Exhibit 10.14
LEASE
NORTH CAROLINA
WAKE COUNTY:
THIS LEASE, made this 13th day of May, 1999 by and between XXXXXXX XXXX
PARTNERSHIP, a Partnership, hereinafter called "Landlord," and RESEARCH
TRIANGLE CONSULTANTS, INC., a North Carolina Corporation, hereinafter called
"Tenant";
W I T N E S S E T H:
Upon the terms and conditions hereinafter set forth, the Landlord leases to
Tenant and Tenant leases from Landlord property referred to as the Premises, all
as follows:
1. PREMISES. Landlord does hereby grant, demise and lease unto Tenant the
area shown on Exhibit A, 0000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx Xxxx Office Building
(hereinafter referred to as the "Building"), Xxxx, Xxxxx Xxxxxxxx, 00000,
consisting of approximately 27,301 rentable square feet encompassing the entire
first floor as shown on Exhibit A-1 (hereinafter referred to as the "First Floor
Space") and 9,335 rentable square feet located on the second floor, indicated by
the crosshatching as shown on Exhibit B (hereinafter referred to as the "Second
Floor Space"), which together shall hereinafter be referred to as the Premises.
The rentable square footage of the Premises includes a three percent (3%) common
area factor applied to the useable square footage which comprises the First
Floor Space (such useable square footage is 26,506 useable square feet) and an
eleven percent (11%) common area factor applied to the useable square footage
which comprises the Second Floor Space (such useable square footage is 8,416
useable square feet).
2. TERM. (I.) This Lease shall commence on or about September 1, 1999
(hereinafter referred to as the "Commencement Date") provided the following
deadlines are met by RTC, Inc.:Notwithstanding the fact that September 1,
1999 is the date of delivery hereinprovided, the Landlord does undertake to
take all reasonable steps to provide to the tenant an earlier date of
delivery.
A. Signing off on all necessary drawings by May 10, 1999 needed for submittal to
Cary for permits by May 11, 1999 and subsequent modifications as may be
required by the town of Xxxx.
B. Lease execution by Tenant within ten (10) days from the date of delivery of
this lease document to Tenant for review and execution. If Landlord is unable
to deliver the Premises by September 1, 1999 for any reasons other than: (i)
delays due to Tenant, including delays for any long lead items required to
construct the First Floor Space or (ii) delays due to force majeure, then
Landlord will be responsible for one-
hundred percent (100%) of any additional penalty or holdover rental above
what RTC, Inc.'s current daily occupancy costs have been at The Xxxxxxxx
Building or other temporary space (hereinafter referred to as the "Temporary
Space") Tenant may lease in anticipation of relocating to the Building.
Tenant shall provide Landlord a copy of Tenant's current lease and any
addendums or new leases hereto or forthcoming. With respect to the current
leases or addendums now in effect, there are no holdover or penalty
provisions for holdover other than with respect to the lease governing suites
329 and 325. With respect to Landlord's potential obligation resulting from
Landlord's failure to deliver the First Floor Space in the prescribed
timeframe for additional penalty or holdover rental at any Temporary Space ,
Landlord's obligation shall be subject to Landlord's approval of new leases
for such Temporary Space. For any such Landlord payment obligations, Landlord
shall make payments to Tenant and Tenant shall be responsible for making
payment to the third party. In the event Landlord fails to make such payment
to Tenant within thirty (30) days of request, Tenant shall be entitled to
xxxxx rent in the amount of the sum owed.
To the extent any delays in Landlord's delivery of the First Floor Space are
caused by Tenant's failure to meet its deadlines as described herein, Landlords'
obligation to deliver the First Floor Space by September 1, 1999 and to assume
any of Tenant's penalty or holdover rental obligations beyond September 1, 1999
at The Xxxxxxxx Building or in the Temporary Space shall be delayed by the same
number of days as Tenant's delay in meeting its deadlines described herein.
The Commencement Date shall be established upon the occurrence of each of (a) a
final certificate of occupancy being issued on the First Floor Space,
constructed substantially in accordance with the plans that have been initialled
by the Tenant and approved by the city of Cary; and (b) Landlord's written
notice to Tenant of Landlord's delivery of the First Floor Space.
Should there be any items on the punch list outstanding or in dispute at the
time of the issuance of the certificate of occupancy, the Landlord shall
diligently correct those items not in dispute and with respect to those in
dispute, if any, tenant and landlord agree to engage an independent architect to
finally resolve the dispute.
(II.) The Lease shall terminate (unless extended as herein provided) on
the last day of the calendar month which completes sixty (60) months from the
Commencement Date as defined above and the period from the Commencement Date
through and including the last day of the calendar month which completes said
sixty (60) month period shall hereinafter be referred to as the Lease Term. In
the event Landlord shall permit Tenant to take possession of the Premises prior
to the Commencement Date referenced above, all the terms and conditions of this
Lease shall apply.
(III.) Notwithstanding anything contained herein to the contrary, and
regardless of the date Tenant takes possession of the Second Floor Space Tenant
shall not begin its
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rental obligations for the Second Floor Space until the end of the ninth (9th)
month of the Lease Term.
(IV.) Tenant shall have the option to cancel (hereinafter referred to as
the "Cancellation Option") its obligation for the Second Floor Space at anytime
following the Commencement Date through the end of the ninth (9th) month of the
Lease Term (hereinafter referred to as the "Option Period"). Tenant shall pay
Landlord, simultaneously with the execution of this Lease, thirty-thousand
dollars ($30,000) for said Cancellation Option. In the event Tenant exercises
its Cancellation Option, Landlord will amend the Lease accordingly;Landlord
agrees to use all reasonable efforts to deliver and diligently pursue its
completion of the First Floor Space and Second Floor Space. If Landlord defaults
and does not deliver the First Floor Space or The Second Floor Space , Landlord
shall refund the $30,000 plus an additional charge of 1.5% per month.The
aforementioned is only applicable where the Landlord fails to deliver the First
Floor Space or Second Floor Space and not to cases of delay by the Landlord in
delivering the premises after the intended Commencement date.
(V.) (i.) At any time during the Option Period, Tenant may notify Landlord
of its intention not to exercise its Cancellation Option. In such event,
Landlord warrants to promptly submit any materials required by the Town of Xxxx
for a building permit and further warrants the completion of the Second Floor
Space within ninety (90) days after a permit for the Second Floor Space has been
issued by the Town of Xxxx. If Landlord fails to deliver the Second Floor Space
within said ninety (90) day period Tenant will receive rental abatement for the
Second Floor each day that Landlord is late in delivering the Second Floor
Space.
(ii.) Tenant recognizes its obligation to approve a detailed preliminary
space plan for the second floor space and Landlord's architects subsequently
preparing construction documents from such approved space plan prior to
Landlord's submitting such construction documents to the Town of Xxxx for said
permit.
(iii.) Provided Tenant determines not to exercise its Cancellation Option,
the Lease Term as described herein shall be extended to include that period
which is six (6) years from the date Landlord receives written notice from
Tenant of its intention not to exercise its Cancellation Option. At such time,
Landlord and Tenant shall execute an amendment to this Lease which sets forth
the revised expiration date of this Lease.
3. USE. Tenant may use the Premises for general office purposes, but for
none other without Landlord's prior written consent, but in no event shall
Tenant make any use of the Building which is in violation of any lawful
governmental laws, rules or regulation whether now existing or hereafter enacted
insofar as they might relate to Tenant's use and occupancy of the Premises, nor
may Tenant make any use of the Premises, or which is or might constitute a
nuisance, or which increases the fire insurance premiums (or make such insurance
unavailable to Landlord) on the Building. In the event of an increase in
Landlord's fire insurance premiums which results from Tenant's use or occupancy
of the Premises, Tenant shall pay Landlord, on demand, the
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amount of such increase. The Tenant shall have the use of the Premises for the
purpose of carrying on its business activities and all other related uses for
the Lease Term. Landlord shall provide Tenant, at no extra charge, with full and
complete access and use of the Premises. From Monday to Friday from 8:00 a.m. to
6:00 p.m. and Saturday 8:00 a.m. to 1:00 p.m. save for statutory and public
holidays (hereinafter referred to as the "Normal Business Hours"), Landlord
shall ensure that heating, ventilation and air conditioning (the "HVAC") is
fully maintained in the Premises at no extra charge during this time. Tenant
shall be entitled to access to the Premises after Normal Business Hours subject
to Landlord's reasonable security procedures for the Building.
4. BASE RENT. All Base Rent and Additional Rent (as defined below in
Paragraph 22) payable by Tenant shall be without previous demand or notice by
Landlord, and except as expressly provided herein without set off or deduction:
Any claims by the tenant for any reduction, or abatement or setoff must be
agreed to between the landlord and the tenant, and failing agreement by a court
of competent jurisdiction. The Base Rent for the Lease Term shall be in
accordance with the following schedule:
First Floor Premises:
Base Rent Annual Base Rent Monthly Base Rent
--------- ---------------- -----------------
Year 1 $18.50 $505,068.48 $42,089.04
Year 2 $19.06 $520,357.08 $43,363.09
Year 3 $19.63 $535,918.68 $44,659.89
Year 4 $20.22 $552,026.28 $46,002.19
Year 5 $20.82 $568,406.88 $47,367.24
Year 6* $21.45 $585,606.48 $48,800.54
Year 7* $22.09 $603,079.08 $50,256.59
*if applicable
Second Floor Premises:
Base Rent Annual Base Rent Monthly Base Rent
--------- ---------------- -----------------
Year 1 $18.50 $172,697.52 $14,391.46
Year 2 $19.06 $177,925.08 $14,827.09
Year 3 $19.63 $183,246.00 $15,270.50
Year 4 $20.22 $188,753.76 $15,729.48
Year 5 $20.82 $194,354.76 $16,196.23
Year 6* $21.45 $200,235.72 $16,686.31
Year 7* $22.09 $206,210.16 $17,184.18
*if applicable
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All Base Rent and Additional Rent (as defined below in Paragraph 22)
shall be payable in advance on or before the first day of each calendar month
during the Lease Term unless the Lease Term commences other than on the first
day of the month, in which event Base Rent shall be prorated at the above rate
until the end of that month. Base Rent for the first month of the Lease Term
shall be due and payable simultaneous with the delivery of the Premises for
occupancy by the Tenant. In addition to such remedies as may be provided under
the Default provisions of this Lease, Landlord shall be entitled to a late
charge of five (5%) percent of the amount of the monthly Base Rent and
Additional Rent (as defined below in Paragraph 22) if not received by the 10th
day of the month in which the rent is due and a reimbursement of bank fees
related to any check given to Landlord not paid at the time of presentation to
the appropriate banking facility. Base Rent and all other charges shall be
mailed or delivered to:
Xxxxxxx Xxxx Limited Partnership
0000 Xxxxxx Xxxx Xxxxx
Xxxx, Xxxxx Xxxxxxxx 00000
5. SERVICES BY LANDLORD. Landlord shall cause to be furnished to the
Premises in common with other tenants, during reasonable business hours,
Monday through Friday (excluding National or State holidays), the following
services:
(i.) Janitorial service (once per working day after normal working
hours), including the Removal of Trash, Cleaning and
re-supplying bathrooms and kitchen areas, vacuuming and dusting
of office premises.
(ii.) Water, if available from city mains for drinking, lavatory and
toilet purposes.
(iii.) Electricity for general office space use (including fluorescent
lighting replacements).
(iv.) Operator-less elevator service
(v.) Trash removal in accordance with city schedules
(vi.) Heating and air conditioning for comfortable use and occupancy
ranging approximately between 72 and 78 degrees Fahrenheit of
the Premises during Normal Business Hours. Heating and air
conditioning service required during non-Normal Business Hours
shall be charged to Tenant at the rate of thirty-five dollars
($35.00) per hour only when Tenant has requested such service.
(vii.) All additional costs resulting from Tenant's extraordinary usage
of heating, air conditioning or electricity shall be paid by
Tenant, but Tenant shall not install equipment with unusual
demands for any of the foregoing without Landlord's prior
written consent, which Landlord may withhold if it determines
that in its opinion such equipment may not be safely used in the
Premises or that electrical service is not adequate.
Notwithstanding anything to the contrary herein, Landlord
acknowledges that Tenant's business is of a high-technology
nature and that Tenant's employees will be working with normal
and customary desktop computer equipment
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requiring standard 110 voltage electrical service which Landlord
further acknowledges does not constitute extraordinary
electrical usage. Landlord shall not be liable to Tenant for any
damage caused to Tenant or its property due to the Building or
any part or appurtenance thereof being improperly constructed or
being or becoming out of repair, or arising from the leaking of
gas, water, sewer, or from electricity. Tenant shall report
immediately to Landlord any defective condition on or about the
Premises known to Tenant and if such defect is not so reported,
Tenant shall be liable for resulting damages. So long as
Landlord acts promptly (taking into consideration the
seriousness of the repair and the possible damage from the
disrepair) and reasonably and in good faith, there shall be no
abatement or reduction of rent by reason of any of the foregoing
services not being continuously provided to Tenant. Landlord
further shall have no obligation to Tenant by reason of delays
beyond Landlord's reasonable control in delivering possession to
Tenant when agreed. Landlord shall pay all ad valorem taxes
applicable to the Building, land and common areas but Tenant
shall be responsible for ad valorem personal property taxes on
its furniture and equipment.
(viii.) Landlord shall provide Tenant, during the Lease Term of this
Lease and any renewal thereof, with free surface parking located
in the Building's parking area, in a ratio equal to four (4)
cars per every one thousand square feet of rentable office space
occupied by Tenant. Landlord warrants that it will make absolute
best efforts to work with Chili's Restaurant in an effort to
xxxx, as reserved, the appropriate number of parking spaces for
Tenant based on Tenant's rentable square footage. Landlord
agrees to copy Tenant on all correspondence between Landlord and
Chili's Restaurant with respect to relevant parking matters.
Landlord also warrants that it will use best efforts to enforce
Tenant's parking rights with respect to other tenant's of the
Building. The specific spaces to be reserved will be mutually
agreed upon by Tenant and Landlord and must be in compliance
with all Xxxx Town ordinances.
6. TENANT'S ACCEPTANCE AND MAINTENANCE OF PREMISES. Tenant upon occupancy
of Premises represents to Landlord that it has examined and inspected the same,
finds them to be as represented by Landlord and satisfactory for Tenant's
intended use, and evidences Tenant's acceptance "as-is" except for customary
punch-list items or long lead items not yet installed. Tenant shall deliver at
the end of the Lease Term each and every part of the Premises (excluding
exterior drives, walks, and parking areas, grounds, exterior walls, roof, and
common areas in the Building to be maintained by Landlord) in good repair and
condition, and shall make at Tenant's sole cost and expense such replacements,
restoration, renewals or repairs, in quality equivalent or better than the
original work replaced, as may be required to so maintain the same, ordinary
wear and tear only excepted. Tenant, however, shall make no structural or
interior alterations of the Premises without Landlord's prior written consent.
Any work performed by Tenant shall be done in a good and workmanlike manner, and
so as not to disturb or inconvenience other tenants. Tenant shall not at
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any time permit any work to be performed on the Premises except by duly licensed
contractors or artisans, each of whom must carry general public liability
insurance, certificates of which shall be furnished Landlord. At no time may
Tenant do any work that results in a claim or lien against Landlord. If
requested by Landlord on termination of the Lease or vacation of the Premises by
Tenant, Tenant shall restore, at Tenant's sole cost and expense, the Premises to
the same condition as existed at the Commencement Date, ordinary wear and tear
only excepted; however if Landlord will require any alterations or improvements
be removed at the expiration of the Lease, Landlord shall notify Tenant of that
requirement at the time Landlord consents to such alternations or improvements.
7. DESTRUCTION OF PREMISES. If the Premises are destroyed by fire or
other casualty to the extent that Tenant cannot reasonably carry out its normal
operations, not resulting from the wrongful or negligent act of Tenant either
Landlord or Tenant may by written notice given not later than thirty (30) days
after the date of such destruction, terminate this Lease, in which event rent
paid for the period beyond the date of destruction shall be refunded to Tenant.
If there is not total destruction and Tenant reasonably is required to close its
operations during repairs, rent shall xxxxx while so closed, but if Tenant is
able to continue its normal operations during repairs, rent shall be adjusted
and prorated in the proportion which the area of unusable leased space bears to
the total Premises. Landlord shall not in any case have any liability for losses
claimed by Tenant, unless caused by the negligence of Landlord, its agents or
invitees. However, if the damages are such that Landlord concludes that
restoration can not be completed within one hundred fifty (150) days, Landlord
or Tenant may at its option terminate this Lease. If the Premises are damaged by
cause due to fault or neglect of Tenant, its agents, employees, invitees, or
licensees, Landlord may repair such damage without prejudice to subrogation
rights of Landlord's insurer, and there shall be no apportionment or abatement
of rent.
8. ASSIGNMENT - SUBLEASE. Tenant may not assign or encumber this Lease,
and may not sublet any part or all of the Premises without the written consent
of Landlord first had and obtained, such consent not to be unreasonably
withheld. Any assignment or sublease to which Landlord may consent (one consent
not being any basis to contend that Landlord should consent to a further change)
shall not relieve Tenant of any or all of its obligations hereunder. In no event
shall this Lease be assignable by operation of any law, and Tenant's rights
hereunder may not become, and shall not be listed by Tenant as an asset under
any bankruptcy, insolvency or reorganization proceedings. Tenant is not, may not
become, and shall never represent itself to be an agent of Landlord, and Tenant
expressly recognizes that Landlord's title is paramount, and that it can do
nothing to affect or impair Landlord's title. In the event Tenant elects to
sublease or assign all or part of the Premises, Landlord reserves the right to
recapture that portion of the Premises which Tenant intends to sublease or
assign for the purpose of Landlord pursuing a direct lease with a third party
tenant. In the event that Landlord elects not to recapture that portion of the
Premises Tenant intends to sublease or assign, then Tenant shall be entitled to
one hundred (100%) of the rental income paid by subtenant(s) or assignee.
Notwithstanding the foregoing,
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Tenant shall have the right, without the further consent of Landlord, to assign
its interest in this Lease to any parent, affiliate, or subsidiary of Tenant, or
any entity acquiring substantially all of Tenant's assets or otherwise acquiring
Tenant through merger or acquisition, in which event however Tenant shall remain
liable for the fullfillment of , and undertakes to ensure the performance by the
assignee of ,all of the obligations of the Tenant under the present lease.
9. TENANTS COMPLIANCE. Tenant shall comply with all applicable laws,
ordinances and regulations affecting the Premises, including general rules for
tenants as may be developed from time to time by Landlord and delivered to
Tenant or posted on the Premises (a copy of the present rules are attached as
Exhibit C), and shall hold Landlord harmless from loss, cost or expense
resulting from or occasioned by Tenant's use of Premises, whether caused by
Tenant or by its agents, servants, employees, independent contractors or
licensees. Tenant shall maintain and care for its personal property on the
Premises, insure the same to such extent as it deems appropriate, and shall
neither have nor make any claim against Landlord for any loss or damage to the
same, regardless of the cause therefore, unless caused by the negligence or
willful misconduct of Landlord or its employees or agents. Tenant shall
maintain, at its sole cost and expense, to the mutual benefit of the Landlord
and Landlord's managing agent, throughout the Lease Term general public
liability insurance in amounts acceptable to Landlord ($2,000,000.00), and shall
furnish Landlord copies, upon request, of such policies and evidence of payment
of premiums prior to the date such policies would be in default for nonpayment.
10. SUBORDINATION - ATTORNMENT. This Lease shall be deemed subject and
subordinate to any mortgage which may heretofore or hereafter be executed by
Landlord covering the Building and land upon which the Building is located. In
the event any proceedings are brought for foreclosure of any mortgage on the
Premises, Tenant will attorn to the purchaser at a foreclosure sale and
recognize such purchaser as Landlord, whereby purchaser agrees not to disturb
Tenant's possession so long as it is not in default under the terms of this
Lease. Notwithstanding the foregoing, Tenant's agreement to subordinate this
Lease is subject to and conditioned upon any such lender entering into a
non-disturbance agreement with Tenant in which that Lender agrees not to disturb
Tenant's possession of the Premises in the event of foreclosure or similar
proceeding. Tenant shall execute at Landlord's request, and within ten (10) days
thereof, instruments evidencing the subordinate position of this Lease, and as
often as reasonably required requested shall sign estoppel certificates setting
forth the date it accepted possession, that it occupies the Premises, the
termination date of its Lease, the date to which rent that has been paid and the
amount of monthly rent in effect as of such certification, whether or not it has
any defense of offset to the enforcement of the Lease, any knowledge it has of
any default or breach by Landlord, and that the Lease is in full force and
effect except as to modifications, agreements or amendments thereto, copies of
each of which shall be attached to the certificate.
11. SIGNS. Tenant may not erect, install or display any sign or
advertising material upon the Premises, the walls thereof, or in any window
therein, without the
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prior written consent of Landlord. If Tenant is allowed to install a sign, all
costs associated with the installation of such signage shall be borne by Tenant.
All costs associated with the maintenance, removal and restoration shall be at
Tenant's sole cost and expense.
Notwithstanding anything to the contrary herein, Landlord agrees to provide
Tenant, at Landlord's sole expense, lobby, interior and exterior directional
signage commensurate with other tenants, as well as one monument sign near the
Building's entrance. Landlord warrants its intention to install an awning
identical, except with respect to size,and requirements relating to installation
of the awning over the main entrance, as illustrated in the Xxxxxxx Xxxx
marketing brochure. Landlord will allow Tenant to install building facade
signage, at Tenant's expense, subject to the approval of the Town of Xxxx.
Landlord reserves the right to approve the appearance and location of the facade
signage. Landlord warrants that no other tenant shall have permission to install
a facade sign on the exterior of the Building.
Landlord shall furnish, install and maintain, at Landlord's sole expense, a
Building directory at a convenient location in the Building's lobby listing the
name of Tenant and standard suite entry signage. All signage must comply with
all local ordinances, restrictive covenants and governmental regulations.
12. WAIVER OF SUBROGATION. Each party agrees to use its best efforts to
include in each of its insurance policies (which each shall provide, insuring
the Building and Landlord's property therein against loss, damage or destruction
by fire or other casualty and the rental value thereof, in the case of Landlord,
and insuring Tenant's property in the Premises, in the case of Tenant, against
loss, damage or destruction by fire or other casualty) i.) a waiver of the
insurer's right of subrogating against the other party, or ii.) an express
agreement that such policy shall not be invalidated if the assured waives the
right of recovery against any party responsible for the casualty covered by the
policy before the casualty, or iii.) any other form of permission for the
release of the other party. If such waiver or permission shall not be, or shall
cease to be, obtainable without additional charge or at all, the insured party
shall so notify the other party promptly after learning thereof. In such case,
if the other party shall so elect and shall pay the insurer's additional charge
therefore, such waiver or permission shall be included in the policy. If such
waiver is not obtainable for any reason then there shall be no release of the
other party. The waiver of subrogation or permission for release referred to
herein shall extend to the employees of each party and shall be co-extensive
therewith, and, in the case of Tenant, shall also extend to all other persons
and entities occupying or using the Premises in accordance with the terms of
this Lease, but only if and to the extent that such waiver or permission can be
obtained without additional charge (unless such party shall pay such charge). In
the event that Tenant does not carry insurance, Landlord shall be released
co-extensively and to the same extent as though Tenant's property were insured
for fire insurance with extended coverage.
13. CONDEMNATION. If the whole or at least twenty percent (20%) of the
Premises are taken by any governmental body, whether by Court action or by
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settlement in lieu thereof, and if the Premises or a portion thereof is so taken
renders the remainder of the Premises unfit for the use thereof by Tenant, then
Tenant shall have the option of terminating this Lease by written notice to
Landlord within sixty (60) days of such taking. If Tenant shall not elect to
terminate, or if the taking does not include at least twenty percent (20%) of
the Premises, there shall be an adjustment of the Rent reflecting, on a pro rata
basis, any reduction in Tenant's Premises. All of the condemnation award except
for damage to or the taking of Tenant's Premises and Tenant's relocation award,
if any, shall be the exclusive property of Landlord.
14. ACCESS TO PREMISES. Landlord shall have the right, either itself or
through its authorized agents, to enter the Premises at all reasonable times to
examine the same, to show them to prospective tenants for other spaces in the
Building, to allow inspection by mortgagees, and to make such repairs,
alterations or changes as Landlord deems necessary provided that reasonable
notice has been given to Tenant. Tenant, its agents, employees, invites, and
guests, shall have the right of ingress and to common and public areas of the
Building, provided Landlord by reasonable regulation may control such access for
the comfort, convenience and protection of all tenants in the Building.
15. DEFAULT. If Tenant fails to pay Base Rent and/or Additional Rent (as
Additional Rent is defined in paragraph 22 below) as provided in the Lease
within five (5) business days of written notice from Landlord of delinquency,
breaches any other agreement or obligation herein set forth and fails to cure
the same within thirty (30) days of written notice, files (or has filed against
it) any petition of action for relief under any creditor's law (including
bankruptcy, reorganization, or similar actions), either in State or Federal
Court and fails to have the same dismissed within thirty (30) days, becomes
insolvent, makes any transfer in fraud of creditors or makes an assignment for
the benefit of creditors; then in addition to any other lawful right or remedy
which it may have, Landlord may do the following:
(i.) Use all remedies in accordance with North Carolina law
(ii.) Re-enter the Demised Premises and Correct or repair any
condition which shall constitute a failure on Tenant's part to
perform or abide by the terms of this Lease, and Tenant shall
reimburse Landlord within fifteen ( 15) days of receipt of
invoice by Tenant for any expenditures made by Landlord in
making such corrections or repairs;
(iii.) Re-enter the Demised Premises and Remove therefrom Tenant and
all Tenant property, and place or store such Tenant property in
any public warehouse or place of safekeeping selected by
Landlord, at the sole expense and risk of Tenant, all of which
property Tenant shall be deemed to have abandoned and forfeited
to Landlord if Tenant shall not claim and remove such property
and pay all reasonable storage charges applicable thereto within
thirty (30) days after delivery of written notice to remove from
Landlord;
(iv.) Re-let the Demised Premises or any part thereof for such
periods, and at such rentals and other terms and conditions as
Landlord, in its sole
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discretion, may deem advisable, and Landlord may make
alterations or repairs to the Demised Premises which it may deem
necessary or appropriate to facilitate such re-letting; and
Tenant shall pay on demand all costs of such re-letting
including the cost of any such repairs to the Demised Premises.
If this Lease shall not have been terminated, Tenant shall
continue to pay all Rent due under this Lease up to and
including the date of beginning of payment of rent by any
subsequent tenant of part or all of the Demised Premises, and
thereafter Tenant shall pay monthly during the remainder of the
Lease Term the difference, if any, between the rent collected
from any such subsequent tenant or tenants and the Rent reserved
in this Lease, but Tenant shall not be entitled to receive any
excess of any such rents collected over the Rents reserved
herein; or
(v.) Terminate this Lease, which termination shall be effected by
delivery to Tenant of written notice of such termination; and
upon such termination, Landlord shall recover from Tenant all
damages Landlord may suffer by reason of such termination,
including, without limitation, the cost, including legal
expenses and reasonable attorneys' fees, of recovering
possession of the Demised Premises, and the cost of any repairs
to the Demised Premises which are reasonably necessary to
prepare the same for reletting.
(vi.) All rights and remedies of Landlord are cumulative, and the
exercise of any one shall not be an election excluding Landlord
at any other time from exercising a different or inconsistent
remedy.
(vii.) No waiver by Landlord of any covenant or condition shall be
deemed to imply or constitute a further waiver of the same at a
later time.
In the event Tenant shall be in Default as described herein, Tenant's rights,
including but not limited to those provisions related to renewal as described in
Paragraph 23 and expansion options as described in Paragraph 26 shall be null
and void until such time that Tenant's Default is cured.
16. PROPERTY OF TENANT. Tenant shall timely pay any and all taxes levied
or assessed against or upon Tenant's equipment, fixtures, furniture, leasehold
improvements and personal property located in the Premises. Tenant (if not in
default hereunder), prior to the expiration date of this Lease, may remove all
fixtures and equipment which it has placed in the Premises, providing Tenant
repairs all damages caused by such removal; provided, however, Landlord shall
have at all times a valid lien for all rents and other sums of money due
hereunder from Tenant and to secure the performance by Tenant of each of
Tenant's obligations hereunder, upon all of Tenant's personal property situated
in the Premises, and said property shall not be removed therefrom without the
consent of Landlord until all sums due Landlord have been paid and satisfied,
which lien herein granted may be foreclosed in the manner and form provided by
law for foreclosure of a security interest in personal property. Landlord agrees
that Tenant may create a security interests in the aforementioned property in
favor of its lenders, including lease back arrangements, without further consent
of the Landlord. Any statutory lien for rent is not waived, the contractual lien
herein granted
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being in addition thereto. If Tenant does not remove its property from the
Premises within five (5) business days after termination (for whatever cause) of
this Lease, such property shall be deemed abandoned by Tenant, and Landlord may
dispose of the same in whatever manner Landlord may elect.
17. QUIET ENJOYMENT. If Tenant promptly and punctually complies with each
of its obligations hereunder, it shall peacefully have and enjoy the possession
of the Premises during the Lease Term hereof, provided that no action of
Landlord in working in other space in the Building, or in repairing or restoring
the Premises, shall be deemed a breach of this covenant, giving Tenant any right
to modify this Lease either as to Lease Term, rent payable, or other obligation
to be performed.
18. NOTICES. Any notice which Landlord or Tenant is required or desires
to give the other shall be deemed sufficiently given or rendered if, in writing,
it is delivered personally, hand delivered by third party courier service, or
sent by certified or registered mail, postage prepaid, to the address listed
after the respective signatures on the last page of this Lease. Any notices
given herein shall be deemed delivered when the return receipt therefore is
signed, or refusal to accept the mailing by the addressee is noted thereon by
the postal authorities.
For Tenant the notice shall be delivered to its offices located at 000
Xxxxxxx Xxxxxx; For Landlord the notice shall be delivered to its offices
located at 0000 Xxxx xxxxxxxx, Xxxxxxxx , Xxxxxx. Either party may, by further
notice, advise the other of any other office to which notices must be delivered.
19. HOLDING OVER. Should Tenant or any of its successors in interest hold
over the Premises, or any part thereof, after the expiration of the Lease Term
of this Lease, such holding over shall constitute and be construed as tenancy
from month to month only. Tenant will pay as liquidated damages each month
during the hold over period, an amount equal to one and one-half (1.50) the rent
paid or due to be paid during the last month of the Lease Term. No receipt of
money by Landlord from Tenant after termination of this Lease shall reinstate or
extend this Lease or affect any prior notice given by Landlord to Tenant. Any
extension of this Lease shall be in writing signed by Landlord and Tenant.
20. REAL ESTATE BROKER. Tenant represents and covenants to Landlord and
the Landlord represents to Tenant that no broker or agent other than Advantis
Commercial Real Estate Services introduced Tenant to the Premises or negotiated
or was instrumental in negotiating or consummating this Lease and no commission
shall be paid to any broker or agent other than Advantis Commercial Real Estate
Services. All commissions and fees payable to Advantis Commercial Real Estate
Services shall be assumed by Landlord.
21. SECURITY DEPOSIT. Upon Lease execution, Tenant shall execute a letter
of credit in favor of Landlord equal to the sum of $50,000, which sum Landlord
shall retain as security for the first year of the Lease for the performance by
Tenant of each
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of its obligations hereunder. If Tenant fails at any time during the first year
of the Lease to perform its obligations, taking into account all agreed upon
cure periods, Landlord may at its option apply said deposit, or so much thereof
as is required to cure Tenant's default. If prior to the end of the first year
of this Lease, Landlord depletes said deposit, in whole or in part, for an
authorized purpose, Tenant shall immediately restore the amount so used by
Landlord. At the end of the first year of the Lease, provided Tenant is not then
in default, this letter of credit shall be released back to the Tenant and
Tenant shall no longer be required to maintain a security deposit hereunder.
22. ADDITIONAL RENT- OPERATIONAL EXPENSE PASS THROUGH. Based on a
calendar period January through December, Tenant agrees to pay in monthly
installments, beginning January 1, 2001, to Landlord, as additional rent,
Tenant's proportionate share of any amount which exceeds the direct expenses
incurred during calendar year 2000 (hereinafter referred to as the "Base Year")
on account of the operation or maintenance of the Building (the direct expenses
incurred during the Base Year on account of the operation or maintenance of the
Building shall hereinafter be referred to as "Base Year Expenses"). Tenant's
proportionate share of such excess as described herein shall hereinafter be
referred to as Additional Rent. The term "direct expense" as used herein, shall
include all direct costs of operation and maintenance as determined in
accordance with Generally Accepted Accounting Principles and shall include by
way of illustration, but not limited to: ad valorem real and personal property
taxes, hazard and liability insurance premiums, utilities, heat, management
fees, air conditioning, janitorial service, labor, materials, supplies,
equipment and tools, permits, licenses and inspection fees. The term "direct
expense" as used herein, shall not include depreciation on the Building in which
the Premises are situated or equipment therein, interest, executive salaries or
real estate brokers' commissions or any expenditure deemed "capital" in nature
under Generally Accepted Accounting Principles. On or before the first day of
each April during the Lease Term, Landlord shall furnish to Tenant a written
statement of reconciliation (the Reconciliation) showing in reasonable detail
Landlord's actual "direct expenses" for the prior year, together with a full
statement of any adjustments necessary to reconcile any sums paid by Tenant as
Additional Rent during the prior year with those sums actually payable by Tenant
for such prior year. In the event the Reconciliation shows that Tenant owes
additional sums or that Landlord owes Tenant a credit for overpayment of
Additional Rent, said payment of additional sums by Tenant or said credit to be
credited by Landlord shall be paid or credited at the next scheduled monthly
installment of Rent and Additional Rent. Tenant shall not be liable for any
expenses not included by Landlord in that year's Reconciliation.
23. RENEWAL OPTIONS. Tenant shall have two (2) consecutive five (5) year
renewal options for the entire Premises with all terms and conditions contained
in this Lease and at a rental rate to be fully negotiated but not to exceed the
then-current fair market rental rate for similar properties in the Xxxx market),
no later than ten (10) months prior to the expiration of the initial Lease Term
or the expiration of the first renewal period, as the case may be.
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24. TENANT IMPROVEMENTS. Landlord shall deliver the First Floor Premises
on a "turn key" basis (hereinafter referred to as the "Turn Key Installation")
by performing all improvements as substantially indicated on the Tenant's
approved space plan attached hereto as Exhibit A-2 (hereinafter referred to as
the "Approved Space Plan") with evidence of Tenant's approval dated May 7, 1999.
Landlord's Turn Key Installation shall also include all costs associated with
the preparation of all reasonable architectural and engineering drawings
required for said Turn Key Installation. Landlord's obligation to deliver the
Turn Key Installation for the First Floor Premises shall not include the
following:
i. Telephone and data cabling: (Landlord will, at Landlord's expense
install receptacle boxes as part of the Turn Key installation,
Tenant and Tenant's contracted vendor shall be responsible for such
installation, as well as any and all costs associated with such
installation throughout the Premises). Landlord will if requested
coordinate the installation of telephone and data cabling to assure
the most efficient time for such installation. If Landlord is
requested to enagage a contractor on behalf of the tenant, Landlord
will provide Tenant with an estimate of such costs, and obtain
Tenant approval prior to undertaking such work. If so requested the
Tenant shall provide to the Landlord in a timely fashion all
telephone and data cabling requirements so as to allow the landlord
to complete the necessary work without delaying the completion of
the Landlord's work.
ii. Back up generators - Landlord will install gas generators on rooftop
at Tenant's expense
iii. Furniture
iv. Reception desk/countertop
v. Cabinetry in reception area
vi. Cabinetry/countertops in coffee areas
vii. Conference room furnishings
With respect to improvements in the Second Floor Premises, Landlord shall
provide Tenant with a Turn-Key installation, subject to same general
specifications as First Floor Space as applicable.
25. FIBER OPTICS SERVICE. Landlord warrants that it will provide, at
its cost for the installation and availability of fiber optic service to the
Building.
26. EXPANSION OPTIONS. Tenant shall have the ongoing Right of First
Refusal to lease any additional space within the Building under mutually
agreeable terms and conditions, contingent upon any renewal options of existing
third party tenants for such space. Tenant shall be presented with a written
offer to lease, including all the contemplated business points, received from a
specifically identified third party and given 10 business days from receipt of
such offer to lease to exercise his right of first refusal to accept to lease on
the same terms and conditions as provided for in the said offer. Failure to
respond in writing within the said ten days shall constitute a refusal to
exercise the right of first refusal. In the event that the terms of the lease
14
proposed to the third party change following a Tenant rejection of its first
right of refusal, Tenant shall again have its first right of refusal as to those
altered terms. If Tenant exercises its right to lease such space as herein
provided, such additional space shall within thirty (30) days of such notice
become part of the Premises for the remainder of the Lease term. Additionally,
Tenant will have the opportunity to lease additional space in the Building from
EPCOR Executive Suites. Landlord will make its best efforts to negotiate
favorable terms on behalf of Tenant for any additional space to be leased by
Tenant from EPCOR Executive Suites.
27. BUYOUT ALLOWANCE. Landlord will be responsible for the cost
(including, but not limited to, payments for reimbursement of costs (such as
architect fees), rent payments, costs associated with finding a replacement
tenant, fit-up allowance or makeup of rent shortfalls with a replacement tenant,
lease buy-out payments, etc.), if any, of Tenant compensating the owner of The
Xxxxxxx Center for the cancellation of Tenant's lease obligation at the Xxxxxxx
Center, up to a maximum of $50,000. Landlord and Tenant agree that Landlord
shall have the right to negotiate directly with the owner of the Xxxxxxx Center
regarding Tenant's lease obligation and/or any cancellation costs related to
Tenant's lease at the Xxxxxxx Center subject to Tenant's approval of any such
negotiated deal. Prior to Landlord making such contribution, Tenant shall
provide sufficient evidence of such cancellation requirement.
28. NO PERSONAL LIABILITY. The liability of Landlord and any partners,
agents, employees, stockholders, officers, or directors of Landlord shall be
limited to Landlord's interest in the property. No other assets of Landlord or
any such other party shall be liable for, or subject to, any liabilities
pertaining to this Lease.
29. MISCELLANEOUS. Headings of paragraphs are for convenience only and
shall not be considered in construing the meaning of the contents of such
paragraph. The invalidity of any portion of this Lease shall not have any
effect on the balance hereof.
Should either party institute any legal proceeding against the other for breach
of any provision herein contained, and prevail in such action, prevailing party
shall in addition entitled to costs and expenses, including reasonable attorney
fees. This Lease shall be binding upon the respective parties hereto, and upon
their heirs, permitted sublessee(s), executors, successors and permitted
assigns. This Lease supersedes and cancels all prior negotiations between the
parties, and changes shall be in writing signed by Landlord and Tenant. Landlord
reserves the right to promulgate (and change from time to time) regulations it
deems appropriate for the common use and benefit of all tenants, so long as it
is not inconsistent with the terms of this Lease, with which regulations Tenant
shall comply, as shown in Exhibit C. Landlord may sell the Building without
affecting the obligations of Tenant hereunder and Landlord shall be relieved of
all responsibility for the Premises upon the full assumption of those
responsibilities by the buyer. This Lease may not be recorded without Landlord's
prior consent, but the parties agree on request of the other to execute a
memorandum hereof for recording
15
purposes. The singular shall include the plural, and the masculine or neuter
includes the other.
Landlord and Tenant warrant and represent that they are authorized to enter into
this agreement to lease, and Tenant shall supply Landlord with notarized copies
of any necessary Board of Directors Resolutions or similar authorization.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
triplicate originals, all as of the day and year first above written.
Exhibits A, B, and C attached hereto, shall be incorporated into this
Lease.
LANDLORD: XXXXXXX XXXX PARTNERSHIP, LLC
BY: ___________________________
General Partner
TENANT: RESEARCH TRIANGLE CONSULTANTS, INC.
BY: ____________________________
President
ATTEST:
BY: ____________________________
Secretary
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STATE OF
COUNTYOF
I,_________________________________a Notary Public for said County and
State, do hereby certify that ____________________________ personally
appeared before me on this day and acknowledged that the foregoing instrument
was signed by him as General Partner of Xxxxxxx Xxxx Partnership, LLC.
Witness my hand and notarial seal this the________day of
______________1999.
(OFFICIAL SEAL)
-----------------------
Notary Public
My Commission expires:
STATE OF
COUNTY OF
I,____________________a Notary Public for said County and State, do
hereby certify that________________personally appeared before me this day and
being duly
sworn, acknowledged that he is____________of RESEARCH TRIANGLE CONSULTANTS,
INC., a North Carolina corporation, and that by authority duly given and as the
act of the corporation, the foregoing instrument was signed in its name by its
_____________________ and sealed with its corporate seal.
Witness my hand and notarial seal this the_______________________ day
of1999.
(OFFICIAL SEAL)
Notary Public My Commission expires:
17
Exhibit C
RULES AND REGULATIONS
(a) The entrances, corridors, passages, stairways and elevators shall be
under exclusive control of the Landlord and shall not be obstructed, nor used by
the Tenant for any purpose other than ingress and egress to and from the Demised
Premises.
(b) The Tenant shall neither place nor permit to be placed any signs,
advertisements, notices in or upon any part of the building unless otherwise
provided in the Lease except on the doors of the Demised Premises, or as
approved in writing by Landlord, and all such doorway signs shall be approved by
the Landlord. All signs not approved in writing by the Landlord shall be subject
to removal without notice.
(c) The Tenant shall not put up, nor operate, any engine, boiler, dynamo or
machinery of any kind nor carry on any mechanical business in said Demised
Premises, nor place any explosive therein, nor use any kerosene or oils, or
burning fluids in said Demised Premises without first obtaining the written
consent of the Landlord.
(d) If any Tenant shall desire an iron safe for depositing valuables and
securities the Landlord shall have the right to prescribe its weight, size and
proper position.
(e) No nails are to be driven in walls for hanging items weighing over 35
pounds and premises are not to be defaced in any way, and no boring or cutting
for wires or other purposes is to be done, and no change in electric fixtures or
other appurtenances of Demised Premises is to be made, without the written
consent of the Landlord.
(f) If the Tenant desires telephonic or telegraphic connections, the Landlord
will direct the electricians as to where and how the wires are to be introduced,
and without such written directions no boring for wires will be permitted.
(g) The Demised Premises shall not be used in any way to damage the
reputation of the building; and the Tenant Shall not disturb, nor permit the
disturbance of, other tenants by the use of musical instruments, or any seemly
noises, nor by any interference whatsoever; and nothing shall be placed or
permitted upon the outside window xxxxx.
(h) No person or persons, other than employees of the building, shall be
employed by the Tenant for the purpose of cleaning or taking care of said
Demised Premises without the written consent of the Landlord. Any person or
persons employed by the Tenant (with the written consent of the Landlord) shall
be subject to, and under the control and direction of, the Landlord in the use
of the building and its facilities.
(i) The Landlord shall have the right to exclude or eject from the building
animals of every kind, birds, bicycles, and all canvassers and other persons who
conduct
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themselves in such a manner as to be, in the judgment of the Landlord, an
annoyance to the tenants or a detriment to the building.
(j) No additional locks shall be placed upon any doors of said Demised
Premises, without first obtaining the written consent of the Landlord. Upon
termination of this Lease the Tenant shall surrender all keys to said Demised
Premises and said building.
(k) Tenant shall have non-exclusive right to use all driveways and parking
areas for Tenant and Tenant's employees, except as provided in this Agreement.
(l) If additional drapes or windows decorations are desired by Tenant, they
shall be approved by Landlord and installed at Tenant's expense.
(m) The toilet rooms, water-closets and other water apparatus shall not be
used for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, or other injurious substances, shall be thrown
therein. The cost of repair of any damage resulting from such misuse or abuse
shall be borne by the Tenant by whom or by whose employees it shall be caused.
(n) The Landlord shall have the right to make such other and further
reasonable rules and regulations as, in the judgment of the Landlord, so long as
they are consistent with the terms of this Lease, may from time to time by
needful for the safety, care and cleanliness of the Demised Premises, and for
the preservation of good order therein.
(o) Construction will not commence until both Tenant and Landlord have
approved in writing the construction drawings. Any changes or additions to the
plans caused by the Tenant will be deemed to be "Nonstandard" and the cost to
construct these changes or additions will be borne by the Tenant. Said costs of
Nonstandard work will be paid by Tenant to Landlord upon completion of
Nonstandard work and shall be in the form of a cash payment.
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