LEASE AGREEMENT BY AND BETWEEN
PPD PHARMACO, INC., as Tenant
AND
WEEKS REALTY, L.P., as Landlord
TABLE OF CONTENTS
1. PREMISES AND TERM.
2. BASE RENT, OPERATING EXPENSES, AND SECURITY DEPOSIT.
3. COMPLIANCE WITH LAWS AND USE.
4. REPAIR AND MAINTENANCE.
5. ALTERATIONS.
6. SIGNS.
7. INSPECTION.
8. UTILITIES.
9. ASSIGNMENT AND SUBLETTING.
10. FIRE AND CASUALTY DAMAGE.
11. LIABILITY.
12. CONDEMNATION.
13. HOLDING OVER AND TERMINATION.
14. QUIET ENJOYMENT.
15. EVENTS OF DEFAULT.
16. REMEDIES.
17. LANDLORD'S LIEN.
18. MORTGAGES.
19. MECHANIC'S LIENS.
20. NOTICES.
21. BROKER'S CLAUSE.
22. LANDLORD'S LIABILITY.
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23. RULES AND REGULATIONS.
24. HAZARDOUS MATERIALS.
25. LANDLORD'S RIGHT TO SUBSTITUTE THE PREMISES.
26. COVENANT OF TENANT.
27. MISCELLANEOUS.
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EXHIBITS
EXHIBIT A- THE LAND
EXHIBIT B- FLOOR PLAN
EXHIBIT C- PLANS AND SPECIFICATIONS
EXHIBIT C-1- PROJECT DESIGN AND CONSTRUCTION SCHEDULE
EXHIBIT C-2- SHELL BUILDING COMPONENTS
EXHIBIT C-3- BASE BUILDING UPFIT
EXHIBIT D- RULES AND REGULATIONS
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), is made and entered into as of
the 16th day of December, 1998, by and between WEEKS REALTY, L.P., a Georgia
limited partnership authorized to do business in North Carolina as WEEKS REALTY
LIMITED PARTNERSHIP (the "Landlord"), and PPD PHARMACO, INC., a Texas
corporation (the "Tenant").
W I T N E S S E T H:
1. PREMISES AND TERM.
(a) PREMISES. In consideration of the obligation of Tenant to pay
rent as herein provided, and in consideration of the other terms,
provisions and covenants hereof, Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord, certain premises to be comprised of
approximately 61,380 rentable square feet (the "Premises") in a
building to be constructed by Landlord (the "Building") and situated on
certain land (the "Land") in Morrisville, the County of Wake, State of
North Carolina, more particularly described on Exhibit A, attached
hereto and incorporated herein by reference, together with all rights,
privileges, easements, appurtenances and immunities belonging to or in
any way pertaining to the Premises.
A floor plan of the Building and the Premises shall be
attached hereto and made a part hereof as Exhibit B. The measurement of
the Premises shall be conducted in accordance with BOMA standards, 1996
edition, currently applicable for a Class A office building comparable
to the Building. Any upfit performed by Landlord to prepare the
Premises for occupancy by Tenant shall be conducted in a good and
workmanlike manner and in accordance with all laws, statutes, and
regulations, and Landlord shall warrant the construction of the
improvements for a period of one year from the Commencement Date. The
taking of possession by Tenant shall be deemed conclusively to
establish that each portion of the Premises and any improvements
thereto are in good and satisfactory condition as of the date Tenant
commenced occupancy of that portion of the Premises, except for latent
defects and punchlist items. Tenant and Landlord shall complete a
punchlist of items requiring repair that are the responsibility of
Landlord within thirty (30) days of the Commencement Date. Tenant
further acknowledges that no representations as to the repair of the
Premises, nor promises to alter, remodel or improve the Premises have
been made by Landlord unless such representations or promises are
expressly set forth in this Lease. Within five days of the Commencement
Date, Tenant shall, upon demand of Landlord, execute and deliver to
Landlord a letter of acceptance of delivery of the Premises,
acknowledging the Commencement Date.
All construction of the Premises shall be performed by
Landlord in accordance with the schedule, plans and specifications for
the Premises (herein referred to collectively as the "Plans") which
Plans are subject to the mutual and reasonable approval of Landlord and
Tenant, a preliminary copy of which is attached hereto and made a part
hereof as Exhibit C. Construction of the Premises shall proceed in
accordance with the
Building Design and Construction Schedule attached hereto and made a
part hereof as Exhibit C-1. The components of the Shell Building shall
be as set forth in Exhibit C-2, attached hereto and made a part hereof.
The components of the Building Upfit shall be as set forth in Exhibit
C-3, attached hereto and made a part hereof.
Tenant shall review the Plans to provide its input with
respect to all aspects of the Plans, including, but not limited to, the
specific needs of Tenant with respect to Heating, Ventilation and Air
Conditioning and other Building systems, and Landlord shall act
reasonably to accommodate the specific needs of Tenant with respect to
the Building systems.
Notwithstanding the above, Landlord and Tenant agree that a
formal construction schedule and final Construction Drawings and
Specifications, upon the completion of such documents by Landlord,
Landlord's architectural and engineering service providers, and other
such parties and further subject to the mutual and reasonable approval
of such documents by Landlord and Tenant, will replace the contents of
Exhibit C for purposes of controlling the actual construction of the
Premises; and such formal construction schedule and final Construction
Drawings and Specifications shall replace Exhibit C by means of a lease
amendment between Landlord and Tenant.
The base rent delineated in Paragraph 2(a) includes the costs
of the Shell Building, currently estimated to be Ninety-Four and 35/100
Dollars ($94.35) per rentable square foot of the Premises (the "Shell
Allowance"). Should the actual costs of the Shell Building (together
with the reduced or increased financing costs and commissions of the
Landlord) be different than the Shell Allowance, the base rent due
hereunder shall be increased or decreased accordingly by multiplying
the difference between the actual cost thereof and the Shell Allowance
by a factor of Ten and 85/100 Percent (10.85%), as reasonably
determined by Landlord.
The base rent delineated in Paragraph 2(a) also includes a
contribution by the Landlord of Ninety-Two and 14/100 Dollars ($92.14)
per rentable square foot of the Premises to be applied to the Building
upfit, as set forth in Exhibit C-2 (the "Upfit Allowance"). Further,
Landlord has agreed to permit Tenant to increase the Upfit Allowance by
up to an additional Twelve and 86/100 Dollars ($12.86) per Rentable
Square Foot of the Premises to satisfy Tenant's interior finish
requirements, as reasonably approved by Landlord (the Additional Upfit
Allowance"). At the option of Tenant, any portion or all of the
Additional Upfit Allowance used by Tenant to complete the upfit shall
be amortized over the term of the Lease with interest at the rate of
eleven percent (11%) per annum and repaid by Tenant in equal monthly
installments together with its payment of base rent hereunder.
Should for any reason the upfit costs for the Premises be
greater than a total of One Hundred Five and NO/100 Dollars ($105.00)
per rentable square foot (the "Maximum Upfit Allowance"), such excess
(the "Excess") shall be borne by Tenant and payable by Tenant to
Landlord within thirty (30) days of demand by Landlord to Tenant.
Failure by Tenant to pay the Excess upon demand as aforesaid is an
event of default
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hereunder and, in addition to all other remedies available to Landlord
at law, or in equity for such event of default, Landlord may recover
from Tenant the cost it incurs in preparing the Premises for another
tenant.
Should the upfit costs for the Premises be less than the Upfit
Allowance, Tenant shall be allowed to upgrade the improvements to the
Premises, as reasonably approved by Landlord, to fully utilize the
entire Upfit Allowance; or Tenant may elect to have Landlord apply the
unused Upfit Allowance (together with the reduced financing costs and
commissions of Landlord), multiplied by the amortization constant for
eleven percent (11%) per annum to reduce the base rent due hereunder,
proportionately over the entire Lease Term, all as reasonably
determined by Landlord and Tenant.
Additionally, in the event that Tenant shall not utilize all
the Upfit Allowance or all or any part of the Additional Upfit
Allowance, Tenant shall have the right to apply such unused monies
towards the costs of upfitting the Premises subsequent to completion of
the initial improvements ("Deferred Allowance") up to the Maximum Upfit
Allowance, subject to mutual and reasonable approval of plans and
specifications for such improvements by Landlord and Tenant. Tenant's
right to the Deferred Allowance shall expire at the end of the second
year of the term of the Lease and Landlord shall have no further
obligation to provide any improvement allowances of any kind during the
term of the Lease unless stated otherwise in this Lease. Any Deferred
Allowance used by Tenant shall be amortized over the term of the Lease
remaining at the time of completion of such improvements, with interest
at the rate of eleven percent (11%) per annum (the "Amortization
Constant"), and repaid by Tenant in equal monthly installments together
with its payment of base rent hereunder.
Landlord shall act reasonably to allow Tenant reasonable access to
the Premises at least thirty days prior to the Commencement Date to
install its furniture, telephone and computer systems, and other
special Building systems. Tenant covenants and agrees to conduct its
actions in such a manner to not disturb the preparation by Landlord of
the Premises for occupancy by Tenant. Upon the entry by Tenant onto the
Premises, this Lease shall be deemed to apply with respect to the
requirements that Tenant carry the insurance policies required under
this Lease, and that Tenant shall indemnify, defend and hold harmless
Landlord in accordance with the provisions of this Lease, as provided
in Sections 10 and 11 hereof.
(b) TERM.
TO HAVE AND TO HOLD the same for an initial term of one hundred
and eighty (180) months commencing upon the date (i) the Premises are
delivered by Landlord to Tenant as substantially complete in accordance
with the Plans, and (ii) a temporary certificate of occupancy has been
issued for the Premises by the Town of Morrisville, NC (the
"Commencement Date"), and ending 180 months thereafter, unless sooner
terminated pursuant to the provisions hereof (the "Termination Date").
The Commencement Date and Termination Date may be extended by Landlord,
in its discretion, due to delays beyond the control of Landlord,
including, but not limited to, acts or omissions of Tenant,
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force majeure, delays in obtaining permits, licenses or other
approvals, acts of God, delays caused by Tenant, and/or inclement
weather, including site conditions or winter weather that prohibit or
adversely affect construction (collectively, the "Excused Delays"). In
the event the Commencement Date has not occurred by December 1, 1999
due to acts or omissions of Landlord (with such date being extended for
any Excused Delays), Landlord shall credit against the first
installment(s) of base rent due hereunder from Tenant an amount equal
to one day's base rent for each day the Commencement Date is delayed.
In the event the Commencement Date has not occurred by December 1, 1999
due to acts or omissions of Tenant (with such date being extended for
any delay due to acts or omissions of Landlord and any Excused Delay
except for a Tenant Delay), Landlord shall receive from Tenant on the
Commencement Date an amount equal to one day's base rent for each day
the Commencement Date is delayed due solely by reason of a Tenant Delay
(as hereinafter defined). The aforesaid monetary amounts shall act as a
sole and exclusive remedy to each party hereto for any delay in the
Commencement Date. Landlord shall use reasonable efforts to provide
Tenant at least sixty days prior written notice of the Commencement
Date. A Tenant Delay shall be defined as a delay due in whole or in
part to (i) failure by Tenant to furnish information requested by
Landlord within five business days of the request therefor, or if such
request may not be satisfied by Tenant within five business days due to
the time reasonably needed to satisfy such request if Tenant is acting
in good faith and proceeding diligently, Tenant fails to commence its
efforts to satisfy such request within five business days or fails to
diligently pursue satisfaction of a request thereafter; (ii) the acts
or omissions by a person or entity employed by Tenant in the completion
of any work in connection with the upfit of the Premises by said person
or entity; or (c) other acts or omissions, whether negligent, willful,
or intentional of Tenant, its agents, employees, officers, directors,
or independent contractors, and as a result of the foregoing, Landlord
is unable to complete its obligations under this Lease by the
Commencement Date. Landlord shall provide written notice to Tenant of
any Tenant Delay as soon as practicable after the occurrence of any
Tenant Delay.
(c) Option to Renew. Tenant shall have the option to renew the
term of the Lease for one renewal period (the "Renewal Term") of five
lease years in duration, provided that Tenant shall not be in default
under the Lease on the date such rights are exercised, or on the date
the Renewal Term shall commence. The date of the commencement of the
Renewal Term shall be the day after the expiration of the then current
term of the Lease (unless sooner terminated as provided herein).
All terms and conditions of this Lease shall be in effect during the
Renewal Term (including the right of Landlord to increase base rent as
provided in paragraph 2 of the Lease), except that (i) the base rent
paid by Tenant during the Renewal Term shall be the lesser of: (1)
ninety-five percent of the then prevailing market rental rate (the
"Market Rent") for laboratory buildings in the Research Triangle Park,
North Carolina area of similar research usage, utility, size, age,
construction, finishes, upfit, and with similar amenities and
landscaping, and similar occupancy levels to the Building, as
reasonably determined by Landlord and Tenant, or (2) $24.00 per
rentable square foot, triple net; and (ii) upon the exercise by Tenant
of its right for the Renewal Term, all rights of Tenant to
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renew or extend this Lease term shall lapse. The base rent established
by Landlord and Tenant for the Renewal Term shall increase on January 1
of each year during the Renewal Term by two and three-fourths percent
(2 and 3/4ths) over the base rent paid the previous year. In the event
that Landlord and Tenant cannot agree upon the base rent to be paid by
Tenant during the Renewal Term, this Lease shall terminate and the
options to renew provided to Tenant hereunder shall be null and void
and of no further force and effect. Tenant shall deliver Landlord
written notice of its election to exercise its option to renew no less
than nine (9) months prior to the expiration of the initial term of the
Lease; failing which Tenant's right to renew for the Renewal Term shall
be null and void.
(d) Option to Purchase. Provided there is (i) no default or event
of default by Tenant under this Lease on the date its rights are
exercised or upon the date that Tenant shall purchase the Building and
Land and (ii) Tenant shall continue to lease the entirety of the
Building, Tenant shall have a one-time right to purchase the Building
and Land for a purchase price of $15,000,000.00 in cash provided that
Tenant shall provide Landlord written notice of its intent to exercise
its Option to Purchase at least nine months prior to the Termination
Date, and shall close on the purchase on the first business day
following the Termination Date of the initial term of this Lease.
Should Tenant fail to comply strictly with the foregoing conditions
precedent, the rights of Tenant under this Option to Purchase shall be
null and void and of no further force and effect. Each party hereto
shall pay its fees and expenses in connection with a closing by Tenant
upon the Building and Land.
2. BASE RENT, OPERATING EXPENSES, AND SECURITY DEPOSIT.
(a) BASE RENT.
Tenant agrees to make monthly payments of base rent to Landlord
for the Premises ("base rent"), in advance, without demand, deduction
or offset, in lawful money of the United States, in the following
amounts:
TIME PERIOD BASE RENT PER RENTABLE SQUARE
FOOT OF THE PREMISES
Year 1 $23.44
Year 2 $23.44
Year 3 $23.79
Year 4 $24.16
Year 5 $24.53
Year 6 $24.92
Year 7 $25.32
Year 8 $25.73
Year 9 $26.14
Year 10 $26.58
Year 11 $27.02
Year 12 $27.02
Year 13 $27.47
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Year 14 $27.94
Year 15 . $28.42
Base rent shall be due and payable commencing upon the Commencement
Date, and continuing on the first day of each and every month
thereafter until the Termination Date. Rent payments for any fractional
calendar month at the end, or the beginning of the term of the Lease,
shall be prorated. Base rent for the Premises as provided herein has
been calculated based upon the construction of the Premises as provided
in the Plans attached hereto. Base rent shall be revised in accordance
with paragraph 1(a) of this Lease should the Plans be modified and any
such modifications result in increases or decreases in the costs
incurred in constructing the Premises in accordance with the Plans, as
reasonably determined by Landlord and Tenant.
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(b) TAXES.
Beginning on the Commencement Date and continuing for the entire
term hereof, Tenant shall pay to Landlord, as additional rental,
Tenant's pro rata share of all taxes, assessments and governmental
charges of any kind or nature whatsoever levied or assessed against the
Land and the Building by any municipality, county, or other
governmental agency (the "Taxes"), which shall be based upon the ratio
of the square footage of the Premises to the total square footage of
the Building. Tenant shall pay its pro rata share of the Taxes in
advance in equal monthly installments in such amounts as are estimated
for each year by Landlord at the beginning of each calendar year during
the term, each such installment being made along with payments of base
rent hereunder. Tenant's share of Taxes for the initial year of the
term is estimated by Landlord to be $.84 per square foot per year, or
$4,296.60 per month.
(c) INSURANCE EXPENSE.
Beginning on the Commencement Date and continuing for the entire
term hereof, Tenant shall pay to Landlord, as additional rental,
Tenant's pro rata share of the insurance premiums (the "Insurance
Expense") for commercial general liability, and fire and extended
coverage insurance on the Building and the Land, which shall be based
upon the ratio of the square footage of the Premises to the total
square footage of rentable space in the Building. Tenant shall pay its
pro rata share of the Insurance Expense in advance in equal monthly
installments in such amounts as are estimated by Landlord at the
beginning of each calendar year during the term, each such installment
being made along with payments of base rent hereunder. Tenant's pro
rata share of the Insurance Expense for the initial year of the term is
estimated by Landlord to be $.03 per square foot per year or $ 15.35
per month.
(d) CAM EXPENSE.
Beginning on the Commencement Date and continuing for the entire
term hereof, Tenant shall pay to Landlord, as additional rental,
Tenant's pro rata share of the cost to Landlord of all the costs and
expenses of the operation, repair and maintenance of the Premises, the
Building, its exterior and common areas, and driveways and parking
areas, including, but not limited to, the costs of lawn maintenance,
driveway and parking area maintenance for the Premises and for the
streets and roadways providing access to the Building and the Land,
management and supervisory fees, costs for the monitoring, review, and
supervision of Tenant with respect to its maintenance and repair
responsibilities as set forth in paragraph 4 hereof, exterior lighting
maintenance, snow removal, repair and maintenance of paved areas,
cleaning supplies, miscellaneous building supplies, sweeper brushes,
supplies for materials used in common by all tenants of the complex in
which the Premises are located, external paint for the Building,
exterior and common area maintenance, external plumbing for the
Building, utility costs for exterior lighting including lighting in
exterior common areas, security guards for the complex in which the
Premises are located, signs for the complex in which the Premises are
located, fuel for vehicles and street sweepers used by Landlord in the
complex in
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which the Premises are located and miscellaneous maintenance expenses,
labor, materials, supplies, equipment and tools, permits, licenses,
inspection fees, window glass replacement and repair, compensation
(including employment taxes and fringe benefits) of all persons who
perform duties in connection with the operation and/or maintenance of
the Building, and costs for janitorial expense, maintenance, repair,
and replacement of Building systems not being repaired, maintained and
replaced by Tenant, if any, and trash removal at the Premises
(hereinafter collectively, the "CAM Expense"). The pro rata share of
Tenant for CAM Expense shall be based upon the ratio of the square
footage of the Premises to the total square footage of rentable space
in the Building. Tenant's pro rata share of the CAM Expense for the
initial year of the term is estimated by Landlord to be $.76 per square
foot per year or $3,887.40 per month.
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(e) RECONCILIATION OF EXPENSES.
Landlord shall promptly notify Tenant of the total actual (i)
Taxes assessed against the Land and the Building, (ii) Insurance
Expense, and (iii) CAM Expense, attaching a copy of the tax or special
assessment xxxx, the insurance invoice, or the calculation of CAM
Expense, as applicable, and shall specify (i) Tenant's pro rata share
thereof, and (ii) the excess, if any, of Tenant's pro rata share over
Landlord's estimation for such calendar year. Tenant shall pay the
excess amount so specified to Landlord within thirty (30) days
following receipt by Tenant of Landlord's letter. Failure by Tenant to
pay Landlord such amount within the period designated shall constitute
a non-payment of rent by Tenant and a default of Tenant's obligation
under the Lease, and Landlord shall be entitled to all remedies
provided for in this Lease upon default in payment of rent. If the
first year for which Tenant's pro rata share of Taxes, Insurance
Expense, or CAM Expense (hereinafter collectively, the "Expenses") are
due or the final year of the term hereof do not coincide with the
calendar year, Tenant's pro rata share of Expenses for the portion of
that year shall be prorated according to the number of months during
which Tenant was in possession of the Premises. In the event Landlord's
estimation of Expenses shall exceed the actual amount of Expenses, the
amount paid by Tenant for such year shall be adjusted between Landlord
and Tenant and Tenant shall receive a credit against the next due
installment of rent hereunder in such excess amount unless this Lease
has expired or been otherwise terminated, in which event Landlord shall
pay to Tenant such excess amount within thirty (30) days following
receipt by Tenant of Landlord's letter.
In the event Tenant shall dispute the amount set forth in any statement
provided by Landlord under this subparagraph (e), Tenant shall have the
right, not later than thirty days following the receipt of such
statement and upon condition that Tenant shall first deposit with
Landlord the undisputed portion, if any, to elect to have Landlord's
books and records with respect to such calendar year to be audited by
auditors selected by Tenant and subject to Landlord's reasonable
approval. Such audit must be completed no later than 60 days after
receipt of Landlord's letter, with such time limit to be extended due
to delays caused by Landlord. All costs for the audit shall be borne by
Tenant unless the audit disclosed an overcharge of ten percent or more,
in which case the costs of the audit not to exceed $1,000 shall be
borne by Landlord. If Tenant shall not request an audit in accordance
with the provisions of this paragraph within thirty days of receipt of
Landlord's statement provided pursuant to this subparagraph (e), such
statement shall be final and binding for all purposes hereof.
(f) SECURITY FOR PERFORMANCE BY TENANT. Until the day that is the
sixth anniversary of the Commencement Date, Tenant shall provide
Landlord with a clean, irrevocable and unconditional letter of credit
from an issuer satisfactory to Landlord payable to Landlord as
beneficiary in the amount of $3,000,000.00 (the "Letter of Credit").
The Letter of Credit must continue at all times in full force and
effect, shall secure the performance by Tenant under this Lease and may
be presented by Landlord for payment upon either: (i) the occurrence of
an event of default under this Lease; or (ii) failure by Tenant to
provide evidence to Landlord of its renewal of the Letter of Credit at
least thirty days prior to the then current expiration date of the
Letter of Credit. Upon the
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end of the fifth lease year hereunder, if the shareholder equity in
Tenant is not in excess of $90,000,000.00, the Letter of Credit must
continue to be provided by Tenant for an additional five years upon the
terms and conditions provided herein. Should Tenant fail to provide
sufficient evidence to Landlord of its shareholder equity or the
continued existence of the Letter of Credit prior to the end of the
fifty-ninth month of the Lease term, Landlord may draw the full
$3,000,000.00 of the Letter of Credit. Should Landlord draw upon the
Letter of Credit, Landlord shall reduce the base rent due and payable
hereunder by Tenant proportionately over the term of the Lease, as
reasonably determined by Tenant. Should the Lease be terminated for any
reason, Tenant shall not be entitled to a refund of the amount drawn by
Landlord under the Letter of Credit. Landlord shall reimburse Tenant
for its legal fees and expenses in procuring and maintaining the Letter
of Credit in an amount of up to $30,000.00 each year within thirty days
after Tenant provides to Landlord reasonable evidence of its fees and
expenses.
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(g) PROVISIONS TO SURVIVE LEASE TERMINATION.
Any unperformed obligations of Tenant under this Section 2 shall
survive the termination of the Lease, for whatever reason, or any
extension or renewal hereof.
3. COMPLIANCE WITH LAWS AND USE.
(a) The Premises shall be used only for the following purposes:
the conduct of laboratory testing and research procedures and general
office purposes related thereto. Tenant shall conduct no activity that
will result in the discharge of harmful gases, effluents or other
wastes or toxic substances other than as required in the ordinary
course of the business of Tenant and in compliance with all applicable
laws, statutes, and regulations. Outside storage, including, without
limitation, trucks and other vehicles, is prohibited without Landlord's
prior written consent except such outside storage as is reflected on
the Plans. Tenant shall at its sole cost and expense obtain any and all
licenses and permits necessary for its use of the Premises. Tenant
shall comply with all governmental laws, ordinances, policies and
regulations relating to the use of the Premises, and shall promptly
comply with all governmental orders and directives for the correction,
prevention and abatement of any violation of such laws, ordinances,
policies and regulations in or upon, or connected with, the Premises,
all at Tenant's sole expense. Tenant shall not permit any objectionable
or unpleasant odors, smoke, dust, gas, noise or vibrations to permeate
in or emanate from the Premises, nor take any other action which would
constitute a nuisance or would disturb or endanger any other tenants of
the Building or unreasonably interfere with their respective premises.
Tenant shall not receive, store or otherwise handle any product,
material or merchandise which is explosive, flammable, combustible,
corrosive, caustic, radioactive, toxic, hazardous or poisonous except
as required in the ordinary course of the business of Tenant and in
compliance with all applicable laws, statutes, and regulations. Tenant
will not permit the Premises to be used for any purpose or in any
manner (including, without limitation, any method of storage) which
would render the insurance thereon void or the insurance risk more
hazardous or cause the State Board of Insurance or other insurance
authority to disallow any sprinkler credits. Tenant shall give notice
to Landlord immediately upon the occurrence of any accident or incident
on the Premises that would trigger reporting requirements under
applicable laws, including, under the Occupational Safety and Health
Act, as amended ("OSHA"), or upon Tenant's discovery of any defects
thereon or in any fixtures or equipment located therein or upon the
occurrence of any emergency in the Premises or the Building. Tenant
shall ensure the proper and lawful storage and disposal of all medical,
radioactive, hazardous, toxic and other substances from the Premises,
and shall indemnify, defend and hold harmless Landlord, its agents,
employees, and officers of and from all liability, loss, cost and
expense incurred due to the improper or unlawful storage and disposal
by Tenant of any medical, radioactive, hazardous, toxic or other
substances used by Tenant at the Premises.
(b) Any costs or expenses for alterations, additions or
improvements required to modify the common areas of the Building to
comply with the Americans with Disabilities Act, as amended (the "ADA")
shall be paid by Landlord throughout the term of this
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Lease. Such alterations, additions or improvements shall be made or not
made in the sole discretion of Landlord, and Landlord shall be solely
liable for failure to make the required alterations, additions or
improvements. All alterations, additions or improvements to the
Premises required by the ADA on the Commencement Date of this Lease,
and after the Commencement Date if the initial construction to be
performed by Landlord has not been completed prior to the Commencement
Date, shall be made and paid for by Landlord, and Landlord shall be
solely liable for failure to make such required alterations, additions
or improvements. Except as provided above, any alterations, additions
or improvements to the Premises required by any modification or
supplement to the ADA promulgated after the Commencement Date, shall be
made and paid for by Tenant, and Tenant shall be solely liable for
failure to make such required alterations, additions or improvements.
In the event either party hereto shall fail to make any required
alterations, additions or improvements pursuant to the ADA, after
thirty (30) days written notice to the other party hereto, accompanied
by evidence in support of its position regarding the needed
alterations, shall have the right but not the obligation to make such
alterations, additions or improvements at the expense of the other
party and demand reimbursement of its expenses.
For purposes of this Lease, the common areas for the Building shall
consist of the entranceways and private roadways to the Building,
landscape areas on the Land, and the driveways and parking areas
located on the Land (hereinafter collectively, the "Common Areas") but
no third party shall have rights thereto unless specifically granted.
These common areas may be expanded by Landlord for the benefit of all
occupants of the Building.
(c) To the best of Landlord's knowledge, the Premises shall, as of the
Commencement Date, comply with the ADA.
4. REPAIRS AND MAINTENANCE.
(a) Landlord shall maintain, repair and replace only the roof,
downspouts, gutters, foundation, utility lines located outside the
Premises, dock boards, truck doors, dock bumpers, parking lots and
sidewalks on the Land, and the structural soundness of the exterior
walls of the Building in good repair, reasonable wear and tear
excepted. Tenant shall repair, replace and pay for, any damage to the
foregoing caused by the negligence of Tenant or Tenant's employees,
agents or invitees, or caused by Tenant's default hereunder. The term
"walls" as used herein shall not include interior windows, glass or
plate glass, doors, special interior store fronts or office entries.
Tenant shall immediately give Landlord written notice of defect or need
for repairs, after which Landlord shall have reasonable opportunity to
repair same or cure such defect. Landlord's liability with respect to
any defects, repairs or maintenance for which Landlord is responsible
under any of the provisions of this Lease shall be limited to the cost
of such repairs or maintenance or the curing of such defect.
(b) Tenant shall at its own cost and expense maintain, repair and
replace all parts of the Premises (except those for which Landlord is
expressly responsible under the terms
12
of this Lease) in good condition in accordance with the standards for
laboratory buildings in the Research Triangle Park, North Carolina area
of similar research usage, utility, size, age, construction, finishes,
and upfit as reasonably determined by Landlord, promptly making all
necessary repairs and replacements, including, but not limited to, all
Building systems, including, but not limited to, heating, ventilation,
air conditioning, mechanical, plumbing and electrical, and vacuum, air
pressure, DI water, gas manifolds, gas storage, gas pipes, hazardous
waste disposal, elevators, windows, glass and plate glass, doors, any
special office entry, interior walls, finish work, and floors and floor
coverings, and Tenant shall conduct all general maintenance, including,
bolt repair and light fixtures, normal wear and tear excepted. Tenant
shall not be obligated to repair any damage covered by the insurance to
be maintained by Landlord pursuant to subparagraph 10(a) below, unless
due to the acts or omissions of Tenant, its agents, employees, or
independent contractors.
(c) If either party hereto shall fail to fulfill its obligations
under this paragraph, the other party hereto may enter upon the area of
the Building or the Premises as required to conduct the obligations of
the defaulting party, and shall be entitled to reimbursement from the
defaulting party for its actual costs and expenses in conducting such
obligations. The defaulting party shall reimburse the other party
hereto for its actual costs and expense promptly upon demand made by
the other party hereto. The provisions of this subparagraph shall not
be interpreted to obligate either party hereto to conduct obligations
of the other party hereto.
(d) Tenant shall conduct periodic maintenance of all hot water,
heating and air conditioning systems and units in the Premises, remove
and replace filters therein. In addition, Tenant shall bear
responsibility to ensure the provision of daily janitorial service and
removal of trash and debris from the Premises. Tenant shall enter into
contracts providing for the periodic maintenance, repair, and
replacement of all Building systems, for periodic pest and insect
extermination, and for daily janitorial service and removal of trash
and debris from the Premises and deposit of trash in exterior
containers located by Landlord on the Land; provided, however, Tenant
shall bear sole responsibility for the removal of hazardous, or toxic
substances, or medical wastes from the Premises and to the appropriate
site as required under applicable laws, statutes, and ordinances. A
copy of all of the aforesaid contracts entered into by Tenant shall be
provided to Landlord on or prior to the Commencement Date.
(e) Tenant shall not damage any demising wall of the Building, or
disturb the integrity and support provided by any demising wall and
shall, at its sole cost and expense, promptly repair any damage or
injury to any demising wall caused by Tenant or its employees, agents
or invitees.
(f) Tenant and its employees, customers and licensees shall have
the non- exclusive right to use the parking areas on the Land as may be
designated by Landlord in writing, subject to reasonable rules and
regulations as Landlord may from time to time prescribe and subject to
rights of ingress and egress of other tenants. Tenant shall not park on
streets, rights of ways, driveways, or roadways adjacent to the
Building or the
13
Land, nor allow its employees, agents, invitees, or licensees to do so.
No vehicles other than passenger vehicles shall be parking on the Land,
without the prior written consent of the Landlord. Any vehicles,
including, tractors, trailers, or tractor trailers parked at the
Building in violation of any provision of this Lease, or abandoned on
the Land, as reasonably determined by Landlord, are subject to removal
by Landlord, at the cost and expense of Tenant, and Tenant shall
indemnify, defend, and hold harmless Landlord of and from all loss,
cost and expense incurred by Landlord in the enforcement of the
provisions of this Section. Tenant shall be considerate of the parking
needs of other tenants of the Building, and shall not violate the
rights of other tenants of the Building. So long as Tenant shall
continue to lease at least 61,380 rentable square feet, Tenant shall
have the non-exclusive use of 172 parking spaces at the Building (this
total includes handicapped parking spaces; provided, however, in the
event any improvements, or equipment located by Tenant on the Land
consume any portion of the parking area located on the Land, the
parking spaces affected shall be counted against the parking ratio
available for use by Tenant at the Premises. Landlord shall act
reasonably to enforce Tenant's parking rights against any third
parties. Landlord may require, at its option, in its sole discretion,
that Tenant, its employees, invitees, and visitors use certain numbered
spaces to be designated by Landlord.
5. ALTERATIONS.
(a) Subject to the provisions of this subparagraph (a), Tenant
shall not make any alterations, additions or improvements to the
Premises (including, but not limited to, roof and wall penetrations)
without the prior written consent of Landlord, which consent shall not
be unreasonably withheld; provided, however, should Tenant submit
preliminary plans for making an alteration to the Premises and such
plans are in form sufficient for Landlord to review the alteration
contemplated by Tenant, Landlord shall respond within ten business days
of its receipt of such plans, or the plans and the alteration to be
made by Tenant shall be deemed approved. If the plans submitted by
Tenant are insufficient for Landlord to review the contemplated
alteration, Landlord shall so notify Tenant and Tenant shall revise and
resubmit the plans to Landlord but the ten day time period for Landlord
to act as aforesaid shall not be deemed to commence until such time as
Tenant shall have submitted a sufficient plan to Landlord, as
reasonably determined by Landlord. All submissions of plans to Landlord
under this paragraph 5 shall be sent in accordance with the provisions
of paragraph 20 hereof. Landlord may require as a condition to Tenant
making any alteration to the Premises that Tenant restore the Premises
to its condition as of the Commencement Date prior to Tenant vacating
the Premises. Tenant may, without the consent of Landlord, but at its
own cost and expense and in a good workmanlike manner, erect such
shelves, bins, machinery and trade fixtures and remove and replace
interior non-structural walls, as it may deem advisable, without
altering the basic character or structure of the Premises or
improvements and without overloading or damaging the Premises or
improvements, and in each case complying with all applicable
governmental laws, ordinances, regulations and other requirements.
Tenant shall not make any alterations, additions or improvements to the
Premises which will contravene Landlord's policies insuring against
loss or damage by fire or other hazards, including but not limited to
commercial general liability, or which will prevent Landlord from
securing
14
such policies in companies acceptable to Landlord. If any such
alterations, additions or improvements cause the rate of fire or other
insurance on the Premises by companies acceptable to Landlord to be
increased beyond the minimum rate from time to time applicable to the
Premises for permitted uses thereof, Tenant shall pay as additional
rent the amount of any such increase promptly upon demand by Landlord.
(b) Any and all alterations, additions, improvements, partitions
and fixtures erected by Tenant shall be the property of Landlord and
shall remain at the Premises upon termination of the Lease or upon
earlier vacating of the Premises. All shelves, bins, machinery, trade
fixtures and other specialized equipment installed and paid for by
Tenant may be removed by Tenant prior to the termination of this Lease
provided such removal may be accomplished without damage to the
Premises or to the primary structure or structural qualities of the
Building and other improvements situated on the Premises. Tenant shall
repair any damage to the Premises, or to the Building as a result of
any alteration, addition, improvement, or repair to the Premises, or
the removal of personal property or trade fixtures by Tenant, its
employees, agents, invitees, or contractors to the Premises. Should
Tenant fail to conduct any such repair within ten days of written
notice from Landlord, Landlord may, at its option, perform same, and
Tenant shall remit payment to Landlord for the actual cost and expense
incurred by Landlord in effecting such repair immediately upon demand.
6. SIGNS.
(a) Landlord shall install at its expense a monument sign on the
Land containing the name of Tenant. In addition, Landlord shall include
the name of Tenant on the Building directory. All signs for the
Premises shall be in form and substance, location, color, shape, size
(including, height, width and length of lettering and total signage)
and configuration, mutually and reasonably approved by Landlord.
(b) Tenant shall have the right to install signs upon the Premises
only when first approved in writing by Landlord and subject to any
applicable governmental laws, ordinances, regulations and other
requirements. Tenant shall remove all such signs upon the termination
of this Lease. Such installations and removals shall be made in such
manner as to avoid injury or defacement of the Premises, and Tenant
shall repair any injury or defacement, including, without limitation,
discoloration of the Building caused by such installation and/or
removal. Tenant shall have the right to install paraphet signage on the
Building at the expense of Landlord, and provided Tenant complies with
the provisions of this paragraph 6.
7. INSPECTION AND ENTRY.
(a) Landlord and Landlord's agents and representatives shall have
the right to enter and inspect the Premises at any reasonable time during
business hours, for the purpose of ascertaining the condition of the Premises or
in order to make such repairs as may be required or permitted to be made by
Landlord under the terms of this Lease or in order to show the Premises to any
prospective purchaser or lender so long as Landlord shall be escorted by an
employee of
15
Tenant, or the agent or employee of Landlord entering the Premises shall have
received training from Tenant with respect to entry upon the Premises based upon
the usage of the Premises by Tenant. During the period that is six (6) months
prior to the end of the term hereof, Landlord and Landlord's agents and
representatives shall have the right to enter the Premises at any reasonable
time during business hours for the purpose of showing the Premises to any
prospective tenant and shall have the right to erect on the Premises a suitable
sign indicating the Premises are available. Tenant shall schedule with Landlord
at least sixty (60) days prior to vacating the Premises a time mutually
agreeable to the parties hereto for a joint inspection of the Premises prior to
vacating. In the event of Tenant's failure to give notice or arrange such joint
inspection, Landlord's inspection at or after Tenant's vacating the Premises
shall be conclusively deemed correct for purposes of determining Tenant's
responsibilities for repairs and restoration.
(b) Within thirty days of the Commencement Date of this Lease,
Tenant shall develop and provide a copy to Landlord of its hazard communication
plan (the "Plan") with respect to any accidents or incidents at the Building,
and shall thereafter provide Landlord with any amendments to the Plan within
five days of their development. Tenant shall ensure that the Plan complies with
all applicable laws, statutes, and regulations. Tenant shall bear all costs of
training the employees of Landlord with respect to the Plan, and any amendments
thereof.
(c) Tenant shall provide Landlord immediately a copy of any
notices or correspondence it receives from OSHA, or from any other state,
federal, or local agency concerning the Premises.
(d) Tenant shall provide to Landlord training for its employees
and staff that may enter the Building. This training shall be provided on an
annual basis and shall be sufficient to apprise the employees and staff of
Landlord of the usage of Tenant of the Building and the safety concerns with
respect to any entry thereon. Training updates shall be provided by Tenant to
Landlord upon the same schedule as provided to employees of Tenant. All training
shall be provided in the Building or in another building of Landlord located
nearby and shall be at the cost and expense of Tenant.
8. UTILITIES. Landlord agrees to provide at its cost, all utility
line connections into the Premises. Tenant shall contract and pay for all
utilities for the Premises directly with each service provider of the Premises.
Landlord shall not be liable for any interruption or failure of utility services
on the Premises; provided, however, in the event any utility service to the
Premises is interrupted due to acts or omissions of Landlord, the liability of
Landlord therefor shall be the costs to restore same.
9. ASSIGNMENT AND SUBLETTING. Tenant shall not sublet the Premises
or the interest of Tenant therein in whole or in part, or assign this Lease or
the interest of Tenant therein in whole or in part, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed. Further, Tenant may not sell, lien, or encumber its interest in this
Lease, or assign or delegate the management or permit the use or occupancy of
the Premises in whole or in part by anyone other than Tenant without the prior
written consent of Landlord, which consent Landlord may withhold in its sole
discretion. Landlord and Tenant acknowledge and agree that the foregoing
provisions have been freely negotiated by the parties
16
hereto and that Landlord would not have entered into this Lease without Tenant's
consent to the terms of this Paragraph 9.
In no event shall this Lease be assignable by operation of any
law, without the prior written consent of Landlord which consent shall not be
unreasonably withheld, and Tenant's rights hereunder may not become, and shall
not be listed by Tenant as an asset under any bankruptcy, insolvency, or
reorganization proceedings. No assignment, transfer, mortgage, sublease or other
encumbrance, whether or not approved, and no indulgence granted by Landlord to
any assignee or subtenant, shall in any way impair the continuing primary
liability (which after an assignment shall be joint and several with the
assignee) of Tenant hereunder, and no approval in a particular instance shall be
deemed to be a waiver of the obligation to obtain Landlord's approval in any
other case.
If for any approved assignment or sublease Tenant receives rent or
other consideration, either initially or over the term of the assignment or
sublease, in excess of the base rent hereunder, or in case of a sublease of part
of the Premises, in excess of the portion of such rent fairly allocable to such
part, after appropriate adjustments to assure that all other payments called for
hereunder are appropriately taken into account, Tenant shall pay to Landlord as
additional rent one-half of the full excess of each such payment of rent or
other consideration received by Tenant promptly after its receipt.
Notwithstanding the foregoing, if Tenant shall offer any sublease or assignment
of space in the Premises for less than the current asking price of Landlord for
space comparable in size and usage by Landlord to a prospective tenant in an
arms length transaction at the current fair market value for such space (which
asking price Landlord shall provide to Tenant upon request made therefor), then
Landlord shall be entitled to receive all of the full excess of each such
payment of rent or other consideration received by Tenant promptly after its
receipt.
Notwithstanding any provision of this Lease to the contrary,
should Tenant receive consent from Landlord to sublease or assign its interest
in the Premises and seek to sublease or assign its interest in the Premises in
accordance with this paragraph, Tenant shall not use the name of Landlord, any
insignia of Landlord, or any likeness of the Building in any of its advertising
for such sublease or assignment.
10. FIRE AND CASUALTY DAMAGE.
(a) Landlord agrees to maintain standard fire and extended
coverage insurance for the Building in an amount not less than full
replacement cost as such term is defined in the Replacement Cost
Endorsement to be attached thereto, insuring against special causes of
loss, including, the perils of fire, and lightning, such coverages and
endorsements to be as defined, provided and limited in the standard
bureau forms prescribed by the insurance regulatory authority for the
State of North Carolina. Subject to the provisions of subparagraphs
10(c), 10(d) and 10(e) below, such insurance shall be for the sole
benefit of Landlord and under its sole control.
17
(b) If the Premises should be damaged or destroyed by any peril
covered by the insurance to be provided by Landlord under subparagraph
10(a) above, Tenant shall give immediate written notice thereof to
Landlord.
(c) If the Premises should be totally destroyed by any peril
covered by the insurance to be provided by Landlord under subparagraph
10(a) above, or if they should be so damaged thereby that rebuilding or
repairs cannot in Landlord's estimation be completed within one hundred
and eighty (180) days after the date upon which Landlord is notified by
Tenant of such damage, this Lease shall terminate and the rent shall be
abated during the unexpired portion of this Lease, effective upon the
date of the occurrence of such damage.
(d) If the Premises should be damaged by any peril covered by the
insurance to be provided by Landlord under subparagraph 10(a) above,
but only to such extent that rebuilding or repairs can, in Landlord's
estimation, be completed within one hundred and eighty (180) days after
the date upon which Landlord is notified by Tenant of such damage, this
Lease shall not terminate, and Landlord shall, at its sole cost and
expense, thereupon proceed with reasonable diligence to rebuild and
repair the Premises to substantially the condition in which they
existed prior to such damage, except that Landlord shall not be
required to rebuild, repair or replace any part of the partitions,
fixtures, additions and other improvements which may have been placed
in, on or about the Premises by Tenant. If the Premises are
untenantable in whole or in part following such damage, the rent
payable hereunder during the period in which they are untenantable
shall be abated as may be fair and reasonable under all of the
circumstances, as reasonably determined by Landlord and Tenant.
(e) Notwithstanding anything herein to the contrary, in the event
the holder of any indebtedness secured by a mortgage or deed of trust
covering the Premises requires that the insurance proceeds be applied
to such indebtedness, then Landlord shall have the right to terminate
this Lease by delivering written notice of termination to Tenant within
fifteen (15) days after such requirement is made by any such holder,
whereupon all rights and obligations hereunder thereafter accruing
shall cease and terminate.
(f) Each of Landlord and Tenant hereby waives all rights to recover
against each other or against any other tenant or occupant of the
Building, or against the officers, directors, shareholders, partners,
joint venturers, employees, agents, customers, invitees, or business
visitors of each other or of any other tenant or occupant of the
Building, for any loss or damage arising from any cause covered by any
insurance required to be carried by each of them pursuant to this
Lease, or any other insurance actually carried by either of them.
Landlord and Tenant shall cause their respective insurers to issue
waiver of subrogation rights endorsements to all policies of insurance
carried in connection with the Building or the Premises or the contents
of either of them, and any cost for the issuance of such endorsements
shall be borne by the original insured under such policies.
(g) The obligation of Landlord in this paragraph 10 to repair and
restore the Premises and the Building as provided herein, does not
include an obligation of Landlord to repair
18
the fixtures, equipment, or personal property of Tenant, which Tenant
shall insure for its benefit, and Tenant shall have the obligation to
repair and restore in the event of a casualty or other loss to the
extent that replacement of such items is appropriate for the Tenant's
continuing use of the Premises.
(h) The period of time within which repair and restoration of the
Premises must be completed shall be extended due to delays occasioned
by force majeure; provided, however, all repair and restoration must be
completed by Landlord within 360 days after the date of the casualty.
11. LIABILITY. Landlord shall not be liable to Tenant or Tenant's
employees, agents, officers, partners, licensees or invitees, or to any other
person whomsoever, for any damage to property on or about the Premises belonging
to Tenant or any other person, due to any cause whatsoever, unless caused by the
gross negligence, or willful or intentional misconduct of Landlord.
Tenant hereby covenants and agrees that it will at all times
indemnify, defend (with counsel approved by Landlord) and hold safe and harmless
Landlord (including, without limitation, its trustees and beneficiaries if
Landlord is a trust), and Landlord's agents, employees, patrons and visitors
from any loss, liability, claims, suits, costs, expenses, including without
limitation attorney's fees and damages, both real and alleged, incurred by
Landlord, its agents, employees, officers, partners, invitees, or licensees
arising out of or resulting from the occupancy by Tenant of the Premises, a
breach by Tenant of any provision of this Lease, or the conduct by Tenant of its
business in the Building.
Landlord hereby covenants and agrees that it will at all times
indemnify, defend (with counsel reasonably approved by Tenant) and hold safe and
harmless Tenant (including, without limitation, its trustees and beneficiaries
if Tenant is a trust), and Tenant's agents, employees, patrons and visitors from
any loss, liability, claims, suits, costs, expenses, including without
limitation attorney's fees and damages, both real and alleged, incurred by
Tenant, its agents, employees, officers, partners, invitees, or licensees
arising out of or resulting from a breach by Landlord of any provision of this
Lease.
Tenant shall procure and maintain throughout the term of this
Lease a policy or policies of insurance, at its sole cost and expense, naming
Landlord as an additional insured, and insuring both Landlord and Tenant against
all claims, demands or actions arising out of or in connection with: (i) the
Premises; (ii) the condition of the Premises; (iii) Tenant's operations in and
maintenance and use of the Premises; (iv) the equipment, personal property and
fixtures of Tenant located on the Premises; (v) any interruption in the conduct
of the business of Tenant on the Premises; (v) Tenant's liability assumed under
this Lease, and such other kinds of insurance as Landlord shall reasonably
request. The limits of coverage maintained by Tenant for (i) commercial general
liability shall be not less than $5,000,000.00 with respect to each occurrence,
not less than $5,000,000.00 with respect to personal injury or death of a single
person, not less than $5,000,000 general aggregate, and not less than
$5,000,000.00 with respect to products completed operations aggregate, (ii) for
business interruption insurance shall be not less than
19
coverage for actual loss, and (iii) for replacement of the equipment, personal
property and fixtures of Tenant shall be not less than full replacement value.
All such policies shall be procured by Tenant from responsible
insurance companies satisfactory to Landlord with an A.M. Best's Rating of at
least "A". Certified copies of such policies, together with receipt evidencing
payments of premiums thereof, shall be delivered to Landlord prior to the
Commencement Date. Not less than fifteen (15) days prior to the expiration date
of any such policies, certified copies of the renewals thereof (bearing
notations evidencing the payment of renewal premiums) shall be delivered to
Landlord. Such policies shall further provide that not less than thirty (30)
days prior written notice shall be given to Landlord before such policy may be
canceled or changed to reduce insurance provided thereby.
12. CONDEMNATION.
(a) If the whole or any substantial portion of the Premises should
be taken for any public or quasi-public use under governmental law,
ordinance, or regulation, or by right of eminent domain, or by private
purchase in lieu thereof, and the taking would prevent or materially
interfere with the use of the Premises by Tenant for the purposes
provided herein, this Lease shall terminate and the rent shall be
abated during the unexpired portion of this Lease, effective when the
physical taking of the Premises shall occur.
(b) If a portion of the Premises shall be taken for any public or
quasi-public use under any governmental law, ordinance or regulation,
or by right of eminent domain, or by private purchase in lieu thereof,
and the use by Tenant of the Premises is not materially interfered
with, this Lease shall not terminate but the rent payable hereunder
during the unexpired portion of this Lease shall be reduced in an
amount that shall be reasonable under all of the circumstances.
(c) In the event of any such taking or private purchase in lieu
thereof, Landlord shall be entitled to receive and retain all awards as
may be awarded in any condemnation proceedings other than those
specifically awarded Tenant for a taking of Tenant's personal property,
loss of business and moving expenses.
13. HOLDING OVER AND TERMINATION.
(a) Tenant shall upon the termination of this Lease by lapse of
time or otherwise, yield up immediate possession to Landlord without
the requirement of notice by Landlord to Tenant of the termination of
this Lease, nor any grace or cure period should Tenant fail to yield up
immediate possession to Landlord. Unless the parties hereto shall
otherwise agree in writing, if Landlord agrees in writing that Tenant
may hold over after the expiration or termination of this Lease, the
hold over tenancy shall be subject to termination by Landlord at any
time upon not less than five (5) days advance written notice, or by
Tenant at any time upon not less than thirty (30) days advance written
notice, and all of the other terms and provisions of this Lease shall
be applicable during that period, except that Tenant shall pay Landlord
from time to time upon demand, as rental for the period of any hold
over, an amount equal to one and 35/100 (1-35/100) the
20
rent in effect on the termination date, computed on a daily basis for
each day of the hold over period. No holding over by Tenant, whether
with or without consent of Landlord, shall operate to extend this Lease
except as otherwise expressly provided. The preceding provisions of
this Paragraph 13 shall not be construed as Landlord's consent for
Tenant to hold over.
(b) Upon the termination of this Lease for whatever reason, Tenant
shall quit and immediately surrender the Premises to Landlord, broom
clean, in good order and condition with all repairs and maintenance
required by Tenant hereunder having been performed, ordinary wear and
tear and damage by casualty that is the responsibility of Landlord to
repair excepted, and Tenant shall remove its personal property from the
Premises in accordance with this Lease. Should any of the personal
property or trade fixtures of Tenant remain upon the Premises after the
Termination Date, all such property shall be deemed abandoned by
Tenant, and Landlord may remove same at the cost and expense of Tenant
with no liability to Tenant therefore, and Tenant hereby releases
Landlord from all liability therefor.
14. QUIET ENJOYMENT. Landlord covenants that it now has, or will
acquire before Tenant takes possession of the Premises, good title to the
Premises, free and clear of all liens and encumbrances, excepting only the lien
for current taxes not yet due, deed of trust(s), or mortgage(s) of record,
zoning ordinances and other building and fire ordinances and governmental
regulations relating to the use of such property, and easements, restrictions
and other conditions of record. In the event this Lease is a sublease, then
Tenant agrees to take the Premises subject to the provisions of the prior
leases. Landlord represents and warrants that it has full right and authority to
enter into this Lease and that Tenant, upon paying the rental herein set forth
and performing its other covenants and agreements herein set forth, shall
peaceably and quietly have, hold and enjoy the Premises for the term hereof
without hindrance or molestation from Landlord, subject to the terms and
provisions of this Lease.
15. EVENTS OF DEFAULT. The following events shall be deemed to be
events of default by Tenant under this Lease:
(a) Tenant shall fail to pay any installment of the rent herein
reserved, or payment with respect to taxes hereunder, or any other
payment or reimbursement to Landlord required herein, within five (5)
days of when due; provided, however, the aforesaid five day period
shall be extended to ten days for any one instance in a twelve month
period in which Tenant shall make a payment after the five day period.
(b) Tenant shall become insolvent, or shall make a transfer in
fraud of creditors, or shall make an assignment for the benefit of
creditors.
(c) Tenant shall file a petition under any section or chapter of
the Bankruptcy Reform Act, as amended or under any similar law or
statute of the United States or any state thereof; or Tenant shall be
adjudged bankrupt or insolvent in proceedings filed against Tenant
thereunder.
21
(d) A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant.
(e) Tenant shall desert all of the Premises.
(f) Tenant shall fail to yield up immediate possession of the
Premises to Landlord upon termination of this Lease.
(g) Tenant shall fail to comply with the provisions of this Lease
concerning the Letter of Credit as required in paragraph 2 hereof.
(h) Tenant shall fail to comply with any term, provision or
covenant of this Lease (other than the provisions of subparagraphs (a),
(b), (c), (d), (e),(f) and (g) of this Paragraph 15), and shall not
cure such failure within twenty (20) days after written notice thereof
to Tenant, or such additional period of time as shall be granted by
Landlord should Landlord determine that Tenant is acting in good faith
and proceeding diligently to effect a cure but additional time is
required by Tenant to complete a cure.
16. REMEDIES. Upon the occurrence of any event of default in
Paragraph 15 hereof, Landlord shall have the option to pursue any remedy at law
or in equity, including, but not limited to, one or more of the following
remedies without any notice or demand whatsoever:
(a) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so,
Landlord may, without prejudice to any other remedy which it may have
for possession or arrearage in rent, enter upon and take possession of
the Premises and expel and remove Tenant and any other person who may
be occupying the Premises or any part thereof, with or without judicial
approval, by any legal means necessary, without being liable for
prosecution or any claim of damages therefor; secure the Premises
against unauthorized entry; and Tenant agrees to pay to Landlord on
demand the amount of all loss and damage which Landlord may suffer by
reason of such termination, whether through inability to relet the
Premises on satisfactory terms or otherwise.
(b) Enter upon and take possession of the Premises and expel or
remove Tenant and any other person who may be occupying such Premises
or any part thereof, with or without judicial approval, by any legal
means necessary, without being liable for prosecution and receive the
rent thereof; secure the Premises against unauthorized entry; store any
property located on the Premises at the expense of the owner thereof
and Tenant agrees to pay to Landlord on demand any deficiency that may
arise by reason of such reletting. In the event Landlord is successful
in reletting the Premises at a rental in excess of that agreed to be
paid by Tenant pursuant to the terms of this Lease, Landlord and Tenant
each mutually agree that Tenant shall not be entitled, under any
circumstances, to such excess rental, and Tenant does hereby
specifically waive any claim to such excess rental.
22
(c) Enter upon the Premises, with or without judicial approval, by
any legal means necessary, without being liable for prosecution or any
claim for damages therefor, secure the Premises against unauthorized
entry, remove all property of Tenant from the Premises and store it at
the cost and expense of Tenant, and do whatever Tenant is obligated to
do under the terms of this Lease; and Tenant agrees to reimburse
Landlord on demand for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease, and
Tenant further agrees that Landlord shall not be liable for any damages
resulting to Tenant from such action, whether caused by the negligence
of Landlord or otherwise.
(d) Accelerate and demand the payment of all base rent and other
charges due and payable hereunder over the term of this Lease which
amount shall be reduced by any amounts received by Landlord from any
new tenant that enters into occupancy of the Premises.
In the event Tenant fails to pay any installment of base rent or
additional rent hereunder within fifteen days of the due date of such
installment, Tenant shall pay to Landlord on demand a late charge in an amount
equal to four percent (4%) of such installment to help defray the additional
cost to Landlord for processing such late payment. The provision for such late
charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as liquidated damages or as
limiting Landlord's remedies in any manner. If, on account of any breach or
default by Tenant in Tenant's obligations under the terms and conditions of this
Lease, it shall become necessary or appropriate for Landlord to employ or
consult with an attorney concerning or to enforce or defend any of Landlord's
rights or remedies hereunder, Tenant agrees to pay any and all reasonable
attorneys' fees so incurred.
Pursuit of any of the foregoing remedies shall not preclude
pursuit of any of the other remedies herein provided or any other remedies
provided by law or equity, nor shall pursuit of any remedy herein provided
constitute a forfeiture or waiver of any rent due to Landlord hereunder or of
any damages accruing to Landlord by reason of the violation of any of the terms,
provisions and covenants herein contained. No act or thing done by Landlord or
its agents during the term hereby granted shall be deemed a termination of this
Lease or an acceptance of the surrender of the Premises, and no agreement to
terminate this Lease or accept a surrender of the Premises shall be valid unless
in writing signed by Landlord. No waiver by Landlord of any violation or breach
of any of the terms, provisions and covenants herein contained shall be deemed
or construed to constitute a waiver of any other violation or breach of any of
the terms, provisions and covenants herein contained. Landlord's acceptance of
the payment of rental or other payments hereunder after the occurrence of an
event of default shall not be construed as a waiver of such default, unless
Landlord so notifies Tenant in writing, and no receipt of money by Landlord from
Tenant after the termination of this Lease or after service of any notice or
after the commencement of any suit or after final judgment for possession of the
Premises shall reinstate, continue or extend the term of this Lease or affect
any such termination, notice, suit or judgment, unless Landlord so notifies
Tenant in writing. Forbearance by Landlord to enforce one or more of the
remedies herein provided upon an event of default shall not be deemed or
construed to constitute waiver of such default or of Landlord's right to enforce
any such remedies with respect to such default or any subsequent default.
23
17. LANDLORD'S LIEN. [INTENTIONALLY DELETED.]
18. MORTGAGES. Tenant accepts this Lease subject and subordinate
to any mortgage(s) and/or deed(s) of trust now or at any time hereafter
constituting a lien or charge upon the Premises or the improvements situated
thereon; provided, however, that if the mortgagee, trustee, or holder of any
such mortgage or deed of trust elects to have Tenant's interest in this Lease
superior to any such instrument, then by notice to Tenant from such mortgagee,
trustee or holder, this Lease shall be deemed superior to such lien, whether
this Lease was executed before or after said mortgage or deed of trust. Tenant
shall at any time hereafter on demand execute any instruments, releases or other
documents which may be required by any mortgagee or trustee for the purpose of
further subjecting and subordinating this Lease to the lien of any such mortgage
or deed to trust, and shall forward same to Landlord within five days of a
request therefor; provided, that any current or future mortgagee, trustee, or
deed of trust beneficiary, as the case may be, shall provide Tenant with a
nondisturbance agreement in form reasonably satisfactory to Tenant which shall
grant Tenant the right to continue to occupy the Premises under the terms hereof
so long as Tenant is not in default under this Lease.
19. MECHANIC'S LIENS. Tenant shall have no authority, express or
implied, to create or place any lien or encumbrance of any kind or nature
whatsoever upon, or in any manner to bind, the interest of Landlord in the
Premises or to charge the rentals payable hereunder for any claim in favor of
any person dealing with Tenant, including those who may furnish materials or
perform labor for any construction or repairs, and each such claim shall affect
and each such lien shall attach to, if at all, only the leasehold interest
granted to Tenant by this instrument. Tenant covenants and agrees that it will
pay or cause to be paid all sums legally due and payable by it on account of any
labor performed or materials furnished in connection with any work performed on
the Premises on which any lien is or can be validly and legally asserted against
its leasehold interest in the Premises or the improvements thereon and that it
will save and hold Landlord harmless from any and all loss, cost or expense
based on or arising out of asserted claims or liens against the leasehold estate
or against the right, title and interest of Landlord in the Premises or under
the terms of this Lease.
20. NOTICES. Each provision of this instrument or of any
applicable governmental laws, ordinances, regulations, or other requirements
with reference to the sending, mailing, or delivery of any notice by Landlord to
Tenant or with reference to the sending, mailing, or delivery of any notice or
the making of any payment by Tenant to Landlord shall be deemed to be complied
with when and if the following steps are taken:
(a) All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address
hereinbelow set forth or at such other address as Landlord may specify
from time to time by written notice delivered in accordance herewith.
Tenant's obligations to pay rent and any other amounts to Landlord
under the terms and of this Lease shall not be deemed satisfied until
such rent and other amounts have been actually received by Landlord.
24
(b) Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered whether actually received or
not when:
(i) deposited in the United States Mail, postage prepaid;
(ii) sent by federal express or other nationally
recognized overnight courier, charges prepaid; or
(iii) sent by Certified or Registered Mail, return receipt
requested, postage prepaid,
and addressed to the parties hereto at the respective addresses set out
below, or at other such addresses as they have heretofore specified by
written notice delivered in accordance therewith.
LANDLORD:
Weeks Realty, L.P.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx
With a copy to:
Xxxx Xxxxxxx
Weeks Realty, L.P.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
25
Xxxxx X. Xxxxxxxx, Esq.
Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P.
0000 Xxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
TENANT:
PPD Pharmaco, Inc.
0000 Xxxxx 00xx Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Director of Administration
With a copy to:
General Counsel
PPD Pharmaco, Inc.
0000 Xxxxx 00xx Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
If and when included within the term "Landlord", as used in this instrument,
there is more than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of such a notice specifying some
individual at some specific address for the receipt of notices and payments to
Landlord; if and when included within the term "Tenant, as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices to Tenant. All parties included within
the terms "Landlord" and "Tenant", respectively, shall be deemed to have
received notices in accordance with the provisions of this paragraph with the
same effect as if each had received such notice.
21. BROKER'S CLAUSE. Tenant warrants and represents to Landlord
that it has had no dealings with any real estate broker or agent in connection
with this Lease other than Corporate Realty Advisors, and Weeks Corporation, and
Tenant covenants to pay, hold harmless, and indemnify Landlord from and against
any and all costs, expenses, liabilities (including reasonable attorneys' fees),
causes of action, claims or suits in connection with any compensation,
commission, fee, or charges claimed by any other real estate broker or agent
with respect to this Lease or the negotiation thereof, arising out of any act of
Tenant. Landlord warrants and represents to Tenant that it has had no dealings
with any real estate broker or agent in connection with this Lease other than
Corporate Realty Advisors, and Weeks Corporation, and Landlord covenants to pay,
hold harmless, and indemnify Tenant from and against any and all costs,
expenses, liabilities (including reasonable attorneys' fees), causes of action,
claims or suits in connection with any compensation, commission, fee, or charges
claimed by any other real estate broker or agent with respect to this Lease or
the negotiation thereof, arising out of any act of Landlord.
26
22. LANDLORD'S LIABILITY. Notwithstanding anything to contrary
contained in this Lease, Tenant agrees and understands that Tenant shall look
solely to the estate and property of Landlord in the Building for the
enforcement of a judgment (or other judicial decree) requiring the payment of
money by Landlord to Tenant by reason of default or breach of Landlord in
performance of its obligations under this Lease, it being intended that there
will be absolutely no personal liability on the part of Landlord, its successors
and assigns with respect to any of the terms, covenants, and conditions of this
Lease, and no other assets of Landlord or of Landlord's partners, if any, shall
be subject to levy, execution, attachment or any other legal process for the
enforcement or satisfaction of the remedies pursued by Tenant in the event of
such default or breach, this exculpation of liability to be absolute and without
exception whatsoever.
23. RULES AND REGULATIONS. Tenant shall fully comply with the
Rules and Regulations attached hereto as Exhibit D and made a part hereof and
any and all modifications thereof, or amendments thereto with respect to which
Landlord notifies Tenant.
24. HAZARDOUS MATERIALS.
(a) Tenant agrees that it will not release, discharge, place,
hold, or dispose of any Hazardous Material (as hereinafter defined) on,
under or at the Premises, in the Building, or on the Land, and that it
will not use the Premises, the Building, the Land, or any other portion
thereof as a site for the treatment, storage, or disposal (whether
permanent or temporary) of any Hazardous Material, other than materials
used in the ordinary course of the business of Tenant in accordance
with all Applicable Laws. Tenant further agrees that it will not cause
or allow any asbestos to be incorporated into any improvements or
alterations which Tenant makes or causes to be made to the Premises, or
the Building.
(b) Tenant hereby agrees to indemnify, defend (with counsel
reasonably approved by Landlord) and hold harmless Landlord of from and
against any and all losses, liabilities, damages, injuries, costs,
fines, penalties, expenses and claims of any and every kind whatsoever
(including without limitation, expert and consultant fees, court costs
and attorneys' fees at all tribunal levels) which at any time or from
time to time may be paid, incurred or suffered by, or asserted against
Landlord for, with respect to, or as a direct or indirect result of (i)
any breach by Tenant of the provisions of this Paragraph, or (ii) the
acts or omissions of Tenant or any agent, employee, invitee, licensee,
or independent contractor of Tenant resulting in or contributing to,
the presence on or under, or the escape, seepage, leakage, spillage,
discharge, emission, or release from, onto, or into the Premises, the
Building, the Land, the atmosphere, or any watercourse, body of water,
or groundwater, of any Hazardous Material or (iii) the violation of any
applicable law including, without limitation, any third party claim or
claims for contribution or cost recovery under applicable laws or
common law. The provisions of and undertakings and indemnification set
forth in this paragraph shall survive the termination or expiration of
this Lease, for any reason, and shall continue to be the liability,
obligation and indemnification of Tenant, binding upon Tenant forever.
The provisions of the preceding sentence shall govern and control over
any inconsistent provision of this Lease.
27
(c) For purposes of this Lease, "Hazardous Material" means and
includes any radioactive, hazardous or toxic substance, pollutant,
contaminant, effluent, gas, petroleum product or medical product or
waste defined as such in (or for purposes of) the Comprehensive
Environmental Response, Compensation, and Liability Act, as amended,
any so-called "Superfund" or "Superlien", law, the Toxic Substances
Control Act, as amended, or any other Federal, state or local statute,
law, ordinance, code, rule, regulation, order or decree regulating,
relating to, or imposing liability or standards of conduct concerning,
any radioactive, hazardous, toxic or dangerous waste, substance or
material, as now or at any time hereafter in effect, or any other
hazardous, toxic or dangerous, waste, substance or material, gas or
petroleum product, and "Applicable Laws" shall mean the Comprehensive
Environmental Response, Compensation, and Liability Act, as amended,
any so-called "Superfund" or "Superlien", law, the Toxic Substances
Control Act, as amended, or any other Federal, state or local statute,
law, ordinance, code, rule, regulation, order or decree regulating,
relating to, or imposing liability or standards of conduct concerning,
any radioactive, hazardous, toxic or dangerous waste, substance or
material, as now or at any time hereafter in effect, or any other
hazardous, toxic or dangerous, waste, substance or material, gas,
petroleum product, medical product or waste.
(d) Tenant shall provide Landlord with a list of any and all
Hazardous Materials released, discharged, placed, held, or disposed of
on the Premises, and certification to Landlord of compliance by Tenant
with all Applicable Laws, within ten days of a request therefor by
Landlord.
25. [INTENTIONALLY DELETED.]
26. COVENANT OF TENANT. If Landlord encounters difficulties in
negotiating permanent or construction financing for the Building, and after
using its best efforts is unable to resolve those difficulties without obtaining
minor modifications to this Lease, Tenant will act in good faith to execute an
amendment to this Lease, but this agreement on the part of Tenant will not
require Tenant to make any changes that in Tenant's reasonable judgment alter
the term hereof, or adversely affect any substantive right of Tenant, whether
legal or economic.
27. MISCELLANEOUS.
(a) Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number
shall be held to include the plural, unless the context otherwise
requires.
(b) The terms, provisions and covenants and conditions contained
in this Lease shall apply to, inure to the benefit of, and be binding
upon the parties hereto and upon their respective heirs, legal
representatives, successors and permitted assigns, except as otherwise
herein expressly provided. Landlord shall have the right to assign any
of its rights and obligations under this Lease. Each party agrees to
furnish to the other, promptly upon demand, a resolution, or other
appropriate documentation evidencing the due authorization of such
party to enter into this Lease.
28
(c) The captions inserted in this Lease are for convenience only
and in no way define, limit or otherwise describe the scope or intent
of this Lease, or any provision hereof, or in any way affect the
interpretation of this Lease.
(d) Tenant agrees from time to time, within ten (10) days after
request of Landlord, to deliver to Landlord, or Landlord's designee, an
estoppel certificate stating that this Lease is in full force and
effect, the date to which rent has been paid, the unexpired term of
this Lease and such other matters pertaining to this Lease as may be
requested by Landlord. It is understood and agreed that Tenant's
obligation to furnish such estoppel certificates in a timely fashion is
a material inducement for Landlord's execution of this Lease.
(e) This Lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
(f) All obligations of Tenant hereunder not fully performed as of
the expiration or earlier termination of the term of this Lease shall
survive the expiration or earlier termination of the term hereof,
including, without limitation, all payment obligations concerning the
condition of the Premises.
(g) In the event of a transfer by Landlord of its interest in the
Premises, Landlord shall be released from all obligations and
liabilities under the terms of this Lease subsequent to the date of
such transfer. In the event a transferee shall agree to assume the
obligations and liabilities of Landlord under the Lease prior to the
date of the transfer, Landlord shall be released from all obligations
and liabilities under the Lease.
(h) If any clause or provision of this Lease is illegal, invalid
or unenforceable under present or future laws effective during the term
of this Lease, then and in that event, it is the intention of the
parties hereto that the remainder of this Lease shall not be affected
thereby, and it is also the intention of the parties to this Lease that
in lieu of each clause or provision of this Lease that is illegal,
invalid or unenforceable, there be added as a part of this Lease
contract a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
(i) [INTENTIONALLY DELETED.].
(j) All references in this Lease to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time,
on which all parties hereto have executed this Lease.
(k) Time is of the essence of this Lease.
(l) (i) If Landlord (1) breaches any agreement or obligation in
this Lease and such breach continues for a period of thirty (30) days
after written notice to Landlord by
29
Tenant, or (2) through Landlord's gross negligence or willful act,
Landlord fails to provide (where Landlord is obligated to provide the
Landlord Essential Service), or Landlord fails to act reasonably to
cause a cure (but only to the extent that Landlord is responsible for
the cure and such cure is within Landlord's control to effect) or
Landlord otherwise affirmatively acts to stop, interrupt or materially
reduce a Landlord Essential Service (as hereinafter defined) so that
Tenant is not able to carry on its business at the Premises for five
(5) consecutive business days and such interruption continues for a
period of five (5) business days after written notice to Landlord, then
upon the occurrence of (l) and/or (2) above, if Landlord shall not in
good faith have commenced the curing of such breach specified in (1) or
(2) above within such thirty (30) or five (5) business day period after
written notice, as the case may be and thereafter, shall have not
diligently and continuously proceeded to cure such breach completely,
the Landlord shall be in default hereunder, and Tenant shall have all
rights and remedies available at law or in equity for such default.
(ii) In addition, Tenant shall have the right but not the obligation,
to effect a cure on behalf of Landlord and to demand the actual and
reasonable costs of cure from Landlord.
(iii) For purposes of this Lease, a "Landlord Essential Service" does
not mean a service to be provided by Landlord under this Lease per se,
but rather a facility or system within the Building controlled,
operated or maintained by Landlord (but not a third party, e.g.,
Carolina Power & Light Company, to the extent that such third party is
responsible) that provides electricity, elevator service,
telecommunications (including data transmission), and heating, air
conditioning and ventilation and are necessary for the purpose of
Tenant's conduct of its business at the Premises. (iv) Landlord shall
have no liability for any incidental or consequential damages of
Tenant, or anyone claiming by, through or under Tenant, for any reason
whatsoever.
(m) In the event that Landlord shall default in the performance of
Landlord's obligations hereunder, the holder of a mortgage or the
beneficiary of a deed of trust which includes the Premises shall have
the right, but not the obligation, to perform or comply with any
covenants, agreements and provisions violated in connection with such
default. Further, if such holder or beneficiary notifies Tenant that
such holder or beneficiary has taken over Landlord's right under this
Lease, Tenant shall not assert any right to deduct the cost of repairs
or any monetary claims against Landlord theretofore accrued from rent
thereafter due and payable, but shall look solely to Landlord and not
such holder or beneficiary for satisfaction of such claim.
(n) This Lease does not create the relationship of partner or
joint venturer between Landlord and Tenant.
(o) The laws of the State of North Carolina shall govern the
interpretation, the validity, performance and enforcement of this
Lease.
(p) The undersigned officer of Tenant does hereby warrant and
certify to Landlord that Tenant is a corporation in good standing and
duly organized under the laws of the
30
State of Texas and is authorized to do business in the State of North
Carolina. The undersigned officer of Tenant hereby further warrants and
certifies to Landlord that such officer is authorized and empowered to
bind the corporation to the terms of this Lease by such officer's
signature hereto. Tenant shall provide Landlord a consent of its
officers and directors to enter into this Lease, and the person
authorized to sign this Lease on behalf of Tenant concurrently with the
execution of this Lease.
(q) This Lease shall be executed in duplicate, each of which shall
be deemed an original and complete of itself and may be introduced into
evidence or used for any purpose without the production of any other
copy. If Tenant is a corporation, two authorized corporate officers
must execute this Lease in their appropriate capacity for Tenant and
affix the corporate seal.
(r) The provisions contained in the Rider attached hereto, if any,
are incorporated herein by reference and made a part of this Lease. In
the event of any conflict between the printed portion of this Lease and
the Rider, the provisions of the Rider shall govern and control.
(s) Although the printed provisions of this Lease were drafted by
Landlord, such fact shall not cause this Lease to be construed either
for or against Landlord or Tenant.
(t) This Lease may not be recorded. Upon the request and at the
expense of Tenant, Landlord shall execute a memorandum of this Lease
suitable for recording which shall omit the financial terms herein but
which shall identify the Premises and the term of this Lease. Upon the
expiration of this Lease, a recorded memorandum of this Lease may be
canceled of record by a document executed by Landlord, or its successor
in interest for such purpose.
(u) Within five days of the request by Landlord upon the
occurrence of a default or event of default hereunder by Tenant, Tenant
shall provide to Landlord, financial statements of Tenant certified by
the chief financial officer of Tenant.
(v) No remedy conferred herein is intended to be exclusive of any
other remedy and each and every remedy shall be cumulative and shall be
in addition to every other remedy given hereunder or thereunder or now
or hereafter existing at law or in equity or by statute or otherwise.
(w) No provision of this Lease shall be deemed to waive any
statutory (as provided in Chapter 44A of the North Carolina General
Statutes), or common law rights of Landlord to assert a lien upon
property of Tenant.
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK.]
31
IN WITNESS WHEREOF, the parties hereto have executed this Lease
under seal as of the day and year first above written.
LANDLORD:
WEEKS REALTY, L.P. (SEAL), a
Georgia limited partnership
authorized to do business in the
State of North Carolina as Weeks
Realty Limited Partnership
BY: WEEKS GP HOLDINGS, INC., a
Georgia corporation, its sole
general partner
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx,
Senior Vice President
TENANT:
PPD PHARMACO, INC., a Texas
corporation
By: /s/ Xxxx X. Xxxxxxxx
Print Name: Xxxx X. Xxxxxxxx
Title: CEO
Witness/Attest:
/s/ Xxx Xxxxxxxxx
Print Name: Xxx Xxxxxxxxx
Title: Executive Director, Corporate Administration
[CORPORATE SEAL]
32
EXHIBIT A
THE LAND
TO BE ATTACHED UPON COMPLETION OF SITE PREPARATION FOR THE BUILDING.
33
EXHIBIT B
FLOOR PLAN OF BUILDING AND PREMISES
34
EXHIBIT C
PLANS AND SPECIFICATIONS
[TO BE ATTACHED UPON THE MUTUAL APPROVAL OF LANDLORD AND TENANT.]
35
EXHIBIT C-1
PROJECT DESIGN AND CONSTRUCTION SCHEDULE
[TO BE ATTACHED UPON THE MUTUAL APPROVAL OF LANDLORD AND TENANT.]
36
EXHIBIT C-2
SHELL BUILDING COMPONENTS
[TO BE ATTACHED UPON THE MUTUAL APPROVAL OF LANDLORD AND TENANT.]
37
EXHIBIT C-3
BASE BUILDING UPFIT
[TO BE ATTACHED UPON THE MUTUAL APPROVAL OF LANDLORD AND TENANT.]
38
EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, common areas, and public portions of the
Building, such as entrances, passages, courts, elevators, vestibules, stairways,
corridors or halls, and the streets, alleys or ways surrounding or in the
vicinity of the Building shall not be obstructed by Tenant, even temporarily, or
encumbered by Tenant or used for any purpose other than ingress to and egress
from the Premises.
2. No awnings or other projections shall be attached to the
outside walls of the Building.
3. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by Tenant on any part of the outside of
the Premises or Building unless approved by Landlord. Signs on entrance doors
shall, at Tenant's expense, be inscribed, painted or affixed for each tenant by
sign makers approved by Landlord. In the event of the violation of the foregoing
by Tenant, Landlord may remove same without notice to Tenant or any liability
therefor, and may charge the expense incurred by such removal to Tenant.
4. The sashes, sash doors, skylights, windows, heating,
ventilating and air conditioning vents and doors that reflect or admit light and
air into the halls, passageways or other public places in the Building shall not
be covered or obstructed by Tenant.
5. No show cases or other articles shall be put in front of or
affixed to any part of the exterior of the Building, nor placed in the public
halls, corridors, or vestibules without the prior written consent of Landlord.
6. The bathrooms and plumbing fixtures shall not be used for any
purposes other than those for which they were designed, and no sweepings,
rubbish, rags, or other substances shall be thrown therein. All damages
resulting from any misuse of the bathrooms or fixtures shall be the
responsibility of Tenant.
7. Tenant shall not in any way deface any part of the Premises or
the Building.
8. No bicycles, vehicles, or animals of any kind (other than
animals used by Tenant for research purposes) shall be brought into or kept in
or about the Premises, or in the Building. No cooking shall be done or permitted
by Tenant on the Premises except that performed in the ordinary course of the
business of Tenant and in conformity with all applicable laws, statutes,
regulations. Tenant shall not cause or permit any unusual or objectionable odors
to be produced upon or permeate from the Premises.
9. [INTENTIONALLY DELETED.]
10. No space in the Building shall be used for the sale of
merchandise, goods, or property of any kind at auction.
39
11. Tenant shall not make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of the Building or
neighboring buildings or premises or those having business with them, whether by
the use of any musical instrument, radio, talking machine, unmusical noise,
whistling, singing, or in any other way. Tenant shall not throw anything out of
the doors, windows or skylights or down the passageways.
12. Neither Tenant, nor any of Tenant's servants, employees,
agents, visitors, or licensees, shall at any time bring or keep upon the
Premises any inflammable, combustible or explosive fluid, or chemical substance,
other than those used in the ordinary course of the business of Tenant and in
compliance with all applicable laws, statutes, and regulations.
13. No additional locks or bolts of any kind shall be placed upon
any of the doors, walls, accessways, or windows by Tenant, nor shall any changes
be made in existing locks or the mechanism thereof, without the prior written
approval of Landlord, not to be unreasonably withheld, and unless and until a
duplicate key or access card, as applicable, is delivered to Landlord. Tenant
shall, upon the termination of its tenancy (i) return to Landlord all keys for
the Premises and for any area of the Building, or common areas, either furnished
to, or otherwise procured by Tenant, (ii) restore the locks, walls, accessways,
windows, and doors to their original condition on the date of this Lease by
removing any security measures installed by Tenant, repairing any damage to the
Premises or to the Building as a result of the restoration and removal, and
(iii) in the event of the loss of any keys furnished to Tenant by Landlord,
Tenant shall pay to Landlord the cost thereof.
14. Tenant shall not overload any floor.
15. Tenant shall not occupy or permit any portion of the Premises
to be used for the possession, storage, manufacture or sale of liquor,
narcotics, or tobacco in any form except as used in the ordinary course of the
business of Tenant and in accordance with all applicable laws, statutes, and
regulations.
16. Tenant shall be responsible for all persons for whom it issues
passes and/or keys and shall be liable to Landlord for all acts of such persons.
17. The Premises shall not be used for lodging or sleeping, or for
any illegal purpose.
18. Questions of Tenant regarding the Premises and the Building
will be attended to only by Landlord or the property manager of the Premises.
19. Canvassing, soliciting, and peddling in the Building are
prohibited and Tenant shall cooperate to prevent the same.
20. All paneling, grounds or other wood products not considered
furniture shall be of fire retardant materials.
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21. No smoking is permitted in the Premises, or in the Building.
Smoking is permitted outside the Building in designated smoking areas. All
cigarette butts and other refuse should be placed in designated containers.
22. No weapons concealed or visible are permitted in the Premises,
in the Building, or on the Land.
23. Landlord shall not be responsible to Tenant or liable for the
non-observance or violation of any of these Rules and Regulations by any other
tenant.
Whenever the above rules conflict with any of the rights or
obligations of Tenant pursuant to the provisions of the Lease, the provisions of
the Lease shall govern.
