NET LEASE
This LEASE, made this ______ day of _______________, 19____, by and between
HIGHWOODS REALTY LIMITED PARTNERSHIP, a North Carolina Limited Partnership,
whose address is 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000,
hereinafter "Landlord" and BROADBAND TECHNOLOGIES, INC., a North Carolina
Corporation, whose address is 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx
Xxxxxxxx 00000, hereinafter (whether one or more) "Tenant":
I. GENERAL.
1.1 CONSIDERATION. Landlord enters into this Lease in consideration of
the payment by Tenant of the rents herein reserved and the keeping, observance
and performance by Tenant of the covenants and agreements herein contained.
1.2 EXHIBITS AND ADDENDA TO LEASE. The Exhibits and Addenda listed below
shall be attached to this Lease and be deemed incorporated in this Lease by this
reference. In the event of any inconsistency between such Exhibits and Addenda
and the terms and provisions of this Lease, the terms and provisions of the
Exhibits and Addenda shall control. The Exhibits and Addenda to this Lease are:
Exhibit A - Premises
Exhibit A-1 - Land
Exhibit B - Environmental Compliance
Exhibit B-1 - Chemical Inventory List
Exhibit C - Estoppel Certificate
Exhibit D - HVAC Inspection and Service Contract
Exhibit E - Operating Expense Exclusions
Addendum Number One - Option to Extend Lease Term
Addendum Number Two - First Right of Offer
Addendum Number Three - Option to Cancel
II. DEMISE OF PREMISES.
2.1 DEMISE. Subject to the provisions, covenants and agreements herein
contained, Landlord hereby leases and demises to Tenant, and Tenant hereby
leases from Landlord, the Premises as hereinafter defined, together with a
non-exclusive right to use the Parking Area, as hereinafter defined, for the
Lease Term as hereinafter defined, subject to existing covenants, restrictions,
easements and encumbrances affecting the same.
2.2 PREMISES. The "Premises" shall mean the space to be occupied by
Tenant as depicted on Exhibit A attached hereto. The Premises are within the
Building which is located on the Land, as the terms Building and Land are
hereinafter defined.
2.3 SQUARE FOOTAGE AND ADDRESS. The Premises contains approximately
97,195 RENTABLE SQUARE FEET, TO BE VERIFIED BY HAGERSMITH DESIGN, P.A. ON OR
BEFORE FEBRUARY 1, 1999. The address of the Premises is 0000 XXXXXXX XXXXX
XXXXX, XXXXX 000, XXXXXX, XXXXX XXXXXXXX 00000.
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2.4 LAND. "Land" shall mean the parcel of real property more
particularly described in EXHIBIT A-1 attached hereto, containing approximately
ELEVEN AND THREE TENTHS (11.3) ACRES OF LAND.
2.5 BUILDING. "Building" shall mean the Building constructed or to be
constructed on the Land, containing approximately 124,432 RENTABLE SQUARE FEET,
TO BE VERIFIED BY HAGERSMITH DESIGN, P.A.
2.6 IMPROVEMENTS. "Improvements" shall mean the Building, the Parking
Area (as hereinafter defined), and all other improvements on the Land, including
landscaping thereon.
2.7 PROPERTY. "Property" shall mean the Land, the Building and the
Improvements and any fixtures and personal property used in operation and
maintenance of the Land, Building and Improvements, other than fixtures and
personal property of Tenant and other users of space in the Building.
2.8 COMMON FACILITIES. "Common Facilities" shall mean all of the
Property except the Premises and other space in the Building leased or held for
lease to other Tenants. Common Facilities shall include the Parking Area and any
walks, driveways, lobby areas, halls, stairs and restrooms designated for common
use by Tenant and other users of space in the Building.
2.9 PARKING AREA. "Parking Area" shall mean that portion that of the
Property which is for the parking of motor vehicles. The Parking Area is to be
shared by Tenant in common with other users of space in the Building.
2.10 PARK. The Property is located in and is part of THE development
commonly known as TRIANGLE BUSINESS CENTER.
2.11 USE OF COMMON FACILITIES. Tenant is hereby granted the
non-exclusive right to use, in common with other users of space in the Building,
so much of the Common Facilities as are needed for the use of the Premises.
2.12 COVENANT OF QUIET ENJOYMENT. If Tenant promptly and punctually
complies with each of its obligations hereunder, it shall peacefully have and
enjoy the possession of the Premises during the Term hereof, provided that no
action of Landlord or other tenants working in other space in the Building, or
in repairing or restoring the Premises, shall be deemed a breach of this
covenant, or give to Tenant any right to modify this Lease either as to term,
rent payable, or other obligations to be performed, SO LONG AS SUCH WORK,
REPAIRS OR RESTORATION DO NOT UNREASONABLY INTERFERE WITH OR PREVENT TENANT'S
USE OF THE PREMISES, AND SO LONG AS ALL SUCH ACTIVITIES ARE DONE IN A
COMMERCIALLY REASONABLE MANNER BY LANDLORD.
2.13 CONDITION OF PREMISES. Tenant covenants and agrees that, upon
taking possession of the Premises, it will have accepted the Premises "as-is"
and Tenant waives any warranty of condition or habitability, suitability for
occupancy, use of habitation, fitness for a particular purpose, or of
merchantability, express or implied, relating to the Premises.
III. TERM OF LEASE.
3.1 LEASE TERM. "Lease Term" shall mean the period COMMENCING ON THE
FIRST (1ST) DAY OF JANUARY, 1999 AND EXPIRING ON THE THIRTY-FIRST (31ST) DAY OF
DECEMBER, 2003.
IV. RENT AND OTHER AMOUNTS PAYABLE.
4.1 BASE RENT. Tenant covenants and agrees to pay to Landlord, without
prior demand and without offset, deduction or abatement, base rent for the full
Lease Term in the amount (before Cost of Living Increases) of $3,844,062.00
("Base Rent"), for a Minimum annual Base Rent of $768,812.40 before adjustments.
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4.2 MONTHLY RENT. Base Rent shall be payable monthly in advance, in
equal installments in the amount of $64,067.70 ("Monthly Rent"), commencing on
the first day of the first month of the Lease Term and continuing on the same
day of each month thereafter for the balance of the Lease Term, unless the
commencement date of the Lease Term is other than the first day of a calendar
month, in which event rent shall be payable on the commencement date for the
remaining number of days in that month prorated for such partial month, and
thereafter as provided above.
4.3 PLACE OF PAYMENTS. Base Rent and all other sums payable by Tenant to
Landlord under this Lease shall be paid to Landlord at the place for payments
specified for notices in Section 13.8, or such other place as Landlord may, from
time to time, designate in writing. In addition to such remedies as may be
provided under the Default provisions of this Lease, Landlord shall be entitled
to collect a late charge of four percent (4%) of the amount of each monthly
payment not received within five (5) days of the date when due, and a charge of
the lower of the maximum lawful bad check fee or five percent (5%) of the amount
of any check given by Tenant and not paid when first presented by Landlord. IF
TENANT FAILS TO PAY RENT WHEN DUE (A "LATE PAYMENT"), THEN TWICE DURING ANY
CALENDAR YEAR SUCH LATE PAYMENT SHALL NOT BE CONSIDERED AN EVENT OF DEFAULT
PURSUANT TO ARTICLE XI BELOW, IF, WITHIN FIVE (5) DAYS AFTER WRITTEN NOTICE FROM
LANDLORD (THE "GRACE PERIOD"), TENANT SUBMITS THE RENT DUE, INCLUDING THE LATE
CHARGE OF FOUR PERCENT (4%), FOR SUCH MONTH. LANDLORD SHALL FORGIVE TENANT ONLY
TWO (2) LATE PAYMENTS PER CALENDAR YEAR, ANY ADDITIONAL LATE PAYMENT SHALL
CONSTITUTE AN EVENT OF DEFAULT.
4.4 LEASE A NET LEASE AND RENT ABSOLUTE. It is the intent of the parties
that the Base Rent provided in this Lease shall be a net payment to Landlord;
that the Lease shall continue for the full Lease Term notwithstanding any
occurrence preventing or restricting use and occupancy of the Premises,
including any damage or destruction affecting the Premises, and any action by
governmental authority relating to or affecting the Premises, except as
otherwise specifically provided in this Lease; that the Base Rent shall be
absolutely payable without offset, reduction or abatement for any cause except
as otherwise specifically provided in this Lease; that Landlord shall not bear
any costs or expenses relating to the Premises or provide any services or do any
act in connection with the Premises except as otherwise specifically provided in
this Lease; and that Tenant shall pay, in addition to Base Rent, Additional Rent
to cover costs and expenses relating to the Premises, the Common Facilities, and
the Property.
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4.5 ADDITIONAL RENT. EXCEPT FOR ITEMS EXCLUDED HEREIN, Tenant covenants
and agrees to pay, as Additional Rent, its Proportionate Share of: (i) all costs
and expenses incurred by Landlord relating to the Premises; (ii) all costs and
expenses relating to the Common Facilities; and (iii) certain costs and expenses
relating to the Property and the Park, all as hereinafter provided and to pay
all other amounts payable by Tenant under the terms of this Lease ("Additional
Rent"). Costs and expenses, the Proportionate Share of which is payable by
Tenant as Additional Rent (as aforesaid) shall include (a) Taxes and Assessments
(as defined in Article V below); (b) insurance costs (as provided in Article VI
below); (c) utility charges (as provided in Section 7.1 below); (d) operating
expenses (as provided in Section 7.2 below); (e) maintenance and repair expenses
(as provided in Section 7.3 below); (f) the HVAC Expense (as defined in Section
4.7 below); and (g) other costs and expenses relating to the Premises, the
Common Facilities, the Property, and the Park during or attributable to the
Lease Term, all as hereinafter provided in this Lease. SUCH AGGREGATE COSTS
SHALL NOT INCREASE, AFTER CALENDAR YEAR 1998, MORE THAN TEN PERCENT (10%)
ANNUALLY. ADDITIONAL RENT SHALL NOT INCLUDE ANY ITEMS FOR WHICH TENANT HAS THE
OBLIGATION TO MAKE DIRECT PAYMENT, BUT SHALL ONLY INCLUDE ITEMS IN THIS
PARAGRAPH 4.5 (AND NOT OTHERWISE EXCLUDED UNDER THE TERMS OF THE LEASE) PAID BY
LANDLORD.
4.6 TENANT'S PROPORTIONATE SHARE. "Tenant's Proportionate Share" shall
mean the percentage derived by dividing the rentable square footage of the
Premises, as set forth in Section 2.3, by the rentable square footage within the
Building as set forth in Section 2.5. Tenant's Proportionate Share on the date
of this Lease is 78.1109%. Such percentage shall be appropriately adjusted in
the event of construction of additional building(s) on the Land if such
building(s) share the Common Facilities AND/OR IF THE SQUARE FOOTAGE OF THE
PREMISES OR BUILDING ARE ADJUSTED IN ACCORDANCE WITH SECTIONS 2.3, "SQUARE
FOOTAGE AND ADDRESS" AND 2.5 "BUILDING".
4.7 MONTHLY DEPOSITS FOR COSTS AND EXPENSES PAYABLE AS ADDITIONAL RENT.
Tenant covenants and agrees to pay to Landlord, monthly in advance, without
notice, on each day that payment of Monthly Rent is due, amounts as hereinafter
specified (the "Monthly Deposits") for: (i) payment of Taxes and Assessments (as
hereinafter defined); (ii) insurance premiums payable with respect to the
Property ("Insurance Premiums"); (iii) and (iv) utility charges, operating
expenses and maintenance and repair expenses, as specified in Article VII below,
and other costs and expenses relating to the Common Facilities and the Park
(other than the Premises) (collectively, the "Expenses"), and, if the Monthly
Deposits are insufficient to pay the Expenses, to pay to Landlord, within ten
(10) days after demand by Landlord, amounts necessary to provide Landlord with
funds to pay the same. The Monthly Deposits shall each be equal to the aggregate
of 1/12 of the amount, as reasonably estimated by Landlord, of the annual HVAC
Expense and Tenant's Proportionate Share of 1/12 of the amounts, as reasonably
estimated by Landlord, of the annual Expenses. Beginning on the first day of the
first month of the Lease Term, Tenant agrees to pay an MONTHLY DEPOSIT OF
FOURTEEN CENTS ($0.14) PER SQUARE FOOT, namely the sum of THIRTEEN THOUSAND SIX
HUNDRED SEVEN DOLLARS AND THIRTY CENTS ($13,607.30) PER MONTH. To the extent the
Monthly Deposits exceed the Expenses, the excess amount shall, at Landlord's
option, except as may be otherwise provided by law, either be paid to Tenant or
credited against future Monthly Deposits or against Base Rent, or other amounts
payable by Tenant under this Lease. The amount of Expenses payable by Tenant for
the years in which the Lease Term commences and expires shall be subject to the
provisions hereinafter contained in this Lease for proration of such amounts in
such years. Prior to the dates on which payment becomes delinquent for Expenses,
Landlord shall make payment of such amounts to the extent of funds from Monthly
Deposits available therefor and, upon request by Tenant, shall furnish Tenant
with a copy of any receipt for such payments. Except for Landlord's obligation
to make payments out of funds available from Monthly Deposits, the making of
Monthly Deposits by Tenant shall not limit or alter Tenant's obligation to pay
any part of the Expenses, as elsewhere provided in this Lease.
4.8 PARK EXPENSES. In addition to all other amounts payable by Tenant
pursuant to the terms of this Lease, Tenant shall pay, as Additional Rent
payable pursuant to the provisions hereinabove for Monthly Deposits, Tenant's
Proportionate Share of the Park Expenses which are deemed allocated to the
Property. "Park Expenses" shall mean all items listed in paragraph 4.5 hereof as
Additional Rent which relate to the Park and which are not separately
attributable to the Property or any other portion of the Park.
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4.9 PRORATION AT COMMENCEMENT AND EXPIRATION OF TERM. Expenses shall be
prorated between Landlord and Tenant for the year in which the Lease Term
commences and for the year in which the Lease Term expires as of, respectively,
the date of commencement of the Lease Term and the date of expiration of the
Lease Term, except as hereinafter provided. Tenant shall be liable without
proration for the full amount of any Taxes and Assessments relating to
improvements, fixtures, equipment or personal property installed by or on behalf
of Tenant which are levied, assessed, or attributable to the Lease Term.
Proration of Expenses shall be made on the basis of the actual Expenses, billed
during the calendar years of the Lease Term. The Tenant's Proportionate Share of
Expenses for the years in which the Lease Term commences and expires shall be
paid and deposited with the Landlord through Monthly Deposits as hereinabove
provided, but, in the event actual Expenses for either year are greater or less
than as estimated for purposes of Monthly Deposits, appropriate adjustment and
payment shall be made between the parties, at the time the actual amounts are
known, as may be necessary to accomplish payment or proration, as herein
provided.
4.10 SECURITY DEPOSIT.
4.11 GENERAL PROVISIONS AS TO MONTHLY DEPOSITS. Landlord shall be free
to commingle the Monthly Deposits with Landlord's own funds and Landlord shall
not be obligated to pay interest to Tenant on account of the Monthly Deposits.
In the event of a transfer by Landlord of Landlord's interest in the Premises,
Landlord may deliver the Monthly Deposits to the transferee of Landlord's
interest and Landlord shall thereupon be discharged from any further liability
to Tenant with respect to such Monthly Deposits. In the event of a transfer by
Tenant of Tenant's interest in the Premises (Tenant's right to do being limited
by Section 8.17), Landlord shall be entitled to deliver the Monthly Deposits to
Tenant's successor in interest and Landlord shall thereafter have no liability
with respect to the Monthly Deposits.
4.12 AUDIT OF ADDITIONAL RENT. IF TENANT DISPUTES THE AMOUNT OF
ADDITIONAL RENT PAID WITHIN 120 DAYS OF THE END OF THE CALENDAR YEAR FOR WHICH
SUCH RENT WAS PAID (OR 120 DAYS FROM THE DATE OF PAYMENT, WHICHEVER IS LATER),
AND PROVIDING TENANT IS NOT THEN IN DEFAULT UNDER THIS LEASE, TENANT SHALL HAVE
THE RIGHT ON WRITTEN NOTICE TO HAVE LANDLORD'S BOOKS AND RECORDS RELATING TO
OPERATING EXPENSES AUDITED BY A QUALIFIED PROFESSIONAL SELECTED BY TENANT OR BY
TENANT ITSELF. IF AFTER SUCH AUDIT TENANT STILL DISPUTES THE AMOUNT OF OPERATING
EXPENSES, A CERTIFICATION AS TO THE PROPER AMOUNT SHALL BE MADE BY LANDLORD'S
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT IN CONSULTATION WITH TENANT'S
PROFESSIONAL, WHICH CERTIFICATION SHALL BE FINAL AND CONCLUSIVE. IF SUCH AUDIT
REVEALS THAT OPERATING EXPENSES WERE OVERSTATED BY EIGHT PERCENT (8%) OR MORE IN
THE CALENDAR YEAR AUDITED, LANDLORD SHALL REIMBURSE TENANT FOR ITS REASONABLE
COSTS IN DOING THE AUDIT, AND LANDLORD SHALL WITHIN THIRTY (30) DAYS AFTER THE
CERTIFICATION PAY TO TENANT THE AMOUNT OF ANY OVERSTATEMENT WHICH IT HAD
COLLECTED FROM TENANT. HOWEVER, IF SUCH CERTIFICATION DOES NOT SHOW THAT
LANDLORD HAD MADE SUCH AN OVERSTATEMENT THEN TENANT SHALL PAY BOTH THE COSTS OF
ITS PROFESSIONAL AS WELL AS THE REASONABLE CHARGES OF LANDLORD'S INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANT ENGAGED TO DETERMINE THE CORRECT AMOUNT OF OPERATING
EXPENSES. IF THE CERTIFICATION SHOWS THAT LANDLORD HAS UNDERCHARGED TENANT THEN
TENANT SHALL WITHIN THIRTY (30) DAYS PAY TO LANDLORD THE AMOUNT OF ANY
UNDERCHARGE.
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BOOKS AND RECORDS NECESSARY TO ACCOMPLISH ANY AUDIT PERMITTED UNDER THIS
SECTION SHALL BE RETAINED FOR TWELVE MONTHS AFTER TENANT RECEIVES NOTICE OF
ADDITIONAL RENT DUE, AND ON RECEIPT OF NOTICE OF TENANT'S DISPUTE OF THE
OPERATING EXPENSES SHALL BE MADE AVAILABLE TO TENANT TO CONDUCT THE AUDIT, WHICH
MAY BE EITHER AT THE PROPERTY OR AT LANDLORD'S OFFICES IN THE RESEARCH TRIANGLE
AREA OF NORTH CAROLINA.
IN THE EVENT THAT TENANT ELECTS TO HAVE A PROFESSIONAL AUDIT LANDLORD'S
OPERATING EXPENSES AS PROVIDED IN THIS LEASE, SUCH AUDIT MUST BE CONDUCTED BY AN
INDEPENDENT NATIONALLY OR REGIONALLY RECOGNIZED ACCOUNTING FIRM THAT IS NOT
BEING COMPENSATED BY TENANT ON A CONTINGENCY FEE BASIS. ALL INFORMATION OBTAINED
THROUGH SUCH AUDIT AS WELL AS ANY COMPROMISE, SETTLEMENT OR ADJUSTMENT REACHED
AS A RESULT OF SUCH AUDIT SHALL BE HELD IN STRICT CONFIDENCE BY TENANT AND ITS
OFFICERS, AGENTS, AND EMPLOYEES AND AS A CONDITION TO SUCH AUDIT, TENANT'S
AUDITOR SHALL EXECUTE A WRITTEN AGREEMENT AGREEING THAT THE AUDITOR IS NOT BEING
COMPENSATED ON A CONTINGENCY FEE BASIS AND THAT ALL INFORMATION OBTAINED THROUGH
SUCH AUDIT AS WELL AS ANY COMPROMISE, SETTLEMENT OR ADJUSTMENT REACHED AS A
RESULT OF SUCH AUDIT, SHALL BE HELD IN STRICT CONFIDENCE AND SHALL NOT BE
REVEALED IN ANY MANNER TO ANY PERSON EXCEPT UPON THE PRIOR WRITTEN CONSENT OF
LANDLORD, WHICH CONSENT MAY BE WITHHELD IN LANDLORD'S SOLE DISCRETION, OR IF
REQUIRED PURSUANT TO ANY LITIGATION BETWEEN LANDLORD AND TENANT MATERIALLY
RELATED TO THE FACTS DISCLOSED BY SUCH AUDIT, OR IF REQUIRED BY LAW.
V. TAXES AND ASSESSMENTS.
5.1 COVENANT TO PAY TAXES AND ASSESSMENTS. Tenant covenants and agrees
to pay, as Additional Rent, Tenant's Pro Rata Share of Taxes and Assessments,
which are billed during any calendar year falling partly or wholly within the
Lease Term, payable pursuant to the provisions hereinabove for Monthly Deposits.
"Taxes and Assessments" shall mean all taxes, assessments or other impositions,
general or special, ordinary or extraordinary, of every kind or nature, which
may be levied, assessed or imposed upon or with respect to the Property or any
part thereof.
5.2 SPECIAL ASSESSMENTS. In the event any Taxes or Assessments are
payable in installments over a period of years, Tenant shall be responsible only
for installments billed during the calendar years within the Lease Term, with
proration, as above provided, of any installment payable prior to or after
expiration of the Lease Term.
5.3 NEW OR ADDITIONAL TAXES. Tenant's obligation to pay Tenant's Pro
Rata Share of Taxes and Assessments shall include any Taxes and Assessments of a
nature not presently in effect but which may hereafter be levied, assessed or
imposed upon Landlord or upon the Property if such tax shall be based upon or
arise out of the ownership, use or operation of, or the rents received from the
Property, other than income taxes of Landlord. For the purposes of computing
Tenant's liability for such new type of tax or assessment, the Property shall be
deemed the only property of Landlord.
5.4 LANDLORD'S SOLE RIGHT TO CONTEST TAXES. Landlord shall have the sole
right to contest any Taxes or Assessments. Landlord shall pay to or credit
Tenant with Tenant's Pro Rata Share of any abatement, reduction or recovery of
any Taxes and Assessments attributable to the Lease Term, less Tenant's
Proportionate Share of all costs and expenses incurred by Landlord, including
attorneys' fees, in connection with such abatement, reduction or recovery.
VI. INSURANCE.
6.1 CASUALTY INSURANCE. Landlord covenants and agrees to obtain and keep
in full force and effect during the Lease Term, Casualty Insurance as
hereinafter defined. "Casualty Insurance" shall mean fire and extended coverage
insurance with respect to the Property, in an amount equal to the full
replacement cost thereof, with coinsurance clauses of no less than 80%, and with
coverage, by endorsement or otherwise, for all risks, vandalism and malicious
mischief, sprinkler leakage, boilers, and rental loss and with a deductible in
an amount for each occurrence as Landlord, in its sole discretion, may determine
from time to time. Casualty Insurance obtained by Landlord need not name Tenant
as an insured party but may, at Landlord's option, name any mortgagee or holder
of a deed of trust as an insured party as its interest may appear. Tenant
covenants and agrees to pay its Proportionate Share of the cost of Casualty
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Insurance obtained by Landlord as Additional Rent, payable pursuant to the
provisions hereinabove for Monthly Deposits. Tenant shall be responsible for
obtaining, at Tenant's cost and expense, insurance coverage for property of
Tenant and for business interruption of Tenant, and Tenant shall have no claim
against Landlord for damage to its property or interruption of its business
whether or not it insures the same.
6.2 LIABILITY INSURANCE. Tenant covenants and agrees at its expense to
obtain and keep in full force and effect during the Lease Term Liability
Insurance as hereinafter defined. "Liability Insurance" shall mean comprehensive
general liability insurance covering public liability with respect to the
ownership, use and operation of the Premises, with combined single limit
coverage of not less than $2,000,000.00, with endorsements for assumed
contractual liability with respect to the liabilities assumed by Tenant under
Section 8.24 of this Lease, and with no deductible, retention or self-insurance
provision contained therein, unless otherwise approved in writing by Landlord,
WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED.
Landlord covenants and agrees to obtain and keep in full force and effect during
the Lease Term public liability insurance with respect to the ownership, use and
operation of the Property, and the Common Facilities, but excluding the Premises
and space leased to other tenants, with combined single limit coverage of not
less than $2,000,000.00. Tenant also covenants and agrees to pay Tenant's
Proportionate Share of the premiums and costs of such liability insurance as
Additional Rent, payable pursuant to the provisions hereinabove for Monthly
Deposits.
6.3 GENERAL PROVISIONS RESPECTING INSURANCE. Except as otherwise
approved in writing by Landlord, all insurance obtained by Tenant shall be on
forms and with insurers selected or approved by Landlord, which approval shall
not be unreasonably withheld; shall name Landlord and the holder of any first
mortgage or deed of trust encumbering the Property as insured parties, as their
interests may appear; shall contain a waiver of rights of subrogation as among
Tenant, Landlord and the holder of any such first mortgage or deed of trust; and
shall provide, by certificate of insurance or otherwise, that the insurance
coverage shall not be cancelled or altered except upon thirty (30) days prior
written notice to Landlord and the holder of any such first mortgage or deed of
trust. Certificates of insurance obtained by Tenant shall be delivered to
Landlord, who may deposit the same with the holder of any such first mortgage or
deed of trust.
6.4 COOPERATION IN THE EVENT OF LOSS. Landlord and Tenant shall
cooperate with each other in the collection of any insurance proceeds which may
be payable in the event of any loss, including the execution and delivery of any
proof of loss or other actions required to effect recovery.
6.5 WAIVER OF SUBROGATION RIGHTS. WITH RESPECT TO ALL POLICIES OF
INSURANCE CARRIED OR MAINTAINED PURSUANT TO THIS LEASE, AND TO THE EXTENT
PERMITTED UNDER SUCH POLICIES, TENANT AND LANDLORD EACH WAIVE THE INSURANCE
CARRIERS' RIGHTS OF SUBROGATION.
VII. UTILITY, OPERATING, MAINTENANCE AND REPAIR EXPENSES.
7.1 UTILITY CHARGES. Tenant covenants and agrees to pay all charges for
water, sewage disposal, gas, electricity, light, heat, power, telephone or other
utility services used, rendered or supplied to or for the Premises and to
contract for the same in Tenant's own name. Tenant also covenants and agrees to
pay to Landlord Tenant's Proportionate Share of any such charges relating to
Common Facilities or which are not separately metered, or billable to premises
in the Building leased or held for lease to tenants, such charges to be payable
pursuant to the provisions hereinabove for Monthly Deposits.
7.2 OPERATING EXPENSES. Tenant covenants and agrees to pay all costs and
expenses of operations on or relating to the Premises, including BUT NOT LIMITED
TO, costs and expenses for utilities, trash and garbage disposal, janitorial and
cleaning services FOR THE PREMISES, MAINTENANCE OF THE HVAC SYSTEM IN A MANNER
CONSISTENT WITH EXHIBIT D ATTACHED HERETO AND MADE A PART HEREOF, MAINTENANCE
AND REPAIRS WITHIN THE PREMISES INCLUDING BUT NOT LIMITED TO PAINTING, BREAKABLE
MATERIALS (EXCEPT FOR EXTERIOR GLASS) in or serving the Premises and replacement
of lights and light fixtures in or serving the Premises, and to contract for the
same in Tenant's own name. AS FURTHER DESCRIBED IN SECTION 4.7 "MONTHLY DEPOSITS
FOR COSTS AND EXPENSES PAYABLE AS ADDITIONAL RENT" Tenant also covenants and
agrees to pay to Landlord Tenant's Proportionate Share of any such costs and
expenses incurred by Landlord relating to Common Facilities, INCLUDING BUT NOT
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LIMITED TO, gardening and landscaping services, security services, removal of
snow and ice from parking areas, sidewalks and driveways serving the Premises
and painting, or which are not separately allocated to premises in the Building
leased or held for lease to tenants, such costs and expenses to be payable
pursuant to the provisions hereinabove for Monthly Deposits. THE TERM "OPERATING
EXPENSES" SHALL NOT INCLUDE THE ITEMS LISTED IN EXHIBIT E TO THIS LEASE.
7.3 MAINTENANCE AND REPAIR EXPENSES. Tenant covenants and agrees to
maintain, repair, replace and keep the Premises and all improvements, fixtures
and personal property thereon in good, safe and sanitary condition, order and
repair and in accordance with all applicable laws, ordinances, orders, rules and
regulations (including, without limitation, the Americans with Disabilities Act
"ADA") of governmental authorities having jurisdiction, now existing or
hereafter enacted; to pay all costs and expenses in connection therewith; and to
contract for the same in Tenant's own name; and to pay to Landlord, pursuant to
the provisions hereinabove for Monthly Deposits, Tenant's Proportionate Share of
any such costs and expenses incurred by Landlord relating to Common Facilities
or which are not separately allocated to premises in the Building leased or held
for lease to tenants. Such costs and expenses as to Common Facilities may
include the costs and expenses of maintenance and upkeep of grass, trees, shrubs
and landscaping, including replanting where necessary; keeping parking areas,
landscaped areas, sidewalks and driveways safe and secure (with guards or
watchmen where Landlord deems necessary) and free from litter, dirt, debris,
snow, and obstructions; and ordinary maintenance and repair of the Property and
Improvements INCLUDING REPLACEMENT OF EXTERIOR GLASS (WHICH SHALL BE THE
RESPONSIBILITY OF LANDLORD). All maintenance and repairs by Tenant shall be done
promptly, in a good and workmanlike fashion, and without diminishing the
original quality of the Premises or the Property. Landlord shall be responsible
for and shall bear the costs and expenses of replacement of, or extraordinary
maintenance and repairs to, roofs, exterior walls, and structural elements of
the Building and Improvements, unless the need for such replacement or repair is
caused by the act or neglect of Tenant. LANDLORD SHALL ALSO BE RESPONSIBLE FOR
ADA COMPLIANCE OF THE BUILDING AND COMMON AREAS, UNLESS THE NEED FOR SUCH
COMPLIANCE IS CAUSED BY ANY RENOVATIONS OR CHANGES DONE BY TENANT.
VIII. OTHER COVENANTS OF TENANT.
8.1 LIMITATION ON USE BY TENANT. Tenant covenants and agrees to use the
Premises only for the following use or uses OFFICE, RESEARCH, DEVELOPMENT AND
ENGINEERING; ASSEMBLY AND TESTING OF ELECTRONIC UNITS AND COMPONENTS;
WAREHOUSING AND SHIPPING and for no other purposes, except with the prior
written consent of Landlord.
8.2 COMPLIANCE WITH LAWS. Tenant covenants and agrees that nothing shall
be done or kept on the Premises in violation of any law, ordinance, order, rule
or regulation of any governmental authority having jurisdiction, and that the
Premises shall be used, kept and maintained in compliance with any such law,
ordinance, order, rule or regulation (now existing or hereafter enacted) and
with the certificate of occupancy issued for the Building and the Premises.
8.3 COMPLIANCE WITH INSURANCE REQUIREMENTS. Tenant covenants and agrees
that nothing shall be done or kept on the Premises which might make unavailable
or increase the cost of insurance maintained with respect to the Premises or the
Property, which might increase the insured risks or which might result in
cancellation of any such insurance.
8.4 NO WASTE OR IMPAIRMENT OF VALUE. Tenant covenants and agrees that
nothing shall be done or kept on the Premises or the Property which might impair
the value of the Premises or the Property, or which would constitute waste.
8.5 NO HAZARDOUS USE. Tenant covenants and agrees that nothing shall be
done or kept on the Premises or the Property and that no improvements, changes,
alterations, additions, maintenance or repairs shall be made to the Premises
which might be unsafe or hazardous to any person or property. Tenant shall at
all times comply with its representations, warranties and covenants as set forth
in Exhibit C.
8.6 NO STRUCTURAL OR OVERLOADING. Tenant covenants and agrees that
nothing shall be done or kept on the Premises or the Building and that no
improvements, changes, alterations, additions, maintenance or repairs shall be
made to the Premises which might impair the structural soundness of the
Building, which might result in an overload of the weight capacity of floors or
of
8
electricity lines serving the Building, or which might interfere with electric
or electronic equipment in the Building or on any adjacent or nearby property.
In the event of violations hereof, Tenant covenants and agrees to remedy
immediately the violation at Tenant's expense and in compliance with all
requirements of governmental authorities and insurance underwriters.
8.7 NO NUISANCE, NOXIOUS OR OFFENSIVE ACTIVITY. Tenant covenants and
agrees that no noxious or offensive activity shall be carried on upon the
Premises or the Property; nor shall anything be done or kept on the Premises or
the Property which may be or become a public or private nuisance or which may
cause embarrassment, disturbance, or annoyance to others in the Building or on
adjacent or nearby property.
8.8 NO ANNOYING LIGHTS, SOUNDS OR ODORS. Tenant covenants and agrees
that no light shall be emitted from the Premises which is unreasonably bright or
causes unreasonable glare; no sound shall be emitted from the Premises which is
unreasonably loud or annoying; and no odor shall be emitted from the Premises
which is or might be noxious or offensive to others in the Building or on
adjacent or nearby property.
8.9 NO UNSIGHTLINESS. Tenant covenants and agrees that no unsightliness
shall be permitted on the Premises or the Property. Without limiting the
generality of the foregoing, all unsightly conditions, equipment, objects and
conditions shall be kept enclosed within the Premises; hallways adjoining the
Premises may not be used for discarding or storing any materials; no refuse,
scrap, debris, garbage, trash, bulk materials or waste shall be kept, stored or
allowed to accumulate on the Premises or the Property except as may be enclosed
within the Premises; all pipes, wires, poles, antenna and other facilities for
utilities or the transmission or reception of audio or visual signals or
electricity shall be kept and maintained underground or enclosed within the
Premises or appropriately screened from view; and no temporary structure shall
be placed or permitted on the Premises or the Property without the prior written
consent of Landlord.
8.10 NO ANIMALS. Tenant covenants and agrees that no animals (OTHER THAN
SEEING-EYE DOGS) shall be permitted or kept on the Premises or the Property.
8.11 RESTRICTION ON SIGNS AND EXTERIOR LIGHTING. Tenant's EXTERIOR
GROUND SIGN AND BUILDING SIGNAGE AS OF NOVEMBER 5, 1998 IS APPROVED BY LANDLORD.
Tenant covenants and agrees that no other signs or advertising devices of any
nature shall be erected or maintained by Tenant on the Premises or the Property
and no exterior lighting shall be permitted on the Premises or the Property
except as approved in writing by Landlord.
8.12 NO VIOLATION OF COVENANTS. Tenant covenants and agrees not to
commit, suffer or permit any violation of any covenants, conditions or
restrictions affecting the Premises or the Property, SO LONG AS TENANT HAS BEEN
NOTIFIED IN WRITING OF SUCH COVENANTS AND HAS BEEN PROVIDED A COPY OF SAME.
8.13 RESTRICTION ON CHANGES AND ALTERATIONS. Tenant may not make any
structural or interior alterations, which change the Premises from the condition
that existed AS OF THE EXECUTION OF THIS LEASE. If Tenant desires to have
alterations made, Tenant shall provide Landlord's managing agent with two (2)
complete sets of construction drawings, and such agent shall then determine the
cost of the work to be done pursuant to such drawings (such cost to include a
construction supervision fee of 5% of such cost to be paid to Landlord's
managing agent IF LANDLORD COORDINATES SUCH WORK WITH CONTRACTORS), and submit
the cost to Tenant. Tenant may then either agree to pay Landlord the cost, in
which event Landlord shall cause the work to be done, or Tenant may withdraw its
request for alterations. BROADBAND MAY MAKE NON-STRUCTURAL ALTERATIONS WHICH (I)
DO NOT REQUIRE A BUILDING PERMIT, (II) DO NOT CREATE AN UNREASONABLE BURDEN ON
THE LOAD BEARING CAPACITY OF THE FLOOR OR ANY OTHER STRUCTURAL COMPONENT OF THE
BUILDING, AND (III) DO NOT MODIFY, CONNECT TO, OR INTERFERE WITH ANY OF THE
BUILDING SYSTEMS (SUCH AS HVAC, ELECTRICAL OR PLUMBING SYSTEMS); PROVIDED THAT,
HIGHWOODS IS GIVEN AT LEAST TEN BUSINESS DAYS TO REVIEW AND APPROVE THE FINAL
CONSTRUCTION PLANS AND DRAWINGS BEFORE THE WORK IS STARTED, WHICH APPROVAL SHALL
NOT BE UNREASONABLY WITHHELD OR CONDITIONED. LANDLORD SHALL ADVISE TENANT AT THE
TIME OF THE REQUESTED STRUCTURAL OR NON-STRUCTURAL CHANGE OR ALTERATION WHETHER
TENANT SHALL BE REQUIRED at the termination of this Lease or vacation of the
Premises by Tenant to restore (at Tenant's sole cost and
9
expense) the Premises to the same condition as existed at the commencement of
the term, ordinary wear and tear and damage by insured casualty only excepted.
LANDLORD AND TENANT ACKNOWLEDGE THAT TENANT ALREADY OCCUPIES THE PREMISES
PURSUANT TO A LEASE OF SPACE DATED FEBRUARY 25, 0000, XXXXXXX XXXXXXXX XXXX XX
XXXXX XXXXXXXX, X.X., NOT PERSONALLY BUT AS TRUSTEE FOR THE WACHOVIA REAL ESTATE
FUND, (LANDLORD'S PREDECESSOR IN INTEREST), AND TENANT ("WACHOVIA LEASE), WHICH
WACHOVIA LEASE PROVIDES IN SECTION 13.1:
"TENANT COVENANTS AND AGREES TO SURRENDER POSSESSION OF THE DEMISED
PREMISES TO LANDLORD, IN THE SAME CONDITION AS WHEN TENANT FIRST
OCCUPIED THE DEMISED PREMISES, ORDINARY WEAR AND TEAR, CHANGES (AS
CONTEMPLATED PURSUANT TO SECTION 8.13 OF THIS LEASE), AND DAMAGES BY
FIRE OR OTHER CASUALTY (AS PERMITTED BY ARTICLE IX, OF THIS LEASE)
EXCEPTED."
PRIOR TO FEBRUARY 1, 1999, LANDLORD AND TENANT AGREE TO CONDUCT AN AUDIT, AT
TENANT'S EXPENSE, OF THE PREMISES TO DETERMINE WHAT RESTORATION WILL BE REQUIRED
OF TENANT TO COMPLY WITH THE TENANT'S RESTORATION OBLIGATIONS UNDER THE WACHOVIA
LEASE. THE RESULTS OF THIS AUDIT WILL BE REDUCED TO WRITING AND SIGNED BY
LANDLORD AND TENANT, AND SHALL GOVERN TENANT'S RESTORATION OBLIGATIONS FOR THE
PREMISES AS OF THE COMMENCEMENT DATE OF THIS LEASE. IN ADDITION TO ANY OTHER
RESTORATION OBLIGATIONS TENANT HAS UNDER THE TERMS OF THIS LEASE, TENANT SHALL
RESTORE THE PREMISES IN ACCORDANCE WITH THE TERMS OF THE AUDIT AT THE EXPIRATION
OR EARLIER TERMINATION OF THIS LEASE. However, Landlord may elect to require
Tenant to leave alterations performed for it unless at the time of such
alterations Landlord agreed in writing that Tenant could remove them on
expiration or termination of this Lease, and if Tenant does so remove Tenant
shall repair any damage occasioned by such removal.
8.14 NO MECHANICS LIENS. Tenant covenants and agrees not to permit or
suffer, and to cause to be removed and released, any mechanics, materialmen or
other lien on account of supplies, machinery, tools, equipment, labor or
material furnished or used in connection with the construction, alteration,
improvement, addition to or repair of the Premises by, through or under Tenant.
Tenant shall have the right to contest, in good faith and with reasonable
diligence, the validity of any such lien or claimed lien, provided that Tenant
shall give to Landlord such security as may be reasonably requested by Landlord
to insure the payment of any amounts claimed, including interests and costs, and
to prevent any sale, foreclosure or forfeiture of any interest in the Property
on account of any such lien and provided that, on final determination of the
lien or claim for lien, Tenant shall immediately pay any judgment rendered, with
interests and costs, and will cause the lien to be released and any judgment
satisfied.
8.15 NO OTHER ENCUMBRANCES. Tenant covenants and agrees not to obtain
any financing secured by Tenant's interest in the Premises and not to encumber
the Premises, or Landlord or Tenant's interest therein, without the prior
written consent of Landlord, and to keep the Premises free from all liens and
encumbrances except those created by Landlord.
8.16 SUBORDINATION TO LANDLORD MORTGAGES. Tenant covenants and agrees
that, at Landlord's option, this Lease and Tenant's interest in the Premises
shall be junior and subordinate to any mortgage or deed of trust now or
hereafter encumbering the Property if in any mortgage or deed of trust given
hereunder, the mortgagee or beneficiary under such mortgage or deed of trust
agrees in writing, or adequate provision is made in the mortgage or deed of
trust, that, in the event of foreclosure of any such mortgage or deed of trust,
Tenant shall not be disturbed in its possession of the Premises conditioned only
on Tenant attorning to the party acquiring title to the Property as the result
of such foreclosure. Tenant covenants and agrees, within fifteen (15) days of
request of Landlord, to execute SUCH COMMERCIALLY REASONABLE documents as may be
necessary or appropriate to confirm and establish this Lease as subordinate to
any such mortgage or deed of trust in accordance with the foregoing provisions.
Alternatively, Tenant covenants and agrees that, at Landlord's request, Tenant
shall execute COMMERCIALLY REASONABLE documents as may be necessary to establish
this Lease and Tenant's interest in the Premises as superior to any such
mortgage or deed of trust. If Tenant fails to execute any documents required to
be executed by Tenant under the provisions hereof, Tenant hereby makes,
constitutes and irrevocably appoints Landlord as Tenant's attorney in fact and
in Tenant's name, place and stead to execute any such documents.
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8.17 NO ASSIGNMENT OR SUBLETTING. TENANT MAY ASSIGN THE LEASE IN ITS
ENTIRETY OR MAY SUBLEASE ALL OR ANY PORTION OF THE PREMISES WITHOUT LANDLORD'S
CONSENT TO (A) ANY ENTITY RESULTING FROM A MERGER OR CONSOLIDATION WITH TENANT;
(B) ANY ENTITY SUCCEEDING TO THE BUSINESS AND ASSETS OF TENANT; OR (C) ANY
SUBSIDIARY OR AFFILIATE OF TENANT SO LONG AS THE FINANCIAL STRENGTH OF THE
RESULTING TENANT OR SUBTENANT IS EQUAL TO OR GREATER THAN THAT OF TENANT AND THE
RESULTING TENANT'S OR SUBTENANT'S USE DOES NOT CONFLICT WITH LOCAL ORDINANCES OR
PRIVATE COVENANTS APPLICABLE TO THE BUILDING. WITH THE EXCEPTION OF THE
FOREGOING,Tenant may not assign or encumber this Lease or its interest in the
Premises arising under this Lease, and may not sublet any part or all of the
Premises without the written consent of Landlord first had and obtained. Any
assignment or sublease to which Landlord may consent (one consent not being any
basis that Landlord should grant any further consent) shall not relieve Tenant
of any or all of its obligations hereunder. For the purpose of the Section 8.17,
the word "assignment" shall be defined and deemed to include the following: (i)
if Tenant is a partnership, the withdrawal or change, whether voluntary,
involuntary or by operation of law of partners owning thirty percent (30%) or
more of the partnership, or the dissolution of the partnership; (ii) if Tenant
consists of more than one person, an assignment, whether voluntary, involuntary,
or by operation of law, by one person to one of the other persons that is a
Tenant; (iii) if Tenant is a corporation, any dissolution or reorganization of
Tenant, or the sale or other transfer of a controlling percentage (hereafter
defined) of capital stock of Tenant other than to an affiliate or subsidiary or
the sale of fifty-one percent (51%) in value of the assets of Tenant; (iv) if
Tenant is a Limited Liability Company, the change of members whose interest in
the Company is 50% or more. The phrase "controlling percentage" means the
ownership of, and the right to vote, stock possessing at least fifty-one percent
(51%) of the total combined voting power of all classes of Tenant's capital
stock issued, outstanding and entitled to vote for the election of directors, or
such lesser percentage as is required to provide actual control over the affairs
of the corporation. Acceptance of Rent by Landlord after any non-permitted
assignment shall not constitute approval thereof by Landlord. Notwithstanding
the foregoing provisions of this Section 8.17, Tenant may assign or sublease
part or all of the Premises without Landlord's consent to: (i) any corporation
or partnership that controls, is controlled by, or is under common control with,
Tenant; or (ii) any corporation resulting from the merger or consolidation with
Tenant or to any entity that acquires all of Tenant's assets as a going concern
of the business that is being conducted on the Premises, as long as the assignee
or sublessee is a bona fide entity and assumes the obligations of Tenant, and
continues the same use as permitted under Section 8.1. However, Landlord must be
given prior written notice of any such assignment or subletting, and failure to
do so shall be a default hereunder. Landlord will never consent to an assignment
or sublease that might result in a use that conflicts with the rights of an
existing tenant.
In no event shall this Lease be assignable by operation of any law, and
Tenant's rights hereunder may not become, and shall not be listed by Tenant as
an asset under any bankruptcy, insolvency or reorganization proceedings. Tenant
is not, may not become, and shall never represent itself to be an agent of
Landlord, and Tenant acknowledges that Landlord's title is paramount, and that
it can do nothing to affect or impair Landlord's title.
If this Lease shall be assigned or the Premises or any portion thereof
sublet by Tenant at a rental that exceeds the rentals to be paid to Landlord
hereunder, attributable to the Premises or portion thereof so assigned or
sublet, then any such excess shall be paid over to Landlord by Tenant.
LANDLORD ACKNOWLEDGES THAT THE CURRENT SUBTENANCY OF BOSCH TELECOM, INC.
IN APPROXIMATELY 20,000 SQUARE FEET OF THE PREMISES IS APPROVED.
8.18 ANNUAL FINANCIAL STATEMENTS. Tenant covenants and agrees to furnish
to Landlord annually, within ninety (90) days after the end of each fiscal year
of Tenant, copies of financial statements of Tenant, audited if requested by
Landlord, by a certified public accountant, and agrees that Landlord may deliver
any such financial statements to any existing or prospective mortgagee or
purchaser of the Property. The financial statements shall include a balance
sheet as of the end of, and a statement of profit and loss for, the preceding
fiscal year of Tenant. TENANT'S FAILURE TO PROVIDE THE FINANCIAL STATEMENTS TO
LANDLORD SHALL NOT CONSTITUTE AN EVENT OF DEFAULT UNLESS TENANT FAILS TO PROVIDE
THE FINANCIAL STATEMENTS TO LANDLORD WITHIN THIRTY (30) DAYS AFTER WRITTEN
NOTICE FROM LANDLORD.
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8.19 PAYMENT OF INCOME AND OTHER TAXES. Tenant covenants and agrees to
pay promptly when due all property taxes on personal property of Tenant on the
Premises and all federal, state and local income taxes, sales taxes, use taxes,
Social Security taxes, unemployment taxes and taxes withheld from wages or
salaries paid to Tenant's employees, the nonpayment of which might give rise to
a lien on the Premises or Tenant's interest therein, and to furnish, if
requested by Landlord, written evidence of such payments.
8.20 ESTOPPEL CERTIFICATES. Tenant covenants and agrees to execute,
acknowledge and deliver to Landlord, within ten (10) business days of Landlord's
written request, a written statement certifying that this Lease is unmodified
(or, if modified, stating the modifications) and in full force and effect;
stating the dates to which Base Rent has been paid; stating the amount of the
Security Deposit held by Landlord; stating the amount of Monthly Deposits held
by Landlord for the then tax and insurance year; and stating whether or not
Landlord is in default under this Lease (and, if so, specifying the nature of
the default). Tenant agrees that such statement may be delivered to and relied
upon by any existing or prospective mortgagee or purchaser of the Property.
Tenant agrees that a failure to deliver such a statement within ten (10) days
after written request from Landlord shall be conclusive upon Tenant that this
Lease is in full force and effect without modification except as may be
represented by Landlord; that there are no uncured defaults by Landlord under
this Lease; and that any representation by Landlord with respect to Base Rent,
the Security Deposit and Monthly Deposits are true.
8.21 LANDLORD RIGHT TO INSPECT AND SHOW PREMISES AND TO INSTALL FOR SALE
SIGNS. Tenant covenants and agrees that Landlord and authorized representatives
of Landlord shall have the right to enter the Premises at any reasonable time
during ordinary business hours for the purposes of inspecting or maintaining the
same, and making such repairs, alterations or changes as Landlord deems
necessary, or performing any obligations of Tenant which Tenant has failed to
perform hereunder or for the purposes of showing the Premises to any existing or
prospective mortgagee, purchaser or lessee of the Property or the Premises.
Tenant covenants and agrees that Landlord may at any time and from time to time
place on the Property or the Premises a sign advertising the Property or the
Premises for sale or for lease.
8.22 LANDLORD TITLE TO FIXTURES, IMPROVEMENTS AND EQUIPMENT. Tenant
covenants and agrees that all fixtures and improvements on the Premises and all
equipment and personal property relating to the use and operation of the
Premises (as distinguished from operations incident to the business of Tenant),
including all plumbing, heating, lighting, electrical and air conditioning
fixtures and equipment, whether or not attached to or affixed to the Premises,
and whether now or hereafter located upon the Premises, shall be and remain the
property of the Landlord upon expiration of the Lease Term.
8.23 REMOVAL OF TENANT'S EQUIPMENT. Tenant covenants and agrees to
remove, not later than the expiration date of the Lease Term, all of Tenant's
Equipment, as hereinafter defined. "Tenant's Equipment" shall mean all
equipment, apparatus, machinery, signs, furniture, furnishings and personal
property used in the operation of the business of Tenant (as distinguished from
the use and operation of the Premises). If such removal shall injure or damage
the Premises, Tenant covenants and agrees, at its sole cost and expense, at or
prior to the expiration of the Lease Term, to repair such injury and damage in
good and workmanlike fashion and to place the Premises in the same condition as
the Premises would have been in if such Tenant's Equipment had not been
installed. If Tenant fails to remove any Tenant's Equipment by the expiration of
the Lease Term, Landlord may, at its option, keep and retain any such Tenant's
Equipment or dispose of the same and retain any proceeds thereof and Landlord
shall be entitled to recover from Tenant any costs or expenses of Landlord in
removing the same and in restoring the Premises in excess of the actual
proceeds, if any, received by Landlord from disposition thereof.
8.24 TENANT INDEMNIFICATION OF LANDLORD. Tenant covenants and agrees to
protect, indemnify and save Landlord harmless from and against all liability,
obligations, claims, damages, penalties, causes of action, costs and expenses,
including REASONABLE attorneys' fees ACTUALLY INCURRED at all tribunal levels,
imposed upon, incurred by or asserted against Landlord by reason of (a) any
accident, injury to or death of any person or loss of or damage to any property
occurring on or about the Premises UNLESS RESULTING FROM LANDLORD'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT; (b) any act or omission of Tenant or Tenant's
officers, employees, agents, guests or invitees or of anyone claiming by,
through or under Tenant; (c) any use which may be made of, or condition existing
upon, the Premises; (d) any improvements, fixtures or equipment upon the
12
Premises; (e) any failure on the part of Tenant to perform or comply with any of
the provisions, covenants or agreements of Tenant contained in this Lease; (f)
any violation of any law, ordinance, order, rule or regulation of governmental
authorities having jurisdiction by Tenant or Tenant's officers, employees,
agents, guests or invitees or by anyone claiming by, through or under Tenant;
and (g) any repairs, maintenance or changes to the Premises by, through or under
Tenant. Tenant further covenants and agrees that, in case any action, suit or
proceeding, is brought against Landlord by reason of any of the foregoing,
Tenant will, at Tenant's sole cost and expense, defend Landlord in any such
action, suit or proceeding, with counsel acceptable to Landlord.
8.25 WAIVER BY TENANT. Tenant waives and releases any claims Tenant may
have against Landlord or Landlord's officers, agents or employees for loss,
damage or injury to person or property sustained by Tenant or Tenant's officers,
agents, employees, guests, invitees or anyone claiming by, through or under
Tenant resulting from any cause whatsoever other than Landlord's gross
negligence or willful misconduct; EXCEPT THAT, SUCH WAIVER SHALL NOT APPLY TO
THIRD PARTY CLAIMS FOR PERSONAL INJURY OR DEATH WHEN SUCH CLAIMS ARISE FROM THE
NEGLIGENT ERROR OR OMISSION OF LANDLORD OR ITS EMPLOYEES OR AGENTS.
8.26 RELEASE UPON TRANSFER BY LANDLORD. In the event of a transfer by
Landlord of the Property or of Landlord's interest as Landlord under this Lease,
Landlord's successor or assign shall take subject to and be bound by this Lease
and, in such event, Tenant covenants and agrees that: Landlord shall be released
from all obligations of Landlord under this Lease, except obligations which
arose and matured prior to such transfer by Landlord; that Tenant shall
thereafter look solely to Landlord's successor or assign for satisfaction of the
obligations of Landlord under this Lease; and that Tenant shall attorn to such
successor or assign.
8.27 COMPLIANCE WITH ADA. Tenant covenants and agrees that nothing shall
be done or kept by Tenant on the Premises or in the Common Facilities in
violation of ADA, and that Tenant shall maintain, repair, replace, keep and use
the Premises and all improvements, fixtures and personal property therein and
thereon, and conduct its business within the Premises, in accordance with the
requirements of ADA. If any improvements, alterations or repairs to the Premises
are required by governmental authority under ADA or its implementing regulations
or guidelines, Tenant shall be solely responsible for all non-structural items
and any structural items due to Tenant's specific use of the Premises. Tenant
covenants and agrees to pay all costs and expenses in connection with the
performance of its obligations under this Section 8.27. Nothing contained in
this Section 8.27 shall be construed to limit the generality of the provisions
of Section 8.2 respecting Tenant's obligation to comply with applicable laws and
of the provisions of Section 8.13 respecting Tenant's obligation to comply with
ADA and other applicable laws in connection with any Change.
8.28 LANDLORD INDEMNIFICATION OF TENANT. LANDLORD SHALL INDEMNIFY AND
HOLD TENANT HARMLESS FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS FOR
PERSONAL INJURY OR DEATH ASSERTED AGAINST TENANT ARISING SOLELY OUT OF ANY
NEGLIGENT ERROR OR OMISSION OF LANDLORD, OR ITS EMPLOYEES OR AGENTS, OCCURRING
IN OR ABOUT THE PREMISES OR BUILDING.
IX. DAMAGE OR DESTRUCTION.
9.1 TENANT'S NOTICE OF DAMAGE. If any portion of the Premises shall be
damaged or destroyed by fire or other casualty, Tenant shall give prompt written
notice thereof to Landlord ('Tenant's Notice of Damage").
9.2 OPTIONS TO TERMINATE IF DAMAGE SUBSTANTIAL. Upon receipt of Tenant's
Notice of Damage, Landlord shall promptly proceed to determine the nature and
extent of the damage or destruction and to estimate the time necessary to repair
or restore the Premises. As soon as reasonably possible, Landlord shall give
written notice to Tenant stating Landlord's estimate of the time necessary to
repair or restore the Premises ("Landlord's Notice of Repair Time"). If Landlord
reasonably estimates that repair or restoration of the Premises cannot be
completed within 180 days from the time of Tenant's Notice of Damage, Landlord
and Tenant shall each have the option to terminate this Lease. In the event,
however, that the damage or destruction was caused by the GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT of Tenant or Tenant's officers, employees, agents, guests or
invitees or of anyone claiming by, through or under Tenant, Landlord shall have
the option to terminate this Lease if Landlord reasonably estimates that the
13
repair or restoration cannot reasonably be completed within 180 days from the
time of Tenant's Notice of Damage, but Tenant shall not have the option to
terminate this Lease. Any option granted hereunder shall be exercised by written
notice to the other party given within 10 days after Landlord's Notice of Repair
Time. In the event either Landlord or Tenant exercises its option to terminate
this Lease, the Lease Term shall expire 10 days after the notice by either
Landlord or Tenant exercising such party's option to terminate this Lease. In
the event of termination of this Lease under the provisions hereof, Landlord
shall refund to Tenant such amounts of Base Rent and Additional Rent theretofore
paid by Tenant as may be applicable to the period subsequent to the time of
Tenant's Notice of Damage less the reasonable value of any use or occupation of
the Premises by Tenant subsequent to the time of Tenant's Notice of Damage.
9.3 OBLIGATIONS TO REPAIR AND RESTORE. In the event there are sufficient
funds, and such funds are available to Landlord to repair and restore and repair
of the Premises, and restoration can be completed within the period specified in
Section 9.2, in Landlord's reasonable estimation, this Lease shall continue in
full force and effect and Landlord shall proceed forthwith to cause the Premises
to be repaired and restored with reasonable diligence and there shall be
abatement of Base Rent and Additional Rent proportionate to the extent of the
space and period of time that Tenant is unable to use and enjoy the Premises.
9.4 APPLICATION OF INSURANCE PROCEEDS. The proceeds of any Casualty
Insurance maintained on the Premises, other than casualty insurance maintained
by Tenant on fixtures and personal property of Tenant, shall be paid to and
become the property of Landlord, subject to any obligation of Landlord to cause
the Premises to be repaired and restored, which obligation is contingent on
casualty insurance proceeds adequate to complete the repair or restoration being
available to Landlord.
X. CONDEMNATION.
10.1 TAKING - SUBSTANTIAL TAKING - INSUBSTANTIAL TAKING. A "Taking"
shall mean the taking of all or any portion of the Premises as a result of the
exercise of the power of eminent domain or condemnation for public or
quasi-public use or the sale of all or part of the Premises under the threat of
condemnation. A "Substantial Taking" shall mean a Taking of so much of the
Premises that the Premises cannot thereafter be reasonably used by Tenant for
carrying on, at substantially the same level or scope, the business theretofore
conducted by Tenant on the Premises. An "Insubstantial Taking" shall mean a
Taking such that the Premises can thereafter continue to be used by Tenant for
carrying on, at substantially the same level or scope, the business theretofore
conducted by Tenant on the Premises.
10.2 TERMINATION ON SUBSTANTIAL TAKING. If there is a Substantial Taking
with respect to the Premises, the Lease Term shall expire on the date of vesting
of title pursuant to such Taking. In the event of termination of this Lease
under the provisions hereof, Landlord shall refund to Tenant such amounts of
Base Rent and Additional Rent theretofore paid by Tenant as may be applicable to
the period subsequent to the time of termination of this Lease.
10.3 RESTORATION ON INSUBSTANTIAL TAKING. In the event of an
Insubstantial Taking, this Lease shall continue in full force and effect,
Landlord shall proceed forthwith to cause the Premises to be restored as near as
may be to the original condition thereof and there shall be abatement of Base
Rent and Additional Rent proportionate to the extent of the space so taken.
10.4 RIGHT TO AWARD. The total award, compensation, damages or
consideration received or receivable as a result of a Taking ("Award") shall be
paid to and be the property of Landlord, whether the Award shall be made as
compensation for diminution of the value of the leasehold or the fee of the
Premises or otherwise and Tenant hereby assigns to Landlord, all of Tenant's
right, title and interest in and to any such Award. Tenant covenants and agrees
to execute, immediately
14
upon demand by Landlord, such documents as may be necessary to facilitate
collection by Landlord of any such Award. Tenant, however, shall be entitled to
apply for compensation, if available, for its relocation and for any of its
personal property taken.
XI. DEFAULTS BY TENANT.
If Tenant: (i) FAILS TO PAY RENT or any other sum of money which Tenant
is obligated to pay, as provided in this Lease, WHEN DUE (A "LATE PAYMENT"),
THEN TWICE DURING ANY CALENDAR YEAR SUCH LATE PAYMENT SHALL NOT BE CONSIDERED AN
EVENT OF DEFAULT, IF, WITHIN FIVE (5) DAYS AFTER WRITTEN NOTICE FROM LANDLORD
(THE "GRACE PERIOD"), TENANT SUBMITS THE RENT DUE, INCLUDING THE LATE CHARGE OF
FOUR PERCENT (4%), FOR SUCH MONTH. LANDLORD SHALL FORGIVE TENANT ONLY TWO (2)
LATE PAYMENTS PER CALENDAR YEAR, ANY ADDITIONAL LATE PAYMENT SHALL CONSTITUTE AN
EVENT OF DEFAULT; or (ii) breaches any other agreement, covenant or obligation
herein set forth and such breach shall continue and not be remedied within
fifteen (15) days after Landlord shall have given Tenant written notice
specifying the breach, or if such breach cannot, with due diligence, be cured
within said period of fifteen (15) days and Tenant does not within said fifteen
(15) day period commence and thereafter with reasonable diligence completely
cure the breach within thirty (30) days after notice; or (iii) files (or has
filed against it and not stayed or vacated within sixty (60) days after filing)
any petition or action for relief under any creditor's law (including
bankruptcy, reorganization, or similar action), either in state or federal
court; or (iv) makes any transfer in fraud of creditors as defined in Xxxxxxx
000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code (11U.S.C. 548, as amended or replaced),
has a receiver appointed for its assets (and appointment shall not have been
stayed or vacated within thirty (30) days), or makes an assignment for benefit
of creditors; then Tenant shall be in default hereunder, and, in addition to any
other lawful right or remedy which it may have, Landlord may do the following:
(i) terminate this Lease; (ii) repossess the Premises, and with or without
terminating, relet the same at such amount as Landlord deems reasonable; and if
the amount for which the Premises is relet is less than Tenant's Rent and all
other obligations of Tenant to Landlord hereunder, Tenant shall immediately pay
the difference or demand to Landlord, but if in excess of Tenant's Rent, and all
other obligations of Tenant hereunder, the entire amount obtained from such
reletting shall belong to Landlord, free of any claim of Tenant thereto; (iii)
seize and hold any personal property of Tenant located in the Premises and
assert against the same a lien for monies due Landlord; or (iv) without
obtaining any court authorization, lock the Premises and deny Tenant access
thereto. All reasonable expenses of Landlord in repairing, restoring, or
altering the Premises for reletting as general office space, together with
leasing fees and all other expenses in seeking and obtaining a new tenant, shall
be charged to and be a liability of Tenant. Landlord's reasonable attorneys'
fees in pursuing any of the foregoing remedies, or in collecting any Rent due by
Tenant hereunder, shall be paid by Tenant.
Tenant further agrees that Landlord may obtain an order for summary
ejectment from any court of competent jurisdiction without prejudice to
Landlord's rights to otherwise collect rents from Tenant.
All rights and remedies of Landlord are cumulative, and the exercise of
any one shall not be an election excluding Landlord at any other time from
exercise of a different or inconsistent remedy. No exercise by Landlord of any
right or remedy granted herein shall constitute or effect a termination of this
Lease unless Landlord shall so elect by written notice delivered to Tenant.
No waiver by Landlord of any covenant or condition shall be deemed to
imply or constitute a further waiver of the same at a later time, and acceptance
of Rent by Landlord, even with knowledge of a default by Tenant, shall not
constitute a waiver of such default.
XII. SURRENDER AND HOLDING OVER.
12.1 SURRENDER UPON LEASE EXPIRATION. Upon the expiration or earlier
termination of this Lease, or on the date specified in any demand for possession
by Landlord after any Default by Tenant, Tenant covenants and agrees to
surrender possession of the Premises to Landlord in the same condition as when
Tenant first occupied the Premises, ordinary wear and tear and damage by fully
insured casualty (FOR ITEMS LANDLORD IS REQUIRED TO INSURE UNDER THE TERMS OF
THIS LEASE) excepted.
15
12.2 HOLDING OVER. If Tenant shall hold over after the expiration of the
Lease Term or other termination of this Lease, such holding over shall not be
deemed to be a renewal of this Lease but shall be deemed to create a
tenancy-at-sufferance and by such holding over Tenant shall continue to be bound
by all of the terms and conditions of this Lease except that during such
tenancy-at-sufferance, Tenant shall pay to Landlord (a) Rent at the rate equal
to two hundred percent (200%) of that provided for in the foregoing Article 4,
and (b) any and all operating expenses and other forms of Additional Rent
payable under the terms of this Lease. The increased Rent during such holding
over is intended to partially compensate Landlord for losses, damages and
expenses, including frustrating and delaying Landlord's ability to secure a
replacement tenant. IN THE EVENT TENANT GIVES LANDLORD AT LEAST NINE (9) MONTHS
PRIOR NOTICE OF ITS INTENT TO HOLDOVER FOR THREE (3) MONTHS AT THE END OF THE
TERM OF THE LEASE, THEN THE TENANT MAY HOLDOVER FOR THREE (3) MONTHS (BUT NOT
MORE THAN THREE (3) MONTHS) ("PERMISSIBLE HOLDOVER PERIOD") AND THE MONTHLY
HOLDOVER RATE DURING THE PERMISSIBLE HOLDOVER PERIOD SHALL BE ONE HUNDRED AND
FIFTY PERCENT (150%), AFTER WHICH THE TENANT SHALL BE A TENANT-AT-SUFFERANCE AND
THE HOLDOVER RATE SHALL BE TWO HUNDRED PERCENT (200%) AS PROVIDED ABOVE. If
Landlord loses a prospective tenant because Tenant fails to vacate the Premises
on expiration of this Lease after notice to do so, Tenant will be liable for
such damages as Landlord can prove because of Tenant's wrongful failure to
vacate.
XIII. MISCELLANEOUS.
13.1 NO IMPLIED WAIVER. No failure by Landlord to insist upon the strict
performance of any term, covenant or agreement contained in this Lease, no
failure by Landlord to exercise any right or remedy under this Lease, and no
acceptance of full or partial payment during the continuance of any Default by
Tenant, shall constitute a waiver of any such term, covenant or agreement or a
waiver of any such right or remedy or a waiver of any such Default by Tenant.
13.2 SURVIVAL OF PROVISIONS. Notwithstanding any termination of this
Lease, the same shall continue in force and effect as to any provisions hereof
which require observance or performance by Landlord or Tenant subsequent to
termination.
13.3 RIGHT TO RELOCATE.
13.4 COVENANTS INDEPENDENT. This Lease shall be construed as if the
covenants herein between Landlord and Tenant are independent, and not dependent.
13.5 COVENANTS AS CONDITIONS. Each provision of this Lease performable
by Tenant shall be deemed both a covenant and a condition.
13.6 TENANT'S REMEDIES. Tenant may bring a separate action against
Landlord for any claim Tenant may have against Landlord under this Lease,
provided Tenant shall first give written notice thereof to Landlord and shall
afford Landlord a reasonable opportunity to cure any such default. In addition
Tenant shall send notice of such default by certified or registered mail,
postage prepaid, to the holder of any mortgage or deed of trust covering the
Premises TO WHICH TENANT HAS BEEN NOTIFIED IN WRITING, the Property or any
portion thereof of whose address
16
Tenant has been notified in writing, and shall afford such holder a reasonable
opportunity to cure any default on Landlord's behalf. In no event will Landlord
be responsible to Tenant for any damages for loss of profits or interruption of
business as a result of any default by Landlord hereunder.
13.7 BINDING EFFECT. This Lease shall extend to and be binding upon the
heirs, executors, legal representative, successors and assigns of the respective
parties hereto. The terms, covenants, agreements and conditions in this Lease
shall be construed as covenants running with the Land.
13.8 NOTICES AND DEMANDS. All notices, demands or xxxxxxxx under this
Lease shall be in writing, signed by the party giving the same and shall be
deemed properly given and received when actually given and received or three (3)
business days after mailing, if sent by registered or certified United States
mail, postage prepaid, addressed the party to receive the notice at the address
set forth for such party in the first paragraph of this Lease or at such other
address as either party may notify the other in writing, with copies, in the
case of notices given by Tenant to Landlord, to HIGHWOODS REALTY LIMITED
PARTNERSHIP, 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000.
Notices on behalf of either party may be given by such party's respective
counsel. Addresses for notices may be changed in the same manner provided for
giving notices but shall not be effective until ten (10) days elapse after their
receipt.
13.9 TIME OF THE ESSENCE. Time is of the essence under this Lease, and
all provisions herein relating thereto shall be strictly construed.
13.10 CAPTIONS FOR CONVENIENCE. The headings and captions hereof are for
convenience only and shall not be considered in interpreting the provisions
hereof.
13.11 SEVERABILITY. If any provision of this Lease shall be held invalid
or unenforceable, the remainder of this Lease shall not be affected thereby, and
there shall be deemed substituted for the affected provisions a valid and
enforceable provision as similar as possible to the affected provision.
13.12 GOVERNING LAW. This Lease shall be interpreted and enforced
according to the laws of the State of North Carolina.
13.13 ENTIRE AGREEMENT. This Lease and any exhibits and addenda referred
to herein, constitute the final and complete expression of the parties'
agreements with respect to the Premises and Tenant's occupancy thereof. Each
party agrees that it has not relied upon or regarded as binding any prior
agreements, negotiations, representations, or understandings, whether oral or
written, except as expressly set forth herein. Both parties have participated in
the preparation of this Lease and in resolving any ambiguities there shall be no
presumption that they are construed against the drafting party.
13.14 NO ORAL AMENDMENT OR MODIFICATIONS. No amendment or modification
of this Lease, and no approvals, consents or waivers by Landlord under this
Lease, shall be valid or binding unless in writing and executed by the party to
be bound.
13.15 REAL ESTATE BROKERS. Tenant covenants to pay, hold harmless and
indemnify the Landlord from and against any and all cost, expense or liability
for any compensation, commissions, charges or claims by any broker or other
agent with respect to this Lease or the negotiation thereof other than Highwoods
Properties, Inc. or any of its affiliates, and any other broker here listed as a
Participating Broker: CAPITAL ASSOCIATES, WHOSE ADDRESS IS 0000 XXXXXXXX XXXXX,
XXXX, XXXXX XXXXXXXX 00000.
13.16 RELATIONSHIP OF LANDLORD AND TENANT. Nothing contained herein
shall be deemed or construed as creating the relationship of principal and agent
or of partnership, or of joint venture by the parties hereof, it being
understood and agreed that no provision contained in this Lease nor any acts of
the parties hereto shall be deemed to create any relationship other than the
relationship of Landlord and Tenant.
13.17 AUTHORITY OF PARTIES. Each individual executing this Lease on
behalf of THE PARTIES represents and warrants that such individual is duly
authorized to deliver this Lease on behalf of THE PARTY and that this Lease is
binding upon THE PARTIES in
17
accordance with its terms, and agrees to document such authorization to THE
OTHER PARTY'S satisfaction if requested to do so.
13.18 EXCULPATION. Any provision of this Lease to the contrary
notwithstanding Landlord shall have no personal liability for payment of any
damages or performance of any term, provision or condition under this Lease or
under any other instrument in connection with this Lease, and Tenant shall look
for such payment or performance to the property, the rents, issues and profits
thereof, in satisfaction of any claim, order or judgment Tenant may at any time
obtain against Landlord in connection with this Lease.
13.19 HVAC MAINTENANCE. LANDLORD SHALL BE RESPONSIBLE FOR ANY HVAC
EXPENSES OF A CAPITAL NATURE IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES ("GAAP") UNLESS SUCH EXPENSES ARE DUE TO TENANT'S SPECIFIC USAGE OF
THE HVAC UNITS/SYSTEMS EXCEEDING THE UNITS/SYSTEMS DESIGNED CAPACITY. AN
INDEPENDENT SURVEY OF THE HVAC UNITS/SYSTEMS HAS BEEN PERFORMED TO PROVIDE A
LEVEL OF THE CURRENT CONDITION OF THE UNITS/SYSTEMS. ON OR BEFORE FEBRUARY 1,
1999, TENANT SHALL PROVIDE AN INDEPENDENT SURVEY OF TENANT'S CURRENT USAGE TO
DETERMINE IF TENANT'S USAGE IS EXCEEDING THE UNITS/SYSTEMS DESIGNED CAPACITY,
SUCH SURVEY SHALL BE MUTUALLY APPROVED BY LANDLORD AND TENANT. NOTWITHSTANDING
THE FOREGOING, TENANT SHALL BE RESPONSIBLE FOR SECURING AND MAINTAINING A
MAINTENANCE CONTRACT ON THE HVAC UNITS/SYSTEMS SERVING THE PREMISES, AN EXAMPLE
OF SUCH MAINTENANCE CONTRACT IS ATTACHED AS EXHIBIT F. TENANT SHALL PAY ALL
COSTS ASSOCIATED WITH SUCH MAINTENANCE DIRECTLY TO THE PROVIDER OF SUCH
MAINTENANCE. TENANT SHALL PROVIDE LANDLORD WITH COPIES OF SUCH MAINTENANCE
CONTRACTS IN ORDER FOR LANDLORD TO APPROVE THE EXTENT OF THE MAINTENANCE
AGREEMENT.
13.20 LANDSCAPING/BUILDING EXTERIOR. LANDLORD AND TENANT ACKNOWLEDGE
THAT LANDLORD HAS BUDGETED TO RENOVATE THE COMMON AREA CORRIDOR, REPAIR
SIDEWALKS, UPGRADE LANDSCAPING AND RESEAL, SPOT REPAIR AND RESTRIPE PARKING LOT,
SUCH WORK IS TO BE COMPLETED BY LANDLORD AT LANDLORD'S SOLE COST AND EXPENSE.
LANDLORD WILL MAINTAIN THE BUILDING SITE COMPARABLE TO OTHER CLASS A FLEX SPACE
IN THE RESEARCH TRIANGLE PARK AREA. LANDLORD SHALL PROVIDE TENANT THE LANDSCAPE
RENOVATION PLANS AND SCHEDULE ON OR BEFORE FEBRUARY 1, 1999.
13.21 MEMORANDUM OF LEASE. AT THE REQUEST OF EITHER PARTY, A MEMORANDUM
OF LEASE SHALL BE EXECUTED BY THE PARTIES IN RECORDABLE FORM. THAT MEMORANDUM OF
LEASE MAY BE RECORDED IN THE PUBLIC REGISTRY, AT THE COST OF THE REQUESTING
PARTY.
13.22 CAPITAL IMPROVEMENTS. LANDLORD AGREES TO GIVE TENANT NOTICE OF
PROPOSED CAPITAL IMPROVEMENTS TO THE LAND AND BUILDING EACH CALENDAR YEAR DURING
THE TERM OF THE LEASE, SUCH NOTICE TO BE GIVEN TO TENANT BY THE END OF THE FIRST
QUARTER OF THAT CALENDAR YEAR. NOTHING IN THIS PROVISION OR SUCH NOTICE SHALL
OBLIGATE LANDLORD TO MAKE ANY SUCH IMPROVEMENTS NOR SHALL IT PRECLUDE THE
LANDLORD FROM MAKING OTHER CAPITAL IMPROVEMENTS, WHICH IN THE JUDGEMENT AND
DISCRETION OF LANDLORD SHOULD BE MADE TO THE LAND OR BUILDING. IF LANDLORD, FOR
ANY REASON, FAILS TO GIVE TENANT NOTICE OF THE PROPOSED CAPITAL IMPROVEMENTS,
THEN TENANT'S SOLE REMEDY SHALL BE TO REQUEST THE INFORMATION FROM LANDLORD, AND
LANDLORD SHALL HAVE TEN (10) BUSINESS DAYS TO PROVIDE THE INFORMATION THAT WOULD
BE REQUIRED IN SUCH NOTICE. FOR PURPOSES OF THIS PROVISION, THE TERM "CAPITAL
IMPROVEMENTS" SHALL BE SUCH IMPROVEMENTS AS WOULD HAVE TO BE CAPITALIZED UNDER
THE EXISTING GENERALLY ACCEPTED ACCOUNTING PRINCIPLES.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in duplicate
originals, all as of the day and year first above written.
TENANT:
BROADBAND TECHNOLOGIES, INC.
a North Carolina Corporation
By:
-----------------------------------
18
Name:
---------------------------------
Title:
--------------------------------
Date:
Attest:
--------------------------------
-----------------------Secretary
Affix Corporate Seal:
LANDLORD:
HIGHWOODS REALTY LIMITED PARTNERSHIP
By: Highwoods Properties, Inc., its
general partner a Maryland corporation
By:
-----------------------------------
Xxxxx X. Ciao, Vice President
Date:
----------------------------------
Attest:
-------------------------------
Xxxxxxxx X. Xxxxxx, Assistant Secretary
Affix Corporate Seal:
19
ACKNOWLEDGMENTS
STATE OF _______________________
COUNTY OF _____________________
I, the undersigned Notary Public, certify that
____________________________________ personally came before me this day and
acknowledged that ____he is _____________________ Secretary of
____________________________________________________, a
_________________________ corporation, and that by authority duly given and as
the act of the corporation, the foregoing instrument was signed in its name by
__________________________, as its ________________ President, attested by
______________________________________ as its ____________________ Secretary,
and sealed with its common corporate seal.
WITNESS my hand and notarial seal, this ______ day of ________________,
19 ______.
------------------------------------------
Notary Public
My Commission Expires: _____________________
20
EXHIBIT A
PREMISES
[FACILITY ARCHITECTURAL LAYOUT]
EXHIBIT X-0
XXX 0, XXXXXXXX XXXXXXXX XXXXXX
BEGINNING at an iron pipe located at the northwestern corner of Lot 7 as shown
on that plat entitled "Triangle Business Center (Plat No. Two)" recorded in Plat
Book 107, Page 167, Durham County Registry; said iron pipe being in the eastern
right of way line of Stirrup Creek Drive; running thence South 83 degrees 52
minutes 59 seconds East 71.42 feet to an iron pipe set; thence continuing South
83 degrees 05 minutes 26 seconds East 682.28 feet to an iron pipe, said iron
pipe being located in the northeastern corner of the tract herein described;
running thence South 11 degrees 47 minutes 47 seconds West 279.27 feet to an
iron pipe in the line of now or formerly Wachovia Bank & Trust property as shown
on plat recorded in Plat Book 103, Page 42, Durham County Registry; runs thence
South 14 degrees 57 minutes 52 seconds West 405.96 feet to an iron pipe located
in the northern cul de sac line of Twin Creeks Court (60' right of way); runs
thence with the northern right of way line of Twin Creeks Court along a curve to
the left in a southwesterly direction, said curve having a radius of 60.00 feet,
an arc distance of 50.45 feet to a point; thence along a curve to the right in a
westerly direction, said curve having a radius of 25.00 feet, an arc distance of
21.68 feet to a point; thence continuing along the northern right of way line of
Twin Creeks Court North 73 degrees 30 minutes 50 seconds West 615.19 feet to a
point; thence along a curve to the right in a northwesterly direction, said
curve having a radius of 145.00 feet, an arc distance of 73.79 feet to a point;
thence North 44 degrees 21 minutes 23 seconds West 3.02 feet to a point where
the northerly line of the right of way of Twin Creeks Court begins to curve into
the easterly right of way line of Stirrup Creek Drive; thence along a curve to
the right in a northerly direction, said curve having a radius of 25.00 feet, an
arc distance of 36.06 feet to a point in the eastern right of way line of
Stirrup Creek Drive; thence along the eastern right of way line of Stirrup Creek
Drive as it curves to the left in a northerly direction, said curve having a
radius of 405.00 feet, an arc distance of 201.86 feet to a point; thence
continuing with the eastern right of way line of Xxxxxxx Xxxxx Xxxxx Xxxxx 00
degrees 44 minutes 18 seconds East 341.13 feet to the point and place of
BEGINNING, containing 11.095 acres (483,339.3 sq. ft.) as shown on that survey
entitled "ALTA/ACSM LAND TITLE SURVEY FOR LOT 7 TRIANGLE BUSINESS CENTER
HIGHWOODS REALTY LIMITED PARTNERSHIP, CHICAGO TITLE INSURANCE COMPANY AND FIRST
UNION NATIONAL BANK OF NORTH CAROLINA" dated 4/20/94, and prepared by Xxxxxxxx &
Xxxxx, Registered Land Surveyors. For reference, see plat of Lot 7, Triangle
Business Center, recorded in Plat Book 107, Page 167, Durham County Registry.
1
EXHIBIT B
ENVIRONMENTAL COMPLIANCE
I. TENANT'S REPRESENTATIONS, WARRANTIES AND COVENANTS CONCERNING THE USE
OF HAZARDOUS SUBSTANCES/PERIODIC NOTICE.
(a) ACCEPTANCE OF PROPERTY AND COVENANT TO SURRENDER. Tenant accepts the
Property as being in good and sanitary order, condition and repair and
accepts all buildings and other improvements in their present condition.
Tenant agrees on the last day of the term of this Lease, to surrender
the Premises to Landlord in good and sanitary order, condition and
repair, except for such wear and tear as would be normal for the period
of the Tenant's occupancy.
No spill, deposit, emission, leakage or other release of
Hazardous Substances on the Property or the soil, surface water or
groundwater thereof shall be deemed to be "wear and tear that would be
normal for the period of the Tenant's occupancy." Tenant shall be
responsible to promptly and completely clean up any such release caused
by Tenant, its officers and employees, agents, contractors, and invitees
as shall occur on the Property during the term of this Lease and shall
surrender the Property free of any contamination or other damage caused
by such occurrences during the term of the Lease.
(b) MAINTENANCE OF PREMISES. Tenant shall, at its sole cost and expense,
keep and maintain the Premises in good and sanitary order, condition,
and repair. As part of this maintenance obligation, Tenant shall
promptly respond to and clean up any release or threatened release of
any Hazardous Substance into the drainage systems, soil, surface water,
groundwater, or atmosphere, in a safe manner, in strict accordance with
Applicable Law, and as authorized or approved by all federal, state,
and/or local agencies having authority to regulate the permitting,
handling, and cleanup of Hazardous Substances.
(c) USE OF HAZARDOUS SUBSTANCES. TENANT HAS PROVIDED TO LANDLORD A LIST
OF HAZARDOUS MATERIALS WHICH TENANT USES ON SITE IN CONNECTION WITH ITS
OPERATIONS -- A COPY OF WHICH IS ATTACHED TO THE LEASE AS EXHIBIT B-1.
Tenant shall not use, store, generate, treat, transport, or dispose of
any OTHER Hazardous Substance on the Property without first obtaining
Landlord's written approval. Tenant shall notify Landlord and seek such
approval in writing at least 30 days prior to bringing any Hazardous
Substance onto the Property. Landlord may withdraw approval of any such
Hazardous Substance at any time, for reasonable cause related to the
threat of site contamination, or damage or injury to persons, property
or resources on or near the Property. Upon withdrawal of such approval,
Tenant shall immediately remove the Hazardous Substance from the site.
Landlord's APPROVAL OF OR failure to approve the use of a Hazardous
Substance under this paragraph shall not limit or affect Tenant's
obligations under this Lease, including Tenant's duty to remedy or
remove releases or threatened releases; to comply with Applicable Law
relating to the use, storage, generation, treatment, transportation,
and/or disposal of any such Hazardous Substances; or to indemnify
Landlord against any harm or damage caused thereby.
(d) REPORTS TO LANDLORD. For any month in which any Hazardous Substances
have been used, generated, treated, stored, transported or otherwise
been present on or in the Property pursuant to the provisions of the
preceding paragraph, Tenant shall provide Landlord with a written report
listing the Hazardous Substances which were present on the Property; all
releases of Hazardous Substances that occurred or were discovered on the
Property; all compliance activities related to such Hazardous
Substances, including all contacts with government agencies or private
parties of any kind concerning Hazardous Substances; and all manifests,
business plans, consent agreements or other documents relating to
Hazardous Substances executed or requested during that time period. The
report shall include copies of all documents and correspondence related
to such activities and written reports of all oral contacts relating
thereto.
(e) ENTRY BY LANDLORD. Tenant shall permit Landlord and his agents to
enter into and upon the Premises, FOLLOWING NOTICE (EXCEPT NO NOTICE
SHALL BE REQUIRED IN CASES OF EMERGENCY), at all reasonable times for
the purpose of inspecting the Premises and all activities thereon,
including activities involving Hazardous Substances, or for purposes of
maintaining any buildings on the Property. Such right of
entry and inspection shall not constitute managerial or
operational control by Landlord over any activities or operations
conducted on the Property by Tenant.
II. TENANT'S INDEMNITY AND RELEASE.
(a) INDEMNITY.
(i) Tenant hereby indemnifies, defends and holds harmless
Landlord from and against any suits, actions, legal or
administrative proceedings, demands, claims, liabilities, fines,
penalties, losses, injuries, damages, expenses or costs,
including interest and attorneys' fees, incurred by, claimed or
assessed against Landlord under any laws, rules, regulations
including, without limitation, Applicable Laws (as hereinafter
defined), in any way connected with any injury to any person or
damage to any property or any loss to Landlord caused by Tenant,
its officers, employees, agents, contractors, and invitees
occasioned in any way by Hazardous Substances (as hereinafter
defined) on the Property or the Premises.
(ii) This indemnity specifically includes the direct obligation
of Tenant to perform any remedial or other activities required,
ordered, recommended or requested by any agency, government
official or third party, or otherwise necessary to avoid or
minimize injury or liability to any person, or to prevent the
spread of pollution, however it came to be located thereon
(hereinafter, the "Remedial Work"). Tenant shall perform all such
work in its own name in accordance with Applicable Laws (as
hereinafter defined).
(iii) Without waiving, its rights hereunder, Landlord may, at its
option, perform such remedial or removal work as described in
clause (ii) above, and thereafter seek reimbursement for the
costs thereof. Tenant shall permit Landlord access to the
Property to perform such remedial activities.
(iv) Whenever Landlord has incurred costs described in this
section, Tenant shall, within 10 days of receipt of notice
thereof, reimburse Landlord for all such expenses together with
interest from the date of expenditure at the "applicable federal
rate" established by the Internal Revenue Service.
(b) AGENCY OR THIRD PARTY ACTION. Without limiting its obligations under
any other paragraph of this Agreement, Tenant shall be solely and
completely responsible for responding to and complying with any
administrative notice, order, request or demand, or any third party
claim or demand relating to potential or actual contamination on the
Premises. The responsibility conferred under this paragraph includes but
is not limited to responding to such orders on behalf of Landlord and
defending against any assertion of Landlord's financial responsibility
or individual duty to perform under such orders. Tenant shall assume,
pursuant to paragraph (a) above, any liabilities or responsibilities,
which are assessed against Landlord in any action described under this
paragraph (b).
(c) RELEASE.
III. DEFINITIONS.
(a) HAZARDOUS SUBSTANCE. "Hazardous Substance(s)" shall mean any
substance which at any time shall be listed as "hazardous" or "toxic"
under the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. 9601 et seq., as amended and the
Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. 6901 et seq.,
as amended, or in the regulations implementing such statutes, or which
has been or shall be determined at any time by any agency or court to be
a hazardous or toxic substance regulated under any other Applicable Laws
(as hereinafter defined). The term "Hazardous Substance(s)" shall also
include, without limitation, raw materials, building components, the
products of any manufacturing or other activities on the Property,
wastes,
2
petroleum products, or special nuclear or by-product material as defined
by the Atomic Energy Act of 1954, 42 U.S.C. 3011, et seq., as amended.
(b) APPLICABLE LAW(S). "Applicable Law(s)" shall include, but shall not
be limited to, CERCLA, RCRA, the Federal Water Pollution Control Act, 33
U.S.C. 1251 et seq., the Clean Air Act, 42 U.S.C. 7401 et seq., as
amended, and the regulations promulgated thereunder, and any other
federal, state and/or local laws or regulations, whether currently in
existence or hereafter enacted or promulgated, that govern or relate to:
(i) The existence, cleanup and/or remedy of contamination of
property;
(ii) The protection of the environment from spilled, deposited or
otherwise emplaced contamination;
(iii) The control of hazardous or toxic substances or wastes; or
(iv) The use, generation, discharge, transportation, treatment, removal
or recovery of hazardous or toxic substances or wastes, including
building materials.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
EXHIBIT B-1
CHEMICAL INVENTORY LIST
(TO BE MUTUALLY AGREED UPON BY TENANT AND LANDLORD BY FEBRUARY 1, 1999 AND
THEREAFTER ADDED HERETO)
1
EXHIBIT C
TENANT ESTOPPEL CERTIFICATE
[Date]
[Prospective Purchaser] [Prospective Lender]
============================= =============================
RE: Lease: Lease dated ________________ between _____________________________
("Landlord") and _________________________________________________ ("Tenant") (Copy
attached) consisting of _______ pages, plus Exhibit A (_______ pages), Exhibit B
(______ pages), Exhibit C (______ pages), and Amendment dated __________________
(______ pages).
Premises: _______________________________________________________________, consisting
of approximately ________________ rentable square feet.
Commencement Date: ___________________________________
Expiration Date: ________________________________________
Current Monthly Base Rent: _______________________________
Security Deposit: ________________________________________
Monthly Base Rent Paid Through: __________________________
Gentlemen:
We are the Tenant under the Lease described above. We give you this
certificate to permit you to rely on it as conclusive evidence of the matters
stated below, in evaluating and completing the purchase by ([Prospective
Purchaser] __________________________________________) and the secured loan by
([Prospective Lender] _______________________________________) of the real
estate that includes the Premises. We warrant and represent to you as follows:
1. We are the Tenant at the Premises, and are in sole possession of and are
occupying the Premises. Tenant has not subleased all or any part of the Premises
or assigned the Lease, or otherwise transferred its interest in the Lease or the
Premises, EXCEPT AS MAY BE HEREINAFTER STATED.
2. The attached Lease is currently in effect and constitutes the entire
agreement between Landlord and Tenant. The Lease has not been amended, modified,
or changed whether in writing or orally, except as may be stated in the copy of
the Lease attached.
3. The Commencement Date and Expiration Date of the term of the Lease are
correctly stated above. Tenant has no options or rights and has not exercised
any options or rights to renew, extend, amend, modify, or change the term of the
Lease, except as may be stated in the copy of the Lease attached.
4. The Current Monthly Base Rent is correctly stated above. Monthly Base Rent
has been paid through the date stated above. No rent has been prepaid for more
than one (1) month. Tenant has not been given any free rent, partial rent,
rebates, rent abatements, or rent concessions of any kind, except as may be
stated in the copy of the Lease attached.
5. Tenant has deposited the Security Deposit stated above with Landlord, and
none of the Security Deposit has been applied by Landlord to the payment of rent
or any other amounts due under the Lease.
6. Any construction, build-out, improvements, alterations, or additions to the
Premises required under the Lease have been fully completed in accordance with
the plans and specifications described in the Lease.
7. Landlord has fully performed all of its obligations under the Lease and is
not in default under any term of the Lease. In addition, no circumstances exist
under which Landlord may be deemed in default merely upon service of notice or
passage of time.
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8. Tenant has no defenses, set-offs, or counterclaims to the payment of rent and
all other amounts due from Tenant to Landlord under the Lease.
9. Tenant has not been granted and has not exercised any options or rights of
expansion, purchase, or first refusal concerning the Lease or the Premises,
except as may be stated in the copy of the Lease attached.
10. Landlord has not given any consent to Tenant (for example, consent to
sublease or alter the Premises) that is required under the Lease before the
taking of any action by Tenant, except as may be hereinafter stated.
11. Tenant has not filed and is not the subject of any filing for bankruptcy or
reorganization under federal bankruptcy laws.
12. The address for notices to Tenant under the Lease is correctly set forth
above.
13. The person signing this letter on behalf of Tenant is a duly authorized
agent of Tenant.
Sincerely,
[Tenant]
By:________________________________________
Its_________________________________________
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EXHIBIT D
HVAC INSPECTION AND SERVICE CONTRACT
Service Agreement
for
Capital Associates
As Agent for BroadBand Technologies, Inc.
May 11, 1998
Service 0000 Xxxxxxxxxxx Xxxx, XX Xxxxxx 000 Xxxxxxxxxxx,
Xxxxxxxxx XX 00000-0000
(000)000-0000 FAX 000-0000
This Agreement is made by and between Applied Control Technology, Inc. and
Capital Associates
As Agents for
BroadBand Technologies
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxxx, XX 00000
Broadbandd Technologies
for services provided for the covered equipment at the following location(s):
Triangle Business Center
Applied Control Technology, Inc. will provide services in accordance with the
following schedules and the Standard Terms and Conditions of Sale, which are
part of this agreement and noted below.
PM Services
Included Excluded Inspection
Frequency
X Preventive Maintenance - Mechanical Quarterly
Equipment
X Preventive Maintenance - Control System N/A
X Preventive Maintenance - Fire Alarm System N/A
X Preventive Maintenance - Security System N/A
X Filter Change Labor See schedule
Support Services
Included Excluded
X Parts Coverage - Mechanical Equipment (Schedule A)
X Parts Coverage - Controls (Other than (Schedule B)
HVAC)
X Parts Coverage - Fire Alarm System (Schedule B)
X Parts Coverage - Security System (Schedule B)
X Parts Coverage - Filters (Schedule C)
X Water Treatment (Schedule D)
X Full Labor Coverage
X Refrigerant Recovery/Reclaim
X Replacement Refrigerant
X Emergency Service
X Special Services
Planned Preventive Maintenance
Each preventive maintenance call will be custom prepared to meet special
customer requirements and manufacturers' guidelines. In general, maintenance
intervals will be scheduled at the frequency noted above, but exact schedules
will be determined by season, manufacturing guidelines, and equipment operating
hours. During each inspection, operational and efficiency tests will be
performed to detect early signs of equipment failure. After each service call,
the preventive maintenance checklist, complete with component analysis, will be
evaluated to provide the necessary input to update future service requirements.
Parts Coverage
Under this agreement, we will repair or replace worn parts or complete
components with new parts or reconditioned components. It is understood that
this undertaking by us applies only to the systems and equipment covered in this
agreement and specifically included on the attached schedules.
Repair and Emergency Labor
With the inclusion of this coverage, all labor charges, including overtime and
mileage fees, for repairs to covered equipment and emergency service for
failures of covered equipment, will be provided at no extra charge with
reasonable promptness during or after normal business hours. Applied Control
Technology's phone lines are answered 24 hours per day, and a minimum of six
technicians are on call at any given moment. Absent this coverage, standard
rates, including overtime when applicable, will apply.
Special Services
As a function of this agreement, Applied Control Technology shall provide: o Top
Priority emergency/trouble call response o Accurate, specific and thorough
equipment history reports and logs,
maintained for and available to, BroadBand Technologies.
o Recommendations for control strategy and/or operational criteria to minimize
system owning and operating costs, provided at no charge to BroadBand
Technologies.
o Notification of appropriate BroadBand Technologies personnel upon
technician's arrival and departure from facility.
o Annual performance evaluations scheduled with appropriate Capital Associates
personnel to insure optimum execution of this agreement.
o Applied Control Technology will familiarize a minimum of three technicians
with the site(s).
o Applied Control Technology will recapture and reclaim all refrigerants
whenever possible and in a manner consistent with the environmental policies
of Capital Associates.
o Guaranteed four hour response time. Two hour response time for units
considered critical.
General Notes and Exceptions
None
Standard Terms and Conditions of Sale
Customer agrees to the following items under the scope of this agreement:
o The customer will provide reasonable means of access to all equipment
covered under this agreement. This includes freedom to start and stop all
primary equipment to perform scheduled services. Arrangements will be made
with the owner's representative prior to starting or stopping any equipment.
o In the event that the system(s) is altered, modified, changed, or moved,
this agreement is immediately terminable at the option of Applied Control
Technology, Inc.
o Warranties for equipment purchased from, but not installed by, Applied
Control Technology are limited to those offered by the manufacturer.
o Applied Control Technology's responsibility for injury to persons or
property that may be caused by, or arise through, the maintenance, service,
or use of the system(s) shall be limited to injury or damage caused directly
by our negligence in performing our obligations under this agreement, and in
no event shall we be liable for speculative, indirect, or consequential
damages.
o In the event it shall become necessary to retain legal council to enforce
any of its rights hereunder, BroadBand Technologies agrees that it shall be
responsible for payment of all reasonable attorneys' fees, expenses and
costs incurred therewith.
o Service Agreement period payments are due on the first day of the covered
service period. Any invoice that is not a Service Agreement period payment,
with a due date shown, shall be due 30 days from invoice date. Interest
charges due on overdue invoices shall accrue from the due date at the rate
of 1% per month.
General Exclusions
o All CFC refrigerants (R-11, R-12, R-500, R-502, etc.)
o Repair or replacement of non-maintainable parts of the system such as
ductwork, boiler shell and tubes, unit cabinets, boiler refractor material,
electrical wiring, hydronic and pneumatic piping, structural supports, etc.
is not included under this agreement.
o Repair of pre-existing conditions that are required to place equipment into
proper operating condition upon acceptance of this agreement.
o Emergency calls, labor, travel and repair necessitated by improper operation
or tampering of equipment or related equipment controls, other than by
Applied Control Technology's personnel.
o Deficiencies in system design or alterations to system design which effect
system performance or result in improper operation or damage to equipment.
o Handling, removal or disposal of any materials classified as hazardous
materials by any government or industry regulations.
o Repairs or damages resulting from occurrences beyond Applied Control
Technology control, including, but not limited to, Acts of God, freeze
damage, vandalism, facility electrical power problems, strikes or inability
of manufacturers/suppliers to furnish necessary equipment, parts, or
materials when required.
This agreement shall commence on the date listed below, and shall continue for a
period of one year(s), and continue from year-to-year thereafter until
terminated. Either party may terminate this agreement by giving a written thirty
(30)day notice, provided all obligations (incurred) are fullfilled.
The agreement price may be adjusted annually based upon prevailing costs of
labor and materials.
Capital Associates and BroadBand Technologies agrees that they shall not
directly, nor through any of BroadBand Technologies' affiliates, employ any
executive, administrative, sales, technical, or other employee of Applied
Control Technology, Inc. or any affiliate thereof, including but not limited to
Applied Systems Technology, Inc., during the term of this agreement and for a
period of one year after the termination of this agreement.
This Service Agreement constitutes the entire and integrated agreement between
the parties and supersedes all other documents or agreements, either written or
oral, and takes precedence and control over any inconsistent or conflicting
provisions in any purchase order issued by Capital Associates and/or BroadBand
Technologies Acceptance of service shall constitute agreement to the terms of
this Service Agreement. This Agreement may be amended only by written instrument
which is executed by both parties.
This agreement shall commence on June 1, 1998.
The annual price for the services detailed herein is $17,520.00.
and is payable on the 10th of the month after the monthly period billed for, in
equal sums of $1,460.00.
This proposal is hereby accepted by:
Capital Associates as Agents for Applied Control Technology, Inc.
BroadBand Technologies
------------------------------- ---------------------------------------
Authorized Signature Authorized Signature
------------------------------- ---------------------------------------
Title Title
Management Approval _____________
Salesman:Mordecai
Prepared by:mak
-------------------------------
Date P.O. Number
Schedule A
Maintained Mechanical Equipment
Inspection Frequency: Quarterly
Unit Number Equipment Name Location Rating Manufacturer/Model # Serial #
SS1 Split 1- Manufacturing 10 Ton Carrier/AE012600 R695591
SS2 Split 1- Office 10 Ton Carrier/40BH009-300
SS4 Split 1- Rel. Audit 10 Ton Carrier/40BH009-300
0 XXX 0- Xxxxxxxxxxxxx 0 Xxx Xxxxxxx/00XX000000XX U599181
0 XXX 0- Xxxxxxxxxxxxx 0 Xxx Xxxxxxx/00XX000000XX U599182
0 XXX 0- Xxxxx Xxxx 0 Xxx Xxxxxxx/00XX000000XX U599184
0 XXX 0- Xxxxxxxxxxxxx 00 Xxx Xxxxxxx/00XX000000XX U599141
0 XXX 0- Xxxxxxxxxxxxx xxx 00 Xxx Xxxxxxx/00XX000000XX U599143
Xxxxxx
0 XXX 0- Manufacturing and Office 00 Xxx Xxxxxxx/00XX000000XX U599142
0 XXX 0- Xxxxxx 00 Xxx Xxxxxxx/00XX000000XX U599139
8 XXX 0- Xxx xxx Xxxxxxxx Xxxx 00 ton Carrier/40DP012610DA S595494
0 XXX 0- Xxxxxxxxx 00 Xxx Xxxxxxx/00XX000000XX R595742
00 XXX 0- Xxxxxxxxx 00 Xxx Xxxxxxx/00XX000000XX R595741
00 XXX Xxxxxxxx Xxxx 00 Xxx Xxxxxxx/00XX000000 S689272
00 XXX 0- Xxxxxxxxxx 00 Xxx Xxxxxxx/00XX000000XX T594821
00 XXX 0- Xxxxxx 00 Xxx Xxxxxxx/00XX000000XX T594807
00 XXX 0- Xxxxxx 00 Xxx Xxxxxxx/00XX000000XX T594823
00 XXX 0- Xxxxxx 00 Xxx Xxxxxxx/00XX000000XX T594828
00 XXX 0- Xxxxxxxxxx 0 Xxx Xxxxxxx/00XX000000XX U599183
00 XXX 0- Xxxxxxxxxx 0 Xxx Xxxxxxx/00XX000000XX U599180
00 XXX 0- Xxxx. Xxxx 00 Xxx Xxxxxxx/00XX000000XX U599144
22 XXX 0- Xxxxxxxxxx and CR. G 00 Xxx Xxxxxxx/00XX000000XX T594827
00 XXX 0- Xxxxxxxxx 00 Xxx Xxxxxxx/00XX000000XX T594799
00 XXX 0- Xxxxxxxxx 00 Xxx Xxxxxxx/00XX000000XX T594825
00 XXX 0- Xxxxxxxxxx 00 Xxx Xxxxxxx/00XX000000XX S596444
00 XXX 0- Xxxxxxx 00 Xxx Xxxxxxx/00XX000000XX S596446
00 XXX 0- Xxxxxxx 00 Xxx Xxxxxxx/00XX000000XX S596448
00 XXX 0- Xxxxxxx 00 Xxx Xxxxxxx/00XX000000XX T594819
29 RTU Atrium 7.5 Xxx Xxxxxxx/00XX00000 2285G39122
30 RTU Atrium 7.5 Xxx Xxxxxxx/00XX00000 2285G39124
Schedule C
Filters
Unit Unit ID # Filters per unit Size Type Annual changes
Quantity
3 24x24x1 F/G 4
84 16x20x2 F/G 4
18 16x20x1 F/G 4
26 20x20x1 F/G 4
EXHIBIT E
OPERATING EXPENSE EXCLUSIONS
The following items shall be excluded from Operating Expenses pursuant to
Section 4.5 of the Lease:
1. Cost of items considered capital repairs, replacements, improvements and
equipment under generally accepted accounting principles consistently
applied or otherwise ("Capital Items"), except for (i) the annual
amortization (amortized over the useful life) of costs, including financing
costs, if any, incurred by Landlord after the Commencement Date for any
capital improvements installed or paid for by Landlord and required by and
new (or change in) laws, rules or regulations of any governmental or
quasi-governmental authority which are enacted after the Commencement Date;
(ii) the annual amortization (amortized over the useful life) of costs,
including financing costs, if any, of any equipment, device or capital
improvement purchased or incurred as a labor-saving measure or to affect
other economics in the operation or maintenance of the Building (provided
the annual amortized costs do not exceed the actual cost savings realized
and such savings do not primarily benefit any particular tenant); or (iii)
minor capital improvements, tools or expenditures to the extent each such
improvement or acquisition costs less than one thousand and no/100 dollars
($1,000.00) and the total cost of same are not in excess of five thousand
and no/100 dollars ($5,000.00) in any twelve (12) month period.
2. Rentals for items (except when needed in connection with normal repairs and
maintenance of permanent systems) which if purchased, rather than rented,
would constitute a Capital Item which is specifically excluded above
(excluding, however, equipment not affixed to the Building which is used in
providing janitorial or similar services).
3. Costs incurred by Landlord for the repair of damage to the Building, to the
extent that Landlord is reimbursed by insurance proceeds, and costs of all
capital repairs, regardless of whether such repairs are covered by
insurance.
4. Costs, including permit, license and inspection costs, incurred with
respect to the installation of tenant's or other occupants' improvements in
the Building or incurred in renovating or otherwise improving, decorating,
painting or redecorating vacant space for tenants or other occupants of the
Building.
5. Depreciation, amortization and interest payments, except as provided herein
and except on materials, tools, supplies and vendor-type equipment
purchased by Landlord to enable Landlord to supply services Landlord might
otherwise contract for with a third party where such depreciation,
amortization and interest payments would otherwise have been included in
the charge for such third party's services, all as determined in accordance
with generally accepted accounting principles, consistently applied, and
when depreciation or amortization is permitted or required, the item shall
be amortized over its reasonably anticipated useful life.
6. Marketing costs including, without limitation, leasing commissions,
attorneys' fees in connection with the negotiation and preparation of
letters, deal memos, letters of intent, leases, subleases and/or
assignments, space planning costs, and other costs and expenses incurred in
connection with lease, sublease and/or assignment negotiations and
transactions with present or prospective tenants or other occupants of the
Building.
7. Expenses in connection with services or other benefits which are not
offered to Tenant or for which Tenant is charged for directly but which are
not provided to another tenant or occupant of the Building free of charge.
8. Costs incurred by Landlord due to the violation by Landlord or any tenant
other than Tenant of the terms and conditions of any lease of space in the
Building.
1
9. Overhead and profit increment paid to Landlord or to subsidiaries or
affiliates of Landlord for goods and/or services in or to the Building to
the extent the same exceeds the costs of such goods and/or services
rendered by unaffiliated third parties on a competitive basis.
10. Interest, principal, points and fees on debts or amortization on any
mortgage or mortgages or any other debt instrument encumbering the Building
or the Site (except as permitted herein).
11. Landlord's general corporate overhead and general and administrative
expenses; however, a market rate management fee not to exceed four percent
(4%) shall be included in Operating Expenses.
12. Any compensation paid to clerks, attendants or other persons in commercial
concessions operated by Landlord.
13. Rental and other related expenses incurred in leasing HVAC systems,
elevators or other equipment ordinarily considered to be Capital Items,
except for (i) expenses in connection with making minor repairs on or
keeping Building systems in operation while minor repairs are being made,
and (ii) costs of equipment not affixed to the Building which is used in
providing janitorial or similar services.
14. Advertising and promotional expenditures, and costs of signs in or on the
Building identifying the owner of the Building or other tenants' signs.
15. The cost of any electric power used by any other tenant in the Building or
electric power costs for which any tenant directly contracts with the local
public service company or of which any tenant is separately metered or
sub-metered and pays Landlord directly; provided, however, that if any
tenant in the Building contracts directly for electric power service or is
separately metered or sub-metered during any portion of the relevant
period, the total electric power costs for the Building shall be "grossed
up" to reflect what those costs would have been had each tenant in the
Building used the Building standard amount of electric power.
16. Costs incurred in connection with upgrading the Building to comply with
disability, life, fire and safety codes, ordinances, statutes, or other
laws in effect prior to the Commencement Date, based on the standards,
requirements, and interpretations thereof in effect on the Commencement
Date, including, without limitation, the ADA, including penalties or
damages incurred due to such non-compliance.
17. Tax penalties incurred as a result of Landlord's negligence, inability or
unwillingness and customarily charged by comparable landlords of comparable
buildings.
18. Costs arising from the negligence or fault of other tenants or Landlord or
its agents, or any vendors, contractors, or providers of materials or
services selected, hired or engaged by Landlord or its agents including,
without limitation, the selection of Building materials.
19. Notwithstanding any contrary provision of the Lease, including, without
limitation, any provision relating to capital expenditures, any and all
costs arising from the presence of hazardous materials or substances (as
defined by Applicable Laws in effect on the date the Lease is executed) in
or about the Premises, the Building or the Site including, without
limitation, hazardous substances in the ground water or soil, for which
Landlord is liable and responsible under this Lease.
20. Costs arising from Landlord's charitable or Political contributions.
21. Costs arising from latent defects in the base, shell, or core of the
Building or improvements installed by Landlord or repair thereof.
2
22. Costs arising from any mandatory or voluntary special assessment on the
Building or the Site by any transit district authority or any other
governmental entity having the authority to impose such assessment.
23. Costs for sculptures, paintings or other objects of art.
24. Costs (including in connection therewith all attorneys' fees and costs of
settlement judgements and payments in lieu thereof) arising from claims,
disputes or potential disputes in connection with potential or actual
claims, litigation or arbitrations pertaining to Landlord and/or the
Building which are not associated with Landlord's reasonable, good faith
attempts to reduce a component of Operating Expenses.
25. Costs associated with the operation of the business of the partnership or
entity which constitutes Landlord as the same are distinguished from the
costs of operation of the Building, including partnership accounting and
legal matters, costs of defending any lawsuits with any mortgages (except
as the actions of Tenant may be in issue), costs of selling, syndicating,
assigning, mortgaging, or hypothecating any of Landlord's interest in the
Building, costs of any disputes between Landlord and its employees (if any)
not engaged in Building operation, disputes of Landlord with Building
management, or outside fees paid in connection with disputes with other
tenants.
26. Costs of any "tap fees" or any sewer or water connection fees for the
benefit of any particular tenant in the Building.
27. Costs incurred in connection with any environmental clean-up, response
action, or remediation not caused by Tenant on, in or about the Premises or
the Building, including but not limited to, costs and expenses associated
with the defense, administration, settlement, monitoring or management
thereof.
28. Any expenses incurred by Landlord for use of any portions of the Building
to accommodate events including, but not limited to show, promotions,
kiosks, displays, filming, photography, private events or parties,
ceremonies, and advertising beyond the normal expenses otherwise
attributable to providing Building services, such as lighting and HVAC to
such public portions of the Building in normal Building operations during
standard Building hours of operation.
3
29. Any entertainment, dining or travel expenses for any purpose.
30. Any flowers, gifts, balloons, etc. provided to any entity whatsoever, to
include, but not limited to, Tenant, other tenants, employees, vendors,
contractors, prospective tenants and agents.
31. Any "finders fees", brokerage commissions, job placement costs or job
advertising costs.
32. Any "above standard" cleaning, including, but not limited to construction
cleanup or special cleanings associated with parties/ events and specific
tenant requirements, including related trash collection, removal, hauling
and dumping.
33. The cost of any magazine, newspaper, trade or other subscriptions.
34. The cost of any training or incentive programs, other than for tenant life
safety information services.
35. The cost of any "tenant relations" parties, events or promotion not
consented to by an authorized representative of Tenant in writing.
36. "In-house" legal and/or accounting fees.
37. Any other expenses which, in accordance with generally accepted accounting
principles, consistently applied, would not normally be treated as
Additional Rent or Park Expenses by comparable landlords of comparable flex
buildings or owners of comparable business parks.
The annual statement of Operating Expenses shall be accounted for and
reported in accordance with generally accepted accounting principles (the
"Annual Statement").
Notwithstanding anything herein to the contrary, the Tenant shall have the
right to audit, with reasonable notice to Landlord, the Annual Statement at the
end of each calendar year. Such audit shall be performed at Landlord's primary
place of business during Landlord's normal business hours by Tenant's in-house
accounting personnel, CPA or similar accounting professional, however, use of a
contingency fee based entity is prohibited. In the event that the Additional
Rent or Park Expenses are determined to be overstated by more than ten percent
(10%) of the correct amount, then the Landlord shall reimburse Tenant for the
overstated amount and for the reasonable compensation actually paid by Tenant to
the outside certified public accountant retained by Tenant to perform such
audit, the amount of which compensation must not be based, in whole or in part,
upon the results of such audit.
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ADDENDUM NUMBER ONE
OPTION TO EXTEND LEASE TERM
1. LEASE. "Lease" shall mean the Lease dated ____________________, ________, to
which this Addendum is attached between HIGHWOODS REALTY LIMITED PARTNERSHIP
("Landlord") and BROADBAND TECHNOLOGIES, INC. ("Tenant").
2. INITIAL LEASE TERM. For the purposes of this Addendum, "Initial Lease Term"
shall mean the Lease Term as defined in the Lease.
3. OPTION TO EXTEND. Tenant shall have the right and option to extend the Lease
(the "Renewal Option") for TWO (2) additional periods of THREE (3) YEARS each
(the "Renewal Lease Terms") (a separate notice is required for each Renewal
Lease Term); provided, however, such Renewal Option is contingent upon the
following (i) Tenant is not in default at the time Tenant gives Landlord written
notice of Tenant's intention to exercise the Renewal Option; (ii) upon the
Expiration Date or the expiration of any Renewal Lease Term, Tenant has no
outstanding default; (iii) no event has occurred that upon notice or the passage
of time would constitute a default; and (iv) Tenant is occupying the Premises.
Tenant shall exercise each Renewal Option by giving Landlord written notice at
least THREE HUNDRED SIXTY-FIVE (365) days prior to the Expiration Date or the
last day of any Renewal Lease Term. If Tenant fails to give such notice to
Landlord prior to said THREE HUNDRED SIXTY-FIVE (365) day period, then Tenant
shall forfeit the Renewal Option. If Tenant exercises the Renewal Option, then
during any such Renewal Lease Term, Landlord and Tenant's respective rights,
duties and obligations shall be governed by the terms and conditions of the
Lease.
4. TERM. If Tenant exercises the Renewal Option, then during any such Renewal
Lease Term, all references to the term "Term", as used in the Lease, shall mean
the "Renewal Lease Term".
5. LEASE TERM. The "Lease Term", as used in the Lease, shall mean the Initial
Lease Term and, if the Renewal Option is exercised, the Renewal Lease Term.
6. BASE RENT FOR RENEWAL LEASE TERM. If Tenant exercises the Renewal Option, the
Base Rent shall be $8.90 per rentable square foot for the first Renewal Option
and $9.73 per rentable square foot for the second Renewal Option; provided
Tenant accepts the Premises "as-is". Should Tenant elect to exercise the Renewal
Option with a Tenant Improvement Allowance ($200,000.00 per Renewal Option),
then the Base Rent shall be $9.72 per rentable square foot for the first Renewal
Option and $10.55 per rentable square foot for the second Renewal Option.
7. TERMINATION OF RENEWAL OPTION ON SUBLEASE OR ASSIGNMENT BY TENANT. In the
event Landlord consents to a SUBLEASE OR ASSIGNMENT, as defined in the Lease,
the Renewal Option shall automatically terminate unless otherwise agreed in
writing by Landlord, EXCEPT THAT, THIS RENEWAL OPTION SHALL NOT TERMINATE SO
LONG AS TENANT CONTINUES TO OCCUPY MORE THAN FIFTY PERCENT (50%) OF THE
PREMISES.
1
ADDENDUM NUMBER TWO
FIRST RIGHT OF OFFER
Provided Tenant is not in default hereunder, during the Term, Tenant shall have
the first right of offer (the "First Right of Offer") on available space in the
Building (the "Expansion Space"). Landlord shall provide to Tenant written
notice of such Expansion Space as it becomes available outlining the square
footage and market terms and conditions in similar quality flex buildings in the
Research Triangle Park area. Tenant may exercise the First Right of Offer only
by delivering to Landlord, within ten (10) business days after receipt of
Landlord's notice, a written notice of Tenant's election to exercise the First
Right of Offer. In the event Tenant does not respond to Landlord's notice within
the said ten (10) day period, then Landlord may pursue other interested tenants.
However, if Tenant exercises its First Right of Offer, then Tenant and Landlord
shall commence good faith negotiations to lease the Expansion Space under the
following conditions: (i) the terms of said lease shall be at the then current
market terms and rates negotiated by Landlord and Tenant, however, if Landlord
and Tenant can not agree upon a rental rate, the rental rate shall be determined
by arbitration, (ii) this Lease shall be amended to incorporate the terms of
leasing the Expansion Space and the term of any lease for the Expansion Space
shall expire on the Termination Date; provided, however, if this Lease is not
amended to incorporate the terms of leasing the Expansion Space, then the lease
term for such Expansion Space shall expire on the Expiration Date; and (iii) if
Tenant exercises its First Right of Offer during the last year of the Term, then
this Lease FOR THE EXPANSION SPACE ONLY shall be amended to extend the Term for
a minimum of three (3) years.
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ADDENDUM NUMBER THREE
OPTION TO CANCEL
Tenant shall have the right to cancel this Lease at any time between the
thirty-sixth (36th) month and the forty-eighth (48th) month of the initial lease
term by providing Landlord twelve (12) months prior written notice between the
twenty-fourth (24th) months and the thirty-sixth (36th) month of the initial
lease term if: (i) Tenant is not in default under this Lease; (ii) Tenant ceases
to operate in Wake or Durham counties; or (iii) if Tenant requires additional
space of a minimum of fifty percent (50%) of the Demised Premises and Landlord
is unable to deliver the additional space (either contiguous, within a close
proximity or new space for the original and expanded space requirement) in a
location mutually acceptable to Landlord and Tenant within twelve (12) months of
written notice from Tenant of the additional space requirement. If Tenant
exercises its right to cancel this Lease, then prior to the effective date of
any such cancellation, Tenant shall pay to Landlord, at the time the notice of
the intent to cancel the Lease is delivered, a cancellation fee in an amount
equal to the sum of three (3) months rent WHICH IS $192,203.10.
1
