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LEASE AGREEMENT BY AND BETWEEN
PPD PHARMACO, INC., as tenant
AND
WEEKS REALTY, L.P., as landlord
at
Perimeter Park West, Morrisville, NC
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TABLE OF CONTENTS
1. PREMISES AND TERM.
2. BASE RENT, OPERATING EXPENSES, AND SECURITY DEPOSIT.
3. COMPLIANCE WITH LAWS AND USE.
4. REPAIR AND MAINTENANCE.
5. ALTERATIONS.
6. SIGNS.
7. INSPECTION.
8. UTILITIES.
9. ASSIGNMENT AND SUBLETTING.
10. FIRE AND CASUALTY DAMAGE.
11. LIABILITY.
12. CONDEMNATION.
13. HOLDING OVER AND TERMINATION.
14. QUIET ENJOYMENT.
15. EVENTS OF DEFAULT.
16. REMEDIES.
17. LANDLORD'S LIEN.
18. MORTGAGES.
19. MECHANIC'S LIENS.
20. NOTICES.
21. BROKER'S CLAUSE.
22. LANDLORD'S LIABILITY.
23. RULES AND REGULATIONS.
24. HAZARDOUS MATERIALS.
25. LANDLORD'S RIGHT TO SUBSTITUTE THE PREMISES.
26. COVENANT OF TENANT.
27. MISCELLANEOUS.
EXHIBIT A- THE LAND
EXHIBIT B- CONSTRUCTION PORTION
EXHIBIT C- PLANS AND SPECIFICATIONS
EXHIBIT C-1- PRELIMINARY PLANS AND SPECIFICATIONS
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EXHIBIT C-2- SHELL BUILDING DESIGN SCHEDULE
EXHIBIT D- RULES AND REGULATIONS
EXHIBIT E- RIGHT OF FIRST REFUSAL
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), is made and entered into as of the
9th day of July, 1997, by and between WEEKS REALTY, L.P., a Georgia limited
partnership (the "Landlord"), and PPD PHARMACO, INC., a Texas corporation (the
"Tenant").
W I T N E S S E T H:
1. PREMISES AND TERM.
(a) PREMISES. In consideration of the obligation of Tenant to
pay rent as herein provided, and in consideration of the other terms,
provisions and covenants hereof, Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord, certain premises to be comprised of
99,684 rentable square feet (the "Premises") in a building to be
constructed by Landlord consisting of four floors in Perimeter Park
West (the "Building") situated on certain land (the "Land") in
Morrisville, the County of Wake, State of North Carolina, more
particularly described on Exhibit A, attached hereto and incorporated
herein by reference, together with all rights, privileges, easements,
appurtenances and immunities belonging to or in any way pertaining to
the Premises.
The measurement of the Premises shall be conducted in
accordance with BOMA standards, 1996 edition, currently applicable for
a Class A office building comparable to the Building. Any upfit
performed by Landlord to prepare the Premises for occupancy by Tenant
shall be conducted in a good and workmanlike manner, and Landlord shall
warrant the construction of the improvements for a period of one year
from the Commencement Date. The taking of possession by Tenant shall be
deemed conclusively to establish that each portion of the Premises and
any improvements thereto are in good and satisfactory condition as of
the date Tenant commenced occupancy of that portion of the Premises,
except for latent defects and punchlist items. Tenant and Landlord
shall complete a punchlist of items requiring repair that are the
responsibility of Landlord within thirty (30) days of the Commencement
Date. Tenant further acknowledges that no representations as to the
repair of the Premises, nor promises to alter, remodel or improve the
Premises have been made by Landlord unless such representations or
promises are expressly set forth in this Lease. Within five days of the
Commencement Date, Tenant shall, upon demand of Landlord, execute and
deliver to Landlord a letter of acceptance of delivery of the Premises,
acknowledging the Commencement Date.
All upfit of the Premises shall be performed by Landlord in
accordance with the final plans and specifications for the Premises
(the "Plans") which are subject to the approval of Landlord and Tenant,
a copy of which are attached hereto and made a part hereof as Exhibit
C. Exhibit C-1 contains a preliminary outline of the upfit of the
Premises and shall be modified by the mutual approval of Landlord and
Tenant as the plans and specifications are finalized. Landlord shall
conduct the upfit of the Premises in accordance with the Plans which
have been mutually and reasonably approved by Landlord and Tenant and
shall provide an upfit allowance for such purposes in accordance with
the mutually approved Plans (the "Upfit Allowance"). Tenant
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shall review the Plans to provide its input with respect to all
aspects of the Plans, including, but not limited to, the specific needs
of Tenant with respect to HVAC, and Landlord shall act reasonably to
accommodate the specific needs of Tenant with respect to the HVAC and
electrical systems in the Building. Any amounts incurred in the upfit
of the Premises in excess of the Upfit Allowance (the "Excess") due to
modifications requested by Tenant to the Plans after their mutual
approval shall be borne by Tenant and paid by Tenant to Landlord within
thirty days of demand made by Landlord. Failure by Tenant to pay the
Excess upon demand as aforesaid is an event of default hereunder, and
in addition, to all other remedies available to Landlord at law, or in
equity for such event of default, Landlord may recover from Tenant the
cost it incurs in preparing the Premises for another tenant. As a
preliminary outline, Exhibit C-1 is to be reviewed and mutually
approved and finalized by Landlord and Tenant, and once finalized the
final version of Exhibit C-1 shall be attached hereto and made a part
hereof as Exhibit C.
Provided there shall be no default or event of default by
Tenant hereunder, Landlord shall advance Tenant $500,000.00 for use by
Tenant in conducting certain upfit at the Premises (the "Improvement
Allowance") on or prior to the Commencement Date. The Improvement
Allowance shall be added to the base rent (as hereinafter defined)
payable hereunder in the amount of $.77 per rentable square foot as an
increase therein over the term of the Lease over the amount of the base
rent in Section 2 hereof and payable in equal monthly payments over the
term of the Lease as a portion of the base rent hereunder.
Landlord shall act reasonably to allow Tenant reasonable
access to the Premises at least fifteen days prior to the Commencement
Date to install its furniture, and telephone and computer systems.
Tenant covenants and agrees to conduct its actions in such a manner to
not disturb the preparation by Landlord of the Premises for occupancy
by Tenant. Upon the entry by Tenant onto the Premises, this Lease shall
be deemed to apply with respect to the requirements that Tenant carry
the insurance policies required under this Lease, and that Tenant shall
indemnify, defend and hold harmless Landlord in accordance with the
provisions of this Lease.
(b) TERM.
TO HAVE AND TO HOLD the same for a term of one hundred and
twenty (120) months commencing thirteen months from the date the Lease
has been fully executed and delivered (the "Commencement Date"), and
ending 120 months thereafter, unless sooner terminated pursuant to the
provisions hereof (the "Termination Date"). The Commencement Date and
Termination Date shall be extended due to delays beyond the control of
Landlord, including, but not limited to, acts or omissions of Tenant,
force majeure, delays in obtaining permits, licenses or other
approvals, acts of God, delays caused by Tenant, and/or inclement
weather, including site conditions or winter weather that prohibit or
adversely affect construction (the "Excused Delays"). In the event the
Commencement Date has not occurred by July 1, 1998 (with such date
being extended for any Excused Delays), Landlord shall credit against
the first installment(s) of base rent due hereunder from Tenant an
amount equal to one day's base rent
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for each day the Commencement Date is delayed. The aforesaid monetary
amounts shall act as a full and complete remedy to Tenant for the delay
by Landlord in delivering the Premises. Landlord shall act reasonably
to provide Tenant at least sixty days prior written notice of the
Commencement Date.
(c) Option to Renew.
Tenant shall have the option to renew the term of the Lease
for two renewal periods each a Renewal Term of five lease years in
duration, provided that Tenant shall not be in default under the Lease
on the date such rights are exercised, or on the date either Renewal
Term shall commence. The date of the commencement of each Renewal Term
shall be the day after the expiration of the then current term of the
Lease, as renewed (unless sooner terminated as provided herein).
All terms and conditions of this Lease shall be in effect
during a Renewal Term (including the right of Landlord to increase base
rent as provided in paragraph 2 of the Lease), except that (i) the base
rent paid by Tenant during a Renewal Term shall be the then market
rental rate (the "Market Rent") in buildings in the Research Triangle
Park, North Carolina area of similar size, age, construction, with
similar amenities and landscaping, and similar occupancy levels to the
Building, and (ii) upon each exercise of the right for a Renewal Term,
a right to renew shall lapse. In the event that Landlord and Tenant
cannot agree upon the Market Rent, this Lease shall terminate and the
option to renew provided to Tenant hereunder shall be null and void and
of no further force and effect.
(d) Additional Space.
At any time prior to the first day of the twenty-fifth month
(the "Election Date") of the term of this Lease and (i) provided there
is no default or event of default under this Lease by Tenant at the
time such right is exercised or upon the Election Date, and (ii) that
upon Tenant's notice ("Notice") to Landlord of its need for a minimum
of 20,000 additional rentable square feet (the "Additional Space"),
Landlord shall commence construction of a new building (the "New
Building") adjacent to the Building. The New Building shall consist of
at least 100,000 rentable square feet, and shall be connected to the
Building by a covered walkway (the "Walkway") over which shall be
located office space for the New Building, all of which shall be in
accordance with plans and specifications for the New Building, as
mutually and reasonably approved by Landlord and Tenant.
During the period of construction of the New Building, Tenant shall
allow the use by Landlord of a certain portion of the Premises (the
"Construction Portion") as outlined on Exhibit B, attached hereto and
made a part hereto, as reasonably determined by Landlord, for the
connection of the Walkway to the Building. Base rent shall be abated
for the Construction Portion during the period of its use by Landlord,
and Tenant shall remove all of its personal property therefrom during
the period of construction. Once construction of the New Building is
completed, Landlord shall repair any damage to the Construction Portion
and restore the Construction Portion to its condition existing as of
the date Landlord commenced its use. During the period of construction
of the New
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Building and until Landlord completes its repair and restoration of the
Construction Portion and advises Tenant that the Construction Portion
is delivered to Tenant for its use, Landlord shall use reasonable
efforts to make available to Tenant temporary space (the "Temporary
Space") for its use in an amount substantially equal to the size of the
Construction Portion. During the period of use by Tenant of the
Temporary Space, the Premises shall be defined to include the Temporary
Space and the terms of the Lease shall apply with respect thereto,
including, but not limited to, the obligations of Tenant to pay base
rent and other charges with respect thereto, and to obtain insurance in
accordance herewith.
Within thirty days of the Notice, Tenant shall execute a lease
agreement (the "New Lease") in form substantially similar to the Lease
for at least 20,000 rentable square feet at the New Building with (i)
the term of the New Lease to be coterminous with the term remaining
under this Lease, (ii) base rent being the current base rent provided
herein and subject to increase as provided herein, and (iii) a right of
refusal in Tenant for the remainder of the Building. The right of first
refusal shall be in the form attached hereto and made a part hereof as
Exhibit E.
Should Tenant fail to comply with the conditions precedent to the
exercise of its right under this subparagraph (c) strictly in
accordance with this subparagraph (c), the rights provided to Tenant
hereunder shall be null and void and of no further force and effect.
(e) Termination of Leases. Upon Tenant entering into occupancy
of the entire Premises and provided there is no default or event of
default under this Lease by Tenant, all obligations of Landlord and
Tenant under: (1) that certain Lease Agreement for 20,000 rentable
square feet at 0000 Xxxxxxxxx Xxxx dated February 25, 1995 and amended
April 4, 1997 and October 25, 1995, shall be deemed terminated and the
parties hereto shall have no further liability thereunder, except as
expressly provided therein, and except for obligations accrued
thereunder and remaining unpaid and unsatisfied; and (2) that certain
Lease Agreement dated October 25, 1995 and amended February 1, 1997 for
29,113 rentable square feet of space at 1400 Perimeter Park (the "1400
Perimeter Park Premises") shall be deemed terminated with respect to
all of the 1400 Perimeter Park Premises as defined therein (except as
expressly provided therein, and except for obligations accrued
thereunder and remaining unpaid and unsatisfied), other than duties and
obligations for the first floor of the 1400 Perimeter Park Premises
which consists of 15,803 rentable square feet, all of which obligations
shall continue.
2. BASE RENT, OPERATING EXPENSES, AND SECURITY DEPOSIT.
(a) BASE RENT.
Tenant agrees to make monthly payments of base rent to
Landlord for the Premises ("base rent"), in advance, without demand,
deduction or offset, in lawful money of the United States, in the
amount of Sixteen and 30/100 Dollars ($16.30) per rentable square foot
of the Premises, commencing on the Commencement Date, and continuing on
the first day of each
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and every month thereafter until the Termination Date. Rent payments
for any fractional calendar month at the end, or the beginning of the
term of the Lease, shall be prorated. Notwithstanding the foregoing,
base rent shall be abated for 20,000 rentable square feet of the
Premises only for the first eight months of the term of this Lease,
commencing upon the Commencement Date and ending at the end of the
eight month thereafter (the "Base Rent Abatement"); provided, however,
should Tenant default and fail to enter into occupancy of the Premises,
Tenant acknowledges that the damages of Landlord for such failure shall
include the recoupment by Landlord of the amount of the Base Rent
Abatement.
Base rent is comprised of two components, (i) rent for each
year, plus (ii) operating expenses (but not Additional Rent amounts),
as described below. In addition, as described below, Landlord shall
advise Tenant each year in accordance with the Lease of amounts due
under the Lease as Additional Rent (amounts in excess of the estimate
of operating expenses), and a revised estimate of operating expenses
for each year.
Base rent per rentable square foot, net of operating expenses,
shall be increased on each anniversary of the Commencement Date during
the term of this Lease by three percent over the base rent paid per
rentable square foot the previous lease year.
(b) ADDITIONAL RENT. Tenant shall pay as Additional Rent,
Tenant's pro rata share of the following items:
(i) any sales or use tax imposed on rents collected
by Landlord (other than City, State or Federal Income Tax), or
any tax on rents in lieu of ad valorem taxes on the Building,
even though laws imposing such taxes attempt to require
Landlord to pay the same; and
(ii) the amount of operating expenses (as defined
below) for the Building to the extent operating expenses
exceed the actual amount of operating expenses for the first
twelve months of occupancy of any portion of the Building per
rentable square foot of the Building in any lease year during
the term of this Lease; provided, however, an amount equal to
$1.25 per rentable square foot shall be used as the expense
stop for the Tenant for utilities for the first lease year of
the Lease.
Notwithstanding the foregoing, the increased cost to Tenant
for operating expenses (exclusive of the costs for utilities
which cost is not capped) shall not exceed per rentable square
foot of the Premises, in any lease year, an amount greater
than a five percent increase over the amount paid the previous
lease year per rentable square foot of the Premises.
Tenant's pro rata share of the items set forth in subparagraph (b)
above shall be calculated by dividing the rentable square footage of
the Premises by the rentable square footage of the Building. Tenant's
pro rata share of the items to be billed to all tenants of the Building
as Additional Rent shall be determined by calculating the total
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amount to be billed tenants of the Building for Additional Rent, and
multiplying this amount by Tenant's pro rata share. Ad valorem taxes
included as operating expenses shall be included on a fully assessed
basis, and operating expenses shall be grossed up to reflect 100
percent occupancy.
(c) OPERATING EXPENSES. The term "operating expenses" as used
herein shall include all of the costs and expenses of the operation,
repair and maintenance of the Premises, the Land, the Building, and its
interior and exterior common areas, and shall include by way of
illustration, but is not limited to, all taxes, assessments and
governmental charges of any kind or nature whatsoever levied or
assessed against the Land and the Building by any municipality, county,
or other governmental agency, all insurance premiums for commercial
general liability, fire and extended coverage on the Building and the
Land, utilities for the Premises and the common areas of the Building,
including, electricity, gas, and water and sewer, all lawn, interior
common area, and driveway and paved parking area maintenance related to
the Land upon which the Premises are located, and for the streets and
roadways providing access to the Building and the Land, management and
supervisory fees, exterior lighting maintenance, snow removal, waste
removal, repair and maintenance of paved areas, cleaning supplies,
miscellaneous building supplies, sweeper brushes, supplies for
materials used in common by all tenants of the complex in which the
Premises are located, external paint for the Building, exterior and
interior common area maintenance, elevator repair and maintenance,
external plumbing for the Building, exterior lighting in common areas,
insect and pest extermination, security guards for the complex in which
the Premises are located, signs for the complex in which the Premises
are located, fuel for vehicles and street sweepers used by Landlord in
the complex in which the Premises are located and miscellaneous
maintenance expenses, heat, air conditioning, labor, materials,
supplies, equipment and tools, permits, licenses, inspection fees,
window glass replacement and repair, compensation (including employment
taxes and fringe benefits) of all persons who perform duties in
connection with the operation and/or maintenance of the Building, and
costs for janitorial expense and trash removal at the Premises.
In the event the Building is one of several buildings located on the
Land for tax assessment purposes, the amount of tax assessed against
the Land and the buildings thereon shall be allocated amongst the
buildings in proportion to the square footage of each building to the
total amount of tax assessed, as reasonably determined by Landlord. For
example, if the ad valorem taxes assessed for the Land and the
buildings for a calendar year is $100,000.00, and two buildings occupy
the Land with one building of 100,000 rentable square feet ("building
A") and the other building of 70,000 rentable square feet ("building
B"), the proportionate share for building A would be $58,823.53, and
the proportionate share for building B would be $41,176.44. During the
time that the Building is the only building located on the Land, the
amount of ad valorem taxes assessed shall be allocated as follows: all
taxes due for improvements to the Land shall be allocated to and paid
by Tenant and all taxes due for the Land shall be shared by the Tenant
and the Landlord based upon each party's proportionate share of the
Land.
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Utilities for the Premises included as part of operating expenses shall
not include utility charges and HVAC beyond the hours of 8:00 AM to
6:00 PM, Monday - Friday, and 8:00 AM to 1:00 PM, Saturday. Any usage
by Tenant of HVAC and utilities at times other than the aforesaid hours
shall be at the sole cost and expense of Tenant. Landlord shall xxxx
Tenant directly for all such costs as a separate item of Additional
Rent, and Tenant shall pay such amounts within fifteen days of receipt
of demand for payment from Landlord, and the failure by Tenant to pay
such costs in accordance with the demand made by Landlord shall be
treated in the same manner under this Lease as a non-payment of base
rent by Tenant with Landlord being afforded the same rights and
remedies for such non-payment.
(d) ESTIMATE OF ADDITIONAL RENT. Upon the completion of each
lease year during the term of this Lease, Landlord shall provide
Tenant with an estimate of its prorata share of operating expenses
for the following year. Tenant shall remit with each monthly payment
of base rent hereunder one-twelfth of this estimated amount as a
payment of Additional Rent.
Failure by Tenant to pay Landlord any payment of Additional
Rent shall constitute a non-payment of rent by Tenant and a default of
Tenant's obligation under the Lease, and Landlord shall be entitled to
all remedies provided for in this Lease upon default in payment of
rent.
(e) RECONCILIATION OF EXPENSES. Landlord shall promptly
notify Tenant of the total actual operating expenses for the Premises
and the excess, if any, of Tenant's pro rata share over Landlord's
estimation for such lease year. Tenant shall pay the excess amount so
specified to Landlord within thirty (30) days following receipt
by Tenant of Landlord's letter. Failure by Tenant to pay Landlord such
amount within the period designated shall constitute a non-payment of
rent by Tenant and a default of Tenant's obligation under the Lease,
and Landlord shall be entitled to all remedies provided for in this
Lease upon default in payment of rent. If the first year for which
Tenant's pro rata share of operating expenses are due or the final
year of the term hereof do not coincide with the calendar year,
Tenant's pro rata share of operating expenses for the portion of that
year shall be prorated according to the number of months during which
Tenant was in possession of the Premises. In the event Landlord's
estimation of operating expenses shall exceed the actual amount of
operating expenses, the amount paid by Tenant for such year shall be
adjusted between Landlord and Tenant and Tenant shall receive a credit
against the next due installment of rent hereunder in such excess
amount unless this Lease has expired or been otherwise terminated, in
which event Landlord shall pay to Tenant such excess amount within
thirty (30) days following receipt by Tenant of Landlord's letter.
In the event Tenant shall dispute the amount set forth in any statement
provided by Landlord under this subparagraph (e), Tenant shall have the
right, not later than thirty days following the receipt of such
statement and upon condition that Tenant shall first deposit with
Landlord the undisputed portion, if any, to elect to have Landlord's
books and records with respect to such calendar year to be audited by
auditors selected by Tenant and subject to Landlord's
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reasonable approval. Such audit must be completed no later than 60 days
after receipt of Landlord's letter, with such time limit to be extended
due to delays caused by Landlord. All costs for the audit shall be
borne by Tenant unless the audit disclosed an overcharge of ten percent
or more, in which case the costs of the audit not to exceed $1,000
shall be borne by Landlord. If Tenant shall not request an audit in
accordance with the provisions of this paragraph within thirty days of
receipt of Landlord's statement provided pursuant to this subparagraph
(e), such statement shall be final and binding for all purposes hereof.
(f) SECURITY DEPOSIT. [INTENTIONALLY DELETED.]
(g) PROVISIONS TO SURVIVE LEASE TERMINATION.
Any unperformed obligations of Tenant under this Section 2
shall survive the termination of the Lease, for whatever reason, or any
extension or renewal hereof.
3. COMPLIANCE WITH LAWS AND USE.
(a) The Premises shall be used only for the following
purposes: general office purposes, and the entry, management, and
analysis of clinical trial data using computer software. Tenant shall
conduct no activity that will result in the discharge of harmful gases,
affluents or other wastes or toxic substances. Outside storage,
including, without limitation, trucks and other vehicles, is prohibited
without Landlord's prior written consent. Tenant shall at its sole cost
and expense obtain any and all licenses and permits necessary for its
use of the Premises. Tenant shall comply with all governmental laws,
ordinances and regulations relating to the use of the Premises, and
shall promptly comply with all governmental orders and directives for
the correction, prevention and abatement of nuisances in or upon, or
connected with, the Premises, all at Tenant's sole expense. Tenant
shall not permit any objectionable or unpleasant odors, smoke, dust,
gas, noise or vibrations to permeate in or emanate from the Premises,
nor take any other action which would constitute a nuisance or would
disturb or endanger any other tenants of the Building or unreasonably
interfere with their respective premises. Without Landlord's prior
written consent, Tenant shall not receive, store or otherwise handle
any product, material or merchandise which is explosive, inflammable,
combustible, corrosive, caustic or poisonous. Tenant will not permit
the Premises to be used for any purpose or in any manner (including,
without limitation, any method of storage) which would render the
insurance thereon void or the insurance risk more hazardous or cause
the State Board of Insurance or other insurance authority to disallow
any sprinkler credits. Tenant shall give notice to Landlord immediately
upon the occurrence of any accident in the Premises or upon Tenant's
discovery of any defects thereon or in any fixtures or equipment
located therein or upon the occurrence of any emergency in the Premises
or the Building.
(b) Any costs or expenses for alterations, additions or
improvements required to modify the common areas of the Building to
comply with the Americans with Disabilities Act, as amended (the "ADA")
shall be paid by Landlord throughout the term of this Lease. Such
alterations, additions or improvements shall be made or not made in the
sole discretion
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of Landlord, and Landlord shall be solely liable for failure to make
the required alterations, additions or improvements. All alterations,
additions or improvements to the Premises required by the ADA on the
Commencement Date of this Lease, and after the Commencement Date if the
initial construction to be performed by Landlord has not been completed
prior to the Commencement Date, shall be made and paid for by Landlord,
and Landlord shall be solely liable for failure to make such required
alterations, additions or improvements. Except as provided above, any
alterations, additions or improvements to the Premises required by any
modification or supplement to the ADA promulgated after the
Commencement Date, shall be made and paid for by Tenant, and Tenant
shall be solely liable for failure to make such required alterations,
additions or improvements. In the event either party hereto shall fail
to make any required alterations, additions or improvements pursuant to
the ADA, after thirty (30) days written notice to the other party
hereto, accompanied by evidence in support of its position regarding
the needed alterations, shall have the right but not the obligation to
make such alterations, additions or improvements at the expense of the
other party and demand reimbursement of its expenses.
For purposes of this Lease, the common areas for the Building shall
consist of the entranceways and private roadways to the Building,
landscape areas on the Land, and the driveways and parking areas
located on the Land (hereinafter collectively, the "Common Areas") but
no third party shall have rights thereto unless specifically granted.
These common areas may be expanded by Landlord for the benefit of all
occupants of the Building.
(c) To the best of Landlord's knowledge, the Premises shall,
as of the Commencement Date, comply with the ADA.
4. REPAIRS AND MAINTENANCE.
(a) Landlord shall at its expense maintain, repair and replace
only the roof, downspouts, gutters, foundation, utility lines located
outside the Premises, heating and air conditioning systems, dock
boards, truck doors, dock bumpers, plumbing work and fixtures,
elevators, and the structural soundness of the exterior walls of the
Building in good repair, reasonable wear and tear excepted. Tenant
shall repair, replace and pay for, any damage to the foregoing caused
by the negligence of Tenant or Tenant's employees, agents or invitees,
or caused by Tenant's default hereunder. The term "walls" as used
herein shall not include windows, glass or plate glass, doors, special
store fronts or office entries. Tenant shall immediately give Landlord
written notice of defect or need for repairs, after which Landlord
shall have reasonable opportunity to repair same or cure such defect.
Landlord's liability with respect to any defects, repairs or
maintenance for which Landlord is responsible under any of the
provisions of this Lease shall be limited to the cost of such repairs
or maintenance or the curing of such defect.
(b) Tenant shall at its own cost and expense maintain, repair
and replace all parts of the Premises (except those for which Landlord
is expressly responsible under the terms of this Lease) in good
condition, promptly making all necessary repairs and replacements,
including, but not
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limited to, windows, glass and plate glass, doors, any special office
entry, interior walls, finish work, and floors and floor coverings,
normal wear and tear excepted. Tenant shall not be obligated to repair
any casualty covered by the insurance to be maintained by Landlord
pursuant to subparagraph 10(a) below.
(c) If either party hereto shall fail to fulfill its
obligations under this paragraph, the other party hereto may enter upon
the area of the Building or the Premises as required to conduct the
obligations of the defaulting party, and shall be entitled to
reimbursement from the defaulting party for its actual costs and
expenses in conducting such obligations. The defaulting party shall
reimburse the other party hereto for its actual costs and expense
promptly upon demand made by the other party hereto. The provisions of
this subparagraph shall not be interpreted to obligate either party
hereto to conduct obligations of the other party hereto.
(d) Landlord shall conduct periodic maintenance of all hot
water, heating and air conditioning systems and units in the Premises,
remove and replace filters therein, and provide for janitorial service
for the Premises. Temperature levels in the Building shall be
maintained at levels customary for Class A office buildings comparable
to the Building in the Research Triangle Park, North Carolina area.
(e) Tenant shall not damage any demising wall of the Building,
or disturb the integrity and support provided by any demising wall and
shall, at its sole cost and expense, promptly repair any damage or
injury to any demising wall caused by Tenant or its employees, agents
or invitees.
(f) Tenant and its employees, customers and licensees shall
have the non-exclusive right to use the parking areas on the Land as
may be designated by Landlord in writing, subject to reasonable rules
and regulations as Landlord may from time to time prescribe and subject
to rights of ingress and egress of other tenants. Tenant shall not park
on streets, rights of ways, driveways, or roadways adjacent to the
Building or the Land, nor allow its employees, agents, invitees, or
licensees to do so. No vehicles other than passenger vehicles shall be
parking on the Land, without the prior written consent of the Landlord.
Any vehicles, including, tractors, trailers, or tractor trailers parked
at the Building in violation of any provision of this Lease, or
abandoned on the Land, as reasonably determined by Landlord, are
subject to removal by Landlord, at the cost and expense of Tenant, and
Tenant shall indemnify, defend, and hold harmless Landlord of and from
all loss, cost and expense incurred by Landlord in the enforcement of
the provisions of this Section. Tenant shall be considerate of the
parking needs of other tenants of the Building, and shall not violate
the rights of other tenants of the Building. The parking ratio provided
to Tenant and its employees for the parking of cars at the Building
shall be five spaces per 1,000 rentable square feet of the Premises and
Tenant shall not exceed this ratio. Landlord shall not be responsible
for enforcing Tenant's parking rights against any third parties.
Landlord may require, at its option, in its sole discretion, that
Tenant, its employees, invitees, and visitors use certain numbered
spaces to be designated by Landlord.
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5. ALTERATIONS.
(a) Tenant shall not make any alterations, additions or
improvements to the Premises (including, but not limited to, roof and
wall penetrations) without the prior written consent of Landlord, which
consent shall not be unreasonably withheld. Tenant may, without the
consent of Landlord, but at its own cost and expense and in a good
workmanlike manner, erect such shelves, bins, machinery and trade
fixtures as it may deem advisable, without altering the basic character
or structure of the Premises or improvements and without overloading or
damaging the Premises or improvements, and in each case complying with
all applicable governmental laws, ordinances, regulations and other
requirements. Tenant shall not make any alterations, additions or
improvements to the Premises which will contravene Landlord's policies
insuring against loss or damage by fire or other hazards, including but
not limited to commercial general liability, or which will prevent
Landlord from securing such policies in companies acceptable to
Landlord. If any such alterations, additions or improvements cause the
rate of fire or other insurance on the Premises by companies acceptable
to Landlord to be increased beyond the minimum rate from time to time
applicable to the Premises for permitted uses thereof, Tenant shall pay
as additional rent the amount of any such increase promptly upon demand
by Landlord.
(b) Any and all alterations, additions, improvements,
partitions and fixtures erected by Tenant shall be the property of
Landlord and shall remain at the Premises upon termination of the Lease
or upon earlier vacating of the Premises. All shelves, bins, machinery
and trade fixtures installed by Tenant may be removed by Tenant prior
to the termination of this Lease provided such removal may be
accomplished without damage to the Premises or to the primary structure
or structural qualities of the Building and other improvements situated
on the Premises. Tenant shall repair any damage to the Premises, or to
the Building as a result of any alteration, addition, improvement, or
repair to the Premises, or the removal of personal property or trade
fixtures by Tenant, its employees, agents, invitees, or contractors to
the Premises. Should Tenant fail to conduct any such repair within ten
days of written notice from Landlord, Landlord may, at its option,
perform same, and Tenant shall remit payment to Landlord for the actual
cost and expense incurred by Landlord in effecting such repair
immediately upon demand.
6. SIGNS.
(a) As part of the upfit of the Premises, Landlord shall
install a monument sign on the Land containing the name of Tenant. In
addition, Landlord shall include the name of Tenant on the Building
directory, and affix a parapet sign on the exterior of the Building.
All signs for the Premises shall be in form and substance, location,
color, shape, and configuration, mutually and reasonably approved by
Landlord.
(b) Tenant shall have the right to install signs upon the
Premises only when first approved in writing by Landlord and subject to
any applicable governmental laws, ordinances, regulations and other
requirements. Tenant shall remove all such signs upon the termination
of this Lease. Such
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installations and removals shall be made in such manner as to avoid
injury or defacement of the Premises, and Tenant shall repair any
injury or defacement, including, without limitation, discoloration of
the Building caused by such installation and/or removal.
7. INSPECTION. Landlord and Landlord's agents and representatives shall
have the right to enter and inspect the Premises at any reasonable time during
business hours, for the purpose of ascertaining the condition of the Premises or
in order to make such repairs as may be required or permitted to be made by
Landlord under the terms of this Lease or in order to show the Premises to any
prospective purchaser or lender. During the period that is six (6) months prior
to the end of the term hereof, Landlord and Landlord's agents and
representatives shall have the right to enter the Premises at any reasonable
time during business hours for the purpose of showing the Premises to any
prospective tenant and shall have the right to erect on the Premises a suitable
sign indicating the Premises are available. Tenant shall schedule with Landlord
at least sixty (60) days prior to vacating the Premises a time mutually
agreeable to the parties hereto for a joint inspection of the Premises prior to
vacating. In the event of Tenant's failure to give notice or arrange such joint
inspection, Landlord's inspection at or after Tenant's vacating the Premises
shall be conclusively deemed correct for purposes of determining Tenant's
responsibilities for repairs and restoration.
8. UTILITIES. Landlord agrees to provide at its cost, all utility line
connections into the Premises. In the event any utilities for the Premises are
not paid by Tenant directly to those providers or included as part of the
operating expense charge to Tenant, Tenant shall pay a reasonable proportion as
determined by Landlord of all charges jointly metered with other tenants of the
Building. Landlord shall not be liable for any interruption or failure of
utility services on the Premises.
9. ASSIGNMENT AND SUBLETTING. Tenant shall not sublet the Premises or
the interest of Tenant therein in whole or in part, or assign this Lease or the
interest of Tenant therein in whole or in part, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed; provided, however, Tenant may not sublease or assign more than 25,000
rentable square feet in total in any twelve month period. Further, Tenant may
not sell, lien, or encumber its interest in this Lease, or assign or delegate
the management or permit the use or occupancy of the Premises in whole or in
part by anyone other than Tenant without the prior written consent of Landlord,
which consent Landlord may withhold in its sole discretion. Landlord and Tenant
acknowledge and agree that the foregoing provisions have been freely negotiated
by the parties hereto and that Landlord would not have entered into this Lease
without Tenant's consent to the terms of this Paragraph 9.
In no event shall this Lease be assignable by operation of any law,
without the prior written consent of Landlord which consent shall not be
unreasonably withheld, and Tenant's rights hereunder may not become, and shall
not be listed by Tenant as an asset under any bankruptcy, insolvency, or
reorganization proceedings. No assignment, transfer, mortgage, sublease or other
encumbrance, whether or not approved, and no indulgence granted by Landlord to
any assignee or subtenant, shall in any way impair the continuing primary
liability (which after an assignment shall be joint and several with the
assignee) of Tenant hereunder, and no approval in a particular instance shall be
deemed to be a waiver
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of the obligation to obtain Landlord's approval in any other case.
If for any approved assignment or sublease Tenant receives rent or
other consideration, either initially or over the term of the assignment or
sublease, in excess of the base rent hereunder, or in case of a sublease of part
of the Premises, in excess of the portion of such rent fairly allocable to such
part, after appropriate adjustments to assure that all other payments called for
hereunder are appropriately taken into account, Tenant shall pay to Landlord as
additional rent one-half of the full excess of each such payment of rent or
other consideration received by Tenant promptly after its receipt.
Notwithstanding the foregoing, if Tenant shall offer any sublease or assignment
of space in the Premises for less than the current asking price of Landlord for
space comparable in size (which asking price Landlord shall provide to Tenant
upon request made therefor), then Landlord shall be entitled to receive all of
the full excess of each such payment of rent or other consideration received by
Tenant promptly after its receipt.
Notwithstanding any provision of this Lease to the contrary, should
Tenant receive consent from Landlord to sublease or assign its interest in the
Premises and seek to sublease or assign its interest in the Premises in
accordance with this paragraph, Tenant shall not use the name of Landlord, any
insignia of Landlord, or any likeness of the Building in any of its advertising
for such sublease or assignment.
10. FIRE AND CASUALTY DAMAGE.
(a) Landlord agrees to maintain standard fire and extended
coverage insurance for the Building in an amount not less than full
replacement cost as such term is defined in the Replacement Cost
Endorsement to be attached thereto, insuring against special causes of
loss, including, the perils of fire, and lightning, such coverages and
endorsements to be as defined, provided and limited in the standard
bureau forms prescribed by the insurance regulatory authority for the
State of North Carolina. Subject to the provisions of subparagraphs
10(c), 10(d) and 10(e) below, such insurance shall be for the sole
benefit of Landlord and under its sole control.
(b) If the Premises should be damaged or destroyed by any
peril covered by the insurance to be provided by Landlord under
subparagraph 10(a) above, Tenant shall give immediate written notice
thereof to Landlord.
(c) If the Premises should be totally destroyed by any peril
covered by the insurance to be provided by Landlord under subparagraph
10(a) above, or if they should be so damaged thereby that rebuilding or
repairs cannot in Landlord's estimation be completed within one hundred
and eighty (180) days after the date upon which Landlord is notified by
Tenant of such damage, this Lease shall terminate and the rent shall be
abated during the unexpired portion of this Lease, effective upon the
date of the occurrence of such damage.
(d) If the Premises should be damaged by any peril covered by
the insurance to be provided by Landlord under subparagraph 10(a)
above, but only to such extent that rebuilding or repairs can, in
Landlord's estimation, be
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completed within one hundred and eighty (180) days after the date upon
which Landlord is notified by Tenant of such damage, this Lease shall
not terminate, and Landlord shall, at its sole cost and expense,
thereupon proceed with reasonable diligence to rebuild and repair the
Premises to substantially the condition in which they existed prior to
such damage, except that Landlord shall not be required to rebuild,
repair or replace any part of the partitions, fixtures, additions and
other improvements which may have been placed in, on or about the
Premises by Tenant. If the Premises are untenantable in whole or in
part following such damage, the rent payable hereunder during the
period in which they are untenantable shall be abated as may be fair
and reasonable under all of the circumstances, as reasonably determined
by Landlord and Tenant.
(e) Notwithstanding anything herein to the contrary, in the
event the holder of any indebtedness secured by a mortgage or deed of
trust covering the Premises requires that the insurance proceeds be
applied to such indebtedness, then Landlord shall have the right to
terminate this Lease by delivering written notice of termination to
Tenant within fifteen (15) days after such requirement is made by any
such holder, whereupon all rights and obligations hereunder thereafter
accruing shall cease and terminate.
(f) Each of Landlord and Tenant hereby waives all rights to
recover against each other or against any other tenant or occupant of
the Building, or against the officers, directors, shareholders,
partners, joint venturers, employees, agents, customers, invitees, or
business visitors of each other or of any other tenant or occupant of
the Building, for any loss or damage arising from any cause covered by
any insurance required to be carried by each of them pursuant to this
Lease, or any other insurance actually carried by either of them.
Landlord and Tenant shall cause their respective insurers to issue
waiver of subrogation rights endorsements to all policies of insurance
carried in connection with the Building or the Premises or the contents
of either of them, and any cost for the issuance of such endorsements
shall be borne by the original insured under such policies.
(g) The obligation of Landlord in this paragraph 10 to repair
and restore the Premises and the Building as provided herein, does not
include an obligation of Landlord to repair the fixtures, equipment, or
personal property of Tenant, which Tenant shall insure for its benefit,
and Tenant shall have the obligation to repair and restore in the event
of a casualty or other loss.
(h) The period of time within which repair and restoration of
the Premises must be completed shall be extended due to delays
occasioned by force majeure; provided, however, all repair and
restoration must be completed by Landlord within 360 days after the
date of the casualty.
11. LIABILITY. Landlord shall not be liable to Tenant or Tenant's
employees, agents, officers, partners, licensees or invitees, or to any other
person whomsoever, for any damage to property on or about the Premises belonging
to Tenant or any other person, due to any cause whatsoever, unless caused by the
gross negligence, or willful or intentional misconduct of Landlord.
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Tenant hereby covenants and agrees that it will at all times indemnify,
defend (with counsel approved by Landlord) and hold safe and harmless Landlord
(including, without limitation, its trustees and beneficiaries if Landlord is a
trust), and Landlord's agents, employees, patrons and visitors from any loss,
liability, claims, suits, costs, expenses, including without limitation
attorney's fees and damages, both real and alleged, incurred by Landlord, its
agents, employees, officers, partners, invitees, or licensees arising out of or
resulting from of the occupancy by Tenant of the Premises, a breach by Tenant of
any provision of this Lease, or the conduct by Tenant of its business in the
Building.
Landlord hereby covenants and agrees that it will at all times
indemnify, defend (with counsel reasonably approved by Tenant) and hold safe and
harmless Tenant (including, without limitation, its trustees and beneficiaries
if Tenant is a trust), and Tenant's agents, employees, patrons and visitors from
any loss, liability, claims, suits, costs, expenses, including without
limitation attorney's fees and damages, both real and alleged, incurred by
Tenant, its agents, employees, officers, partners, invitees, or licensees
arising out of or resulting from a breach by Landlord of any provision of this
Lease.
Tenant shall procure and maintain throughout the term of this Lease a
policy or policies of insurance, at its sole cost and expense, naming Landlord
as an additional insured, and insuring both Landlord and Tenant against all
claims, demands or actions arising out of or in connection with: (i) the
Premises; (ii) the condition of the Premises; (iii) Tenant's operations in and
maintenance and use of the Premises; (iv) the equipment, personal property and
fixtures of Tenant located on the Premises; (v) any interruption in the conduct
of the business of Tenant on the Premises; (v) Tenant's liability assumed under
this Lease, and such other kinds of insurance as Landlord shall reasonably
request. The limits of coverage maintained by Tenant for (i) commercial general
liability shall be not less than $5,000,000.00 with respect to each occurrence,
not less than $5,000,000.00 with respect to personal injury or death of a single
person, not less than $5,000,000 general aggregate, and not less than
$5,000,000.00 with respect to products completed operations aggregate, (ii) for
business interruption insurance shall be not less than coverage for actual loss,
and (iii) for replacement of the equipment, personal property and fixtures of
Tenant shall be not less than full replacement value.
Tenant shall procure and maintain throughout the term of this Lease a
policy or policies of insurance, at its sole cost and expense, naming Landlord
as an additional insured, and insuring both Landlord and Tenant against all
claims, demands or actions arising out of or in connection with: (i) the
Premises; (ii) the condition of the Premises; (iii) Tenant's operations in and
maintenance and use of the Premises; (iv) the equipment, personal property and
fixtures of Tenant located on the Premises; (v) any interruption in the conduct
of the business of Tenant on the Premises; (v) Tenant's liability assumed under
this Lease, and such other kinds of insurance as Landlord shall reasonably
request. The limits of coverage maintained by Tenant for (i) commercial general
liability shall be not less than $5,000,000.00 with respect to each occurrence,
not less than $5,000,000.00 with respect to personal injury or death of a single
person, not less than $5,000,000 general aggregate, and not less than
$5,000,000.00 with respect to products completed operations aggregate, (ii) for
business interruption insurance shall be not less than coverage
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for actual loss, and (iii) for replacement of the equipment, personal property
and fixtures of Tenant shall be not less than full replacement value.
All such policies shall be procured by Tenant from responsible
insurance companies satisfactory to Landlord. Certified copies of such policies,
together with receipt evidencing payments of premiums thereof, shall be
delivered to Landlord prior to the Commencement Date. Not less than fifteen (15)
days prior to the expiration date of any such policies, certified copies of the
renewals thereof (bearing notations evidencing the payment of renewal premiums)
shall be delivered to Landlord. Such policies shall further provide that not
less than thirty (30) days prior written notice shall be given to Landlord
before such policy may be canceled or changed to reduce insurance provided
thereby.
12. CONDEMNATION.
(a) If the whole or any substantial portion of the Premises
should be taken for any public or quasi-public use under governmental
law, ordinance, or regulation, or by right of eminent domain, or by
private purchase in lieu thereof, and the taking would prevent or
materially interfere with the use of the Premises by Tenant for the
purposes provided herein, this Lease shall terminate and the rent shall
be abated during the unexpired portion of this Lease, effective when
the physical taking of the Premises shall occur.
(b) If a portion of the Premises shall be taken for any public
or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in
lieu thereof, and the use by Tenant of the Premises is not materially
interfered with, this Lease shall not terminate but the rent payable
hereunder during the unexpired portion of this Lease shall be reduced
in an amount that shall be reasonable under all of the circumstances.
(c) In the event of any such taking or private purchase in
lieu thereof, Landlord shall be entitled to receive and retain all
awards as may be awarded in any condemnation proceedings other than
those specifically awarded Tenant for a taking of Tenant's personal
property, loss of business and moving expenses.
13. HOLDING OVER AND TERMINATION.
(a) Tenant shall upon the termination of this Lease by lapse
of time or otherwise, yield up immediate possession to Landlord without
the requirement of notice by Landlord to Tenant of the termination of
this Lease, nor any grace or cure period should Tenant fail to yield up
immediate possession to Landlord. Unless the parties hereto shall
otherwise agree in writing, if Landlord agrees in writing that Tenant
may hold over after the expiration or termination of this Lease, the
hold over tenancy shall be subject to termination by Landlord at any
time upon not less than five (5) days advance written notice, or by
Tenant at any time upon not less than thirty (30) days advance written
notice, and all of the other terms and provisions of this Lease shall
be applicable during that period, except that Tenant shall pay Landlord
from time to time upon demand, as rental for the period of any hold
over, an amount equal to one and 35/100 (1-35/100) the rent in effect
on the termination date,
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computed on a daily basis for each day of the hold over period. No
holding over by Tenant, whether with or without consent of Landlord,
shall operate to extend this Lease except as otherwise expressly
provided. The preceding provisions of this Paragraph 13 shall not be
construed as Landlord's consent for Tenant to hold over.
(b) Upon the termination of this Lease for whatever reason,
Tenant shall quit and immediately surrender the Premises to Landlord,
broom clean, in good order and condition with all repairs and
maintenance required by Tenant hereunder having been performed,
ordinary wear and tear excepted, and Tenant shall remove its personal
property from the Premises in accordance with this Lease. Should any of
the personal property or trade fixtures of Tenant remain upon the
Premises after the Termination Date, all such property shall be deemed
abandoned by Tenant, and Landlord may remove same at the cost and
expense of Tenant with no liability to Tenant therefore, and Tenant
hereby releases Landlord from all liability therefor.
14. QUIET ENJOYMENT. Landlord covenants that it now has, or will
acquire before Tenant takes possession of the Premises, good title to the
Premises, free and clear of all liens and encumbrances, excepting only the lien
for current taxes not yet due, deed of trust(s), or mortgage(s) of record,
zoning ordinances and other building and fire ordinances and governmental
regulations relating to the use of such property, and easements, restrictions
and other conditions of record. In the event this Lease is a sublease, then
Tenant agrees to take the Premises subject to the provisions of the prior
leases. Landlord represents and warrants that it has full right and authority to
enter into this Lease and that Tenant, upon paying the rental herein set forth
and performing its other covenants and agreements herein set forth, shall
peaceably and quietly have, hold and enjoy the Premises for the term hereof
without hindrance or molestation from Landlord, subject to the terms and
provisions of this Lease.
15. EVENTS OF DEFAULT. The following events shall be deemed to be
events of default by Tenant under this Lease:
(a) Tenant shall fail to pay any installment of the rent
herein reserved, or payment with respect to taxes hereunder, or any
other payment or reimbursement to Landlord required herein, within five
(5) days of when due; provided, however, the aforesaid five day period
shall be extended to ten days for any one instance in a twelve month
period in which Tenant shall make a payment after the five day period.
(b) Tenant shall become insolvent, or shall make a transfer in
fraud of creditors, or shall make an assignment for the benefit of
creditors.
(c) Tenant shall file a petition under any section or chapter
of the Bankruptcy Reform Act, as amended or under any similar law or
statute of the United States or any state thereof; or Tenant shall be
adjudged bankrupt or insolvent in proceedings filed against Tenant
thereunder.
(d) A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant.
(e) Tenant shall desert or vacate all or a portion of the
Premises.
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(f) Tenant shall fail to yield up immediate possession of the
Premises to Landlord upon termination of this Lease.
(g) Tenant shall fail to comply with any term, provision or
covenant of this Lease (other than the provisions of subparagraphs (a),
(b), (c), (d), (e) and (f) of this Paragraph 15), and shall not cure
such failure within twenty (20) days after written notice thereof to
Tenant.
16. REMEDIES. Upon the occurrence of any event of default in Paragraph
15 hereof, Landlord shall have the option to pursue any remedy at law or in
equity, including, but not limited to, one or more of the following remedies
without any notice or demand whatsoever:
(a) Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord, and if Tenant fails to
do so, Landlord may, without prejudice to any other remedy which it may
have for possession or arrearage in rent, enter upon and take
possession of the Premises and expel and remove Tenant and any other
person who may be occupying the Premises or any part thereof, with or
without judicial approval, by any legal means necessary, without being
liable for prosecution or any claim of damages therefor; secure the
Premises against unauthorized entry; and Tenant agrees to pay to
Landlord on demand the amount of all loss and damage which Landlord may
suffer by reason of such termination, whether through inability to
relet the Premises on satisfactory terms or otherwise.
(b) Enter upon and take possession of the Premises and expel
or remove Tenant and any other person who may be occupying such
Premises or any part thereof, with or without judicial approval, by any
legal means necessary, without being liable for prosecution and receive
the rent thereof; secure the Premises against unauthorized entry; store
any property located on the Premises at the expense of the owner
thereof and Tenant agrees to pay to Landlord on demand any deficiency
that may arise by reason of such reletting. In the event Landlord is
successful in reletting the Premises at a rental in excess of that
agreed to be paid by Tenant pursuant to the terms of this Lease,
Landlord and Tenant each mutually agree that Tenant shall not be
entitled, under any circumstances, to such excess rental, and Tenant
does hereby specifically waive any claim to such excess rental.
(c) Enter upon the Premises, with or without judicial
approval, by any legal means necessary, without being liable for
prosecution or any claim for damages therefor, secure the Premises
against unauthorized entry, remove all property of Tenant from the
Premises and store it at the cost and expense of Tenant, and do
whatever Tenant is obligated to do under the terms of this Lease; and
Tenant agrees to reimburse Landlord on demand for any expenses which
Landlord may incur in thus effecting compliance with Tenant's
obligations under this Lease, and Tenant further agrees that Landlord
shall not be liable for any damages resulting to Tenant from such
action, whether caused by the negligence of Landlord or otherwise.
(d) Accelerate and demand the payment of all base rent and
other charges due and payable hereunder over the term of this Lease
which amount shall be reduced by any amounts
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received by Landlord from any new tenant that enters into occupancy of
the Premises.
In the event Tenant fails to pay any installment of base rent or
additional rent hereunder within fifteen days of the due date of such
installment, Tenant shall pay to Landlord on demand a late charge in an amount
equal to four percent (4%) of such installment to help defray the additional
cost to Landlord for processing such late payment. The provision for such late
charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as liquidated damages or as
limiting Landlord's remedies in any manner. If, on account of any breach or
default by Tenant in Tenant's obligations under the terms and conditions of this
Lease, it shall become necessary or appropriate for Landlord to employ or
consult with an attorney concerning or to enforce or defend any of Landlord's
rights or remedies hereunder, Tenant agrees to pay any and all reasonable
attorneys' fees so incurred.
Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies provided by law
or equity, nor shall pursuit of any remedy herein provided constitute a
forfeiture or waiver of any rent due to Landlord hereunder or of any damages
accruing to Landlord by reason of the violation of any of the terms, provisions
and covenants herein contained. No act or thing done by Landlord or its agents
during the term hereby granted shall be deemed a termination of this Lease or an
acceptance of the surrender of the Premises, and no agreement to terminate this
Lease or accept a surrender of the Premises shall be valid unless in writing
signed by Landlord. No waiver by Landlord of any violation or breach of any of
the terms, provisions and covenants herein contained shall be deemed or
construed to constitute a waiver of any other violation or breach of any of the
terms, provisions and covenants herein contained. Landlord's acceptance of the
payment of rental or other payments hereunder after the occurrence of an event
of default shall not be construed as a waiver of such default, unless Landlord
so notifies Tenant in writing, and no receipt of money by Landlord from Tenant
after the termination of this Lease or after service of any notice or after the
commencement of any suit or after final judgment for possession of the Premises
shall reinstate, continue or extend the term of this Lease or affect any such
termination, notice, suit or judgment, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to constitute
waiver of such default or of Landlord's right to enforce any such remedies with
respect to such default or any subsequent default.
17. LANDLORD'S LIEN. [INTENTIONALLY DELETED.]
18. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
mortgage(s) and/or deed(s) of trust now or at any time hereafter constituting a
lien or charge upon the Premises or the improvements situated thereon; provided,
however, that if the mortgagee, trustee, or holder of any such mortgage or deed
of trust elects to have Tenant's interest in this Lease superior to any such
instrument, then by notice to Tenant from such mortgagee, trustee or holder,
this Lease shall be deemed superior to such lien, whether this Lease was
executed before or after said mortgage or deed of trust. Tenant shall at any
time hereafter on demand execute any instruments, releases or other documents
which may be required by any mortgagee or trustee for the purpose of
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further subjecting and subordinating this Lease to the lien of any such mortgage
or deed to trust, and shall forward same to Landlord within five days of a
request therefor; provided, that any current or future mortgagee, trustee, or
deed of trust beneficiary, as the case may be, shall provide Tenant with a
nondisturbance agreement in form reasonably satisfactory to Tenant which shall
grant Tenant the right to continue to occupy the Premises under the terms hereof
so long as Tenant is not in default under this Lease.
19. MECHANIC'S LIENS. Tenant shall have no authority, express or
implied, to create or place any lien or encumbrance of any kind or nature
whatsoever upon, or in any manner to bind, the interest of Landlord in the
Premises or to charge the rentals payable hereunder for any claim in favor of
any person dealing with Tenant, including those who may furnish materials or
perform labor for any construction or repairs, and each such claim shall affect
and each such lien shall attach to, if at all, only the leasehold interest
granted to Tenant by this instrument. Tenant covenants and agrees that it will
pay or cause to be paid all sums legally due and payable by it on account of any
labor performed or materials furnished in connection with any work performed on
the Premises on which any lien is or can be validly and legally asserted against
its leasehold interest in the Premises or the improvements thereon and that it
will save and hold Landlord harmless from any and all loss, cost or expense
based on or arising out of asserted claims or liens against the leasehold estate
or against the right, title and interest of Landlord in the Premises or under
the terms of this Lease.
20. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations, or other requirements with reference
to the sending, mailing, or delivery of any notice by Landlord to Tenant or with
reference to the sending, mailing, or delivery of any notice or the making of
any payment by Tenant to Landlord shall be deemed to be complied with when and
if the following steps are taken:
(a) All rent and other payments required to be made by Tenant
to Landlord hereunder shall be payable to Landlord at the address
hereinbelow set forth or at such other address as Landlord may specify
from time to time by written notice delivered in accordance herewith.
Tenant's obligations to pay rent and any other amounts to Landlord
under the terms and of this Lease shall not be deemed satisfied until
such rent and other amounts have been actually received by Landlord.
(b) Any notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered whether actually
received or not when:
(i) deposited in the United States Mail, postage
prepaid;
(ii) sent by federal express or other nationally
recognized overnight courier, charges prepaid; or
(iii) sent by Certified or Registered Mail, return
receipt requested, postage prepaid,
and addressed to the parties hereto at the respective addresses set out
below, or at other such addresses as they have heretofore specified by
written notice delivered in accordance therewith.
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LANDLORD:
Weeks Realty, L.P.
c/o Weeks/Lichtin
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
With a copy to:
Xxxx Xxxxxxx
Weeks/Lichtin
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Xxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
Two Hanover Square Building
Fayetteville Street Mall, 24th Floor
Raleigh, North Carolina 27602
TENANT:
PPD Pharmaco, Inc.
0000 Xxxxx 00xx Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Director of Administration
With a copy to:
General Counsel
PPD Pharmaco, Inc.
0000 Xxxxx 00xx Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
If and when included within the term "Landlord", as used in this instrument,
there is more than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of such a notice specifying some
individual at some specific address for the receipt of notices and payments to
Landlord; if and when included within the term "Tenant, as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices to Tenant. All parties included within
the terms "Landlord" and "Tenant", respectively, shall be deemed to have
received notices in accordance with the provisions of this paragraph with the
same effect as if each had received such notice.
21. BROKER'S CLAUSE. Tenant warrants and represents to Landlord that it
has had no dealings with any real estate broker or agent in connection with this
Lease other than Corporate Realty Advisors, and Weeks/Lichtin, and Tenant
covenants to pay, hold harmless, and indemnify Landlord from and against any and
all costs, expenses, liabilities (including reasonable attorneys' fees), causes
of action, claims or suits in connection with any compensation, commission, fee,
or charges claimed by any other real estate broker or agent with respect to this
Lease or the negotiation thereof, arising out of any act of Tenant. Landlord
warrants and represents to Tenant that it has had no dealings with
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any real estate broker or agent in connection with this Lease other than
Corporate Realty Advisors, and Weeks/Lichtin, and Landlord covenants to pay,
hold harmless, and indemnify Tenant from and against any and all costs,
expenses, liabilities (including reasonable attorneys' fees), causes of action,
claims or suits in connection with any compensation, commission, fee, or charges
claimed by any other real estate broker or agent with respect to this Lease or
the negotiation thereof, arising out of any act of Landlord.
22. LANDLORD'S LIABILITY. Notwithstanding anything to contrary
contained in this Lease, Tenant agrees and understands that Tenant shall look
solely to the estate and property of Landlord in the Building for the
enforcement of a judgment (or other judicial decree) requiring the payment of
money by Landlord to Tenant by reason of default or breach of Landlord in
performance of its obligations under this Lease, it being intended that there
will be absolutely no personal liability on the part of Landlord, its successors
and assigns with respect to any of the terms, covenants, and conditions of this
Lease, and no other assets of Landlord or of Landlord's partners, if any, shall
be subject to levy, execution, attachment or any other legal process for the
enforcement or satisfaction of the remedies pursued by Tenant in the event of
such default or breach, this exculpation of liability to be absolute and without
exception whatsoever.
23. RULES AND REGULATIONS. Tenant shall fully comply with the Rules and
Regulations attached hereto as Exhibit D and made a part hereof and any and all
modifications thereof, or amendments thereto with respect to which Landlord
notifies Tenant.
24. HAZARDOUS MATERIALS.
(a) Tenant agrees that it will not release, discharge, place,
hold, or dispose of any Hazardous Material (as hereinafter defined) on,
under or at the Premises, in the Building, or on the Land, and that it
will not use the Premises, the Building, the Land, or any other portion
thereof as a site for the treatment, storage, or disposal (whether
permanent or temporary) of any Hazardous Material, other than materials
used in the ordinary course of the business of Tenant in accordance
with all Applicable Laws. Tenant further agrees that it will not cause
or allow any asbestos to be incorporated into any improvements or
alterations which Tenant makes or causes to be made to the Premises, or
the Building.
(b) Tenant hereby agrees to indemnify, defend (with counsel
reasonably approved by Landlord) and hold harmless Landlord of from and
against any and all losses, liabilities, damages, injuries, costs,
expenses and claims of any and every kind whatsoever (including without
limitation, court costs and attorneys' fees at all tribunal levels)
which at any time or from time to time may be paid, incurred or
suffered by, or asserted against Landlord for, with respect to, or as a
direct or indirect result of (i) any breach by Tenant of the provisions
of this Paragraph, or (ii) as a direct or indirect result of the acts
or omissions of Tenant or any agent, employee, invitee, licensee, or
independent contractor of Tenant, the presence on or under, or the
escape, seepage, leakage, spillage, discharge, emission, or release
from, onto, or into the Premises, the Building, the Land, the
atmosphere, or any watercourse, body of water, or groundwater, of any
Hazardous Material
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(including, without limitation, any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under the
Comprehensive Environmental Response, Compensation and Liability Act,
any so-called "Superfund" or "Superlien" law, or any other Federal,
state, local or other statute, law, ordinance, code, rule, regulation,
order or decree regulating, relating to or imposing liability or
standards of conduct concerning any Hazardous Material); and the
provisions of and undertakings and indemnification set forth in this
paragraph shall survive the termination or expiration of this Lease,
for any reason, and shall continue to be the liability, obligation and
indemnification of Tenant, binding upon Tenant forever. The provisions
of the preceding sentence shall govern and control over any
inconsistent provision of this Lease.
(c) For purposes of this Lease, "Hazardous Material" means and
includes any hazardous or toxic substance, pollutant, contaminant, gas,
or petroleum product defined as such in (or for purposes of) the
Comprehensive Environmental Response, Compensation, and Liability Act,
as amended, any so-called "Superfund" or "Superlien", law, the Toxic
Substances Control Act, as amended, or any other Federal, state or
local statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to, or imposing liability or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or
material, as now or at any time hereafter in effect, or any other
hazardous, toxic or dangerous, waste, substance or material, gas or
petroleum product, and "Applicable Laws" shall mean the Comprehensive
Environmental Response, Compensation, and Liability Act, as amended,
any so-called "Superfund" or "Superlien", law, the Toxic Substances
Control Act, as amended, or any other Federal, state or local statute,
law, ordinance, code, rule, regulation, order or decree regulating,
relating to, or imposing liability or standards of conduct concerning,
any hazardous, toxic or dangerous waste, substance or material, as now
or at any time hereafter in effect, or any other hazardous, toxic or
dangerous, waste, substance or material, gas or petroleum product.
(d) Tenant shall provide Landlord with a list of any and all
Hazardous Materials released, discharged, placed, held, or disposed of
on the Premises, and certification to Landlord of compliance by Tenant
with all Applicable Laws, within ten days of a request therefor by
Landlord.
25. [INTENTIONALLY DELETED.]
26. COVENANT OF TENANT. If Landlord encounters difficulties in
negotiating permanent or construction financing for the Building, and after
using its best efforts is unable to resolve those difficulties without obtaining
minor modifications to this Lease, Tenant will act in good faith to execute an
amendment to this Lease, but this agreement on the part of Tenant will not
require Tenant to make any changes that in Tenant's reasonable judgment alter
the term hereof, or adversely affect any substantive right of Tenant, whether
legal or economic.
27. MISCELLANEOUS.
(a) Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in
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the singular number shall be held to include the plural, unless the
context otherwise requires.
(b) The terms, provisions and covenants and conditions
contained in this Lease shall apply to, inure to the benefit of, and be
binding upon the parties hereto and upon their respective heirs, legal
representatives, successors and permitted assigns, except as otherwise
herein expressly provided. Landlord shall have the right to assign any
of its rights and obligations under this Lease. Each party agrees to
furnish to the other, promptly upon demand, a resolution, or other
appropriate documentation evidencing the due authorization of such
party to enter into this Lease.
(c) The captions inserted in this Lease are for convenience
only and in no way define, limit or otherwise describe the scope or
intent of this Lease, or any provision hereof, or in any way affect the
interpretation of this Lease.
(d) Tenant agrees from time to time, within ten (10) days
after request of Landlord, to deliver to Landlord, or Landlord's
designee, an estoppel certificate stating that this Lease is in full
force and effect, the date to which rent has been paid, the unexpired
term of this Lease and such other matters pertaining to this Lease as
may be requested by Landlord. It is understood and agreed that Tenant's
obligation to furnish such estoppel certificates in a timely fashion is
a material inducement for Landlord's execution of this Lease.
(e) This Lease may not be altered, changed or amended except
by an instrument in writing signed by both parties hereto.
(f) All obligations of Tenant hereunder not fully performed as
of the expiration or earlier termination of the term of this Lease
shall survive the expiration or earlier termination of the term hereof,
including, without limitation, all payment obligations concerning the
condition of the Premises.
(g) In the event of a transfer by Landlord of its interest in
the Premises, Landlord shall be released from all obligations and
liabilities under the terms of this Lease subsequent to the date of
such transfer. In the event a transferee shall agree to assume the
obligations and liabilities of Landlord under the Lease prior to the
date of the transfer, Landlord shall be released from all obligations
and liabilities under the Lease.
(h) If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws effective during
the term of this Lease, then and in that event, it is the intention of
the parties hereto that the remainder of this Lease shall not be
affected thereby, and it is also the intention of the parties to this
Lease that in lieu of each clause or provision of this Lease that is
illegal, invalid or unenforceable, there be added as a part of this
Lease contract a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be
possible and be legal, valid and enforceable.
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(i) Because the Premises are on the open market and are
presently being shown, this Lease shall be treated as an offer with the
Premises being subject to prior lease and such offer subject to the
withdrawal or non-acceptance by Landlord or to other use of the
Premises without notice, and this Lease shall not be valid or binding
unless and until accepted by Landlord in writing and a fully executed
copy delivered to both parties hereto.
(j) All references in this Lease to "the date hereof" or
similar references shall be deemed to refer to the last date, in point
of time, on which all parties hereto have executed this Lease.
(k) Time is of the essence of this Lease.
(l) (i) If Landlord (1) breaches any agreement or obligation
in this Lease and such breach continues for a period of thirty (30)
days after written notice to Landlord by Tenant, or (2) through
Landlord's gross negligence or willful act, Landlord fails to provide
(where Landlord is obligated to provide the Landlord Essential
Service), or Landlord fails to act reasonably to cause a cure (but only
to the extent that Landlord is responsible for the cure and such cure
is within Landlord's control to effect) or Landlord otherwise
affirmatively acts to stop, interrupt or materially reduce a Landlord
Essential Service (as hereinafter defined) so that Tenant is not able
to carry on its business at the Premises for five (5) consecutive
business days and such interruption continues for a period of five (5)
business days after written notice to Landlord, then upon the
occurrence of (l) and/or (ii) above, if Landlord shall not in good
faith have commenced the curing of such breach specified in (1) or (2)
above within such thirty (30) or five (5) business day period after
written notice, as the case may be and thereafter, shall have not
diligently and continuously proceeded to cure such breach completely,
the Landlord shall be in default hereunder, and Tenant shall have all
rights and remedies available at law or in equity for such default.
(ii) In addition, Tenant shall have the right but not the obligation,
to effect a cure on behalf of Landlord and to demand the actual and
reasonable costs of cure from Landlord.
(iii) For purposes of this Lease, a "Landlord Essential Service" does
not mean a service to be provided by Landlord under this Lease per se,
but rather a facility or system within the Building controlled,
operated or maintained by Landlord (but not a third party, e.g.,
Carolina Power & Light Company, to the extent that such third party is
responsible) that provides electricity, elevator service,
telecommunications (including data transmission), and heating, air
conditioning and ventilation and are necessary for the purpose of
Tenant's conduct of its business at the Premises.
(iv) Landlord shall have no liability for any incidental or
consequential damages of Tenant, or anyone claiming by, through or
under Tenant, for any reason whatsoever.
(m) In the event that Landlord shall default in the
performance of Landlord's obligations hereunder, the holder of a
mortgage or the beneficiary of a deed of trust which includes the
Premises shall have the right, but not the obligation, to perform or
comply with any covenants,
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agreements and provisions violated in connection with such default.
Further, if such holder or beneficiary notifies Tenant that such holder
or beneficiary has taken over Landlord's right under this Lease, Tenant
shall not assert any right to deduct the cost of repairs or any
monetary claims against Landlord theretofore accrued from rent
thereafter due and payable, but shall look solely to Landlord and not
such holder or beneficiary for satisfaction of such claim.
(n) This Lease does not create the relationship of partner or
joint venturer between Landlord and Tenant.
(o) The laws of the State of North Carolina shall govern the
interpretation, the validity, performance and enforcement of this
Lease.
(p) The undersigned officer of Tenant does hereby warrant and
certify to Landlord that Tenant is a corporation in good standing and
duly organized under the laws of the State of Texas and is authorized
to do business in the State of North Carolina. The undersigned officer
of Tenant hereby further warrants and certifies to Landlord that such
officer is authorized and empowered to bind the corporation to the
terms of this Lease by such officer's signature hereto. Tenant shall
provide Landlord a consent of its officers and directors to enter into
this Lease, and the person authorized to sign this Lease on behalf of
Tenant concurrently with the execution of this Lease.
(q) This Lease shall be executed in duplicate, each of which
shall be deemed an original and complete of itself and may be
introduced into evidence or used for any purpose without the production
of any other copy. If Tenant is a corporation, two authorized corporate
officers must execute this Lease in their appropriate capacity for
Tenant and affix the corporate seal.
(r) The provisions contained in the Rider attached hereto, if
any, are incorporated herein by reference and made a part of this
Lease. In the event of any conflict between the printed portion of this
Lease and the Rider, the provisions of the Rider shall govern and
control.
(s) Although the printed provisions of this Lease were drafted
by Landlord, such fact shall not cause this Lease to be construed
either for or against Landlord or Tenant.
(t) This Lease may not be recorded. Upon the request and at
the expense of Tenant, Landlord shall execute a memorandum of this
Lease suitable for recording which shall omit the financial terms
herein but which shall identify the Premises and the term of this
Lease. Upon the expiration of this Lease, a recorded memorandum of this
Lease may be canceled of record by a document executed by Landlord, or
its successor in interest for such purpose.
(u) Within five days of the request by Landlord upon the
occurrence of a default or event of default hereunder by Tenant, Tenant
shall provide to Landlord, financial statements of Tenant certified by
the chief financial officer of Tenant.
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(v) No remedy conferred herein is intended to be exclusive of
any other remedy and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or
thereunder or now or hereafter existing at law or in equity or by
statute or otherwise.
(w) No provision of this Lease shall be deemed to waive any
statutory (as provided in Chapter 44A of the North Carolina General
Statutes), or common law rights of Landlord to assert a lien upon
property of Tenant.
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have executed this Lease under
seal as of the day and year first above written.
LANDLORD:
WEEKS REALTY, L.P. (SEAL), a Georgia
limited partnership
BY: WEEKS CORPORATION, its general
partner
Date of execution: By: /s/ Xxxxxx X. Xxxxxxx (SEAL)
---------------------
Xxxxxx X. Xxxxxxx,
Managing Director
TENANT:
PPD PHARMACO, INC., a Texas
corporation
Date of execution: By: /s/ Xxxx X. Xxxxxx
6/16/97 ------------------
Print Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
Witness/Attest:
/s/ Xxxxxxx Xxxxx
-----------------
Print Name: Xxxxxxx Xxxxx
Title: Administrative Assistant
[CORPORATE SEAL]
28
