant.
(d) FUTURE SPACE. Provided there is no default or event of default
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under this Lease by Tenant at the time such right is exercised or upon the
Election Date (as defined below), and that upon Tenant's notice ("Notice")
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to Landlord sent after January 1, 2002 of its need for a minimum of 40,000
additional rentable square feet (the "Future Space"), Landlord shall notify
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Tenant within three months of its receipt of the Notice that Landlord shall
be unable to provide space for the expansion of Tenant in the Building, or
the relocation of Tenant to any other building owned by Landlord or a
related entity of Landlord within twelve months of the receipt by Landlord
of the Notice (the "Landlord Notice"), Tenant shall have the right and
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option to terminate this Lease by providing Landlord written notice of such
termination within ten business days of its receipt of the Landlord Notice.
The Notice shall advise Landlord as to whether or not Tenant desires multi-
story or single-story space; if multi-story, the yield to Landlord shall be
eleven and one-quarter percent (11.25%), and if single-story, the yield to
Landlord shall be eleven and one-half percent (11.50%). If Tenant shall
elect to terminate this Lease as aforesaid and provided that all of the
aforesaid conditions precedent are satisfied in full by Tenant, this Lease
shall terminate as of January 1, 2003 (the "Election Date"). In the event
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Tenant elects to terminate this Lease in accordance with the terms hereof,
Tenant shall vacate the Premises on or prior to the Election Date in
accordance with the terms of this Lease, remove its personal property
therefrom in accordance with the terms of this Lease, this Lease shall
terminate, and the parties hereto shall have no further liability to each
other hereunder except as expressly provided herein. Tenant acknowledges
and agrees that in order for Landlord to provide the Future Space to
Tenant, the term remaining under the initial lease term shall be extended
for a period of seven years from the date of occupancy of the New Space.
Should Landlord be able to provide the Future Space as aforesaid, and
should (i) the parties hereto enter into a lease agreement (the "New
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Lease") for a space with a rentable square footage at least equal to that
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of the Premises and the Future Space (collectively, the ("New Space"), and
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upon such additional terms as the Landlord and Tenant shall mutually agree,
(ii) Tenant enter into occupancy of the New Space, and (iii) there be no
default or event of default by Tenant under the New Lease, or this Lease on
the date the New Space is delivered by Landlord to Tenant for occupancy
thereunder, this Lease shall terminate, and the parties hereto shall have
no further liability to each other hereunder, except as expressly provided
herein.
Should Tenant fail to comply with the conditions precedent to the exercise
of its right under this subparagraph (d) strictly in accordance with this
subparagraph (d), the rights provided to Tenant hereunder shall be null and
void and of no further force and effect.
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2. BASE RENT, TAXES, INSURANCE, CAM EXPENSE, AND SECURITY DEPOSIT.
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(a) BASE RENT.
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Commencing upon the Phase I Commencement Date and continuing until the
Termination Date, Tenant agrees to make monthly payments of base rent to
Landlord for the Premises ("base rent"), in advance, without demand,
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deduction or offset, in lawful money of the United States, in the following
amounts:
Time Period Base rent per rentable square foot
For fifteen months following the Phase I Commencement Date $ 8.50
For months sixteen thru twenty-seven thereafter $ 8.76
For months twenty-eight thru thirty-nine thereafter $ 9.02
For months forty thru fifty-one thereafter $ 9.29
For months fifty-two thru sixty-three thereafter $ 9.57.
Rent payments for any fractional calendar month at the end, or the
beginning of the term of the Lease, shall be prorated. Notwithstanding the
foregoing, no base rent shall be due and payable for the (i) Phase II
Expansion Space until the first day of the third month after the Phase II
Commencement Date, and (ii) Phase III Expansion Space until the first day
of the fourth month after the Phase III Commencement Date.
(b) TAXES.
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Beginning on the Phase I Commencement Date and continuing for the
entire term hereof, Tenant shall pay to Landlord, as additional rental,
Tenant's pro rata share of all taxes, assessments and governmental charges
of any kind or nature whatsoever levied or assessed against the Land and
the Building by any municipality, county, or other governmental agency (the
"Taxes"), which shall be based upon the ratio of the square footage of the
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Premises to the total square footage of the Building. Tenant shall pay its
pro rata share of the Taxes in advance in equal monthly installments in
such amounts as are estimated for each year by Landlord at the beginning of
each calendar year during the term, each such installment being made along
with payments of base rent hereunder. Tenant's share of Taxes for the
initial year of the term is estimated by Landlord to be $.56 per square
foot per year.
(c) INSURANCE EXPENSE.
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Beginning on the Phase I Commencement Date and continuing for the
entire term hereof, Tenant shall pay to Landlord, as additional rental,
Tenant's pro rata share of the insurance premiums (the "Insurance Expense")
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for commercial general liability, and fire and extended coverage insurance
on the Building and the Land, which shall be based upon the ratio of the
square footage of the Premises to the total square footage of rentable
space in the Building. Tenant shall pay its pro rata share of the Insurance
Expense in advance in equal monthly installments in such amounts as are
estimated by Landlord at the beginning of each calendar year during the
term, each such installment being made along with payments of base rent
hereunder. Tenant's pro rata share of the Insurance Expense for the
initial year of the term is estimated by Landlord to be $.02 per square
foot per year.
(d) CAM EXPENSE.
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Beginning on the Phase I Commencement Date and continuing for the
entire term hereof, Tenant shall pay to Landlord, as additional rental,
Tenant's pro rata share of the cost to Landlord of all the costs and
expenses of the operation, repair and maintenance of the Premises, the
Building, its interior and exterior common areas, and driveways and parking
areas, including, but not limited to, the costs of lawn maintenance,
driveway and parking area maintenance for the Premises and for the streets
and roadways providing access to the Building and the Land, reasonable
management and supervisory fees,
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exterior lighting maintenance, snow removal, repair and maintenance of
paved areas, cleaning supplies, miscellaneous building supplies, sweeper
brushes, supplies for materials used in common by all tenants of the
complex in which the Premises are located, external paint for the Building,
exterior and interior common area maintenance, elevator repair and
maintenance, external plumbing for the Building, utility costs for exterior
lighting and lighting in common areas, insect and pest extermination,
security guards for the complex in which the Premises are located, signs
for the complex in which the Premises are located, fuel for vehicles and
street sweepers used by Landlord in the complex in which the Premises are
located and miscellaneous maintenance expenses, heat, air conditioning,
labor, materials, supplies, equipment and tools, permits, licenses,
inspection fees, window glass replacement and repair, compensation
(including employment taxes and fringe benefits) of all persons who perform
actual duties in connection with the operation and/or maintenance of the
Building, and costs for janitorial expense, maintenance, repair, and
replacement of HVAC systems and other Building systems, and trash removal
from the Premises (hereinafter collectively, the "CAM Expense"). The pro
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rata share of Tenant for CAM Expense shall be based upon the ratio of the
square footage of the Premises to the total square footage of rentable
space in the Building. Tenant's pro rata share of the CAM Expense for the
initial year of the term is estimated by Landlord to be $1.28 per square
foot per year.
(e) RECONCILIATION OF EXPENSES.
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Landlord shall promptly notify Tenant of the total actual (i) Taxes
assessed against the Land and the Building, (ii) Insurance Expense, and
(iii) CAM Expense, attaching a copy of the tax or special assessment xxxx,
the insurance invoice, or the calculation of CAM Expense, as applicable,
and shall specify (i) Tenant's pro rata share thereof, and (ii) the excess,
if any, of Tenant's pro rata share over Landlord's estimation for such
calendar year. Tenant shall pay the excess amount so specified to Landlord
within thirty (30) days following receipt by Tenant of Landlord's letter.
Failure by Tenant to pay Landlord such amount within the period designated
shall constitute a non-payment of rent by Tenant and a default of Tenant's
obligation under the Lease, and Landlord shall be entitled to all remedies
provided for in this Lease upon default in payment of rent. If the first
year for which Tenant's pro rata share of Taxes, Insurance Expense, or CAM
Expense (hereinafter collectively, the "Expenses") are due or the final
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year of the term hereof do not coincide with the calendar year, Tenant's
pro rata share of Expenses for the portion of that year shall be prorated
according to the number of months during which Tenant was in possession of
the Premises. In the event Landlord's estimation of Expenses shall exceed
the actual amount of Expenses, the amount paid by Tenant for such year
shall be adjusted between Landlord and Tenant and Tenant shall receive a
credit against the next due installment of rent hereunder in such excess
amount unless this Lease has expired or been otherwise terminated, in which
event Landlord shall pay to Tenant such excess amount within thirty (30)
days following receipt by Tenant of Landlord's letter.
(f) SECURITY FOR LEASE OBLIGATIONS. To secure the performance by
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Tenant of its duties and obligations under this Lease, Tenant shall provide
to Landlord on or prior to the date that Landlord shall commence the upfit
of the first portion of the Premises one of the following, as approved by
Landlord, in its sole discretion, in form and substance: (i) a clean,
irrevocable, and unconditional letter of credit for the account of Tenant
and payable to the order of Landlord, its successor and assigns, as
beneficiary in the Required Amount (as hereinafter defined) from a
financial institution acceptable to Landlord (the "Letter of Credit"), (ii)
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an escrow of the Required Amount with Investors Title Insurance Corporation
(the "Title Company"), pursuant to an escrow agreement by and among the
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Title Company, Tenant, and Landlord, its successors and assigns (the
"Escrow Account") under which Landlord may draw unilaterally upon the
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letter of credit upon written notice to the Title Company, or (iii) a cash
deposit to Landlord in the amount of $500,000.00 to be held by Landlord in
an interest-bearing account (the "Security Deposit"). The Letter of
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Credit, Security Deposit, and the Escrow Account shall be referred to
herein collectively as the "Security". The Security shall act to secure
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all of the duties and obligations of Tenant under this Lease for the term
of this Lease, and any extensions or renewals thereof, and may be pursued
by Landlord for any default or event of default hereunder by Tenant. The
Required Amount shall be $500,000.00.
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Provided there is no default or event of default hereunder, Landlord shall
advise Tenant in writing that the Required Amount shall be reduced on each
anniversary of the Phase III Commencement Date by twenty percent of the
Required Amount. Should there be a default or event of default at the time
of the scheduled reduction, or at any time prior thereto, Landlord shall
not be required to reduce the Required Amount. Notwithstanding the
foregoing, if the net worth of Tenant as computed in accordance with
generally accepted accounting principles, shall equal or exceed
$30,000,000.00, Landlord shall release the Security to Tenant; provided,
however, if at any time during the term of this Lease, and any renewals or
extensions hereof, the net worth of Tenant shall be less than
$30,000,000.00, Tenant shall be required to deliver the Security in the
current Required Amount to Landlord within thirty days of the date that the
net worth of Tenant falls below $30,000,000.00. If Tenant shall fail to
deliver the Security to Landlord within thirty days of the date that the
net worth of Tenant falls below $30,000,000.00, it shall be an event of
default hereunder, without the requirement of notice or any cure period by
Landlord to Tenant.
Any portion of the Security which has not been appropriated by
Landlord in accordance with the provisions hereof shall be released to
Tenant upon the Termination Date.
If Landlord conveys Landlord's interest under this Lease, the
Security, or any part thereof not previously applied, may be released by
Landlord to Landlord's grantee, and if so released, Tenant agrees to look
solely to such grantee for the proper application and return thereof in
accordance with the terms of this Paragraph 2. Tenant agrees that Tenant
will not assign, and that neither Landlord, nor its successors and assigns,
shall be bound by any such assignment, encumbrance or pledge, attempted
assignment, attempted pledge, or attempted encumbrance of the Security.
Any mortgagee or ground lessor shall not be responsible to Tenant for
the return or application of the Security, whether or not it succeeds to
the position of Landlord hereunder, unless the Security shall have been
received in hand by such mortgagee or ground lessor. Landlord shall
endeavor to provide Tenant with written notice of any transfer of the
Security but shall not be in default hereunder due to any failure to do so.
Any fee due and payable for the Escrow Account shall be paid by
Landlord.
(g) PROVISIONS TO SURVIVE LEASE TERMINATION.
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Any unperformed obligations of Landlord and Tenant under this
Paragraph 2 shall survive the termination of the Lease, for whatever
reason, or any extension or renewal hereof.
3. UTILITIES.
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(a) Tenant shall pay all charges for all water, electrical,
telephone, sewer, and other utilities or services used on or from the
Premises, together with any taxes, penalties, surcharges or the like
pertaining thereto. Tenant shall also pay for any utility maintenance
charges and shall furnish all electric light bulbs and tubes required for
the Premises.
(b) Landlord shall in no event be liable for any interruption or
failure of utility services on the Premises unless any such interruption or
failure is due to the negligence or willful acts of Landlord and in such
event the sole liability of Landlord shall the costs to restore same.
Landlord agrees to provide at its cost, all utility line connections and
metering of services into the Premises.
4. COMPLIANCE WITH LAWS AND USE.
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(a) The Premises shall be used only for the following purposes: the
operation of a company conducting business over the internet and general
office use related thereto. Tenant shall conduct no activity that will
result in the discharge of harmful gases, effluents or other wastes or
toxic substances. Outside storage, including, without limitation, trucks
and other vehicles, is prohibited without Landlord's prior written
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consent. Tenant shall at its sole cost and expense obtain any and all
licenses and permits necessary for its use of the Premises. Tenant shall
comply in all material respects with all governmental laws, ordinances and
regulations relating to the use of the Premises, and shall promptly comply
with all governmental orders and directives for the correction, prevention
and abatement of nuisances in or upon, or connected with, the Premises, all
at Tenant's sole expense. Tenant shall not permit any objectionable or
unpleasant odors, smoke, dust, gas, noise or vibrations to permeate in or
emanate from the Premises, nor take any other action which would constitute
a nuisance or would disturb or endanger any other tenants of the Building
or unreasonably interfere with their respective premises. Without
Landlord's prior written consent, Tenant shall not receive, store or
otherwise handle any product, material or merchandise which is explosive,
inflammable, combustible, corrosive, caustic or poisonous except as
required in the ordinary course of the operation of the business of Tenant
and in compliance with all applicable laws. Tenant will not permit the
Premises to be used for any purpose or in any manner (including, without
limitation, any method of storage) which would render the insurance thereon
void or the insurance risk more hazardous or cause the State Board of
Insurance or other insurance authority to disallow any sprinkler credits.
Tenant shall give notice to Landlord immediately upon the occurrence of any
accident in the Premises or upon Tenant's discovery of any defects thereon
or in any fixtures or equipment located therein or upon the occurrence of
any emergency in the Premises or the Building.
(b) Tenant, at its expense, in its use of the Premises and in making
any alterations, renovations, upfit or modifications of the Premises shall
comply with all laws, ordinances, orders, rules and regulations of state,
federal, municipal or other agencies or bodies having jurisdiction relating
to the use, condition and occupancy of the Premises, including, but not
limited to, the provisions of the Americans with Disabilities Act of 1990,
as amended ("ADA"), and with recorded covenants, conditions and
restrictions applicable for the Land and Building.
(c) Landlord shall use all reasonable efforts to ensure that as of
the Phase I Commencement Date, the Premises are in compliance with all
applicable laws. Landlord warrants and represents that the upfit of the
Premises performed by Landlord shall be free from any defect in materials
used or workmanship performed for a period of one year from the Phase I
Commencement Date.
5. REPAIRS AND MAINTENANCE.
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(a) Landlord shall maintain, repair and replace only the roof,
downspouts, gutters, foundation, utility lines located outside the Premises
and the structural soundness and sufficiency for water repellence of the
exterior walls and exterior doors of the Building in good operating
condition, repair, reasonable wear and tear excepted. Tenant shall repair,
replace and pay for, any damage to the foregoing caused by the negligence
of Tenant or Tenant's employees, agents or invitees, or caused by Tenant's
default hereunder. The term "walls" as used herein shall not include
windows, glass or plate glass, exterior doors, special store fronts or
office entries. Tenant shall immediately give Landlord written notice of
defect or need for repairs, after which Landlord shall have reasonable
opportunity to repair same or cure such defect. Landlord's liability with
respect to any defects, repairs or maintenance for which Landlord is
responsible under any of the provisions of this Lease shall be limited to
the cost of such repairs or maintenance or the curing of such defect.
(b) Tenant shall at its own cost and expense maintain, repair and
replace all parts of the Premises (except those for which Landlord is
expressly responsible under the terms of this Lease, or which have been
damaged due to the negligence or willful acts of Landlord) in good
condition except for ordinary wear and tear, promptly making all necessary
repairs and replacements, including, but not limited to, windows, glass and
plate glass, doors, any special office entry, interior walls, finish work,
floors and floor covering, heating and air conditioning systems, dock
boards, truck doors, dock bumpers, plumbing work and fixtures and regular
removal of trash and debris from the Premises. Tenant shall not be
obligated to repair any casualty covered by the insurance to be maintained
by Landlord pursuant to subparagraph 10(a) below.
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(c) If either party hereto shall fail to fulfill its obligations
under this paragraph, the other party hereto may enter upon the area of the
Building or the Premises as required to conduct the obligations of the
defaulting party, and shall be entitled to reimbursement from the
defaulting party for its actual costs and expenses in conducting such
obligations. The defaulting party shall reimburse the other party hereto
for its actual costs and expense promptly upon demand made by the other
party hereto. The provisions of this subparagraph shall not be interpreted
to obligate either party hereto to conduct obligations of the other party
hereto.
(d) Tenant shall enter into a maintenance contract providing for the
periodic maintenance of all hot water, heating and air conditioning systems
and units in the Premises, and removal and replacement of filters, and
shall enter into a janitorial contract providing for the daily cleaning of
the Premises and the removal of all trash and debris. These contracts
shall be with parties and upon such terms and conditions as shall be
reasonably approved by Landlord. Tenant shall provide Landlord a copy of
such contracts within thirty days of the execution of this Lease.
(e) Tenant shall not damage any demising wall of the Building, or
disturb the integrity and support provided by any demising wall and shall,
at its sole cost and expense, promptly repair any damage or injury to any
demising wall caused by Tenant or its employees, agents or invitees.
(f) Tenant and its employees, customers and licensees shall have the
non-exclusive right to use the parking areas as may be designated by
Landlord in writing, subject to reasonable rules and regulations as
Landlord may from time to time prescribe and subject to rights of ingress
and egress of other tenants. Landlord shall not be responsible for
enforcing Tenant's parking rights against any third parties. Landlord may
require, at its option, in its sole discretion, that Tenant, its employees,
invitees, and visitors use certain numbered spaces to be designated by
Landlord. Tenant shall have the non-exclusive right to use parking on the
Land of up to four parking spaces per each 1,000 rentable square foot of
the Premises.
6. ALTERATIONS.
-----------
(a) Tenant shall not make any alterations, additions or improvements
to the Premises (including, but not limited to, roof and wall penetrations)
without the prior written consent of Landlord. Tenant may, without the
consent of Landlord, but at its own cost and expense and in a good
workmanlike manner, erect such shelves, bins, machinery and trade fixtures
as it may deem advisable, without altering the basic character or structure
of the Premises or improvements and without overloading or damaging the
Premises or improvements, and in each case complying with all applicable
governmental laws, ordinances, regulations and other requirements. Tenant
shall not make any alterations, additions or improvements to the Premises
which will contravene Landlord's policies insuring against loss or damage
by fire or other hazards, including but not limited to commercial general
liability, or which will prevent Landlord from securing such policies in
companies acceptable to Landlord. If any such alterations, additions or
improvements cause the rate of fire or other insurance on the Premises by
companies acceptable to Landlord to be increased beyond the minimum rate
from time to time applicable to the Premises for permitted uses thereof,
Landlord shall so notify Tenant and if Tenant shall fail to correct same
within ten days of demand made therefor, Tenant shall pay as additional
rent the amount of any such increase promptly upon demand by Landlord.
(b) Any and all alterations, additions, improvements, partitions and
fixtures erected by Tenant shall be the property of Landlord and shall
remain at the Premises upon termination of the Lease or upon earlier
vacating of the Premises. All shelves, bins, machinery and trade fixtures
installed by Tenant may be removed by Tenant prior to the termination of
this Lease provided such removal may be accomplished without damage to the
Premises or to the primary structure or structural qualities of the
Building and other improvements situated on the Premises. Tenant shall
repair any damage to the Premises, or to the Building as a result of any
alteration, addition, improvement, or repair to the Premises, or the
removal of personal property or trade fixtures by Tenant, its employees,
10
agents, invitees, or contractors to the Premises unless such requirement is
in writing by Landlord at the time of termination of the Lease. Should
Tenant fail to conduct any such repair within ten business days of written
notice from Landlord, Landlord may, at its option, perform same, and Tenant
shall remit payment to Landlord for the actual cost and expense incurred by
Landlord in effecting such repair immediately upon demand.
7. SIGNS. All signage of Tenant is subject to prior approval in writing
-----
by Landlord and subject to any applicable governmental laws, ordinances,
regulations and other requirements. Tenant shall remove all such signs upon the
termination of this Lease. Such installations and removals shall be made in
such manner as to avoid injury or defacement of the Premises, and Tenant shall
repair any injury or defacement, including, without limitation, discoloration of
the Building caused by such installation and/or removal. The sign criteria of
Landlord is attached hereto and made a part hereof as Exhibit E.
---------
8. INSPECTION. Landlord and Landlord's agents and representatives shall
----------
have the right to enter and inspect the Premises at any reasonable time during
business hours upon reasonable notice (except in the event of an emergency when
no notice shall be required, for the purpose of ascertaining the condition of
the Premises or in order to make such repairs as may be required or permitted to
be made by Landlord under the terms of this Lease or in order to show the
Premises to any prospective purchaser or lender. During the period that is six
(6) months prior to the end of the term hereof, Landlord and Landlord's agents
and representatives shall have the right to enter the Premises at any reasonable
time during business hours for the purpose of showing the Premises to any
prospective tenant and shall have the right to erect on the Premises a suitable
sign indicating the Premises are available. Tenant shall schedule with Landlord
at least sixty (60) days prior to vacating the Premises a time mutually
agreeable to the parties hereto for a joint inspection of the Premises prior to
vacating.
9. ASSIGNMENT AND SUBLETTING. Tenant shall not sublet the Premises or
-------------------------
the interest of Tenant therein in whole or in part, or assign this Lease or the
interest of Tenant therein in whole or in part, without the prior written
consent of Landlord, which consent Landlord shall not unreasonably withhold;
provided, however, Tenant shall have the right to sublease its interest in the
Phase II Expansion Space for a term not to exceed twenty-four months from the
Phase I Commencement Date. Tenant shall not have the right to subdivide the
Phase III Expansion Space in preparing it for sublease as aforesaid, and if
Tenant should receive rent from any subtenant of the Phase III Expansion Space
during any period of time that Tenant is not paying rent for such space to
Landlord, Tenant shall remit all rent due and payable from a subtenant to
Landlord. Tenant may not sell, lien, or encumber its interest in this Lease, or
assign or delegate the management or permit the use or occupancy of the Premises
in whole or in part by anyone other than Tenant without the prior written
consent of Landlord, which consent Landlord may withhold in its sole discretion.
Landlord and Tenant acknowledge and agree that the foregoing provisions have
been freely negotiated by the parties hereto and that Landlord would not have
entered into this Lease without Tenant's consent to the terms of this Paragraph
9.
In no event shall this Lease be assignable by operation of any law, and
Tenant's rights hereunder may not become, and shall not be listed by Tenant as
an asset under any bankruptcy, insolvency, or reorganization proceedings. No
assignment, transfer, mortgage, sublease or other encumbrance, whether or not
approved, and no indulgence granted by Landlord to any assignee or subtenant,
shall in any way impair the continuing primary liability (which after an
assignment shall be joint and several with the assignee) of Tenant hereunder,
and no approval in a particular instance shall be deemed to be a waiver of the
obligation to obtain Landlord's approval in any other case. If for any approved
assignment or sublease Tenant receives rent or other consideration, either
initially or over the term of the assignment or sublease, in excess of the base
rent hereunder, or in case of a sublease of part of the Premises, in excess of
the portion of such rent fairly allocable to such part, after appropriate
adjustments to assure that all other payments called for hereunder are
appropriately taken into account, Tenant shall pay to Landlord as additional
rent one-half of the full excess of each such payment of rent or other
consideration (net of leasing commissions and upfit costs) received by Tenant
promptly after its receipt.
Tenant shall provide Landlord with prior written notice of any change in
its ownership, or management; provided, however, upon becoming a publicly traded
company, Tenant shall not be required to notify Landlord of changes in
ownership. In the event of any change in management of Tenant, whether or not
Tenant has notified Landlord thereof, Landlord may terminate this
11
Lease by notice to Tenant effective ninety (90) days from the date of such
notice from Tenant, or the date on which Landlord first has knowledge of such
transfer, whichever shall first occur; provided, however, if such change in
ownership or management does not have a material adverse effect on the financial
or operating condition of Tenant, as reasonably determined by Landlord, Landlord
shall not have the right to terminate this Lease.
If Tenant is a partnership and if any partner or partners withdraw from the
partnership, or if the partnership is otherwise dissolved, Tenant shall so
notify Landlord. In the event of such withdrawal or dissolution, Landlord may
terminate this Lease by notice to Tenant effective thirty (30) days from the
date of such notice from Tenant or the date on which Landlord first has
knowledge of such withdrawal or dissolution, whichever shall first occur.
Notwithstanding any provision of this Lease to the contrary, should Tenant
receive consent from Landlord to sublease or assign all or a portion of its
interest in the Premises and seek to sublease or assign its interest in the
Premises in accordance with this paragraph, Tenant shall not use the name of
Landlord, any insignia of Landlord, or any likeness of the Building in any of
its advertising for such sublease or assignment.
10. FIRE AND CASUALTY DAMAGE.
------------------------
(a) Landlord agrees to maintain standard fire and extended coverage
insurance for the Building in an amount not less than the "replacement
cost" thereof as such term is defined in the Replacement Cost Endorsement
to be attached thereto, insuring against special causes of loss, including,
the perils of fire, and lightning, such coverages and endorsements to be as
defined, provided and limited in the standard bureau forms prescribed by
the insurance regulatory authority for the State of North Carolina.
Subject to the provisions of subparagraphs 10(c), 10(d) and 10(e) below,
such insurance shall be for the sole benefit of Landlord and under its sole
control.
(b) If the Premises should be damaged or destroyed by any peril
covered by the insurance to be provided by Landlord under subparagraph
10(a) above, Tenant shall give immediate written notice thereof to
Landlord.
(c) If the Premises should be totally destroyed by any peril covered
by the insurance to be provided by Landlord under subparagraph 10(a) above,
or if they should be so damaged thereby that rebuilding or repairs cannot
in Landlord's estimation be completed within two hundred (200) days after
the date upon which Landlord is notified by Tenant of such damage, this
Lease shall terminate and the rent shall be abated during the unexpired
portion of this Lease, effective upon the date of the occurrence of such
damage.
(d) If the Premises should be damaged by any peril covered by the
insurance to be provided by Landlord under subparagraph 10(a) above, but
only to such extent that rebuilding or repairs can, in Landlord's
estimation, be completed within two hundred (200) days after the date upon
which Landlord is notified by Tenant of such damage, this Lease shall not
terminate, and Landlord shall, at its sole cost and expense, thereupon
proceed with reasonable diligence to rebuild and repair the Premises to
substantially the condition in which they existed prior to such damage,
except that Landlord shall not be required to rebuild, repair or replace
any part of the partitions, fixtures, additions and other improvements
which may have been placed in, on or about the Premises by Tenant unless
any of same was paid for from the Upfit Allowance. If the Premises are
untenantable in whole or in part following such damage, the rent payable
hereunder during the period in which they are untenantable shall be reduced
to such extent as may be fair and reasonable under all of the
circumstances, as reasonably determined by Landlord and Tenant.
(e) Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering
the Premises requires that the insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease as
of the date of the casualty by delivering written notice of termination to
Tenant within fifteen (15) days after such requirement is made by any such
12
holder, whereupon all rights and obligations hereunder thereafter accruing
shall cease and terminate.
(f) Each of Landlord and Tenant hereby waives all rights to recover
against each other or against any other tenant or occupant of the Building,
or against the officers, directors, shareholders, partners, joint
venturers, employees, agents, customers, invitees, or business visitors of
each other for any loss or damage arising from any cause covered by any
insurance required to be carried by each of them pursuant to this Lease, or
any other insurance actually carried by either of them. Landlord and
Tenant shall cause their respective insurers to issue waiver of subrogation
rights endorsements to all policies of insurance carried in connection with
the Building or the Premises or the contents of either of them, and any
cost for the issuance of such endorsements shall be borne by the original
insured under such policies.
(g) The obligation of Landlord in this paragraph 10 to repair and
restore the Premises and the Building as provided herein, does not include
an obligation of Landlord to repair the fixtures, equipment, or personal
property of Tenant, which Tenant shall insure for its benefit, and Tenant
shall have the obligation to repair and restore in the event of a casualty
or other loss.
(h) The period of time within which repair and restoration of the
Premises must be completed shall be extended due to delays occasioned by
force majeure.
(i) Should Landlord fail to complete the repair and restoration
described above within the time periods provided above, as extended due to
force majeure (the "Estimated Completion Date"), and provided there is no
default or event of default hereunder by Tenant, Tenant shall have the
right to terminate this Lease by written notice to Landlord provided no
later than five days prior to the Estimated Completion Date.
11. LIABILITY AND INSURANCE. Landlord shall not be liable to Tenant or
-----------------------
Tenant's employees, agents, officers, partners, licensees or invitees, or to any
other person whomsoever, for any damage to property on or about the Premises
belonging to Tenant or any other person, due to any cause whatsoever, unless
caused by the gross negligence, willful or intentional misconduct of Landlord.
Tenant hereby covenants and agrees that it will at all times indemnify,
defend (with counsel reasonably approved by Landlord) and hold safe and harmless
Landlord (including, without limitation, its trustees and beneficiaries if
Landlord is a trust), and Landlord's agents, employees, patrons and visitors
from any loss, liability, claims, suits, costs, expenses, including without
limitation attorney's fees and damages, both real and alleged, incurred by
Landlord, its agents, employees, officers, partners, invitees, or licensees
arising out of or resulting from the occupancy by Tenant of the Premises, a
breach by Tenant of any provision of this Lease, or the conduct by Tenant of its
business in the Building.
Landlord hereby covenants and agrees that it will at all times indemnify,
defend (with counsel reasonably approved by Tenant) and hold safe and harmless
Tenant (including, without limitation, its trustees and beneficiaries if Tenant
is a trust), and Tenant's agents, employees, patrons and visitors from any loss,
liability, claims, suits, costs, expenses, including without limitation
attorney's fees and damages, both real and alleged, incurred by Tenant, its
agents, employees, officers, partners, invitees, or licensees arising out of or
resulting from a breach by Landlord of any provision of this Lease, or the
operation by Landlord of the Building.
Tenant shall procure and maintain throughout the term of this Lease a
policy or policies of insurance, at its sole cost and expense, naming Landlord
as an additional insured, and insuring both Landlord and Tenant against all
claims, demands or actions arising out of or in connection with: (i) the
Premises; (ii) the condition of the Premises; (iii) Tenant's operations in and
maintenance and use of the Premises; (iv) the equipment, personal property and
fixtures of Tenant located on the Premises; (v) any interruption in the conduct
of the business of Tenant on the Premises; (v) Tenant's liability assumed under
this Lease, and such other kinds of insurance as Landlord shall reasonably
request. The limits of coverage maintained by Tenant for (i) commercial general
liability shall be not less than $5,000,000.00 with respect to each occurrence,
not less
13
than $5,000,000.00 with respect to personal injury or death of a single person,
not less than $5,000,000 general aggregate, and not less than $5,000,000.00 with
respect to products completed operations aggregate, (ii) for business
interruption insurance shall be not less than coverage for actual loss, and
(iii) for replacement of the equipment, personal property and fixtures of Tenant
shall be not less than full replacement value.
All such policies shall be procured by Tenant from responsible insurance
companies satisfactory to Landlord. Certificates with respect to such policies
(provided the certificates provide satisfactory evidence of the coverage
included with no exclusions), together with receipt evidencing payments of
premiums thereof, shall be delivered to Landlord prior to the Phase I
Commencement Date. Not less than fifteen (15) days prior to the expiration date
of any such policies, certified copies of the renewals thereof (bearing
notations evidencing the payment of renewal premiums) shall be delivered to
Landlord. Such policies shall further provide that not less than thirty (30)
days prior written notice shall be given to Landlord before such policy may be
canceled or changed to reduce insurance provided thereby.
12. CONDEMNATION.
------------
(a) If the whole or any substantial portion of the Premises should be
taken for any public or quasi-public use under governmental law, ordinance,
or regulation, or by right of eminent domain, or by private purchase in
lieu thereof, and the taking would prevent or materially interfere with the
use of the Premises by Tenant for the purposes provided herein, this Lease
shall terminate and the rent shall be abated during the unexpired portion
of this Lease, effective when the physical taking of the Premises shall
occur.
(b) If a portion of the Premises shall be taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and the
use by Tenant of the Premises is not materially interfered with, this Lease
shall not terminate but the rent payable hereunder during the unexpired
portion of this Lease shall be reduced in an amount that shall be
reasonable under all of the circumstances.
(c) In the event of any such taking or private purchase in lieu
thereof, Landlord shall be entitled to receive and retain all awards as may
be awarded in any condemnation proceedings other than those specifically
awarded Tenant for a taking of Tenant's personal property, loss of business
and moving expenses.
13. HOLDING OVER AND TERMINATION.
----------------------------
(a) Tenant shall upon the termination of this Lease by lapse of time
or otherwise, yield up immediate possession to Landlord without the
requirement of notice by Landlord to Tenant of the termination of this
Lease, nor any grace or cure period should Tenant fail to yield up
immediate possession to Landlord. Unless the parties hereto shall
otherwise agree in writing, if Landlord agrees in writing that Tenant may
hold over after the expiration or termination of this Lease, the hold over
tenancy shall be subject to termination by Landlord at any time upon not
less than five (5) days advance written notice, or by Tenant at any time
upon not less than thirty (30) days advance written notice, and all of the
other terms and provisions of this Lease shall be applicable during that
period, except that Tenant shall pay Landlord from time to time upon
demand, as rental for the period of any hold over, an amount equal to one
and one-quarter (1-1/4) the rent in effect on the termination date,
computed on a daily basis for each day of the hold over period. No holding
over by Tenant, whether with or without consent of Landlord, shall operate
to extend this Lease except as otherwise expressly provided. The preceding
provisions of this Paragraph 13 shall not be construed as Landlord's
consent for Tenant to hold over.
(b) Upon the termination of this Lease for whatever reason, Tenant
shall quit and immediately surrender the Premises to Landlord, broom clean,
in good order and condition with all repairs and maintenance required by
Tenant hereunder having been performed, ordinary wear and tear and loss by
insured casualty that is the responsibility of Landlord to repair excepted,
and Tenant shall remove its personal property from the Premises in
accordance with this Lease. Should any of the personal property or trade
14
fixtures of Tenant remain upon the Premises five days after the Termination
Date, all such property shall be deemed abandoned by Tenant, and Landlord
may remove same at the cost and expense of Tenant with no liability to
Tenant therefore, and Tenant hereby releases Landlord from all liability
therefor.
14. QUIET ENJOYMENT. Landlord represents and warrants that it has full
---------------
right and authority to enter into this Lease and that Tenant, upon paying the
rental herein set forth and performing its other covenants and agreements herein
set forth, shall peaceably and quietly have, hold and enjoy the Premises for the
term hereof without hindrance or molestation from Landlord, subject to the terms
and provisions of this Lease.
15. EVENTS OF DEFAULT. The following events shall be deemed to be events
-----------------
of default by Tenant under this Lease:
(a) Tenant shall fail to pay any installment of the rent herein
reserved, or payment with respect to taxes hereunder, or any other payment
or reimbursement to Landlord required herein, within five (5) days of when
due; provided, however, the aforesaid five day period shall be extended to
ten days for any one instance in a twelve month period in which Tenant
shall make a payment after the five day period.
(b) Tenant shall become insolvent, or shall make a transfer in fraud
of creditors, or shall make an assignment for the benefit of creditors.
(c) Tenant shall file a petition under any section or chapter of the
Bankruptcy Reform Act, as amended or under any similar law or statute of
the United States or any state thereof; or Tenant shall be adjudged
bankrupt or insolvent in proceedings filed against Tenant thereunder.
(d) A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant.
(e) Tenant shall vacate all or a portion of the Premises.
(f) Tenant shall fail to yield up immediate possession of the
Premises to Landlord upon termination of this Lease.
(g) Tenant shall fail to comply with any term, provision or covenant
of this Lease (other than the provisions of subparagraphs (a), (b), (c),
(d), (e) and (f) of this Paragraph 15), and shall not cure such failure
within twenty (20) days after written notice thereof to Tenant; provided,
however, Landlord shall act reasonably to provide Tenant with additional
time to effect any such cure if Tenant shall have proceeded to complete a
cure and shall be acting diligently and in good faith but no more than an
additional fifteen days.
16. REMEDIES. Upon the occurrence of any event of default in Paragraph 15
--------
hereof, Landlord shall have the option to pursue any remedy at law or in equity,
including, but not limited to, one or more of the following remedies without any
notice or demand whatsoever:
(a) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so, Landlord
may, without prejudice to any other remedy which it may have for possession
or arrearage in rent, enter upon and take possession of the Premises and
expel and remove Tenant and any other person who may be occupying the
Premises or any part thereof, with or without judicial approval, by any
legal means necessary, without being liable for prosecution or any claim of
damages therefor; secure the Premises against unauthorized entry; and
Tenant agrees to pay to Landlord on demand the amount of all loss and
damage which Landlord may suffer by reason of such termination, whether
through inability to relet the Premises on satisfactory terms or otherwise.
(b) Enter upon and take possession of the Premises and expel or remove
Tenant and any other person who may be occupying such Premises or any part
thereof, with or without judicial approval, by any legal means necessary,
without being liable for
15
prosecution and receive the rent thereof; secure the Premises against
unauthorized entry; store any property located on the Premises at the
expense of the owner thereof and Tenant agrees to pay to Landlord on demand
any deficiency that may arise by reason of such reletting. In the event
Landlord is successful in reletting the Premises at a rental in excess of
that agreed to be paid by Tenant pursuant to the terms of this Lease,
Landlord and Tenant each mutually agree that Tenant shall not be entitled,
under any circumstances, to such excess rental, and Tenant does hereby
specifically waive any claim to such excess rental.
(c) Enter upon the Premises, with or without judicial approval, by any
legal means necessary, without being liable for prosecution or any claim
for damages therefor, secure the Premises against unauthorized entry,
remove all property of Tenant from the Premises and store it at the cost
and expense of Tenant, and do whatever Tenant is obligated to do under the
terms of this Lease; and Tenant agrees to reimburse Landlord on demand for
any expenses which Landlord may incur in thus effecting compliance with
Tenant's obligations under this Lease, and Tenant further agrees that
Landlord shall not be liable for any damages resulting to Tenant from such
action, whether caused by the negligence of Landlord or otherwise.
(d) Accelerate and demand the payment of all base rent and other
charges due and payable hereunder over the term of this Lease.
In the event Tenant fails to pay any installment of base rent or additional
rent hereunder within fifteen days of the due date of such installment, Tenant
shall pay to Landlord on demand a late charge in an amount equal to four percent
(4%) of such installment to help defray the additional cost to Landlord for
processing such late payment. The provision for such late charge shall be in
addition to all of Landlord's other rights and remedies hereunder or at law and
shall not be construed as liquidated damages or as limiting Landlord's remedies
in any manner. If, on account of any breach or default by Tenant in Tenant's
obligations under the terms and conditions of this Lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney
concerning or to enforce or defend any of Landlord's rights or remedies
hereunder, Tenant agrees to pay any and all reasonable attorneys' fees so
incurred.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law or
equity, nor shall pursuit of any remedy herein provided constitute a forfeiture
or waiver of any rent due to Landlord hereunder or of any damages accruing to
Landlord by reason of the violation of any of the terms, provisions and
covenants herein contained. No act or thing done by Landlord or its agents
during the term hereby granted shall be deemed a termination of this Lease or an
acceptance of the surrender of the Premises, and no agreement to terminate this
Lease or accept a surrender of the Premises shall be valid unless in writing
signed by Landlord. No waiver by Landlord of any violation or breach of any of
the terms, provisions and covenants herein contained shall be deemed or
construed to constitute a waiver of any other violation or breach of any of the
terms, provisions and covenants herein contained. Landlord's acceptance of the
payment of rental or other payments hereunder after the occurrence of an event
of default shall not be construed as a waiver of such default, unless Landlord
so notifies Tenant in writing, and no receipt of money by Landlord from Tenant
after the termination of this Lease or after service of any notice or after the
commencement of any suit or after final judgment for possession of the Premises
shall reinstate, continue or extend the term of this Lease or affect any such
termination, notice, suit or judgment, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to constitute
waiver of such default or of Landlord's right to enforce any such remedies with
respect to such default or any subsequent default.
17. [INTENTIONALLY DELETED.]
18. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
---------
mortgage(s) and/or deed(s) of trust now or at any time hereafter constituting a
lien or charge upon the Premises or the improvements situated thereon; provided,
however, that if the mortgagee, trustee, or holder of any such mortgage or deed
of trust elects to have Tenant's interest in this Lease superior to any such
instrument, then by notice to Tenant from such mortgagee, trustee or holder,
this Lease shall be deemed superior to such lien, whether this Lease
16
was executed before or after said mortgage or deed of trust. Tenant shall at any
time hereafter on demand execute and provide to Landlord within five business
days of a request therefor, any instruments, releases or other documents which
may be required by any mortgagee or trustee for the purpose of further
subjecting and subordinating this Lease to the lien of any such mortgage or deed
to trust. At the written request of Tenant, Landlord shall act reasonably to
obtain a subordination, attornment, and nondisturbance agreement in customary
form from any lender with a lien upon the Land.
19. MECHANIC'S LIENS. Tenant shall have no authority, express or implied,
----------------
to create or place any lien or encumbrance of any kind or nature whatsoever
upon, or in any manner to bind, the interest of Landlord in the Premises or to
charge the rentals payable hereunder for any claim in favor of any person
dealing with Tenant, including those who may furnish materials or perform labor
for any construction or repairs, and each such claim shall affect and each such
lien shall attach to, if at all, only the leasehold interest granted to Tenant
by this instrument. Tenant covenants and agrees that it will pay or cause to be
paid all sums legally due and payable by it on account of any labor performed or
materials furnished in connection with any work performed on the Premises on
which any lien is or can be validly and legally asserted against its leasehold
interest in the Premises or the improvements thereon and that it will save and
hold Landlord harmless from any and all loss, cost or expense based on or
arising out of asserted claims or liens against the leasehold estate or against
the right, title and interest of Landlord in the Premises or under the terms of
this Lease.
20. NOTICES. Each provision of this instrument or of any applicable
-------
governmental laws, ordinances, regulations, or other requirements with reference
to the sending, mailing, or delivery of any notice by Landlord to Tenant or with
reference to the sending, mailing, or delivery of any notice or the making of
any payment by Tenant to Landlord shall be deemed to be complied with when and
if the following steps are taken:
(a) All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address hereinbelow
set forth or at such other address as Landlord may specify from time to
time by written notice delivered in accordance herewith. Tenant's
obligations to pay rent and any other amounts to Landlord under the terms
of this Lease shall not be deemed satisfied until such rent and other
amounts have been actually received by Landlord.
(b) Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered whether actually received or not
when:
(i) deposited in the United States Mail, postage prepaid;
(ii) sent by federal express or other nationally recognized
overnight courier, charges prepaid; or
(iii) sent by Certified or Registered Mail, return receipt
requested, postage prepaid,
and addressed to the parties hereto at the respective addresses set out
below, or at other such addresses as they have heretofore specified by
written notice delivered in accordance therewith.
LANDLORD:
Duke-Weeks Realty Limited Partnership
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
17
With a copy to:
Xxxx Xxxxxxx
Duke-Weeks Realty Limited Partnership
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx, Esq.
Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P.
0000 Xxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
TENANT:
XxxXxxxx.Xxx, Inc.
0000 XxXxxxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
With a copy to:
Xxxx Xxxxxxxxx, Esq.
Xxxxxxxxx and Xxxxx, PLLC
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
If and when included within the term "Landlord", as used in this instrument,
there is more than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of such a notice specifying some
individual at some specific address for the receipt of notices and payments to
Landlord; if and when included within the term "Tenant, as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices to Tenant. All parties included within
the terms "Landlord" and "Tenant", respectively, shall be deemed to have
received notices in accordance with the provisions of this paragraph with the
same effect as if each had received such notice.
21. BROKER'S CLAUSE. Tenant warrants and represents to Landlord that it
---------------
has had no dealings with any real estate broker or agent in connection with this
Lease other than Corporate Realty Advisors, and Tenant covenants to pay, hold
harmless, and indemnify Landlord from and against any and all costs, expenses,
liabilities (including reasonable attorneys' fees), causes of action, claims or
suits in connection with any compensation, commission, fee, or charges claimed
by any other real estate broker or agent with respect to this Lease or the
negotiation thereof, arising out of any act of Tenant. Landlord warrants and
represents to Tenant that it has had no dealings with any real estate broker or
agent in connection with this Lease other than Corporate Realty Advisors, and
Landlord covenants to pay, hold harmless, and indemnify Tenant from and against
any and all costs, expenses, liabilities (including reasonable attorneys' fees),
causes of action, claims or suits in connection with any compensation,
commission, fee, or charges claimed by any other real estate broker or agent
with respect to this Lease or the negotiation thereof, arising out of any act of
Landlord.
22. LANDLORD'S LIABILITY. Notwithstanding anything to the contrary
--------------------
contained in this Lease, Tenant agrees and understands that Tenant shall look
solely to the estate and property of Landlord in the Building for the
enforcement of a judgment (or other judicial decree) requiring the payment of
money by Landlord to Tenant by reason of default or breach of Landlord in
performance of its obligations under this Lease, it being intended that there
will be absolutely no personal liability on the part of Landlord, its successors
and assigns with respect to any of the terms, covenants, and conditions of this
Lease, and no other assets of Landlord or of Landlord's partners, if any, shall
be subject to levy, execution, attachment or any other legal process for the
enforcement or satisfaction of the remedies pursued by Tenant in the event of
18
such default or breach, this exculpation of liability to be absolute and without
exception whatsoever.
23. RULES AND REGULATIONS. Tenant shall fully comply with the Rules and
---------------------
Regulations attached hereto as Exhibit D and made a part hereof and any and all
---------
modifications thereof, or amendments thereto with respect to which Landlord
notifies Tenant.
24. HAZARDOUS MATERIALS.
-------------------
(a) Tenant agrees that it will not release, discharge, place, hold,
or dispose of any Hazardous Material (as hereinafter defined) on, under or
at the Premises, in the Building, or on the Land, and that it will not use
the Premises, the Building, the Land, or any other portion thereof as a
site for the treatment, storage, or disposal (whether permanent or
temporary) of any Hazardous Material except as required in the ordinary
course of the operation of the business of Tenant and in compliance with
all Applicable Laws (as defined below). Tenant further agrees that it will
not cause or allow any asbestos to be incorporated into any improvements or
alterations which Tenant makes or causes to be made to the Premises, or the
Building.
(b) Tenant hereby agrees to indemnify, defend (with counsel
reasonably approved by Landlord) and hold harmless Landlord of from and
against any and all losses, liabilities, damages, injuries, costs, expenses
and claims of any and every kind whatsoever (including without limitation,
court costs and attorneys' fees at all tribunal levels) which at any time
or from time to time may be paid, incurred or suffered by, or asserted
against Landlord for, with respect to, or as a direct or indirect result of
(i) any breach by Tenant of the provisions of this Paragraph, or (ii) as a
direct or indirect result of the acts or omissions of Tenant or any agent,
employee, invitee, licensee, or independent contractor of Tenant, the
presence on or under, or the escape, seepage, leakage, spillage, discharge,
emission, or release from, onto, or into the Premises, the Building, the
Land, the atmosphere, or any watercourse, body of water, or groundwater, of
any Hazardous Material (including, without limitation, any losses,
liabilities, damages, injuries, costs, expenses or claims asserted or
arising under the Comprehensive Environmental Response, Compensation and
Liability Act, any so-called "Superfund" or "Superlien" law, or any other
Federal, state, local or other statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to or imposing liability
or standards of conduct concerning any Hazardous Material); and the
provisions of and undertakings and indemnification set forth in this
paragraph shall survive the termination or expiration of this Lease, for
any reason, and shall continue to be the liability, obligation and
indemnification of Tenant, binding upon Tenant forever. The provisions of
the preceding sentence shall govern and control over any inconsistent
provision of this Lease.
(c) For purposes of this Lease, "Hazardous Material" means and
includes any hazardous or toxic substance, pollutant, contaminant, gas, or
petroleum product defined as such in (or for purposes of) the Comprehensive
Environmental Response, Compensation, and Liability Act, as amended, any
so-called "Superfund" or "Superlien", law, the Toxic Substances Control
Act, as amended, 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,
toxic or dangerous waste, substance or material, as now or at any time
hereafter in effect, or any other hazardous, toxic or dangerous, waste,
substance or material, gas or petroleum product, and "Applicable Laws"
shall mean the Comprehensive Environmental Response, Compensation, and
Liability Act, as amended, any so-called "Superfund" or "Superlien", law,
the Toxic Substances Control Act, as amended, 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, toxic or dangerous waste, substance or material,
as now or at any time hereafter in effect, or any other hazardous, toxic or
dangerous, waste, substance or material, gas or petroleum product.
(d) Tenant shall provide Landlord with a list of any and all
Hazardous Materials released, discharged, placed, held, or disposed of on
the Premises, and certification to Landlord of compliance by Tenant with
all Applicable Laws, within ten days of a request therefor by Landlord.
19
(e) To the best of the knowledge of the Landlord, no Hazardous
Materials shall have been released or discharged upon the Premises, or used
in the construction of the Premises prior to the Commencement Date, and
Landlord shall indemnify, defend and hold harmless Tenant of and from any
inaccuracy in the foregoing representation.
25. COVENANT OF TENANT. If Landlord encounters difficulties in
------------------
negotiating permanent or construction financing for the Building, and after
using its best efforts is unable to resolve those difficulties without obtaining
minor modifications to this Lease, Tenant will act in good faith to execute an
amendment to this Lease, but this agreement on the part of Tenant will not
require Tenant to make any changes that in Tenant's reasonable judgment alter
the term hereof, or adversely affect any substantive right of Tenant, whether
legal or economic.
26. MISCELLANEOUS.
-------------
(a) Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number
shall be held to include the plural, unless the context otherwise requires.
(b) The terms, provisions and covenants and conditions contained in
this Lease shall apply to, inure to the benefit of, and be binding upon the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly
provided. Landlord shall have the right to assign any of its rights and
obligations under this Lease. Each party agrees to furnish to the other,
promptly upon demand, a resolution, or other appropriate documentation
evidencing the due authorization of such party to enter into this Lease.
(c) The captions inserted in this Lease are for convenience only and
in no way define, limit or otherwise describe the scope or intent of this
Lease, or any provision hereof, or in any way affect the interpretation of
this Lease.
(d) Tenant agrees from time to time, within ten (10) business days
after request of Landlord, to deliver to Landlord, or Landlord's designee,
an estoppel certificate stating that this Lease is in full force and
effect, the date to which rent has been paid, the unexpired term of this
Lease and such other matters pertaining to this Lease as may be requested
by Landlord. It is understood and agreed that Tenant's obligation to
furnish such estoppel certificates in a timely fashion is a material
inducement for Landlord's execution of this Lease.
(e) This Lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
(f) All accrued and unperformed obligations of Tenant and Landlord
hereunder not fully performed as of the expiration or earlier termination
of the term of this Lease shall survive the expiration or earlier
termination of the term hereof, including, without limitation, all payment
obligations concerning the condition of the Premises. Upon the expiration
or earlier termination of the term hereof, and prior to Tenant's vacating
the Premises, Tenant shall pay to Landlord any amount reasonably estimated
by Landlord as necessary to put the Premises, including, without
limitation, all heating and air conditioning systems and equipment therein,
in good condition and repair. Tenant shall also, prior to vacating the
Premises, pay to Landlord the amount, as estimated by Landlord, of Tenant's
obligation hereunder for real estate taxes and insurance premiums for the
year in which the Lease expires or terminates. All such amounts shall be
used and held by Landlord for payment of such obligations of Tenant
hereunder, with Tenant being liable for any additional costs therefor upon
demand by Landlord, or with any excess to be returned to Tenant after all
such obligations have been determined and satisfied, as the case may be.
Any security deposit held by Landlord shall be credited against the amount
payable by Tenant under this Paragraph 26(f).
(g) In the event of a transfer by Landlord of its interest in the
Premises, Landlord shall be released from all obligations and liabilities
under the terms of this Lease subsequent to the date of such transfer. In
the event a transferee shall agree to
20
assume the obligations and liabilities of Landlord under the Lease prior to
the date of the transfer, Landlord shall be released from all obligations
and liabilities under the Lease.
(h) If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of
this Lease, then and in that event, it is the intention of the parties
hereto that the remainder of this Lease shall not be affected thereby, and
it is also the intention of the parties to this Lease that in lieu of each
clause or provision of this Lease that is illegal, invalid or
unenforceable, there be added as a part of this Lease contract a clause or
provision as similar in terms to such illegal, invalid or unenforceable
clause or provision as may be possible and be legal, valid and enforceable.
(i) Because the Premises are on the open market and are presently
being shown, this Lease shall be treated as an offer with the Premises
being subject to prior lease and such offer subject to the withdrawal or
non-acceptance by Landlord or to other use of the Premises without notice,
and this Lease shall not be valid or binding unless and until accepted by
Landlord in writing and a fully executed copy delivered to both parties
hereto.
(j) All references in this Lease to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time, on
which all parties hereto have executed this Lease.
(k) Time is of the essence of this Lease.
(l) Landlord shall not be in default in the performance of any of
Landlord's obligations hereunder unless and until Landlord shall have
failed to perform such duties or obligations within thirty (30) days (or
such additional time as is reasonably required to correct any such default)
after written notice by Tenant to Landlord, and to any mortgagee with a
lien on the Land or the Building, properly specifying wherein Landlord has
failed to perform any such duty or obligation. Neither party hereto shall
have any liability to the other party hereto for any incidental or
consequential damages of a party hereto, or anyone claiming by, through or
under a party hereto, for any reason whatsoever.
(m) In the event that Landlord shall default in the performance of
Landlord's obligations hereunder, the holder of a mortgage or the
beneficiary of a deed of trust which includes the Premises shall have the
right, but not the obligation, to perform or comply with any covenants,
agreements and provisions violated in connection with such default.
Further, if such holder or beneficiary notifies Tenant that such holder or
beneficiary has taken over Landlord's right under this Lease, Tenant shall
not assert any right to deduct the cost of repairs or any monetary claims
against Landlord theretofore accrued from rent thereafter due and payable,
but shall look solely to Landlord and not such holder or beneficiary for
satisfaction of such claim.
(n) This Lease does not create the relationship of partner or joint
venturer between Landlord and Tenant.
(o) The laws of the State of North Carolina shall govern the
interpretation, the validity, performance and enforcement of this Lease.
(p) (i) If Tenant is a corporation, the undersigned officer of Tenant
does hereby warrant and certify to Landlord that Tenant is a
corporation in good standing and duly organized under the laws of the
State of North Carolina, or if chartered in a state other than the
State of North Carolina, is a corporation in good standing and duly
organized under the laws of such state and is authorized to do
business in the State of North Carolina. The undersigned officer of
Tenant hereby further warrants and certifies to Landlord that such
officer is authorized and empowered to bind the corporation to the
terms of this Lease by such officer's signature hereto.
21
(ii) If Tenant is a general or limited partnership, the
undersigned general partner of Tenant does hereby warrant and certify
to Landlord that Tenant is a general partnership or limited
partnership, as the case may be, validly existing under the laws of
the State of North Carolina, or if formed in a state other than the
State of North Carolina, is a general partnership or limited
partnership validly existing under the laws of such state and is
authorized to do business in the State of North Carolina. The
undersigned general partner of Tenant hereby further warrants and
certifies to Landlord that such general partner is authorized and
empowered to bind Tenant to the terms of this Lease by such general
partner's signature hereto.
(q) This Lease shall be executed in duplicate, each of which shall be
deemed an original and complete of itself and may be introduced into
evidence or used for any purpose without the production of any other copy.
If Tenant is a corporation, two authorized corporate officers must execute
this Lease in their appropriate capacity for Tenant and affix the corporate
seal.
(r) The provisions contained in the Rider attached hereto, if any,
are incorporated herein by reference and made a part of this Lease. In the
event of any conflict between the printed portion of this Lease and the
Rider, the provisions of the Rider shall govern and control.
(s) Although the printed provisions of this Lease were drafted by
Landlord, such fact shall not cause this Lease to be construed either for
or against Landlord or Tenant.
(t) This Lease may not be recorded. Upon the request and at the
expense of Tenant, Landlord shall execute a memorandum of this Lease
suitable for recording which shall omit the financial terms herein but
which shall identify the Premises and the term of this Lease. Upon the
expiration of this Lease, a recorded memorandum of this Lease may be
canceled of record by a document executed by Landlord, or its successor in
interest for such purpose.
(u) Tenant shall provide to Landlord within ninety days of the close
of its fiscal year, and thereafter within ten days of the reasonable
request of Landlord, financial statements of Tenant certified by the chief
financial officer of Tenant, and Tenant shall act to ensure that any
guarantor hereof provides Landlord with copies of its financial statements
within ninety days of the close of its fiscal year, and Landlord will agree
to maintain confidentiality of same and disclose only to its employees,
agents, and independent contractors with a need to know such information.
(v) No remedy conferred herein is intended to be exclusive of any
other remedy and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or thereunder or now or
hereafter existing at law or in equity or by statute or otherwise.
(w) No provision of this Lease shall be deemed to waive any statutory
or common law rights of Landlord to assert a lien upon property of Tenant.
(x) The provisions of this Lease and any information regarding
Landlord, including, its upfit and construction process, and the materials
and standards used shall be maintained confidential by Tenant, its agents,
employees, officers, and legal and tax advisors; provided, however, Tenant
may (i) share the aforesaid information with its agents, employees,
officers, and legal and tax advisors with a need for such information
provided that all such persons have been advised of the requirement that
all such information be confidential to Landlord, or (ii) release any such
information as required by a court order, subpoena, or by applicable law.
Tenant acknowledges that the release of information concerning the contents
of this Lease, or regarding Landlord to existing or prospective tenants of
the Landlord or other third parties would cause damage to Landlord. Any
deliberate, willful or intentional violation of the terms of this
subparagraph (x) shall constitute an event of default under the Lease for
which Landlord shall have recourse to any and all of the remedies set forth
herein.
22
IN WITNESS WHEREOF, the parties hereto have executed this Lease under
seal as of the day and year first above written.
LANDLORD:
DUKE-WEEKS REALTY LIMITED
PARTNERSHIP (SEAL), an Indiana
limited partnership
BY: DUKE-WEEKS REALTY
CORPORATION, an Indiana
corporation, its sole general partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx,
Regional Executive Vice President
TENANT:
XXXXXXXX.XXX, INC.
By:______________________________________
Print Name:______________________________
Title:___________________________________
Witness/Attest:
________________________
Print Name:_____________
Title:__________________
[CORPORATE SEAL]
23
EXHIBIT A
THE LAND
Being all of that certain tract or parcel of land containing 7.668 acres
(334,013 square feet) designated as Enterprise Center II, according to plat of
survey entitled "Boundary Survey of: Xxxxxxxxxx Xxxxxx XX, 0000 XxXxxxxxx
Xxxxxxx, for: Perimeter Park West Associates, Tax PIN #0746.04-92-5846, Cedar
Fork TWSP, Wake County, Morrisville, North Carolina" dated July 11, 1995,
prepared by Xxxxxxx X. Xxxxx, registered land surveyor, of DSAtlantic and
recorded in Book of Maps 1995, Page 1158, Wake County Registry.
24
EXHIBIT B
FLOOR PLAN
25
EXHIBIT C
PLANS AND SPECIFICATIONS
[TO BE ATTACHED UPON THE MUTUAL APPROVAL OF LANDLORD AND
TENANT.]
26
EXHIBIT C-1
PRELIMINARY PLANS AND SPECIFICATIONS
27
EXHIBIT C-2
PROJECT SCHEDULE
[TO BE ATTACHED UPON THE MUTUAL APPROVAL OF LANDLORD AND
TENANT.]
28
EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, common areas, and public portions of the Building,
such as entrances, passages, courts, elevators, vestibules, stairways, corridors
or halls, and the streets, alleys or ways surrounding or in the vicinity of the
Building shall not be obstructed by Tenant, even temporarily, or encumbered by
Tenant or used for any purpose other than ingress to and egress from the
Premises.
2. No awnings or other projections shall be attached to the outside walls
of the Building.
3. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of the
Premises or Building unless approved by Landlord. Signs on entrance doors shall,
at Tenant's expense, be inscribed, painted or affixed for each tenant by sign
makers approved by Landlord. In the event of the violation of the foregoing by
Tenant, Landlord may remove same without notice to Tenant or any liability
therefor, and may charge the expense incurred by such removal to Tenant.
4. The sashes, sash doors, skylights, windows, heating, ventilating and
air conditioning vents and doors that reflect or admit light and air into the
halls, passageways or other public places in the Building shall not be covered
or obstructed by Tenant.
5. No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the public halls,
corridors, or vestibules without the prior written consent of Landlord.
6. The bathrooms and plumbing fixtures shall not be used for any purposes
other than those for which they were designed, and no sweepings, rubbish, rags,
or other substances shall be thrown therein. All damages resulting from any
misuse of the bathrooms or fixtures shall be the responsibility of Tenant.
7. Tenant shall not in any way deface any part of the Premises or the
Building.
8. No bicycles, vehicles, or animals of any kind shall be brought into or
kept in or about the Premises, or in the Building. No cooking shall be done or
permitted by Tenant on the Premises except in conformity with all applicable
laws, statutes, regulations and ordinances and then only in the area designated
as a kitchen, if any, on the Premises of Tenant, which is to be primarily used
by Tenant's employees for heating beverages and light snacks. Tenant shall not
cause or permit any unusual or objectionable odors to be produced upon or
permeate from the Premises.
9. All desks shall be serviced by chairs with rollers that are equipped
with floor mats underneath each chair.
10. No space in the Building shall be used for the sale of merchandise,
goods, or property of any kind at auction.
11. Tenant shall not make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of the Building or
neighboring buildings or premises or those having business with them, whether by
the use of any musical instrument, radio, talking machine, unmusical noise,
whistling, singing, or in any other way. Tenant shall not throw anything out of
the doors, windows or skylights or down the passageways.
12. Neither Tenant, nor any of Tenant's servants, employees, agents,
visitors, or licensees, shall at any time bring or keep upon the Premises any
inflammable, combustible or explosive fluid, or chemical substance, other than
reasonable amounts of cleaning fluids or solvents required in the normal
operation of Tenant's business offices.
13. No additional locks or bolts of any kind shall be placed upon any of
the doors, walls, accessways, or windows by Tenant, nor shall any changes be
made in existing locks or the mechanism thereof, without the prior written
approval of Landlord and unless and until a
29
duplicate key or access card, as applicable, is delivered to Landlord. Tenant
shall, upon the termination of its tenancy (i) return to Landlord all keys for
the Premises and for any area of the Building, or common areas, either furnished
to, or otherwise procured by Tenant, (ii) restore the locks, walls, accessways,
windows, and doors to their original condition on the date of this Lease by
removing any security measures installed by Tenant, repairing any damage to the
Premises or to the Building as a result of the restoration and removal, and
(iii) in the event of the loss of any keys furnished to Tenant by Landlord,
Tenant shall pay to Landlord the cost thereof.
14. Tenant shall not overload any floor.
15. Tenant shall not occupy or permit any portion of the Premises to be
used for the possession, storage, manufacture or sale of liquor, narcotics, or
tobacco in any form.
16. Tenant shall be responsible for all persons for whom it issues passes
and/or keys and shall be liable to Landlord for all acts of such persons.
17. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
18. The requirements of Tenant will be attended to only by Landlord or the
property manager of the Premises.
19. Canvassing, soliciting, and peddling in the Building are prohibited
and Tenant shall cooperate to prevent the same.
20. All paneling, and other wood products not considered furniture shall
be of fire retardant materials.
21. No smoking is permitted in the Premises, or in the Building. Smoking
is permitted outside the Building in designated smoking areas. All cigarette
butts and other refuse should be placed in designated containers.
22. No weapons concealed or visible are permitted in the Premises, in the
Building, or on the Land.
23. In the event the Premises constitute an outdoor patio, exterior
generator area, or any open area adjacent to the Premises or on the Land
designated under the Lease for the exclusive use of Tenant, Tenant shall use
furniture and other equipment in any such areas in form, coloring, substance,
design and quality subject to the prior approval of Landlord. In addition, any
outdoor patio, exterior generator area, or other open area must be screened on
all sides using materials in form, substance, coloring, design, and quality are
subject to the prior approval of Landlord, and must be designed and constructed
in accordance in accordance with plans and specifications that are subject to
the prior approval of Landlord.
Whenever the above rules conflict with any of the rights or obligations of
Tenant pursuant to the provisions of the Lease, the provisions of the Lease
shall govern. Landlord shall not be responsible to Tenant or liable for the non-
observance or violation of any of these Rules and Regulations by any other
tenant.
30
EXHIBIT E
SIGN CRITERIA OF LANDLORD
31
