Exhibit 10.22
STANDARD LEASE
SUITES 122, 123, 124 AND 000 XXXXXXX XXXX XXXX #000
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This Lease is made by and between the Landlord and Tenant named below.
ARTICLE 1. - BASIC LEASE TERMS
For purposes of this
Lease, the following terms shall have the meanings set forth below:
1.1 Landlord. Xxxxxx-Xxxxxxx Development XXXII, Limited Partnership
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1.2 Tenant. Paradigm Genetics, Inc., a North Carolina corporation, whose
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Trade Name, if any, is n/a
1.3 Manager. Parker Lincoln Developers, Inc.
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1.4 Building. The Building (including the Premises) known as 0000 X.
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XXXXX XXXXXXXXX, XXXXXX, XX, 00000, located on that tract of land (the "Land")
described on EXHIBIT A hereto, together with all other buildings, structures,
fixtures and other improvements (the "Buildings") located thereon from time to
time, being presently as depicted on the drawing (the "Site Plan") attached
hereto as EXHIBIT B. The Building, Buildings and the Land are collectively
referred to herein as the "Property."
1.5 Premises. The floor space and interior wall and ceiling space of
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that portion of the Building outlined in red or highlighted on Exhibit C
attached hereto, resulting in an aggregate of approximately 20,372 square feet
of gross leasable area known as SUITES 122, 123, 124 AND 125.
1.6 Lease Term. 3 years, 0 months and 0 days beginning on the Rental
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Commencement Date.
1.7 Commencement Date. The "Commencement Date" shall be the earlier of
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the date Tenant takes possession of the Premises or ten (10) days after Landlord
notifies Tenant that the Premises are, or will be by a date certain, ready for
Tenant to take possession. The Commencement Date shall constitute the
commencement of the term of this Lease for all purposes, whether or not Tenant
has actually taken possession. By mutual agreement of the parties, the
Commencement Date may be changed. Within thirty (30) days after the Commencement
Date, Landlord and Tenant will execute an acknowledgment of the Commencement and
Expiration Dates in the form attached hereto as EXHIBIT D. Notwithstanding
anything herein to the contrary, the Lease Term shall extend through and end on
the last day of the last month of the Term. If Tenant is permitted access to the
Premises prior to the Commencement Date, such early entry will be subject to all
the terms and provisions of this Lease as though the Commencement Date had
occurred, unless otherwise agreed to in writing by Landlord.
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1.8 Base Rent. Base Rent is:
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MONTHS PER SQUARE FOOT ANNUALLY MONTHLY
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1 through 12 $5.90 per square foot $120,194.80 $10,016.23
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13 through 24 $6.11 per square foot $124,472.92 $10,372.74
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25 through 36 $6.32 per square foot $128,751.04 $10,729.25
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1.9 Security Deposit. Security Deposit is $11,527.15.
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1.10 Addresses.
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LANDLORD'S ADDRESS: TENANT'S BUSINESS ADDRESS &: TENANT'S ADDRESS: MANAGER'S ADDRESS:
TENANT'S ADDRESS FOR NOTICE:
Attn: Xxxxx Xxxxxxxx & Xxxxx Xxxxx
000 Xxxxxxxxx Xxxxx Xxx. #0
X.X. Xxx 00000 0000-000 X. Xxxxx Xxxx.
Post Office Box 58036 Durham, NC 27709-4528 Xxxxxx, XX 00000 Xxxx Xxxxxx Xxx 00000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Landlord, Tenant and Manager, by written notice to the others may change from
time to time the foregoing addresses, and Landlord, by written notice to Tenant,
may notify Tenant from time to time of the appointment of a new Manager and such
new Manager's address.
1.11 Permitted Use: biogenetics laboratory, plant growth rooms and
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offices.
1.12 Common Areas. Such parking areas, streets, driveways, aisles,
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sidewalks, curbs, delivery passages, loading areas, lighting facilities, and all
other areas situated on or in the Property which are designated by Landlord,
from time to time, for use by all tenants of the Property in common.
1.13 Proportionate Share. The proportion, expressed as a percentage,
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that the gross leasable area in square feet in the Premises bears to the total
number of constructed gross leasable area in square feet in the Building or
Buildings as of the date that the computation is made. The computation shall be
adjusted by Landlord if additional square footage is added to the Building or
Buildings or to the Premises.
1.14 Estimated Initial Common Area Costs Payment (Includes Common Area
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Maintenance, Taxes and Insurance):
PSF $.89 Annual $ 18,131.08 Monthly $ 1,510.92
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1.15 Total Rental:
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(The total of the Base Rent for Year One and the Estimated Initial Common Area
Costs Payments for the balance of the calendar year in which the lease
commences.)
Annual $ 138,325.88 Monthly $ 11,527.15
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1.16 Guarantor(s). The guarantor(s) of Tenant's obligations under this
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Lease is (are)
N/A
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ARTICLE 2.- GRANTING CLAUSE AND RENT PROVISIONS
2.1 Grant of Premises. In consideration of the obligation of Tenant
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to pay the Base Rent and other charges as provided in this Lease and in
consideration of the other terms and provisions of this Lease, Landlord hereby
leases the Premises to Tenant during the Lease Term, subject to the terms and
provisions of this Lease.
2.2 Base Rent. Tenant agrees to pay monthly as Base Rent during the
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term of this Lease the sum of money set forth in Section 1.8 of this Lease,
which amount shall be payable to Landlord at the address shown above or at such
other address that Landlord in writing shall notify Tenant. Tenant shall begin
paving Base Rent and Common Area Costs (as defined below) on November 1, 1999
(the "Rental Commencement Date"). One (1) monthly installment of Base Rent shall
be due and payable on the Rental Commencement Date by Tenant for the first
month's rent and a like monthly installment shall be due and payable on or
before the first day of each calendar month succeeding the Rental Commencement
Date during the term of this Lease, without demand, offset or deduction;
provided, if the Rental Commencement Date should be a date other than the first
day of a calendar month, the monthly rental set forth above shall be prorated to
the end of that calendar month, and all succeeding installments of rent shall be
payable on or before the first day of each succeeding calendar month during the
term of this Lease. Tenant shall pay, as "Additional Rent," all other sums due
under this Lease. Base Rent and Additional Rent are sometimes collectively
referred to herein as "Rent."
2.3 Common Area Costs. As used in this Lease, the term "Common Area
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Costs" shall mean all expenses of Landlord with respect to the maintenance,
servicing, repairing and operation of the Property, including, but not limited
to the following: maintenance, repair, and replacement costs; electricity, fuel,
water, sewer, gas and other utility charges; security, window washing and
janitorial services; trash and snow and ice removal; landscaping and pest
control; management fees payable to Landlord, Landlord's affiliates or third
parties; wages and benefits payable to employees of Landlord whose duties are
directly connected with the operation and maintenance of the Property; all
services, supplies, repairs, replacement or other expenses for maintaining and
operating the Property; the cost, including interest, amortized over its useful
life, of any capital improvement made to the Property by Landlord; after the
date of this Lease which is required under any governmental law or regulation
that was not applicable to the Property at the time it was constructed; the
cost, including interest, amortized over its useful life, of installation of any
device or other equipment which improves the operating efficiency of any system
within the Premises and thereby reduces operating expenses; all other expenses
which generally would be regarded as operating and maintenance expenses which
would reasonably be amortized over a period not to exceed five (5) years; all
real property taxes and installments of special assessments, including dues and
assessments by means of deed restrictions and/or owner's association which
accrue against the Property during the term of this Lease; governmental levies
or charges of any kind or nature assessed or imposed on the Property, whether by
state, county, city or any political subdivision thereof; and all insurance
premiums Landlord is required to pay or deems necessary to pay, including public
liability insurance, with respect to the Property. The term operating expenses
does not include the following: expenses for repairs, restoration or other work
occasioned by fire, wind, the elements or other casualty that are covered by
insurance; income and franchise taxes of Landlord; expenses incurred in leasing
to or procuring of tenants, leasing commissions, advertising expenses and
expenses for the renovating of space for new tenants; interest or principal
payments on any mortgage or other indebtedness of Landlord; compensation paid to
any employee of Landlord above the grade of property manager; any depreciation
allowance or expenses; or operating expenses which are the responsibility of
Tenant. Prior to the Commencement Date, and from time to time thereafter,
Landlord shall deliver to Tenant its estimate of the Common Area Costs to be
incurred during the then-current calendar year. Landlord may adjust the estimate
from time to time during the year to which it relates. All costs shall be
consistent with the Xxxxxxx Xxxxxx market.
2.4 Common Area Costs Payments. Tenant, on the first day of each
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month during the Lease Term shall pay to Landlord, as Additional Rent, without
offset or deduction, an amount equal to one-twelfth (1/12) of Tenant's
Proportionate Share of the estimated Common Area Costs as calculated by Landlord
(prorated for any partial month). The Estimated Initial Common Area Costs
Payment due from Tenant for the balance of the calendar year in which the Lease
commences shall be the sum set forth in Section 1.14 above. All sums payable as
Additional Rent under the terms of this Section shall be subject to adjustment
as provided in Section 2.5.
2.5 Adjustments to Common Area Costs. Within one hundred twenty (120)
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days following the end of each calendar year, Landlord shall furnish to Tenant a
statement showing the total actual Common Area Costs for
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the calendar year just expired, the amount of Tenant's Proportionate Share of
the Common Area Costs, and payments made by Tenant during such calendar year
under Section 2.4. If Tenant's Proportionate Share of the actual Common Area
Costs for such calendar year exceeds the aggregate of Tenant's monthly payments
made during the calendar year just expired, Tenant shall pay to Landlord the
deficiency within thirty (30) days after receipt of said statement. If Tenant's
payments exceed Tenant's Proportionate Share of the actual Common Area Costs as
shown on such statement, Tenant shall be entitled to a refund. No portion of the
Common Area Costs paid by Tenant under this Article 2 shall be credited against
Base Rent or any other rental obligations hereunder. Notwithstanding anything
herein to the contrary. Common Area Costs shall be fixed at $.89 per square foot
for the calendar year 1999.
2.6 Late Payment. Other remedies for nonpayment of Rent
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notwithstanding, if any payment of Base Rent or additional rent is not received
by Landlord on or before the fifth (5th) day of the month for which the Rent is
due, or if any other payment hereunder due Landlord by Tenant is not received by
Landlord on or before the fifth (5th) day of the month next following the month
in which Tenant was invoiced, Tenant shall also pay (a) a late payment charge of
five percent (5%), but not less than $100.00, of such past due amount and (b)
interest of eighteen percent (18%) per annum or the maximum then allowed by
applicable law, whichever is less, on the remaining unpaid balance, retroactive
to the date originally due until paid.
2.7 Increase in Insurance Premiums. If an increase in any insurance
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premiums paid by Landlord for the Property is caused by Tenant's use of the
Premises, or if Tenant vacated the Premises and caused an increase in such
premiums, then Tenant shall pay as Additional Rent the amount of such increase
to Landlord. Tenant agrees to pay any amounts due under this Section within ten
(10) days following receipt of the invoice showing the Additional Rent due.
2.8 Security Deposit. The Security Deposit set forth in Section 1.9
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(if any) shall be held by Landlord for the performance of Tenant's covenants and
obligations under this Lease, it being expressly understood that the Security
Deposit shall not be considered an advance payment of Rent or a measure of
Landlord's damage in case of default hereunder by Tenant, and shall be held by
Landlord without payment of any interest thereon. Upon the occurrence of any
event of default by Tenant under this Lease, Landlord may, from time to time,
without prejudice to any other remedy, use the Security Deposit to the extent
necessary to make good any arrears of Rent, or to repair any damage or injury,
or pay any expense or liability incurred by Landlord as a result of the event of
default or breach of covenant, and any remaining balance of the security deposit
shall be returned by Landlord to Tenant upon the termination of this Lease. If
any portion of the security deposit is so used or applied, Tenant shall upon ten
(10) days written notice from Landlord, deposit with Landlord by cash or
cashier's check an amount sufficient to restore the security deposit to its
original amount. The Security Deposit may be assigned and transferred by
Landlord to the successor in interest of Landlord and, upon acknowledgment by
such successor of receipt of such security and its assumption of the obligation
to account to Tenant for such security in accordance with the terms of this
Lease, Landlord shall thereby be discharged of any further obligation relating
thereto.
2.9 Notice to Vacate. Tenant shall give written notice to Landlord
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one hundred and eighty (180) days prior to the expiration o the Lease Term to
vacate upon expiration of the Lease, to negotiate a renewal or to exercise an
option to renew, if available. Failure to provide such written notice will
indicate that Tenant intends to vacate and Landlord shall have the right to
place signs, for the purpose of marketing, in the windows of the Premises and to
begin showing the Premises to potential new tenants. Landlord shall have the
right to show Premises to prospective Tenants after giving Tenant reasonable
notice. Negotiations of renewal options must be completed within thirty (30)
days from the date Tenant gives written notice to exercise its option to renew.
Notwithstanding the above, Landlord may decide not to renew Tenant's lease at
its sole discretion.
2.10 Holding Over. If Tenant does not vacate the Premises upon the
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expiration or earlier termination of this Lease, Tenant shall be a tenant at
sufferance for the holdover period and all of the terms and provisions of this
Lease shall be applicable during that period, except that Tenant shall pay
Landlord (in addition to Additional Rent payable under Section 2.3 and any other
sums payable under this Lease) as Base Rent for the period of such holdover an
amount equal to one and one-half times the Base Rent which would have been
payable by Tenant had the holdover period been a part of the original term of
this Lease (without waiver of Landlord's right to recover damages as permitted
by law). The rental payable during the holdover period shall be payable to
Landlord on demand. No holding over by Tenant, whether with or without the
consent of Landlord shall operate to extend the
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term of this Lease. Tenant shall indemnify Landlord against valid, substantive
claims made by any tenant or prospective tenant against Landlord resulting from
delay by Landlord in delivering possession of the Premises to such other tenant
or prospective tenant.
ARTICLE 3.- OCCUPANCY, USE AND OPERATIONS
3.1 Use and Operation of Tenant's Business. Tenant warrants and
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represents to Landlord that the Premises shall be used and occupied only for the
purpose as set forth in Section 1.11. Tenant shall occupy the Premises, conduct
its business and control its agents, employees, invitees and visitors in such a
manner as is lawful, reputable and will not create a nuisance to other tenants
in the Property. Tenant shall continuously throughout the Lease Term occupy the
Premises under the Trade Name. Tenant shall at all times operate its business in
a first class manner. Tenant shall not conduct any auction or fire or bankruptcy
sale in the Premises. Tenant shall not solicit business, distribute handbills or
display merchandise within the Common Areas, or take any action which would
interfere with the rights of other persons to use the Common Areas. Tenant shall
not permit any operation which emits any odor or matter which intrudes into
other portions of the Property, use any apparatus or machine which makes undue
noise or causes vibration in any portion of the Property or otherwise interfere
with, annoy or disturb any other tenant in its normal business operations or
Landlord in its management of the Property. Tenant shall neither permit any
waste on the Premises nor allow the Premises to be used in any way which would,
in the opinion of Landlord, be extra hazardous on account of fire or which would
in any way increase or render void the fire insurance on the Property.
3.2 Signs. Tenant shall be responsible for the installation of a sign
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within thirty (30) days of occupancy in accordance with the sign criteria
attached hereto as EXHIBIT G. No other sign of any type or description shall be
erected, placed or painted in or about the Premises or the Property without
Landlord's prior written consent, which consent shall not be unreasonably
withheld, and Landlord reserves the right to remove, at Tenant's expense, all
signs other than signs approved in writing by Landlord under this Section 3.2,
without notice to Tenant and without liability to Tenant for any damages
sustained by Tenant as a result thereof. Tenant shall be liable to Landlord for
any cost or expense incurred by Landlord in removing such sign and for any
damage caused by the removal of such sign. Landlord reserves the right, in
Landlord's discretion, to permit a sign or signs which deviate from the
Landlord's then-established sign criteria, and such permission by Landlord to
any tenant or tenants shall not give rise to any rights in any other tenants to
object thereto or to require Landlord to permit such other tenant to deviate
from the criteria. Nothing contained herein shall limit Landlord's right to
modify or amend such criteria from time to time.
3.3 Compliance with Laws, Rules and Regulations.
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(a) Tenant, at Tenant's sole cost and expense, shall comply with all
laws, ordinances, orders, rules and regulations of state, federal, municipal or
other agencies or bodies having jurisdiction over the use, condition or
occupancy of the Premises. Tenant shall procure at its own expense all permits
and licenses required for the transaction of its business in the Premises.
(b) The "Americans with Disabilities Act of 1990" (ADA) is a federal
law that prohibits discrimination on the basis of disability. The requirements
of this act vary with the type of business the Tenant is engaged in and the
number of employees the Tenant has both at this, and other locations. The
Landlord is not qualified to determine which provisions of the ADA apply to
Tenant. Therefore, the Tenant shall determine if the Premises complies with the
accessibility guidelines under ADA and advise the Landlord if any physical
modifications to this facility are required to meet the Tenant's needs under
this law, or any other law, code or regulations. Modifications requested by
Tenant to the Premises shall be made by the Landlord, and the Tenant shall pay
Landlord the full cost of the modifications requested. The Tenant shall
indemnify and hold harmless the Landlord and its agents and employees from and
against valid, substantive claims, damages, losses and expenses, including but
not limited to Attorney's fees, arising out of or resulting from the Tenants
compliance or failure to comply with the ADA or other laws, codes or
regulations.
(c) Tenant will comply with the rules and regulations of the Property
adopted by Landlord attached hereto as EXHIBIT E. If Tenant is not complying
with such rules and regulations, or if Tenant is in any way not complying with
this Article 3, then, notwithstanding anything to the contrary contained herein,
Landlord may, at
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its election, and within 24 hours written notice to Tenant, enter the Premises
without liability therefor and fulfill Tenant's obligations. Tenant shall
reimburse Landlord on demand, as Additional Rent, for any expenses which
Landlord may incur in effecting compliance with Tenant's obligations and agrees
that Landlord shall not be liable for any damages resulting to Tenant from such
action. Landlord shall have the right at all times to change and amend the rules
and regulations in any reasonable manner as it may deem advisable for the
safety, care, cleanliness, preservation of good order and operation or use of
the Property or the Premises. All changes and amendments to the rules and
regulations of the Property will be forwarded by Landlord to Tenant in writing
and shall thereafter be carried out and observed by Tenant.
3.4 Warranty of Possession. Landlord and Tenant each warrants that it
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has the right and authority to execute this Lease, and Landlord warrants to
Tenant, that upon payment of the required rents by Tenant and subject to the
terms, conditions, covenants and agreements contained in this Lease, Tenant
shall have possession of the Premises during the full term of this Lease, as
well as any extension or renewal thereof, without hindrance from Landlord or any
person or persons lawfully claiming the Premises by, through or under Landlord
(but not otherwise); subject, however, to all mortgages, deeds of trust, leases
and agreements to which this Lease is subordinate and to all laws, ordinances,
orders, rules and regulations of any governmental authority. Landlord shall not
be responsible for the acts or omissions of any other lessee or third party that
may interfere with Tenant's use and enjoyment of the Premises.
3.5 Inspection. After giving Tenant reasonable notice (except in an
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event of emergency), Landlord or its authorized agents shall at any and all
reasonable times have the right to enter the Premises to inspect the same, to
supply janitorial service or any other service to be provided by Landlord, to
show the Premises to prospective mortgagees, purchasers or prospective tenants,
and to alter, improve or repair the Premises or any other portion of the
Property. Tenant hereby waives any claim for abatement or reduction of rent ,or
for any damages for injury, or inconvenience to, or interference with, Tenant's
business, for any loss or occupancy or use of the Premises, and for any other
loss occasioned thereby. Landlord shall at all times have and retain a key with
which to unlock all of the doors in, upon and about the Premises. Tenant shall
not change Landlord's lock system or in any other manner prohibit Landlord from
entering the Premises. Landlord shall have the right at all times to enter the
Premises by any means in the event of an emergency without liability therefor,
provided Landlord notifies Tenant immediately of the emergency event.
3.6 Personal Property Taxes. Tenant shall be liable for all taxes
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levied against leasehold improvements, merchandise, personal property, trade
fixtures and all other taxable property located in the Premises. If any such
taxes for which Tenant is liable are levied against Landlord or Landlord's
property and if Landlord elects to pay the same or if the assessed value of
Landlord's property is increased by inclusion of personal property and trade
fixtures placed by Tenant in the Premises and Landlord elects to pay the taxes
based on such increase, Tenant shall pay to Landlord, upon demand, that part of
such taxes for which the Tenant is primarily liable pursuant to the terms of
this Section. Tenant shall pay when due any and all taxes related to Tenant's
use and operation of its business in the Premises.
3.7 Garbage. All garbage and refuse shall be kept in an area
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designated by Landlord and in the kind of container specified by Landlord and
shall be placed outside of the Premises daily, prepared for collection in the
manner and at the times and places specified by Landlord. If Landlord provides
or designates a service for collection of refuse and garbage, Tenant shall use
it, at Tenant's expense, provided the cost thereof is competitive with any
substantially identical service available to Tenant.
ARTICLE 4.- UTILITIES AND SERVICE
4.1 Utility Services. Landlord shall provide or cause to be provided
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the mains, conduits and other facilities necessary to supply water, gas,
electricity, telephone service and sewage service to the Premises. Tenant shall,
however, be responsible, at its expense, to make provisions for connecting or
hooking up to such utilities, directly with the appropriate utility company
furnishing same.
4.2 Tenant Responsible for Charges. Tenant shall promptly pay all
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charges and deposits for electricity, water, gas, telephone service and sewage
service and other utilities furnished to the Premises. Landlord may, if it so
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elects, furnish one or more utility services to Tenant, and in such event,
Tenant shall purchase the use of such services as are tendered by Landlord, and
shall pay on demand the rates established therefor by Landlord which shall not
exceed the rate which would be charged for the same services if furnished to
Tenant directly by the local public utility furnishing the same to the public at
large. Landlord may at any time discontinue furnishing any such service without
obligation to Tenant other than to connect the Premises to the public utility,
if any, furnishing such service. Tenant, at its sole expense, will install an
emergency electrical generator which shall be connected to Tenant's electrical
service ("Tenant Improvements"). Prior to construction of the Tenant
Improvements, Tenant shall submit the proposed plans to Landlord for approval.
Within 30 days of completion of the Tenant Improvements. Tenant shall provide to
Landlord proof of payment in full to and a lien waiver from all contractors
providing labor or materials for the Tenant Improvements.
4.3 Landlord's Services. Landlord shall provide routine maintenance,
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painting and electrical lighting service for all Common Areas and special
service areas of the Property in the manner and to the extent deemed by Landlord
to be standard. Landlord may, in its sole discretion, provide additional
services not enumerated herein.
4.4 No Liability. Landlord shall not be liable for any interruption
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whatsoever in utility services not furnished by it, nor for interruption in
utility service furnished by it which are due to fire, accident, strikes, acts
of God, riot, civil commotion, terrorist act, national emergency, shortage of
labor or materials or other causes beyond the control of Landlord or in order to
make alterations, repairs or improvements. Moreover, Landlord shall not be
liable for any interruption of such utility services which continues during any
reasonable period necessary to restore such service upon the occurrence of any
of the foregoing conditions. Failure by Landlord to any extent to provide any
services of Landlord specified herein or any other services not specified, or
any cessation thereof, shall not render Landlord liable in any respect for
damages to either person or property, be construed as an eviction of Tenant,
work an abatement of rent or relieve Tenant from fulfillment of any covenant in
this Lease. If any of the equipment or machinery necessary or useful for
provision of any utility services, and for which Landlord is responsible, breaks
down, or for any cause ceases to function properly, Landlord shall use
reasonable diligence to repair the same promptly, but Tenant shall have no claim
for rebate of rent or damages on account of any interruption in service
occasioned from the repairs.
4.5 Theft or Burglary. Landlord shall not be liable to Tenant for
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losses to Tenant's property or personal injury caused by criminal acts or entry
by unauthorized persons into the Premises or the Property.
ARTICLE 5. - REPAIRS AND MAINTENANCE
5.1 Landlord Repairs. Landlord shall not be required to make any
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improvements, replacements or repairs of any kind or character to the Premises
during the term of this Lease except as are set forth in this Section. Landlord
shall maintain only the roof, foundation, parking and Common Areas, the
structural soundness of the exterior walls. Landlord's cost of maintaining and
repairing the items set forth in this Section are subject to the additional rent
provisions in Section 2.3 and 2.4. Landlord shall not be liable to Tenant,
except as expressly provided in this Lease, for any damage or inconvenience, and
Tenant shall not be entitled to any damages nor to any abatement or reduction of
rent by reason of any repairs, alterations or additions made by Landlord under
this Lease.
5.2 Tenant Repairs. Tenant shall maintain, at its sole and direct
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cost, the Premises in a first-class condition (except for those items listed
under Section 5.1). Without limiting the generality of the foregoing, Tenant
shall maintain and keep in good repair (including replacement when necessary):
(a) the interior of the Premises, including walls, floors and
ceilings;
(b) all windows and doors, including frames, glass, molding and
hardware;
(c) all wires and plumbing within the Premises which serve the
Premises (as distinguished from those serving the Building generally);
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(d) all signs, air conditioning and heating equipment (see
attached Rules and Regulations for service requirements), mechanical doors and
other mechanical equipment situated on or in the Premises or serving the
Premises (as distinguished from those serving the Building generally); and
(e) those utility facilities that are not maintained by Landlord
hereunder. Tenant shall further make all other repairs to the Premises made
necessary by Tenant's failure to comply with its obligations under this Section.
All fixtures installed by Tenant shall be new or shall have been completely and
recently reconditioned.
5.3 Request for Repairs. All requests for repairs or maintenance to
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Landlord pursuant to Section 5.1 of this Lease must be made in writing to
Landlord at the address in Section 1.10.
5.4 Tenant Damages. Tenant shall not allow any damage to be committed
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on any portion of the Premises or Property, and at the termination of this
Lease, by lapse of time or otherwise, Tenant shall deliver the Premises to
Landlord in as good condition as existed at the Commencement Date of this Lease,
ordinary wear and tear excepted. The cost and expense of any repairs necessary
to restore the condition of the Premises shall be borne by Tenant.
ARTICLE 6.- ALTERATIONS AND IMPROVEMENTS
6.1 Construction. If any construction of tenant improvements is
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necessary for the initial occupancy of the Premises, such construction shall be
accomplished and the cost of such construction shall be borne by Landlord and/or
Tenant in accordance with EXHIBIT F and / or the Addendum (if any) attached
hereto. Except as expressly provided in this Lease, Tenant acknowledges and
agrees that Landlord has not undertaken to perform any modification, alteration
or improvements to the Premises, and Tenant further waives any defects in the
Premises and acknowledges and accepts (1) the Premises as suitable for the
purpose for which they are leased and (2) the Property and every part and
appurtenance thereof as being in good and satisfactory condition. If any
improvements, modifications or alterations, beyond those specified on Exhibit F,
are required for Tenant's initial occupancy of the Premises, due solely to
Tenant's use of the Premises, by any governmental or municipal body or agency or
are required by any law, rule, regulation, ordinance, code or order, Tenant
shall be solely responsible for all associated costs. After the Commencement
Date, if any improvements, modifications or alterations are required by any
governmental or municipal body or agency or due to any law, rule, regulation,
code, ordinance or order, as a result of Tenant's use of the Premises, Tenant
shall be solely responsible for all associated costs. Upon the request of
Landlord, Tenant shall deliver to Landlord a completed Acceptance of Premises
Memorandum in Landlord's prescribed form.
6.2 Tenant Improvements. Tenant shall not make or allow to be made
-------------------
any alterations, physical additions or improvements in or to the Premises
without first obtaining the written consent of Landlord, which consent, not to
be unreasonably withheld, may in the sole and absolute discretion of Landlord be
denied. Any alterations, physical additions or improvements to the Premises made
by or installed by either party hereto shall remain upon and be surrendered with
the Premises and become the property of Landlord upon the expiration or earlier
termination of this Lease without credit to Tenant; provided, however, Landlord,
at its option, may require Tenant to remove any physical improvements or
additions and/or repair any alterations in order to restore the Premises to the
condition existing at the time Tenant took possession, all costs of removal
and/or alterations to be borne by Tenant. This clause shall not apply to
moveable equipment, furniture or moveable trade fixtures owned by Tenant, which
may be removed by Tenant at the end of the term of this Lease if Tenant is not
then in default and if such equipment and furniture are not then subject to any
other rights, liens and interests of Landlord. Tenant shall have no authority or
power, express or implied, to create or cause any mechanic's or materialmen's
lien, charge or encumbrance of any kind against the Premises, the Property or
any portion thereof. Tenant shall promptly cause any such liens that have arisen
by reason of any work claimed to have been undertaken by or through Tenant to be
released by payment, bonding or otherwise within thirty (30) days after request
by Landlord, and shall indemnify Landlord against losses arising out of any such
claim (including, without limitation, legal fees and court costs).
6.3 Common and Service Area Alterations. Landlord shall have the
-----------------------------------
right to decorate and to make repairs, alterations, additions, changes or
improvements, whether structural or otherwise, in, about or on the exterior of
the Property, or any part thereof exclusive of the Premises, and to change,
alter, relocate, remove or replace service areas and/or Common Areas, and to
otherwise alter or modify the Property exclusive of the Premises, and
8
for such purposes, to take such measures for safety or for the expediting of
such work as may be required, in Landlord's judgment, all without affecting any
of Tenant's obligations hereunder.
ARTICLE 7. - CASUALTY AND INSURANCE
7.1 Substantial Destruction. If in the determination of Landlord the
-----------------------
Premises should be totally destroyed by fire or other casualty, or if in the
determination of Landlord the Premises should be damaged so that rebuilding
cannot reasonably be completed substantially within one hundred and eighty (180)
working days after Landlord's receipt of written notification by Tenant of the
destruction, or if the Premises are damaged or destroyed by casualty not covered
by the standard broad form of fire and extended coverage insurance then in
common use in the State of North Carolina, then, at Landlord's sole option, this
Lease shall terminate and, in such case, the rent shall be abated for the
unexpired portion of the Lease, effective as of the date of the written
notification.
7.2 Partial Destruction. If following damage or destruction to the
-------------------
Premises by fire or other casualty, this Lease is not terminated pursuant to
Section 7.1 hereof, this Lease shall not terminate, and Landlord shall proceed,
to the extent of insurance proceeds actually received by Landlord after the
exercise by any mortgage of the Property of an option to apply proceeds against
Landlord's debt to such mortgagee, with reasonable diligence to rebuild or
repair the Building or other improvements to substantially the same conditions
in which they existed prior to the damage. If the Premises are to be rebuilt or
repaired and are untenantable in whole or in part following the damage, and the
damage or destruction was not caused or contributed to by act or negligence of
Tenant, its agents, employees, invitees or those for whom Tenant is responsible,
the Base Rent payable under this Lease during the period for which the Premises
are untenantable shall be reduced to an amount determined by multiplying the
Base Rent that would otherwise be payable but for this provision by the ratio
that the portion of the Premises not rendered untenantable bears to the total
net rentable area of the Premises prior to the casualty. Landlord's obligation
to rebuild or restore under this Section shall be limited to restoring the
Premises to substantially the condition in which the same existed prior to the
casualty, exclusive of improvements for which Tenant is responsible under
Section 6.1 and EXHIBIT F, and Tenant shall, promptly after the completion of
such work by Landlord, proceed with reasonable diligence and at Tenant's sole
cost and expense to restore those improvements for which Tenant is responsible
to substantially the condition in which the same existed prior to the casualty
and to otherwise make the Premises suitable for Tenant's use. If Landlord fails
to substantially complete the necessary repairs or rebuilding within one hundred
and eighty (180) working days from the date of Landlord's receipt of written
notification by Tenant of the destruction, Tenant may at its own option
terminate this Lease by delivering written notice of termination to Landlord,
whereupon all rights and obligations under this Lease shall cease to exist.
7.3 Property Insurance. Landlord shall at all times during the term
------------------
of this Lease insure the Property against all risk of direct physical loss in an
amount and with such deductibles as Landlord considers appropriate; provided,
Landlord shall not be obligated in any way or manner to insure any personal
property (including, but not limited to, any furniture, machinery, goods or
supplies) of Tenant upon or within the Premises, any fixtures installed or paid
for by Tenant upon or within the Premises, or any improvements which Tenant may
construct on the Premises. Tenant shall have no right in or claim to the
proceeds of any policy of insurance maintained by Landlord even if the cost of
such insurance is borne by Tenant as set forth in Article 2. Landlord shall have
the right to self-insure against the above-described risk. Tenant at all times
during the term of this Lease shall, at its own expense, keep in full force and
effect insurance against fire and such other risks as are from time to time
included in standard all-risk insurance policy (including coverage against
vandalism, theft, burglary, and malicious mischief) for the premises and the
full replacement cost of Tenant's trade fixtures, furniture, supplies and all
items of personal property of Tenant located on or within the Premises. Tenant's
policy shall also include business interruption/extra expense coverage in
sufficient amounts. Landlord shall be a named insured on said policy.
7.4 Waiver of Subrogation. Anything in this Lease to the contrary
---------------------
notwithstanding, Landlord and Tenant hereby waive and release each other of and
from any and all right of recovery, claim, action or cause of action, against
each other, their agents, officers and employees, for any loss or damage that
may occur to the Premises, improvements to the Property, or personal property
within the Property, by reason of fire or the elements, regardless of cause or
origin, including negligence of Landlord or Tenant and their agents, officers
and employees. Landlord and Tenant agree immediately to give their respective
insurance companies which have issued policies of insurance covering all risk of
direct physical loss, written notice of the terms of the mutual waivers
contained in this
9
Section, and to have the insurance policies properly endorsed, if necessary, to
prevent the invalidation of the insurance coverages by reason of the mutual
waivers.
7.5 Hold Harmless. Landlord shall not be liable to Tenant or to
-------------
Tenant's customers, employees, agents, guests or invitees, or to any other
person whomever, for any injury to persons or damage to property on or about the
Premises, including but not limited to, consequential damage, (1) caused by any
act or omission of Tenant, its employees, subtenants, licensees and
concessionaires or of any other person entering the Property or the Premises by
express or implied invitation of Tenant, or (2) arising out of the use of the
Premises or the Property by Tenant, its employees, subtenants, licensees,
concessionaires or invitees, or (3) arising out of any breach or default by
Tenant in the performance of its obligations hereunder, or (4) caused by the
improvements located in the Premises becoming out of repair or by defect in or
failure of equipment, pipes, or wiring, or by broken glass, or by the backing up
of drains, or by gas, water, steam, electricity or oil leaking, escaping or
flowing into the Premises or Property, or (5) arising out of the failure or
cessation of any service provided by Landlord (including security service and
devices), and Tenant hereby agrees to indemnify Landlord and hold Landlord
harmless from any liability, loss, expense or claim (including, but not limited
to reasonable attorneys' fees) arising out of such damage or injury. Nor shall
Landlord be liable to Tenant for any loss or damage that may be occasioned by or
through the acts or omissions of other tenants of the Property or of any other
persons whomsoever, excepting only duly authorized employees and agents of
Landlord acting within the scope of their authority. Further, Tenant
specifically agrees to be responsible for and indemnify and hold Landlord
harmless from any and all damages or expenses of whatever kind arising out of or
caused by a burglary, theft, vandalism, malicious mischief or other illegal acts
performed in, at or from the Premises.
7.6 Liability insurance.
-------------------
(a) Tenant at all times during the Lease shall, at its own
expense, keep in full force and effect commercial general liability insurance
with "personal injury" coverage and contractual liability coverage, with minimum
combined bodily injury and property damage limit of $1,000,000 per occurrence
per location subject to no deductible. Landlord shall be an additional insured
on said policy. Definition of additional insured shall include all partners,
officers, directors, employees, agents and representatives of the named entities
including its managing agent. Further, coverage for additional insured shall
apply on a primary basis irrespective of any other insurance, whether
collectible or not. All insurance policies or duly executed certificates for the
same required to be carried by Tenant under this Lease, together with
satisfactory evidence of the payment of the premium thereof, shall be deposited
with Landlord on the date Tenant first occupies the Premises and upon renewals
of such policies not less than fifteen (15) days prior to the expiration of the
term of such coverage. All insurance required to be carried by Tenant under this
Lease shall be in form and content, and written by insurers acceptable to
Landlord, in its sole discretion. If Tenant shall fail to comply with any of the
requirements contained relating to insurance, Landlord may obtain such insurance
and Tenant shall pay to Landlord, on demand as additional rent hereunder, the
premium cost thereof.
(b) Affording coverage under the Workers Compensation laws of the
State of North Carolina and Employers Liability coverage subject to a limit of
no less than $100,000 each employee, $100,000 each accident, $500,000 policy
limit.
(c) Tenant shall maintain umbrella liability insurance at not
less than a $1,000,000 limit providing excess coverage over all limits and
coverages noted in 7.6.a and 7.6.b above.
(d) This policy shall be written on an occurrence basis. All
policies noted above shall be written with insurance companies licensed to do
business in the State of North Carolina and rated no lower than A:10 in the most
current edition of A.M. Best's Casualty Key Rating Guide. All policies shall be
endorsed to provide that in the event of cancellation, non-renewal or material
modification, Landlord shall receive thirty (30) days written notice thereof.
7.7 Boiler Insurance. At all times when a "boiler," as that term is
----------------
defined for the purposes of boiler insurance, is located within the Premises,
Tenant shall carry, at its expense, boiler insurance with policy limits of not
less than One Hundred Thousand Dollars ($100,000.00) insuring both Landlord and
Tenant against loss or liability caused by the operation or malfunction of such
boiler.
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7.8 Hazardous Material. Throughout the term of this Lease, Tenant
------------------
shall prevent the presence, use, generation, release, discharge, storage,
disposal, or transportation of any Hazardous Materials (as hereinafter defined)
on, under, in, above, to, or from the Premises other than in strict compliance
with all applicable federal, state, and local laws, rules, regulations and
orders. For purposes of this provision, the term "Hazardous Materials" shall
mean and refer to any wastes, materials, or other substances of any kind or
character that are or become regulated as hazardous or toxic waste or
substances, or which require special handling or treatment, under any applicable
local, state or federal law, rule, regulation or order. Tenant shall indemnify,
defend, and hold Landlord harmless from and against
(a) any loss, cost, expense, claim, or liability arising out of
any investigation, monitoring, clean-up, containment, removal, storage, or
restoration work (herein referred to as "Remedial Work") required by, or
incurred by Landlord or any other person or party in a reasonable belief that
such Remedial Work is required by any applicable federal, state or local law,
rule, regulation or order, or by any governmental agency, authority, or
political subdivision having jurisdiction over the Premises, and
(b) any claims of third parties for loss, injury, expense, or
damage arising out of the presence, release, or discharge of any Hazardous
Materials on, under, in, above, to, or from the Premises. In the event any
Remedial Work is so required under any applicable federal, state, or local law,
rule, regulation or order, Tenant shall promptly perform or cause to be
performed such Remedial Work in compliance with such law, rule, regulation, or
order. In the event Tenant shall fail to commence the Remedial Work in a timely
fashion, or shall fail to prosecute diligently the Remedial Work to completion,
such failure shall constitute an event of default on the part of Tenant under
the terms of this Lease, and Landlord, in addition to any other rights or
remedies afforded it hereunder, may, but shall not be obligated to, cause the
Remedial Work to be performed, and Tenant shall promptly reimburse Landlord for
the cost and expense thereof upon demand.
ARTICLE 8.- CONDEMNATION
8.1 Substantial Taking. If in the determination of Landlord all or a
------------------
substantial part of the Premises are taken for any public or quasi-public use
under any governmental law, ordinance or regulation, or by right of eminent
domain or by purchase in lieu thereof, and in the determination of Landlord the
taking would prevent or materially interfere with the use of the Premises for
the purpose for which it is then being used, this Lease shall, at the option of
either Landlord or Tenant, terminate and the Rent shall be abated during the
unexpired portion of this Lease effective on the date physical possession is
taken by the condemning authority.
8.2 Partial Taking. If in the determination of Landlord 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
purchase in lieu thereof, and this Lease is not terminated as provided in
Section 8.1 above, Landlord shall restore and reconstruct, to the extent of
condemnation proceeds (excluding any proceeds for land) actually received after
the exercise by any mortgagee of the Property of an option to apply such
proceeds against Landlord's debt to such mortgagee, the Property and other
improvements on the Premises to the extent necessary to make it reasonably
tenantable. The Base Rent payable under this Lease during the unexpired portion
of the term shall be reduced to an amount determined by multiplying the Base
Rent that would otherwise be payable but for this provision by the ratio that
the portion of the Premises not rendered untenantable bears to the total net
rentable area of the Premises prior to the casualty. If Landlord fails to
substantially complete such restoration and reconstruction within one hundred
and eighty (180) working days of the date of the physical possession by the
condemning authority, Tenant may at its option terminate this Lease by
delivering written notice of termination to Landlord, whereupon all rights and
obligations of this Lease shall cease to exist.
8.3 Condemnation Proceeds. All compensation awarded for any taking
---------------------
(or the proceeds of private sale in lieu thereof), whether for the whole or a
part of the Premises, shall be the property of Landlord (whether such award is
compensation for damages to Landlord's or Tenant's interest in the Premises) and
Tenant hereby assigns all of its interest in any such award to Landlord;
provided, however, Landlord shall have no interest in any award made to Tenant
for loss of business or for taking of Tenant's fixtures and other property
within the Premises if a separate award for such items is made to Tenant.
11
ARTICLE 9. - ASSIGNMENT OR SUBLEASE
9.1 Tenant Assignment. Tenant shall not assign, in whole or in part,
-----------------
this Lease, or allow it to be assigned, in whole or in part, by operation of law
or otherwise (including without limitation by merger, dissolution or transfer of
a controlling interest in any partnership or corporate Tenant, which merger,
dissolution or transfer shall be deemed an assignment) or mortgage or pledge the
same, or sublet the Premises, in whole or in part, without the prior written
consent, which consent shall not be unreasonably withheld, of Landlord, and in
no event shall any such assignment or sublease ever release Tenant or any
guarantor from any obligation or liability hereunder. No assignee or sublessee
of the Premises or any portion thereof may assign or sublet the Premises or any
portion thereof.
9.2 Conditions of Tenant Assignment. If Tenant desires to assign or
-------------------------------
sublet all or any part of the Premises, it shall so notify Landlord in writing
at least thirty (30) days in advance of the date on which Tenant desires to make
such assignment or sublease. Tenant shall provide Landlord with a copy of the
proposed assignment or sublease and such information as Landlord might request
concerning the proposed sublessee or assignee to allow Landlord to make informed
judgments as to the financial condition, reputation, operations and general
desirability of the proposed sublessee or assignee. Within fifteen (15) days
after Landlord's receipt of Tenant's proposed assignment or sublease and all
required information concerning the proposed sublessee or assignee, Landlord
shall have the following options:
(1) cancel this Lease as to the Premises or portion thereof
proposed to be assigned or sublet with Tenant's written consent;
(2) consent to the proposed assignment or sublease or Tenant
shall pay to Landlord one-half such excess rent and other excess consideration
within ten (10) days following receipt thereof by Tenant;
(3) refuse, to which refusal shall not be unreasonably withheld,
to consent to the proposed assignment or sublease and shall provide Tenant
written notice with the reasons for such refusal; or
(4) upon the occurrence of an event of default by Tenant under
this Lease, if all or any part of the Premises are then assigned or sublet,
Landlord, in addition to any other remedies provided by this Lease or provided
by law, may, at its option, collect directly from the assignee or sublessee all
rents becoming due to Tenant by reason of the assignment or sublease, and
Landlord shall have a security interest in all properties belonging to Tenant on
the Premises to secure payment of such sums. No collection directly by Landlord
from the assignee or sublessee shall be construed to constitute a novation or a
release of Tenant or any guarantor from the further performance of its
obligations under this Lease. All legal fees and expenses incurred by Landlord
in connection with the review by Landlord of Tenant's requested assignment or
sublease pursuant to this Section, together with any legal fees and
disbursements incurred in the preparation and/or review of any documentation,
shall be the responsibility of Tenant and shall be paid by Tenant within five
(5) days of demand for payment thereof, as rental hereunder. If the rent due and
payable by any assignee or sublessee under any such permitted assignment or
sublease (or a combination of the rent payable under such assignment or sublease
plus any bonus or any other consideration or any payment incident thereto)
exceeds the Rent payable under this Lease for such space, Tenant shall pay to
Landlord all such excess rent and other excess consideration within ten (10)
days, following receipt thereof by Tenant.
9.3 Landlord Assignment. Landlord shall have the right to sell,
-------------------
transfer or assign, in whole or in part, its rights and obligations under this
Lease and in the Property. Any such sale, transfer or assignment shall operate
to release Landlord from any and all liabilities under this Lease arising after
the date of such sale, assignment or transfer subject to the provisions for the
Security Deposit in Section 2.8.
9.4 Rights of Mortgagee. Tenant accepts this Lease subject and
-------------------
subordinate to any recorded lease, mortgage or deed of trust lien presently
existing, if any, or hereafter encumbering the Property and to all existing
ordinances and recorded restrictions, covenants easements, and agreements with
respect to the Property. Landlord hereby is irrevocably vested with full power
and authority to subordinate Tenant's interest under this Lease to any mortgage
or deed of trust lien hereafter placed on the Property. Upon any foreclosure,
judicially or non-judicially, of any such mortgage, or the sale of the Property
in lieu of foreclosure, or any other transfer of Landlord's interest in the
Property, whether or not in connection with a mortgage, Tenant hereby does, and
hereafter agrees to attorn to the
12
purchaser at such foreclosure sale or to the grantee under any deed in lieu of
foreclosure or to any other transferee of Landlord's interest, and shall
recognize such purchaser, grantee, or other transferee as Landlord under this
Lease, and no further attornment or other agreement shall be required to effect
or evidence Tenant's attornment to and recognition of such purchaser or grantee
as Landlord hereunder. Such agreement of Tenant to attorn shall survive any such
foreclosure sale, trustee's sale, conveyance in lieu thereof, or any other
transfer of Landlord's interest in the Property. Tenant, upon demand, at any
time, before or after any such foreclosure sale, trustee's sale, conveyance in
lieu thereof, or other transfer shall execute, acknowledge, and deliver to the
prospective transferee and/or mortgage a Lease Subordination, Non-Disturbance
and Attornment Agreement and any additional written instruments and certificates
evidencing such attornment as the mortgagee or other prospective transferee may
reasonably require, and Tenant hereby irrevocably appoints Landlord as Tenant's
agent and attorney-in-fact for the purpose of executing, acknowledging, and
delivering any such instruments and certificates. Notwithstanding anything to
the contrary implied in this Section, any mortgagee under any mortgage shall
have the right at any time to subordinate any such mortgage to this Lease on
such terms and subject to such conditions as the mortgagee in its discretion may
consider appropriate.
9.5 Estoppel Certificates. Tenant agrees to furnish, from time to
---------------------
time, within ten (10) days after receipt of a request from Landlord or
Landlord's mortgagee, a statement certifying, if applicable, all or some of the
following: Tenant is in possession of the Premises; the Lease is in full force
and effect; the Lease is unmodified (except as disclosed in such statement);
Tenant claims no present charge, lien, or claim of offset against Rent; the Rent
is paid for the current month, but it is not prepaid for more than one (1) month
and will not be prepaid for more than one (1) month in advance; there is no
existing default by reason of some act or omission by Landlord; that Landlord
has performed all inducements required of Landlord in connection with this
Lease, including construction obligations, and Tenant accepts the Premises as
constructed; an acknowledgment of the assignment of rentals and other sums due
hereunder to the mortgagee and agreement to be bound thereby, an agreement
requiring Tenant to advise the mortgagee of damage to or destruction of the
Premises by fire or other casualty requiring reconstruction; an agreement by
Tenant to give the mortgagee written notice of Landlord's default hereunder and
to permit the mortgagee to cure such default within a reasonable time after such
notice before exercising any remedy Tenant might possess as a result of such
default; and such other matters as may be reasonably required by Landlord's
mortgagee. Tenant's failure to deliver such statement, in addition to being a
default under this Lease, shall be deemed to establish conclusively that this
Lease is in full force and effect except as declared by Landlord, that Landlord
is not in default of any of its obligations under this Lease, and that Landlord
has not received more than one (1) month's Rent in advance.
ARTICLE 10.- LIENS
10.1 Uniform Commercial Code. This Lease is intended as and
-----------------------
constitutes a security agreement within the meaning of the Uniform Commercial
Code of the state in which the Premises are situated. Landlord, in addition to
the rights prescribed in this Lease, shall have all of the rights, titles, liens
and interests in and to Tenant's property, now or hereafter located upon the
Premises, which may be granted a secured party, (as that term is defined under
such Uniform Commercial Code), under this Lease. Tenant will on request execute
and deliver to Landlord a financing statement (or continuation statement) for
the purpose of perfecting Landlord's security interest under this Lease. The
security interest created by this Lease shall be subordinate to all other
documented, valid security interests in Tenant's personal property.
Notwithstanding neither Tenant nor any other secured party shall have the right
to remove any property from the Premises if such removal would cause damage to
the Premises. Further, no party other than Tenant shall have the right to occupy
the Premises for any purpose.
ARTICLE 11.- DEFAULT AND REMEDIES
11.1 Default by Tenant. The following shall be deemed to be events of
-----------------
default by Tenant under this Lease:
(1) Tenant shall, after five days written notice by Landlord,
fail to pay when due any installment of Rent or any other payment required
pursuant to this Lease;
(2) Tenant or any guarantor of Tenant's obligations hereunder
shall file a petition or be adjudged bankrupt or insolvent under any applicable
federal or state bankruptcy or insolvency law or admit that it
13
cannot meet its financial obligations as they become due, or a receiver or
trustee shall be appointed for all or substantially all of the assets of Tenant
or any guarantor of Tenant's obligations hereunder;
(3) Tenant or any guarantor of Tenant's obligations hereunder
shall make a transfer in fraud of creditors or shall make an assignment for the
benefit of creditors;
(4) Tenant shall do or permit to be done any act which results in
a lien being filed against the Premises or the Property;
(5) the liquidation, termination, dissolution or (if the Tenant
is a natural person) the death of Tenant or any guarantor of Tenant's obligation
thereunder;
(6) Tenant shall be in default of any other term, provision or
covenant of this Lease, and such default is not cured within ten (10) days after
written notice thereof to Tenant, provided the default Is curable ordinarily
within ten (10) days.
11.2 Remedies for Tenant's Default. Upon the occurrence of any event
-----------------------------
of default set forth in this Lease, Landlord shall have the option to pursue any
one or more of the remedies set forth in this Section 11.2 without any
additional notice or demand:
(1) Without declaring the Lease terminated, Landlord may enter
upon and take possession of the Premises, by picking or changing locks if
necessary, and lock out, expel or remove Tenant and any other person who may be
occupying all or any part of the Premises without being liable for any claim for
damages, and relet the Premises on behalf of Tenant and receive the rent
directly by reason of the reletting. Tenant agrees to pay Landlord on demand any
deficiency that may arise by reason of any reletting of the Premises; further,
Tenant agrees to reimburse Landlord for any reasonable expenditure made by it in
order to relet the Premises, including, but not limited to, remodeling and
repair costs, brokerage commissions and attorneys' fees.
(2) Without declaring the Lease terminated, Landlord may enter
upon the Premises, by picking or changing locks if necessary, without being
liable for any claim for damages, and do whatever Tenant is obligated to do
under the terms of this Lease. Tenant agrees to reimburse Landlord on demand for
any reasonable expenses which Landlord may incur in effecting compliance with
Tenant's obligations under this Lease; further, Tenant agrees that Landlord
shall not be liable for any damages resulting to Tenant from effecting
compliance with Tenant's obligations under this Lease caused by the negligence
of Landlord or otherwise.
(3) Landlord may terminate this Lease, in which event Tenant
shall immediately surrender the Premises to Landlord, and if Tenant fails to
surrender the Premises, Landlord may, without prejudice to any other remedy
which it may have for possession or arrearages in rent, enter upon and take
possession of the Premises, by picking or changing locks if necessary, and lock
out, expel or remove Tenant and any other person who may be occupying all or any
part of the Premises without being liable for any claim for damages. Tenant
agrees to pay on demand the amount of all loss and damage which Landlord may
suffer for any reason due to the termination of this Lease under this Section
11.2, including (without limitation) loss and damage due to the failure of
Tenant to maintain and/or repair the Premises as required hereunder and/or due
to the inability of Landlord to relet the Premises on satisfactory terms or
otherwise.
Landlord's exercise, following a default by Tenant under this Lease, of any
right granted hereunder or under any applicable law to lock out or change the
locks securing the Premises shall not impose upon Landlord any duty to notify
Tenant of the name and address or telephone number of the individual or company
from whom a new key may be obtained, nor shall Landlord have any duty to provide
Tenant with a new key or any other means of access to the Premises. To the
maximum extent permitted by law, Landlord and Tenant agree that the parties
hereto intend that all rights and remedies of Landlord under this Lease shall
supersede any conflicting provisions of the General Statutes of North Carolina,
and any amendments, modifications, recodification or other changes thereto.
Notwithstanding any other remedy set forth in this Lease, if Landlord has
made rent concessions of any type or character, or waived any Base Rent, and
Tenant fails to take possession of the Premises on the Commencement Date or
otherwise defaults at any time during the term of this Lease, the rent
concessions, including
14
any waived Base Rent, shall be canceled and the amount of the Base Rent or other
rent concessions shall be due and payable immediately as if no rent concessions
or waiver of any Base Rent had ever been granted. A rent concession or waiver of
the Base Rent shall not relieve Tenant of any obligation to pay any other charge
due and payable under this Lease. Notwithstanding anything contained in this
Lease to the contrary, this Lease may be terminated by Landlord only by written
notice of such termination to Tenant given in accordance with Section 13.7
below, and no other act or omission of Landlord shall be construed as a
termination of this Lease.
11.3 Remedies Cumulative. All rights and remedies of Landlord herein
-------------------
or existing at law or in equity are cumulative and the exercise of one or more
rights or remedies shall not be taken to exclude or waive the rights to the
exercise of any other.
ARTICLE 12.- DEFINITIONS
12.1 Abandon. "Abandon" means the vacating of all or a substantial
-------
portion of the Premises by Tenant, whether or not Tenant is in default of the
rental or other payments due under this Lease.
12.2 Act of God or Force Majeure. An "act of God" or "force majeure"
---------------------------
is defined for purposes of this Lease as strikes, lockouts, sitdowns, material
or labor restrictions by any governmental authority, unusual transportation
delays, riots, floods, washouts, explosions, earthquakes, fire storms, weather
(including wet grounds or inclement weather which prevents construction), acts
of the public enemy, wars, insurrections, and/or any other cause not reasonably
within the control of Landlord or which by the exercise of due diligence
Landlord is unable wholly or in part, to prevent or overcome.
ARTICLE 13.- MISCELLANEOUS
13.1 Waiver. Failure of Landlord to declare an event of default
------
immediately upon its occurrence, or delay in taking any action in connection
with an event of default, shall not constitute a waiver of the default, but
Landlord shall have the right to declare the default at any time and take such
action as is lawful or authorized under this Lease. Pursuit of any one or more
of the remedies set forth in Article 11 above shall not preclude pursuit or any
one or more of the other remedies provided elsewhere in this Lease or provided
by law, nor shall pursuit of any remedy hereunder or at law constitute
forfeiture or waiver of any rent or damages accruing to Landlord by reason of
the violation of any of the terms, provisions or covenants of this Lease.
Failure by Landlord to enforce one or more of the remedies provided hereunder or
at law upon any event of default shall not be deemed or construed to constitute
a waiver of the default or of any other violation or breach of any of the terms
provisions and covenants contained in this Lease. Waiver by Landlord of any
default by Tenant hereunder shall in no event be deemed or construed to be a
waiver of identical or similar future defaults. Landlord may collect and receive
rent due from Tenant without waiving or affecting any rights or remedies that
Landlord may have at law or in equity or by virtue of this Lease at the time of
such payment. To the maximum extent allowable pursuant to applicable law,
institution of a summary ejectment action to re-enter the Premises shall not be
construed to be an election by Landlord to terminate this Lease.
13.2 Act of God. Landlord shall not be required to perform any
----------
covenant or obligation in this Lease, or be liable in damages to Tenant, so long
as the performance or non-performance of the covenant or obligation is delayed,
caused or prevented by an act of God, force majeure or by Tenant.
13.3 Attorney's Fees. If Tenant defaults in the performance of any of
---------------
the terms, covenants agreements or conditions contained in this Lease and
Landlord places in the hands of any attorney the enforcement of all or any part
of this Lease, the collection of any rent or other sums due or to become due or
recovery of the possession of the Premises, Tenant agrees to pay Landlord's cost
of collection, including reasonable attorneys' fees, whether suit is actually
filed or not.
13.4 Successors. This Lease shall be binding upon and inure to the
----------
benefit of Landlord and Tenant and their respective heirs, personal
representations, successors and assigns.
13.5 Rent Tax. If applicable in the jurisdiction where the Premises
--------
are situated, Tenant shall pay and be liable for all rental, sales and use taxes
or other similar taxes, if any, levied or imposed by any city, state, county or
15
other governmental body having authority, such payments to be in addition to all
other payments required to be paid to Landlord by Tenant under the terms of this
Lease. Any such payment shall be paid concurrently with the payment of the Base
Rent, Additional Rent, Common Area Costs, or other charge upon which the tax is
based as set forth above.
13.6 Interpretation. The captions appearing in this Lease are for
--------------
convenience only and in no way define, limit, construe or describe the scope or
intent of any Section. Grammatical changes required to make the provisions of
this Lease apply (1) in the plural sense where there is more than one tenant
arid (2) to either corporations, associations, partnerships or individuals,
males or females, shall in all instances be assumed as though in each case fully
expressed. The laws of the State of North Carolina shall govern the validity,
performance and enforcement of this Lease. This Lease shall not be construed
more or less favorably with respect to either party as a consequence of the
Lease or various provisions hereof having been drafted by one of the parties
hereto.
13.7 Notices. All rent and other payments required to be made by
-------
Tenant shall be payable to Landlord, in care of Manager, at Managers address set
forth on page 1 (or if no address be set forth for Manager, to Landlord at
Landlord's address set forth on page 1). All payments required to be made by
Landlord to Tenant shall be payable to Tenant at Tenant's Business address set
forth on page 1. Any notice or document (other than rent) required or permitted
to be delivered by the terms of this Lease shall be deemed to be delivered
(whether or not actually received) when deposited in the United States Mail,
postage prepaid, certified mail, return receipt required, addressed to the
parties at the respective addresses set forth on page 1 (or, in the case of
Tenant, at the-Premises (Business Address), or to such other addresses as the
parties may have designated by written notice to each other, with copies of
notices to Landlord being sent to Landlord's address as shown on page 1. Manager
shall be a co-addressee with Landlord on all notices sent to Landlord by Tenant
hereunder, and any notice sent to Landlord and not to Manager, also, in
accordance with this section shall be deemed ineffective.
13.8 Submission of Lease. SUBMISSION OF THIS LEASE TO TENANT FOR
-------------------
SIGNATURE DOES NOT CONSTITUTE A RESERVATION OF SPACE OR AN OPTION TO LEASE. THIS
LEASE IS NOT EFFECTIVE UNTIL EXECUTION BY AND DELIVERY TO BOTH LANDLORD AND
TENANT.
13.9 Corporate Authority. If Tenant executes this Lease as a
-------------------
corporation or a partnership (general or limited), each person executing this
Lease on behalf of Tenant personally represents and warrants that: Tenant is a
duly authorized and existing corporation or partnership (general or limited),
Tenant is qualified to do business in the state in which the Premises are
located, the corporation or partnership (general or limited) has full right and
authority to enter into this Lease, each person signing on behalf of the
corporation or partnership (general or limited) is authorized to do so, and the
execution and delivery of the Lease by Tenant will not result in any breach of,
or constitute a default under any mortgage, deed of trust, lease, loan, credit
agreement, partnership agreement, or other contract or instrument to which
Tenant is a party or by which Tenant may be bound. If any representation or
warranty contained in this Section is false, each person who executes this Lease
shall be liable, individually, as Tenant hereunder.
13.10 Multiple Tenants. If this Lease is executed by more than one
----------------
person or entity as "Tenant," each such person or entity shall be jointly and
severally liable hereunder. It is expressly understood that any one of the named
Tenants shall be empowered to execute any modification, amendment, exhibit,
floor plan, or other document herein referred to and bind all of the named
Tenants thereto; and Landlord shall be entitled to rely on same to the extent as
if all of the named Tenants had executed same.
13.11 Tenant's Financial Statements. Tenant represents and warrants
----------------------------
to Landlord that, as of the date of execution of this Lease by Tenant, the
financial statements, if any, of Tenant provided to Landlord prior to or
simultaneously with the execution of this Lease accurately represent the
financial condition of Tenant as of the dates and for the periods indicated
therein, such financial statements are true and do not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements included therein not misleading and there has been
no material adverse change in the financial condition or business prospects of
Tenant since the respective dates of such financial statements. If there is a
material adverse change in Tenant's financial condition, Tenant will give
immediate notice of such material adverse change to Landlord. If Tenant fails to
give such immediate notice to Landlord, such failure shall be deemed an event of
default under this Lease.
16
13.12 Severability. If any provision of this Lease or the application
------------
thereof to any person or circumstances shall be invalid or unenforceable to any
extent, the remainder of this Lease and the application of such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law. Each covenant and agreement
contained in this Lease shall be construed to be a separate and independent
covenant and agreement, and the breach of any such covenant or agreement by
Landlord shall riot discharge or relieve Tenant from Tenant's obligation to
perform each and every covenant and agreement of this Lease to be performed by
Tenant.
13.13 Landlord's Liability. If Landlord shall be in default under
--------------------
this Lease and, if as a consequence of such default, Tenant shall recover a
money judgment against Landlord, such judgment shall be satisfied only out of
the right, title and interest of Landlord in the Property as the same may then
be encumbered and neither Landlord nor any other person or entity comprising
Landlord shall be liable for any deficiency. In no event shall Tenant have the
right to levy execution against any property of Landlord other than the
Property, nor any person or entity comprising Landlord other than its interest
in the Property as herein expressly provided.
13.14 Sale of Property. Upon any conveyance, sale or exchange of the
----------------
Premises or assignment of this Lease, Landlord shall be and is hereby entirely
free and relieved of all liability under any and all of its covenants and
obligations contained in or derived from this Lease arising out of any act,
occurrence, or omission relating to the Premises or this Lease occurring after
the consummation of such sale or exchange and assignment.
13.15 Time is of the Essence. The time of the performance of all of
----------------------
the covenants, conditions and agreements of this Lease is of the essence.
13.16 Subtenancies. At Landlord's option, the voluntary or other
------------
surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not
work a merger of estates and shall operate as an assignment of any or all
permitted subleases or subtenancies.
13.17 Common Areas. Landlord reserves the right to change, from time
------------
to time, the dimensions and location, identity and type of any buildings
comprising the Building, and to construct additional buildings or additional
stories on existing buildings or other improvements on the Property, provided
that such changes and additional construction do not materially or adversely
affect parking and signage for the Premises. Landlord reserves the right to
change, from time to time, the dimensions and location of the Common Area and to
allow the Common Area to be put to such uses as Landlord shall, from time to
time, deem desirable. Tenant and its employees and customers shall have the
nonexclusive right to use the Common Area in common with Landlord, other tenants
of the Property and other persons designated by Landlord, subject to reasonable
rules and regulations governing use that Landlord from time to time prescribes.
Tenant shall not solicit business, distribute handbills or display merchandise
within the Common Area, or take any action which would interfere with the rights
of other persons to use the Common Area. Landlord may temporarily close any part
of the Common Area to make repairs or alterations. Tenant acknowledges that
Landlord may be required to grant to major tenants of the Property the right to
display and sell merchandise and services on portions of the Common Area, and
the rights herein granted to Tenant shall be inferior to any such rights granted
to major tenants. The Common Area shall be under Landlord's sole operation and
control. Tenant shall be responsible for and shall indemnify and hold Landlord
harmless from any liability, loss or damage arising out of or caused by Tenant,
its employees, subtenants, licensees, concessionaires, agents, suppliers,
vendors, or service contractors, to any part of the Common Area, or to the
Property whether such damages be structural or nonstructural.
13.18 Employee Parking. Landlord may, from time to time, designate
----------------
specific areas adjacent to the leased space in which vehicles owned by Tenant
and its employees shall be parked, and Tenant shall use best efforts to see that
such vehicles are parked in such areas. Upon written request, Tenant shall
furnish to Landlord a complete list of the license numbers of all vehicles
operated by Tenant and its employees.
ARTICLE 14. - AMENDMENT AND LIMITATION OF WARRANTIES
14.1 Entire Agreement. IT IS EXPRESSLY AGREED BY TENANT, AS A MATERIAL
----------------
CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH THE
SPECIFIC REFERENCES TO EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF THE
PARTIES; THAT
17
THERE ARE, AND WERE, NO VERBAL REPRESENTATIONS, WARRANTIES, UNDERSTANDINGS,
STIPULATIONS, AGREEMENTS OR PROMISES PERTAINING TO THE SUBJECT MATTER OF THIS
LEASE OR OF ANY EXPRESSLY MENTIONED EXTRINSIC DOCUMENTS THAT ARE NOT
INCORPORATED IN WRITING IN THIS LEASE OR IN SUCH DOCUMENTS.
14.2 Amendment. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR
---------
EXTENDED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LANDLORD AND TENANT.
14.3 Limitation of Warranties. LANDLORD AND TENANT EXPRESSLY AGREE
------------------------
THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY,
HABITABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND
ARISING OUT OF THIS LEASE, AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE
EXPRESSLY SET FORTH IN THIS LEASE. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, TENANT EXPRESSLY ACKNOWLEDGES THAT LANDLORD HAS MADE NO WARRANTIES OR
REPRESENTATIONS CONCERNING ANY HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL
MATTERS AFFECTING ANY PART OF THE PROPERTY, AND LANDLORD HEREBY EXPRESSLY
DISCLAIMS AND TENANT WAIVES ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO
ANY SUCH MATTERS.
14.4 Waiver and Releases. TENANT SHALL NOT HAVE THE RIGHT TO WITHHOLD
-------------------
OR TO OFFSET RENT OR TO TERMINATE THIS LEASE EXCEPT AS EXPRESSLY PROVIDED
HEREIN. TENANT WAIVES AND RELEASES ANY AND ALL STATUTORY LIENS AND OFFSET
RIGHTS.
14.5 Non-Disclosure of Lease Terms. NOTWITHSTANDING ANYTHING CONTAINED
-----------------------------
WITHIN THIS LEASE TO THE CONTRARY, IF TENANT DISCLOSES ANY OF THE MATERIAL TERMS
AND/OR PROVISIONS OF THIS LEASE, INCLUDING BUT NOT LIMITED TO THE BASE RENT,
TENANT'S COMMON AREA COSTS OR ANY CAPS ON SUCH COSTS, THE TENANT FINISH OUT
ALLOWANCE, TENANT'S PROPORTIONATE SHARE OF GENERAL TAXES OR ANY CAP ON SUCH
EXPENSE, TENANT'S PROPORTIONATE SHARE OF INSURANCE PREMIUMS OR ANY CAP ON SUCH
EXPENSE, OR THE LEASE TERM TO ANY PERSON OR ENTITY NOT A PARTY TO THIS LEASE,
EXCEPT TENANT'S ATTORNEY, THEN TENANT SHALL BE LIABLE FOR ALL DAMAGE OR INJURY
TO LANDLORD RESULTING FROM TENANTS FAILURE TO KEEP ALL SUCH INFORMATION
CONFIDENTIAL AND TENANT SHALL INDEMNIFY AND HOLD LANDLORD HARMLESS FROM ANY
DAMAGE, LOSS OR INJURY OCCASIONED THEREBY. IN THE ALTERNATIVE, AND AT LANDLORD'S
SOLE OPTION, IF DAMAGES ARE DIFFICULT TO CALCULATE, TENANT SHALL PAY LIQUIDATED
DAMAGES EQUAL TO ONE (1) MONTH'S BASE RENT AS DEFINED IN ARTICLE 1 HEREOF.
15.1 Addendum. The Addendum attached hereto is incorporated herein by
--------
reference as if set forth verbatim. In the event of a conflict between the terms
and conditions of the Addendum and the Lease, the Addendum shall govern and
control. All terms defined herein have the same meaning in the Addendum as
herein.
SIGNATURE PAGE TO FOLLOW
18
EXECUTED by Tenant on August 31, 1999 , 199 , and by Landlord on
-------------------------- --
September 7, 1999, to be effective upon full execution by Landlord and Tenant.
-----------------
LANDLORD:
XXXXXX XXXXXXX DEVELOPMENT XXXII,
LIMITED PARTNERSHIP
BY: Parker Lincoln Developers, Inc., its Managing
Agent
ATTEST:
/s/ Xxxxxx X. Poor By: /s/ Xxxxx X. Xxxxx
------------------ --------------------------------------
Asst. Secretary Name: Xxxxx X. Xxxxx
------------------ --------------------------------------
Print or Type
(SEAL) Title: Vice President
--------------------------------------
TENANT:
PARADIGM GENETICS, INC., a North Carolina corporation
ATTEST:
/s/ Xxxxx Xxxxx By: /s/ Xxxx Xxxxx
------------------ --------------------------------------
Secretary Name: Xxxx Xxxxx
------------------ --------------------------------------
Print or Type
(SEAL) Title: CEO/President
--------------------------------------
19
A D D E N D U M
This Addendum is attached and incorporated by reference in the lease
by and between XXXXXX-XXXXXXX DEVELOPMENT XXXII, LLC ("Landlord") and PARADIGM
GENETICS, INC., a North Carolina corporation ("Tenant") dated 9-7-99 (the
"Lease"). In the event of a conflict between the terms and conditions of this
Addendum and the Lease, this Addendum shall govern and control. All terms
defined in the Lease shall have the same meaning herein.
The following shall constitute additional provisions or conditions to the Lease:
1. Tenant accepts the Premises "as is" and "where is" and Landlord shall
not be required to make any improvements to the Premises except for
the construction of a demising wall to partition Tenant's property
from that of other adjoining tenants.
2. Tenant shall make all improvements required to obtain a Certificate of
Occupancy and for Tenant's specific operations (the "Tenant
Improvements"). Tenant must install two (2) bathrooms (one Men's and
one Women's); 200 amp or greater electrical service; and all lighting
and heating. At the completion of construction of the foregoing items,
provided Landlord has inspected and approved the construction and a
Certificate of Occupancy has been issued, Landlord will pay to Tenant
$12,000.00 toward the cost of such improvements. All remaining costs
shall be the sole responsibility of Tenant. In connection with the
construction of the Tenant Improvements, Tenant shall be permitted to
make roof penetrations in connection with the installation of
ventilation equipment. Prior to the installation of such equipment,
Tenant shall pay to Landlord a non-refundable amount of $350.00 for
each roof penetration. In order for the appropriate warranties to
remain in effect on the Building, including, but not limited to, the
warranty on the roof, Tenant must use Landlord's roofing contractor to
perform the roof penetrations.
Tenant is responsible for maintaining the Premises and the surrounding
areas in a neat and orderly fashion during the construction and
removing all construction debris during and at completion of the
construction. Tenant must perform the construction in accordance with
all applicable laws, rules and regulations. Tenant shall perform the
construction in a manner which will not disturb or interfere with the
business operations of the adjoining tenants.
All Tenant Improvements must be performed in accordance with the
Tenant Improvement(s) Specifications attached hereto as Exhibit F-I
(along with all exhibits FIA - FIM). Tenant shall immediately repair
all damage caused to the Premises and/or Property caused by the
construction of the Tenant Improvements. Tenant must maintain and keep
in good condition all improvements throughout the Term of the Lease.
At the termination or expiration of the Lease, Tenant must return the
Premises to the original condition and repair all damage caused by the
removal of the Tenant Improvements. Tenant shall not be permitted to
remove any Tenant Improvements when the removal would cause
irreparable damage to the Premises.
Within 30 days of execution of the Lease, Tenant must submit to
Landlord plans and specifications for all Tenant Improvements
including permit-ready, architectural and engineered drawings.
Landlord will notify Tenant of its approval of the plans within 10
days of submission.
Within 60 days of execution of the Lease, Tenant must submit to
Landlord a copy of all contracts and purchase agreements with all
contractors and sub-contractors who will be performing construction of
the Tenant Improvements. Such contracts must include specific prices
and construction costs.
All construction of Tenant improvements must be complete within 150
days of turnover of the Premises and Rent shall commence upon turnover
of the Premises. Within this time period, Tenant must submit a
Certificate of Occupancy along with executed lien waivers from all
contractors and all warranties, if applicable, for the Tenant
improvements. Tenant may not occupy the Premises
20
for any reason other than the construction of the Tenant Improvements
prior to the satisfaction of these conditions.
SIGNATURE PAGE TO FOLLOW
21
Prior to the commencement of the Tenant Improvements, Tenant must
obtain insurance coverage in accordance with all requirements as set
forth in Section 7.6 of the Lease, which insurance must, in addition
to providing all other coverages, provide coverage for army loss or
damage to personal property arising from Tenant's, its contractors and
agents and their performance of the work hereunder, and submit to
Landlord proof thereof.
3. On condition that Tenant has fully complied with all the terms and
conditions of the Lease, and on the further condition that Tenant
gives Landlord 180 days' advance written notice to exercise the option
to extend (failure to give notice being an absolute bar to any right
on the part of the Tenant to so extend), Landlord hereby gives to
Tenant the right to extend this Lease for three terms of one year
each. The annual rent shall be $6.83 per square foot for year one,
$7.38 per square foot for year two and $7.97 per square foot for year
three. The same terms and conditions, except as to annual rent, as set
forth in the Lease shall govern the parties' rights and obligations
during Renewal Term and the additional extended term.
Except as modified herein, all provisions of the Lease shall be in
full force and effect.
LANDLORD:
XXXXXX XXXXXXX DEVELOPMENT XXXII, LLC
BY: Parker Lincoln Developers, Inc.
its Managing Agent
By: /s/ Xxxxx X. Xxxxx
------------------
Name: /s/ Xxxxx X. Xxxxx
------------------
ATTEST: Title: Vice President
-----------------
/s/ Xxxxxx X. Poor
------------------
Assistant Secretary
[CORPORATE SEAL]
TENANT:
PARADIGM GENETICS, INC.
a North Carolina corporation
By: /s/ Xxxx Xxxxx
---------------
Name: /s/ Xxxx Xxxxx
-----------------
ATTEST: Title: CEO/President
--------------
/s/ Xxxxx Xxxxx
---------------
Assistant Secretary
[CORPORATE SEAL]
22
STATE OF NORTH CAROLINA
LEASE AMENDMENT NO.1
COUNTY OF WAKE
This Amendment is made this 28th day of October 1999, by and between
XXXXXX XXXXXXX DEVELOPMENT XXXII, LIMITED PARTNERSHIP ("Landlord") and PARADIGM
GENETICS, INC., a North Carolina corporation ("Tenant"). In the event of a
conflict between the terms and conditions of the Lease and this Amendment, this
Amendment shall govern and control. All terms defined in the Lease shall have
the same meaning herein. Except as modified herein all terms and conditions of
the Lease are ratified and confirmed in all other respects.
WHEREAS, Landlord and Tenant entered into a written agreement of lease
dated September 7, 1999 (the "Lease") whereby the Landlord leased to Tenant
approximately 20,372 square feet of space located at 2933 5. Miami Boulevard,
Suites 122, 123, 124 and 125, Xxxxxx, Xxxxx Xxxxxxxx, 00000 (the "Premises"), as
amended; and
WHEREAS, Landlord's name on the Lease is incorrectly stated as Xxxxxx-
Xxxxxxx Development XXXII, Limited Partnership. Landlord's name is Xxxxxx-
Xxxxxxx Development XXXII, LLC.
Now, therefore, by mutual agreement of the parties and in
consideration of the mutual premises and obligations hereinafter set forth, the
Lease is hereby amended and modified as follows:
1. In Section 1.1 of the Lease, delete "Xxxxxx-Xxxxxxx Development XXXII,
Limited Partnership" and substitute "Xxxxxx-Xxxxxxx Development XXXII,
LLC."
IN WITNESS WHEREOF, the parties hereto have hereunto executed this Lease
Amendment No. 1 in triplicate causing their respective seals to be affixed
hereto the day and year first above written.
LANDLORD:
XXXXXX XXXXXXX DEVELOPMENT XXXII, LLC
BY: Parker Lincoln Developers, Inc.
as managing agent
By: /s/ Xxxxx X. Xxxxx
------------------
Vice President
ATTEST:
/s/ Xxxxxx Poor
---------------
Assistant Secretary
[CORPORATE SEAL]
TENANT:
PARADIGM GENETICS, INC.
a North Carolina corporation
By: /s/ Xxxx Xxxxx
--------------
President
ATTEST:
/s/ Xxxxx Xxxxx
---------------
Assistant Secretary
[CORPORATE SEAL]
23
Exhibit A
---------
Legal Description
Lincoln Park West
Exhibit B
---------
Site Plan
Lincoln Park West
25
Exhibit C
---------
Building Plan
26
EXHIBIT D
Landlord and Tenant hereby acknowledge and mutually agree that the Commencement
Date is 09/27/99, the Rental Commencement Date is 11/1/99 and the Expiration
Date is 09/30/02.
LANDLORD
Xxxxxx-Xxxxxxx Development XXXII, LLC
By: Parker Lincoln Developers, Inc.
its Managing Agent
By: /s/ Xxxxx X. Xxxxx
---------------------
Name:
Title:
Date:
TENANT
Paradigm Genetics, Inc.
By: /s/ Xxxx Xxxxx
--------------
Name: Xxxx X. Xxxxx
-------------
Title: CEO, President
--------------
Date: Oct. 28, 1999
-------------
27
Exhibit E
---------
Rules & Regulations
28
Exhibit F
---------
Floor Plan
29
Exhibit F-1A-F-1M
-----------------
Tenant Improvement(s) Specifications
30
Exhibit G
---------
Sign Criteria
31
