EX-10.9 17 dex109.htm LEASE AGREEMENT DATE OF EXECUTION: April 21, 2009
Exhibit 10.9
DATE OF EXECUTION: April 21, 2009
LANDLORD: | Commercial Flex Associates a North Carolina corporation | |
MANAGING AGENT: | Commercial Flex Associates Management Company | |
LANDLORD’S ADDRESS: | 000 Xxxxxxx Xxxxx Xxxxxx Xxxxxx, XX 00000 | |
LANDLORD’S REPRESENTATIVE: | Xxxxx & Xxxxx ï Xxxxxx Xxxxxxxxx Xxxxxx | |
TENANT’S SPACE: | Suite 102, being the area(s) outlined on Exhibit B attached | |
BUILDING: | That certain building located at the Building Address set forth below and commonly known as 10700 World Trade Park | |
BUILDING ADDRESS: | 00000 Xxxxx Xxxxx Xxxx Xxxxxxx, Xxxxx Xxxxxxxx 00000 | |
PROJECT: | Those certain buildings, together with all entrance drives, parking areas, landscaping improvements and other improvements located on that certain tract of land described on Exhibit A-1 attached hereto (the “Project Tract”) | |
NAME & ADDRESS FOR RENTAL REMITTANCE: | Commercial Flex Associates Management Company Xxxx Xxxxxx Xxx 00000 Xxxxxxx, XX 00000 | |
TENANT: | Canvas On Demand, LLC | |
TENANT’S TRADE NAME: | Canvas On Demand, LLC | |
TENANT’S ADDRESS | 00000 Xxxxx Xxxxx Xxxx Xxxxxxx, Xxxxx Xxxxxxxx 00000 | |
RENTABLE FLOOR AREA OF TENANT’S SPACE: | 35,164 SQUARE FEET | |
TOTAL RENTABLE FLOOR AREA OF THE BUILDING:
INITIAL TERM: | 134,809 SQUARE FEET
January 1, 2010, the “Commencement Date” through February 28, 2013. | |
RENT COMMENCEMENT: | The Rent Commencement Date, shall begin one (1) month following the Commencement Date. Tenant shall be |
responsible for the payment of one half (1/2) TICAM/ Additional Rent during all free rent periods. | ||
RENT: | SEE ATTACHED RENT SCHEDULE IN EXHIBIT D | |
Additional Rent: Common Area Maintenance Charge pursuant to Section 4.2 and all other amounts payable by Tenant under this Lease in addition to Base Rent (Base Rent and Additional Rent may be referred to collectively in this Lease as “Rent” | ||
SECURITY DEPOSIT: | $16,116.83 to be provided to the Landlord upon Lease execution. | |
PERMITTED USES: | General office and distribution facility. | |
TENANT’S PUBLIC | ||
Commercial General Liability insurance policies or Comprehensive General Liability insurance policies with a Broad Form Comprehensive Liability Endorsement including Contractual Insurance and with a combined single limit of at least $2,000,000.00 per occurrence on a per location basis and including: |
Bodily Injury: Property Damage: | $2,000,000.00
$2,000,000.00 |
1.2 Exhibits. The following exhibits are attached to this Lease and made a part hereof:
EXHIBIT A Legal Description of the Lot
EXHIBIT B Plan Showing Tenant’s Space
EXHIBIT C Rules and Regulations
EXHIBIT D Rent Schedule
1.3 Special Provisions. Any special terms or provisions of this Lease are attached. To the extent that the Special Provisions conflict with any other terms of this Lease, the Special Provisions shall control.
ARTICLE II - PREMISES AND TERM
Tenant shall have, as an appurtenance to the Premises, the nonexclusive right to use in common with others entitled thereto: (a) the common facilities included in the Building or on the real property on which the Building is located (the “Lot”), said Lot being described more particularly in Exhibit A hereto, to the extent from time to time designated by Landlord; (b) any entrance drives or other private access drives located on the Project Tract which are necessary for ingress and egress to and from the Building; and (c) the building service fixtures and equipment serving the Premises.
Landlord reserves the right from time to time, without unreasonable interference with Tenant’s use, (a) to install, repair, replace, use, maintain and relocate for service to the Premises and to other parts of the Building, or either, building service fixtures and equipment wherever located in the Building and (b) to alter or relocate any other common facility provided that substitutions are substantially equivalent or better.
Landlord also reserves the right to re-measure the Premises after the construction of the Premises and adjust the amount of rentable square feet of space contained therein for purposes of this Lease, including calculation of Rent.
2.2 Term. To have and to hold for a period (the “Term”) commencing on the Commencement Date
ARTICLE III - CONSTRUCTION
3.1 THIS SECTION INTENTIONALLY OMITTED.
3.2 THIS SECTION INTENTIONALLY OMITTED.
4.2 Common Area Maintenance Charge (TICAM). Tenant shall pay to Landlord, as Additional Rent, the Common Area Maintenance Charge which Landlord represents are estimated to be $1.50 per square foot shall be an amount equal to Tenant’s Proportionate Share (as hereinafter defined) of the Common Area Expenses (as hereinafter defined), which shall be paid by Tenant without demand, deduction or setoff along with Tenant’s monthly payment of Base Rent. The Common Area Maintenance Charge for each succeeding calendar year or partial calendar year shall be reasonably estimated by Landlord at the beginning of each such calendar year based on such estimated Common Area Expenses. Items included within the Common Area Maintenance charge that the Landlord has direct control over shall not increase more than five and one quarter percent (5.25%) per annum. For purposes hereof, “Tenant’s Proportionate Share” shall be deemed to be a fraction, the numerator of which shall be the number of rentable square feet in the Premises and the denominator of which shall be the total number of rentable square feet in the Building. Such Common Maintenance Charge shall be paid during all free rent periods.
4.2.1 Definition of Common Area Expenses. - “Common Area Expenses” shall exclude the interest and amortization on mortgages for the Building and Lot and the cost of special services rendered to tenants (including Tenant) for which a special charge is made, but include, without limitation: real estate taxes on the Building and Lot; installments and interest on assessments for public betterments or public improvements; expenses of any proceedings for abatement of taxes and assessments with respect to any fiscal year or fraction of a fiscal year to the extent they serve to reduce the taxes; premiums for insurance; compensation and all fringe benefits, worker’s compensation insurance premiums and payroll taxes paid by Landlord to, for or with respect to all persons engaged in the operating, maintaining, or cleaning of the Building and Lot on a full-time basis, steam, water, sewer, electric, gas, telephone, and other utility charges for the Building and Lot not billed directly to tenants by Landlord or the utility; costs of building and cleaning supplies and equipment (including rental); cost of maintenance, cleaning and repairs; cost of snow plowing or removal, or both, and care of landscaping; payments to independent contractors under service contracts for cleaning, operating, managing, maintaining and repairing the Building and Lot (which payments may be to affiliates of Landlord or to Landlord’s representatives provided the same are at reasonable rates consistent with the type of occupancy and the services rendered); the cost of operating, maintaining and repairing the common areas and facilities of the Building (such as, but not limited to, snow plowing, landscaping, common area and street lighting, repaving parking areas, security and management); the Building’s proportionate share, as reasonably determined by Landlord, of Landlord’s costs and expenses (as determined consistent with the provisions of this Section 4.2.1) related to the operation, maintenance, repair and replacement of any entrance drives, access drives, landscaping improvements and other common area improvements on the Lot which do not exclusively serve a particular building; and all other reasonable and necessary expenses paid in connection with the operation, cleaning, maintenance and repair of the Building and Lot, or either, and properly chargeable against income. Neither capital expenditures, nor any expense or charge for depreciation or amortization thereof, shall be included in the common area maintenance charges regardless of the reason for such expenditure.
The term “real estate taxes” as used above shall mean all taxes of every kind and nature assessed by any governmental authority on the Lot, the Building and related improvements, or both, which the Landlord shall become obligated to pay because of or in connection with the ownership, leasing and operation of the Lot, the Building and related improvements, or both, (including, without limitation, taxes or fees assessed against the Lot or Building due to its location within a business improvement district) subject to the following: There shall be excluded from such taxes all income taxes, excess profits taxes, excise taxes, franchise taxes, estate, succession, inheritance and transfer taxes, provided, however, that if at any time during the Term the present system of ad valorem taxation of real property shall be changed so that in lieu of the whole or any part of the ad valorem tax on real property there shall be assessed on Landlord a capital levy or other tax on the gross rents received with respect to the Lot, Building and related improvements, or both, or a federal, state, county, municipal or other local income, franchise, excise or similar tax,. assessment, levy or charge (distinct from any now in effect) measured by or based, in whole or in part, upon any such gross rents, then any and all of such taxes, assessments, levies or charges, to the extent so measured or based, shall be deemed to be included within the term “real estate taxes”.
4.2.2 Statement of Common Area Expenses - As soon as practicable after the end of each calendar year ending during the Term and after Lease termination, Landlord shall render a statement (“Landlord’s Statement”) in reasonable detail and according to generally accepted accounting principles certified by Landlord’s Representative showing for the preceding calendar year or fraction thereof, as the case may be, Common Area Expenses and Tenant’s Proportionate Share thereof.
4.2.3 Right to Audit - Tenant shall have the right to review and contest Landlord’s Statement at Tenant’s option. If Tenant so desires, Tenant may engage an independent auditor to review Landlord’s Statement at Tenant’s cost. The findings of the independent auditor shall be subject to an independent review by Landlord’s auditor as to the accuracy of the audit process, and shall be final and binding on the parties with respect to the accuracy of Landlord’s Statement and any amount due to either party shall be remitted to such party within fifteen (15) days of submission of the results of the audit. If the independent auditor discovers errors in
Landlord’s Statement that result in a reduction of the common area expenses by at least ten percent (10%), in the aggregate, Landlord shall reimburse Tenant for the cost of the audit.
4.2.4 Common Area Expenses Different Than Landlord’s Estimate - If the actual Common Area Expenses in any calendar year or partial calendar year exceeds the estimates for the applicable year, Tenant shall, within forty-five (45) days after receipt of Landlord’s Statement, pay to Landlord a lump sum in an amount which will effect the necessary adjustment. If the Common Area Maintenance Charge paid by Tenant in any calendar year or partial calendar year exceeds Tenant’s Proportionate Share of the Common Area Expenses for that period, Landlord shall credit any excess payments made by Tenant against future installments of Common Area Maintenance Charges payable by Tenant hereunder, or, at the end of the Term, Landlord will refund such excess to Tenant within forty-five (45) days thereafter, provided Tenant is not then in default of any of its obligations under this Lease.
In case of special services which are not rendered to all areas on a comparable basis, the proportion allocable to the Premises shall be the same proportion which the Rentable Floor Area of Tenant’s Space bears to the total rentable floor area to which such service is so rendered (such latter area to be determined in the same manner as the Total Rentable Floor Area of the Building). Notwithstanding any other provision of this Section 4.2, if the Term expires or is terminated as of a date other than the last day of a calendar year, then for such fraction of a calendar year at the end of the Term, Tenant’s last payment to Landlord under this Section 4.2 shall be made on the basis of Landlord’s best estimate of the items which are includable in Landlord’s Statement and shall be made on or before the later of (a) ten (10) days after Landlord delivers such estimate to Tenant or (b) the last day of the Term, with an appropriate payment or refund to be made upon submission of Landlord’s Statement.
Notwithstanding any other provision of this Section 4.2, if the Term expires or is terminated as of a date other than the last day of a calendar year, then for such fraction of a calendar year at the end of the Term, Tenant’s last payment to Landlord under this Section 4.2 shall be made on the basis of Landlord’s best estimate of the items which are includable in Landlord’s Statement and shall be made on or before the later of (a) ten (10) days after Landlord delivers such estimate to Tenant or (b) the last day of the Term, with an appropriate payment or refund to be made upon submission of Landlord’s Statement.
ARTICLE V - LANDLORD’S COVENANTS
5.1 Landlord’s Covenants During the Term. Landlord covenants during the Term:
5.1.1 Building Services - The Landlord shall be responsible for those items outlined in Section 4.2.1. The Tenant shall be responsible for all other services including, but not limited to its utility service, telephone, cable, Internet, interior janitorial service, trash storage and removal, etc.
5.1.2 Additional Building Services - To furnish, through Managing Agent or other independent contractors, reasonable additional Building operation services upon reasonable advance request of Tenant at equitable rates from time to time established by Landlord to be paid by Tenant;
5.1.3 Repairs - Except as otherwise provided in Article VII, to make such repairs to the roof, exterior walls, floor slabs and common facilities of the Building as may be necessary to keep them in a condition consistent with Class A office/warehouse space in the Raleigh-Durham metropolitan area; such repairs to be made by Landlord within a reasonable time from Landlord’s receiving written notice from Tenant of the need for such repairs, Landlord having no responsibility hereunder to make any repairs to the Premises; and
5.1.4 Quiet Enjoyment - That Landlord has the right to enter into this Lease and that Tenant on paying the Rent and performing its obligations hereunder shall peacefully and quietly have, hold and enjoy the Premises throughout the Term without any manner of hindrance or molestation from Landlord or anyone claiming under Landlord, subject however to all the terms and provisions hereof.
5.1.5 Complete Building - Landlord shall complete the remainder of the Building of which the Premises are a part in a manner consistent with the construction of the Premises.
5.1.6 THIS SECTION INTENTIONALLY OMITTED.
5.1.7 THIS SECTION INTENTIONALLY OMITTED.
5.1.8 Act in Accordance with Regulations - Landlord shall adhere to all applicable laws in the construction, operation, and maintenance of the Premises and the Building.
5.1.9 THIS SECTION INTENTIONALLY OMITTED.
5.1.10 Landlord’s Indemnity - To defend, indemnify and hold harmless Tenant, its agents, employees, officers, directors, partners and shareholders from and against any and all liabilities, judgments, demands, causes of action, claims, losses, damages, costs and expenses, including reasonable attorneys’ fees and costs, arising out of the use, occupancy, conduct, operation, or management of the Premises by, or the willful misconduct or negligence of Landlord, its officers, contractors, licensees, agents, servants, employees, guests, invitees, or visitors in or about the Building or Premises or arising from any breach or default under this Lease by Landlord, or arising from any accident, injury, or damage, howsoever and by whomsoever caused, to any person or property, occurring in or about the Building or Premises. This indemnification shall survive termination of this Lease. This provision shall not be construed to make Landlord responsible for loss, damage, liability or expense resulting from injuries to third parties caused by the sole negligence or willful misconduct of Tenant, or its officers, contractors, licensees, agents, employees, or invitees;
5.1.11 Tenant’s Costs - In case Tenant shall, without any fault on its part, be made party to any litigation commenced by or against Landlord or by or against any parties in possession of the Building or any part thereof claiming under Landlord, to pay, any costs, including, without limitation, reasonable counsel fees incurred by or imposed upon Tenant, in connection with such litigation and, also to pay all such costs and reasonable counsel fees
incurred by Tenant in connection with the successful enforcement by Tenant of any obligations of Landlord under this Lease;
5.1.12 Liens - To keep the Premises and the Building free from any liens arising out of any work performed, materials ordered or obligations incurred by or on behalf of Landlord, and Landlord hereby agrees to indemnify and hold Tenant, its agents, employees, independent contractors, officers, directors, partners, and shareholders harmless from any liability, cost or expense for such liens;
5.1.13 Environmental Matters -
(a) As used in this Lease, the term “Hazardous Materials” shall mean and include any substance, other than general office and cleaning products available to the public which are used in accordance with their instructions, which is or contains petroleum, asbestos, polychlorinated biphenyls, lead, or any other substance, material or waste which is now or is hereafter classified or considered to be hazardous or toxic under any federal, state or local law, rule, regulation or ordinance relating to pollution or the protection or regulation of human health, natural resources or the environment (collectively “Environmental Laws”) or poses or threatens to pose a hazard to the health or safety of persons on the Premises or any adjacent property.
(b) Landlord agrees that during the term of this Lease it will not permit Hazardous Materials to be present on or about the Premises except in a manner and quantity necessary for the ordinary performance of Landlord’s business and that it will comply with all Environmental Laws relating to the use, storage or disposal of any such Hazardous Materials.
(c) If Landlord’s use of Hazardous Materials on or about the Premises results in a release, discharge or disposal of Hazardous Materials on, in, at, under, or emanating from, the Premises, the Building, or the property in which the Building is located, Landlord agrees to investigate, clean up, remove or remediate such Hazardous Materials in full compliance with the requirements of (i) all Environmental Laws and (ii) any governmental agency or authority responsible for the enforcement of any Environmental Laws.
(d) Landlord agrees to indemnify and hold harmless Tenant from and against any and all claims, losses, liabilities and expenses (including reasonable attorney’s fees) sustained by Tenant attributable to (i) any Hazardous Materials placed on or about the Premises by Landlord or its agents, employees, contractors or invitees or (ii) Landlord’s breach of any provision of this Section 5.1.13.
(e) The provisions of this Section 5.1.13 shall survive the expiration or earlier termination of this Lease.
Landlord reserves the right to stop any service or utility system when necessary by reason of accident or emergency or until necessary repairs have been completed. Except in case of emergency repairs, Landlord will give Tenant reasonable advance notice of any contemplated stoppage and will use reasonable efforts to avoid unnecessary inconvenience to Tenant by reason thereof. If the service can be reasonably restored by Landlord and is not restored within ten (10) days, Tenant’s rent shall xxxxx commencing from the time the service ceases. If the service can be reasonably restored by Landlord and is not restored within thirty (30) days, Tenant shall have the right to terminate this Lease.
Tenant shall be responsible, at Tenant’s sole cost and expense, for providing or contracting for the provision of janitorial services relative to the Premises including trash storage and removal. Tenant shall provide Landlord with a fully executed copy of such trash removal agreement. Tenant shall not permit undue accumulations of garbage, trash, rubbish or other refuse within or without the Premises.
In addition, Tenant, at its sole cost and expense, shall maintain at all times a service contract with a reputable service provider on the HVAC serving the Premises, requiring (i) all air conditioning filters to be changed at least three (3) times per year and (ii) the HVAC to be professionally inspected and generally serviced at least quarterly. Tenant shall provide Landlord with a copy of such service contract thirty (30) days prior to the Commencement Date. All HVAC service contractors shall be required to check in with the Managing Agent before and after each service call. If Tenant does not comply with the foregoing, then in addition to all other rights and remedies set forth in the Lease, Landlord shall be entitled to enter into a service contract on Tenant’s behalf, and have Tenant’s HVAC unit(s) serviced, and charge such costs incurred by Landlord to Tenant, plus an administrative fee of 15%, as Additional Rent.
Any approved sublease or assignment shall not release the Tenant from the underlying obligations outlined in this Lease.
If Landlord approves an assignment or sublease as herein provided, Tenant shall pay to Landlord, as Additional Rent due under this Lease, as applicable, (i) in the case of a sublease, an overage amount equal to the difference, if any, between the Rent allocable to that part of the Premises affected by such sublease pursuant to this Lease and the rent paid by the subtenant to Tenant, less any reasonable and customary expenses incurred by the Tenant in connection with the sublease which are approved by the Landlord in its sole and absolute discretion, and (ii) in the case of an assignment, an overage amount equal to fifty percent (50%) of the consideration, if any, received by Tenant for such assignment. Such overage amounts shall be due and payable by Tenant to Landlord within five (5) days of Tenant’s receipt of payment from the subtenant or assignee. Overage amounts in the case of a sublease shall be calculated and adjusted (if necessary) on a lease year (or partial lease year) basis, and there shall be no cumulative adjustment for the Term. No consent to any assignment or sublease shall constitute a further waiver of the provisions of this Section, and all subsequent assignments or subleases may be made only with the prior written consent of Landlord. An assignee of Tenant, at the option of Landlord, shall become directly liable to Landlord for all obligations of Tenant hereunder and shall assume all such obligations in writing in a form satisfactory to Landlord in its sole and absolute discretion, but no sublease or assignment by Tenant shall relieve Tenant of any liability hereunder. Except as otherwise provided, any assignment or sublease without Landlord’s consent shall be void, and shall, at the option of the Landlord, constitute a default under this Lease. In the event that Tenant requests that Landlord consider a sublease or assignment hereunder, Tenant shall pay (i) Landlord’s reasonable fees, not to exceed Five Hundred and 00/100 Dollars ($500.00) per transaction, incurred in connection with the consideration of such request, and (ii) all attorneys’ fees and costs incurred by Landlord in connection with the consideration of such request or such sublease or assignment.
Notwithstanding any term or provision herein to the contrary, Tenant shall not advertise all or any part of the Premises for assignment, subletting or other transfer at a rental rate lower than the rental schedule established from time to time by Landlord for comparable space for a comparable term in the Building. Further, no assignment, subletting or other transfer shall be made: (i) to any person or entity which shall at that time be a tenant, subtenant or other occupant of any part of the Building if Landlord then has other comparable space in the Building available for leasing by Landlord; (ii) to any person or entity who has dealt with Landlord or Landlord’s agent (directly or through a broker) with respect to space in the Building during the six (6) months immediately preceding Tenant’s request for Landlord’s consent to such transaction; (iii) to any person or entity if Landlord then has other comparable space in the Building available for leasing and suitable for use by such proposed tenant; (iv) to any person or entity for the conduct of business which is not in keeping with the standards and general character of the Building; or (v) which would require the demolition or reconfiguration of any portion of the Premises or which would result in the Premises being subdivided. All rights and options of Tenant hereunder, if any, to expand the Premises, contract the Premises, extend or renew the Term, and/or shorten the Term, and any right(s) of first refusal, first offer or first option hereunder in favor of Tenant shall automatically terminate upon the assignment of this Lease or upon the subletting of all or any part of the Premises, unless Landlord specifically agrees in writing that such rights and options shall continue. Tenant acknowledges that the restrictions on assignments and subleases described herein are a material inducement for Landlord entering into this Lease and shall be enforceable by Landlord against Tenant and against any assignee or subtenant or any other party acquiring an interest in this Lease.
6.1.7 Indemnity To defend, indemnify and hold harmless Landlord, its agents, employees, officers, directors, partners and shareholders from and against any and all liabilities, judgments, demands, causes of action, claims, losses, damages, costs and expenses, including reasonable attorneys’ fees and costs, arising out of the use, occupancy, conduct, operation, or management of the Premises by, or the willful misconduct or negligence of Tenant, its officers, contractors, licensees, agents, servants, employees, guests, invitees, or visitors in or about the Building or Premises or arising from any breach or default under this Lease by Tenant, or arising from any accident, injury, or damage, howsoever and by whomsoever caused, to any person or property, occurring in or about the Building or Premises. This indemnification shall survive termination of this Lease. This provision shall not be construed to make Tenant responsible for loss, damage, liability or expense resulting from injuries to third parties caused by the sole negligence or willful misconduct of Landlord, or its officers, contractors, licensees, agents, employees, or invitees;
6.1.8 Tenant’s Liability - To maintain with insurance companies reasonably satisfactory to Landlord:
(a) Public liability insurance on the Premises in amounts which shall, at the beginning of the Term, be at least equal to the limits set forth in Section 1.1 and from time to time during the Term, shall be for such higher limits, if any, as are customarily carried in the area in which the Premises are located on property similar to the Premises and used for similar purposes and to furnish Landlord with the certificates thereof. Fire and casualty insurance on Tenants furniture, fixtures, and equipment in an amount not less than $50,000 shall also be obtained and kept in force during the Term at Tenant’s expense. The limit of any such insurance shall not limit the liability of Tenant hereunder. If Tenant fails to procure or maintain such insurance, Landlord may, but shall not be required to, procure and maintain the same at Tenant’s expense, to be reimbursed by Tenant as additional rent within 10 days of written demand. All insurance required to be obtained by Tenant hereunder shall be issued by companies reasonably acceptable to Landlord. Thirty (30) days prior to the Commencement Date, Tenant shall deliver to Landlord certificates of liability insurance required herein with loss payable clauses satisfactory to Landlord. Any deductible under such insurance policy in excess of Ten Thousand and 00/l00 Dollars ($10,000.00) must be approved by Landlord in writing prior to issuance of such policy. No policy shall be cancelable, allowed to lapse and/or expire and/or be subject to reduction of coverage except upon thirty (30) days prior written notice to Landlord. All such policies shall name Landlord and Landlord’s Representative as additional insureds and shall be written as primary policies not contributing with and not in excess of coverage which Landlord may carry. The policy limits set forth herein shall be subject to periodic review, and Landlord reserves the right to require that tenant increase the liability coverage limits if, in the reasonable opinion of Landlord, the coverage becomes inadequate and is less than commonly maintained by tenants making similar uses in similar buildings. Tenant shall obtain any revised or increased coverage required by Landlord within thirty (30) days of any such notification from Landlord;
(b) Property insurance on all Tenant’s trade fixtures, equipment, plate glass and personal property on the Premises, being a policy of all risk property insurance covering the full replacement value of such property. During the Term of this Lease, the proceeds from any such policy of insurance shall be used for the repair or replacement of the fixtures and equipment so insured. Landlord shall have no interest in the insurance upon Tenant’s equipment and fixtures and will sign all documents reasonably necessary or proper in connection with the settlement of any claim or loss by Tenant; and
(c) Business interruption and/or loss of rental insurance in an amount equivalent to six (6) months Rent which shall not contain a deductible greater than Ten Thousand Dollars ($10,000.00). Tenant shall furnish Landlord with certificates of insurance naming Landlord as an additional insured. No policy shall be cancelable, allowed to lapse and/or expire and/or be subject to reduction of coverage except upon thirty (30) days prior written notice to Landlord.
Fifteen Thousand Dollars ($15,000.00) without Landlord’s prior written consent, provided that Tenant shall reimburse Landlord for all costs incurred by Landlord in reviewing Tenant’s proposed changes or additions, and provided further that, in order to protect the functional integrity of the Building, all such changes and additions shall be performed by contractors selected from a list of approved contractors prepared by Landlord from time to time;
6.1.18 Environmental Matters -
(a) As used in this Lease, the term “Hazardous Materials” shall mean and include any substance, other than general office and cleaning products available to the public which are used in accordance with their instructions, which is or contains petroleum, asbestos, polychlorinated biphenyls, lead, or any other substance, material or waste which is now or is hereafter classified or considered to be hazardous or toxic under any federal, state or local law, rule, regulation or ordinance relating to pollution or the protection or regulation of human health, natural resources or the environment (collectively “Environmental Laws”) or poses or threatens to pose a hazard to the health or safety of persons on the Premises or any adjacent property.
(b) Tenant agrees that during its use and occupancy of the Premises it will not permit Hazardous Materials to be present on or about the Premises except in a manner and quantity necessary for the ordinary performance of Tenant’s business and that it will comply with all Environmental Laws relating to the use, storage or disposal of any such Hazardous Materials.
(c) If Tenant’s use of Hazardous Materials on or about the Premises results in a release, discharge or disposal of Hazardous Materials on, in, at, under, or emanating from, the Premises or the property in which the Premises are located, Tenant agrees to investigate, clean up, remove or remediate such Hazardous Materials in full compliance with (a) the requirements of (i) all Environmental Laws and (ii) any governmental agency or authority responsible for the enforcement of any Environmental Laws; and (b) any additional requirements of Landlord that are reasonably necessary to protect the value of the Premises or the property in which the Premises are located. Landlord shall also have the right, but not the obligation, to take whatever action with respect to any such Hazardous Materials that it deems reasonably necessary to protect the value of the Premises or the property in which the Premises are located. All costs and expenses paid or incurred by Landlord in the exercise of such right shall be payable by Tenant upon demand.
(d) Upon reasonable notice to Tenant, Landlord may inspect the Premises for the purpose of determining whether there exists on the Premises any Hazardous Materials or other condition or activity that is in violation of the requirements of this Lease or of any Environmental Laws. The right granted to Landlord herein to perform inspections shall not create a duty on Landlord’s part to inspect the Premises, or liability on the part of Landlord for Tenant’s use, storage or disposal of Hazardous Materials, it being understood that Tenant shall be solely responsible for all liability in connection therewith.
(e) Tenant shall surrender the Premises to Landlord upon the expiration or earlier termination of this Lease free of debris, waste or Hazardous Materials placed on or about the Premises by Tenant or its agents, employees, contractors or invitees, and in a condition which complies with all Environmental Laws.
(f) Tenant agrees to indemnify and hold harmless Landlord from and against any and all claims, losses (including, without limitation, loss in value of the Premises or the property in which the Premises are located), liabilities and expenses (including reasonable attorney’s fees) sustained by Landlord attributable to (i) any Hazardous Materials placed on or
about the Premises by Tenant or its agents, employees, contractors or invitees or (ii) Tenant’s breach of any provision of this Section 6.1.18.
(g) The provisions of this Section 6.1.18 shall survive the expiration or earlier termination of this Lease.
With the Landlords xxxxx written approval of the size and design of the Tenant’s intended corporate identification; upon Lease Commencement the Tenant may remove the Xxx.Xxx lettering on the Monument Sign and insert the Tenant’s approved lettering in the top position on the sign.
6.1.20 Additional Covenants - Tenant further covenants during the Tern:
(a) To load and unload inventory, goods and equipment only through such entrances as may be designated for such purposes by Landlord;
(b) To use and occupy the Premises continuously and uninterruptedly through the Term of this Lease;
(c) To conduct its business in the Premises in a first-class manner, to refrain from engaging in any business practice that would tend to detract from or impair the reputation of the Building;
(d) To refrain from placing any machines, equipment or materials of any kind outside the confines of the Premises;
ARTICLE VII - CASUALTY AND TAKING
7.1 Casualty to Premises. In the event the Premises shall be substantially destroyed or rendered untenantable, Landlord shall, within thirty (30) days of such casualty, review such damages and provide to Tenant an estimate of the time it will take Landlord to repair such damage. If Landlord reasonably estimates the repairs will take more than six (6) months to complete, or if the casualty occurs during the final year of the initial or the final year of any renewal term of the Lease, Tenant may opt, within thirty (30) days of receipt of notice from Landlord that repairs will require more than six (6) months to complete, to terminate this Lease by submission of written notice to Landlord. If the damage is due, directly or indirectly, to the fault or neglect of Tenant, or its officers, contractors, licensees, agents, servants, employees, guests, invitees or visitors, there shall be no Tenant right of termination.
7.1.1 Damage Repair - If Tenant cannot, or opts not to terminate the Lease pursuant to the provision set forth above, and if the Premises shall be destroyed or rendered untenantable, either wholly or in part, by fire or other casualty, Landlord may, at its option, (i) terminate this Lease effective as of the date of such damage or destruction, or (ii) restore the Premises to their previous condition, and in the meantime the Base Rent and TICAM shall be abated in the same proportion as the untenantable portion of the Premises bears to the whole thereof, and this Lease shall continue in full force and effect. If the damage is due, directly or indirectly, to the fault or neglect of Tenant, or its officers, contractors, licensees, agents, servants,
employees, guests, invitees or visitors, there shall be no abatement of Base Rent, except to the extent Landlord receives proceeds from any applicable insurance policy of Tenant to compensate Landlord for loss of Base Rent.
7.1.2 Termination for Material or Uninsured Damages - If the Building shall be destroyed or damaged by fire or other casualty insured against under Landlord’s fire and extended coverage insurance policy to the extent that more than fifty percent (50%) thereof is rendered untenantable, or if the Building shall be materially destroyed or damaged by any other casualty other than those covered by such insurance policy, notwithstanding that the Premises may be unaffected directly by such destruction or damage, Landlord may, at its election, terminate this Lease by notice in writing to Tenant within sixty (60) days after such destruction or damage. Such notice shall be effective thirty (30) days after receipt thereof by Tenant.
7.1.3 Business Interruption - Other than rental abatement provided in Section 7.1.1, no damages, compensation or claim shall be payable by Landlord for inconvenience or loss of business arising from the interruption of business or the repair or restoration of the Building or Premises.
7.1.4 Repairs - Landlord’s obligations, should it elect to repair, shall be limited to the base Building, common areas and the interior improvements (if any) initially installed by Landlord as part of Landlord’s work.
ARTICLE VIII - RIGHTS OF MORTGAGEE
Term, or otherwise materially change the rights of Landlord under this Lease, or to relieve Tenant of any obligations or liability under this Lease, shall be valid unless consented to in writing by Landlord’s mortgagees of record, if any.
Tenant under this Lease within five (5) days after written notice thereof for any three (3) months (consecutive or nonconsecutive) during any twelve (12) month period. In addition to all other remedies of Landlord set forth herein, in the event of a Chronic Delinquency, at Landlord’s option, Landlord shall have the right to require that the Rent and any other charge or sum to be paid to Landlord by Tenant under this Lease be paid by Tenant quarterly, in advance.
9.2 Landlord’s Rights After Default.
Upon the occurrence of any Event of Default, Landlord shall have all rights and remedies allowed at law, in equity, by statute and otherwise and in addition the Landlord may give notice to Tenant at any time after said Event of Default stating that Tenant’s right to possession of the Premises shall expire on the date specified in such notice and upon the date specified in such notice all right of Tenant to possession of the Premises hereunder shall terminate, but Tenant shall remain liable as hereinafter provided.
9.2.1 At any time after the expiration of Tenant’s possessory right to the Premises, Landlord may relet the Premises or any part thereof in the name of Landlord or otherwise for such term (which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease) and on such conditions (which may include concessions or free rent) as Landlord, in its reasonable discretion, may determine, and may collect and receive the rent therefrom. Landlord shall in no way be responsible or liable to Tenant for any failure to relet the Premises or any part thereof, or for any failure to collect any rent due upon any such reletting and Tenant’s liability shall not be affected or diminished in any respect by such failure. In the event Landlord relets said Premises at a rental higher than that due from Tenant under the provisions hereof, Tenant shall not be entitled to share in any excess. Landlord, at its option, may make such alterations, repairs and changes in the Premises as Landlord in its sole judgment considers advisable or necessary for the purpose of reletting the Premises, and the making of such alterations, repairs and changes shall not operate or be construed to release Tenant from any liability.
9.2.2 THIS SECTION INTENTIONALLY OMITTED.
9.2.3 If Tenant shall default in the performance of any of Tenant’s covenants or agreements herein contained, Landlord may cure said default(s) on behalf of Tenant. Any amount paid, or expense or liability incurred by, Landlord in the performance of any such matter for the account of Tenant shall be deemed to be Additional Rent and the same, together with the greater of interest thereon at the rate of eighteen percent (18%) per annum, or the maximum interest rate allowed by law from the date upon which any such expense shall have been incurred, may be added, at the option of Landlord, to any Rent then due or thereafter falling due hereunder. Nothing contained herein shall be construed to prevent Landlord from immediately collecting from Tenant by suit or otherwise, any such sums with interest.
9.3 Tenant’s Obligations After Default
9.3.1 Upon the expiration of Tenant’s possessory right pursuant to Section 9.2.1, above, Tenant shall quit and peacefully surrender the Premises to Landlord, and Landlord, upon or at any time after any such expiration, may with process of law re-enter the Premises without further notice, and, pursuant to the process of law, repossess Tenant by three, summary proceedings, ejectment, or otherwise and may dispossess and remove Tenant and all other persons and property from the Premises and shall have, hold and enjoy the Premises and the right to receive all rental income therefrom.
9.3.2 The expiration of Tenant’s right to possession of the Premises shall not relieve Tenant of its liabilities hereunder and the obligations created hereby shall survive any such expiration. In the event of such expiration, whether or not the Premises or any part thereof shall have been relet, Tenant shall pay to Landlord the Rent required to be paid by Tenant up to the time of such expiration, and thereafter Tenant, until the end of the Term of this Lease, shall be liable to Landlord, and shall pay to Landlord, as and for liquidated and agreed current damages for Tenant’s default(s): the equivalent of the amount of the Rent which would be payable under this Lease by Tenant if Tenant were still in possession, less the net proceeds of any reletting effected pursuant to the provisions of Section 9.2.2, after deducting all of Landlord’s expenses in connection with such reletting, including without limitation all repossession costs, brokerage commissions, legal expenses, reasonable attorney’s fees, alteration and repair costs and
expenses of preparation for such reletting. Tenant shall pay such current damages, herein called “deficiency,” to Landlord monthly on the days on which the Rent is payable under the terms of this Lease, and Landlord shall be entitled to recover from Tenant each monthly deficiency as such deficiency shall arise. For purposes of computing the rental due, monthly Percentage Rent shall be deemed to be the average of Percentage Rent payable for the six (6) month period preceding the default.
9.3.3 THIS SECTION INTENTIONALLY OMITTED
9.4.1 Nothing herein contained shall limit or prejudice the right of Landlord to provide and obtain as damages by reason of such default an amount equal to the maximum allowed by any statute or rule of law in effect at the time when such damages are to he proved.
9.4.2 Any suit brought to collect the amount of the deficiency for any month shall not prejudice the right of Landlord to collect the deficiency for any subsequent month by a similar action.
9.4.3 THIS SECTION INTENTIONALLY OMITTED
9.4.4 Any action taken by Landlord under this Article IX shall not operate as a waiver of any right Landlord would otherwise have against Tenant for breach of this Lease and Tenant shall remain liable to Landlord for any damages suffered by Landlord by reason of Tenant’s default or breach.
9.4.5 Landlord shall be entitled to enjoin any breach or threatened breach by Tenant of any of the agreements, covenants, terms and conditions contained in this Lease, and in the event of such breach shall have all rights and remedies allowed at law, in equity, by statute, or otherwise. Any and all remedies referred to herein are considered cumulative and not exclusive. Mention of particular remedies herein shall not prevent the parties from pursuing other remedies in law or equity in the event of breach or default, except as otherwise set forth herein.
9.4.6 The Terms “enter,” “re-enter,” “entry,” or “re-entry,” as used in this Lease are not restricted to their technical legal meaning.
10.1 Titles. The titles of the Articles are for convenience and are not to be considered in construing this Lease.
10.2 Notice of Lease. Upon request of Landlord or Tenant, the other party shall execute and deliver, after the Term begins, a short form of this Lease in form appropriate for recording or registration, and if this Lease is terminated before the Term expires, an instrument in such form acknowledging the fact and date of termination. This Lease shall not be recorded.
10.3 THIS SECTION INTENTIONALLY OMITTED
10.4 Notice. No notice, approval, consent requested or election required or permitted to be given or made pursuant to this Lease shall be effective unless the same is in writing. Communications shall be addressed, if to Landlord, at Landlord’s Address or at such other address as may have been specified by prior notice to Tenant and, if to Tenant, at Tenant’s Address or at such other place as may have been specified by prior notice to Landlord. Any communication so addressed shall be deemed duly served if mailed by registered or certified mail, return receipt requested, or delivered by nationally recognized overnight courier service, or if hand delivered.
successors and assigns. Whenever the Premises are owned by a trustee or trustees, the obligations of Landlord shall be binding upon Landlord’s trust estate, but not upon any trustee, beneficiary or shareholder of the trust individually or corporately.
incurred defaults of Landlord or Tenant under this Lease (or, if there have been any modifications, that this Lease is in full force and effect as modified and stating the modifications, and if there are any defenses, offsets, counterclaims, or defaults, setting them forth in reasonable detail); the dates to which the Rent and other charges have been paid; and certifying to such other information as Landlord’s mortgagee or prospective purchaser of the Lot and Building may reasonably request. If Tenant fails to respond within fifteen (15) days of receipt by Tenant of a written request by Landlord as herein provided, Tenant shall be deemed to have given such certificate as above provided without modification and shall be deemed to have admitted the accuracy of any information supplied by Landlord to a prospective purchaser or mortgagee. Any such statement delivered pursuant to this Section 10.12 may be relied upon by any prospective purchaser or mortgagee of premises which include the Premises or any prospective assignee of any such mortgagee.
10.15 Evidence of Authority. If requested by the other party to this Lease, Landlord or Tenant shall, upon request of the other party, furnish appropriate legal documentation evidencing its valid existence and good standing and the authority of any parties signing this Lease to act for such party. If either party signs as a corporation, each of the persons executing this Lease on behalf of such party does hereby covenant and warrant that such party is a duly authorized and existing corporation, that such party has and is qualified to do business in North Carolina, that the corporation has full right and authority to enter into this Lease and that each of the persons signing on behalf of the corporation is authorized to do so.
10.17 Choice of Law. This Lease shall be governed by and construed in accordance with the laws of the State of North Carolina.
10.18 Time is of the Essence. Time is of the essence with respect to this Lease.
respective heirs, legal representatives, successors and assigns on account of the Lease or on account of any covenant, undertaking or agreement of Landlord in this Lease.
In the event of any transfer(s) of Landlord’s interest in the Premises or the Building, other than a transfer for security purposes only, the transferor shall be automatically relieved of any and all obligations and liabilities on the part of Landlord accruing from and after the date of such transfer, and Tenant agrees to attorn to the transferee.
SIGNATURE PAGE TO FOLLOW
LANDLORD: | ||
COMMERCIAL FLEX ASSOCIATES, INC. a North Carolina Corporation | ||
By: | /s/ Xxxxxxx X. Xxxxx | |
Vice President Commercial Flex Assoc. | ||
TENANT: | ||
CANVAS ON DEMAND, LLC a North Carolina Limited Liability Company | ||
By: | /s/ Xxxxxx Xxxxxxxxxxxx | |
Xxxxxx Xxxxxxxxxxxx, Manager | ||
By: | /s/ Xxxxxx Xxxxxxx | |
Xxxxxx Xxxxxxx, Manager |
EXHIBIT A
Legal Description of Lot
Being all of Xxx 0, Xxxxx Xxxxx Xxxx, Xxxxx Two, containing 12.166 acres, as shown on that plat recorded in Book off Maps 2000, page 1081, Wake County Registry.
EXHIBIT B
Plan Showing Tenant’s Space
EXHIBIT C
Rules and Regulations
1. The sidewalks and entry passages shall not be obstructed by Tenants, or used by them for any purpose other than those of ingress and egress. The water closets and other water apparatus shall not be used for any other purpose than those for which they were constructed and no sweepings, rubbish, or other obstructing substances shall be thrown therein. Any damage resulting to them or to associated systems, from misuse, shall be borne by Tenants who, or whose employees or agents shall cause it.
2. No Tenant shall do or permit to be done in said Premises, or bring or keep anything therein, which shall in any way conflict with the laws relating to fires, or with the regulations of the Fire Department, or any part thereof, or conflict with any of the rules and ordinances of the Board of Health. Should Tenant, to the use of or construction or its Premises cause the insurance to increase, said insurance shall be borne solely by the Tenant at Tenant’s cost. Tenants, their employees and agents shall maintain order in the Building, shall not make or permit any unreasonable noise in the Building. Nothing shall be thrown by Tenants, their employees and agents out of the windows or doors, or down the passages or skylights of the Building. No rooms shall be occupied or used as sleeping or lodging apartments at any time. No part of the Building shall be used or in any way appropriated for gambling, immoral or other unlawful practices, and no intoxicating liquor or liquors shall be sold in said Building.
3. Tenants shall not injure, overload or deface the Building and Premises, woodwork or walls of the Premises and Building, nor carry on upon the Premises or in the Building any unreasonably noxious, noisy, or offensive business.
4. Not more than two keys for each Premises will be furnished without charge. Should additional locks or latches be placed on any entrance or exit door to the Premises, a key must be furnished to Landlord for emergency purposes only. Tenants, at termination of their lease of the Premises, shall return to Landlord all keys to doors and entry to Building.
5. Tenants shall not (without the Landlord’s written consent) put up or operate any steam engine, boiler, machinery or stove upon the Premises, or do any cooking thereon (except coffee pots and microwave use). Except as contemplated by the Lease or as approved by Landlord, which approval shall not be unreasonably withheld or delayed, no article deemed extra hazardous on account of fire and no explosives shall be brought into said Premises. No offensive gases or liquids will be permitted.
6. Landlord shall have the right to make such other and further reasonable rules and regulations as in its judgment may from time to time be needful for the safety, care, and cleanliness of the Premises, and for the preservation of good order therein and the same shall be kept and observed by the Tenants, their agents, or employees.
7. The Tenant agrees to the foregoing Rules and Regulations which are hereby made a part of this Lease, and each of them, and agrees that for such persistent infraction of them, or any of them, as may in the reasonable opinion of the Landlord be calculated to or interfere with the proper operation of the Building, and such infraction is not cured within a reasonable time following written notice to Tenant, the Landlord may declare a default of the accompanying Lease.
EXHIBIT D
Rent Schedule
Year 1 | Year 2 | Year 3 | Year 4 | |||||
1 | 1/2 TICAM | $16,606.34 | $17,098.35 | $17,611.30 | ||||
2 | $16,116.83 | $16,606.34 | $17,098.35 | $17,611.30 | ||||
3 | $16,116.83 | $16,606.34 | $17,098.35 | |||||
4 | $16,116.83 | $16,606.34 | $17,098.35 | |||||
5 | $16.116.83 | $18,606.34 | $17,098.35 | |||||
6 | $16,116.83 | $16,606.34 | $17,098.35 | |||||
7 | $16,116.83 | $16,606.34 | $17,098.35 | |||||
8 | $16,116.83 | $16,606.34 | $17,098.35 | |||||
9 | $16,116.83 | $16,606.34 | $17,098.35 | |||||
10 | $16,116.83 | $16,606.34 | $17,098.35 | |||||
11 | $16,116.83 | $16,606.34 | $17,098.35 | |||||
12 | $16,116.83 | $16,606.34 | $17,098.35 |
In months considered to be Free Rent the Tenant will he responsible only for the payment done half (1/2) TICAM.
LEASE AMENDMENT NUMBER ONE
This LEASE AMENDMENT, dated September 28th, 2010 by and between Commercial Flex Associates, Inc. a North Carolina Corporation with its principal office at Xxxx Xxxxxx Xxx 00000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, hereinafter called the LANDLORD, and XxxxXxxxx.xxx, Inc. a Delaware corporation, with its principal office at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, hereinafter called the TENANT.
WHEREAS, Tenant and Landlord did make and execute a Lease Agreement dated April 21, 2009 for space designated as 10700 Word Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx comprising approximately 35,164 rentable square feet, and
On August 1, 2011 the Lease shall be extended for a period of fifty-three (53) months expiring December 31, 2015 and the Tenant’s Premises shall be increased to include 19,613 square feet of adjacent space for a total of 54,777 square feet (Expanded Premises).
The Base Lease Rate as of August 1, 2011 shall be $5.97 per square foot on a Triple Net (NNN) basis for the Expanded Premises and subject to a twenty-five cent ($.25) per square foot escalation taken each anniversary date (August 1) for the remainder of the term as illustrated below.
August 1, 2011 thru July 31, 2012 | $27,251.56 per month plus TICAM | |||
August 1, 2012 thru July 31, 2013 | $28,392.75 per month plus TICAM | |||
August 1, 2013 thru July 31, 2014 | $29,533.93 per month plus TICAM | |||
August 1, 2014 thru July 31, 2015 | $30,675.12 per month plus TICAM | |||
August 1, 2015 thru December 31, 2015 | $31,816.31 per month plus TICAM |
Provided the Tenant is not in default, the Landlord will provide the Tenant with two (2), three (3) year renewal options with one hundred and eighty (180) day written notice. In each case the rate shall escalate annually at three (3%) percent. See schedule below.
First renewal period – Ninety-Seven (97%) of the then current escalated rate:
January 1, 2016 thru December 31, 2016 | $30,861.82 per month plus TICAM | |||
January 1, 2017 thru December 31, 2017 | $31,787.68 per month plus TICAM | |||
January 1, 2018 thru December 31, 2018 | $32,741.31 per month plus TICAM |
Second renewal period – Market Rate:
The rate for the second renewal period shall be determined via a survey of comparable spaces within a five mile radius of the subject Premises. Five (5) business days following notice the Landlord will generate a rental rate and submit it to the Tenant. Within five (5) business days following receipt, the Tenant may accept such rental rate or suggest modification in which case the parties may repeat the process until a mutually agreeable rate is identified. In any event, the Landlord and Tenant agree to finalize negotiations within thirty (30) days following notice. If agreement is not met within thirty (30) days, the Renewal Option will be waived unless Landlord and Tenant mutually agree to extend such term for a reasonable period of time.
Section 10.21 of the Lease shall be amended to include the (un-numbered) suite located at the north end of the building consisting of approximately 14,000 square feet on two floors.
On August 1, 2011 the Tenant shall deposit with Landlord an amount equal to one month’s rental payment minus any amounts already held by the Landlord on behalf of the Tenant. Additionally, the Tenant will provide the Landlord with Insurance Certification in compliance with section 6.1.8 of the Lease acknowledging the expansion space.
Tenant acknowledges that Landlord has complied with all of its obligations under said Lease to date, and, to the extent not expressly modified hereby, all of the terms and conditions of said Lease shall remain unchanged and in full force and effect.
XXXXXXXXX.XXX, INC. | ||
By: | /s/ Xxxxxx Xxxxxxx | |
Title: | CFO | |
Attest: |
| |
Secretary | ||
COMMERCIAL FLEX ASSOCIATES | ||
By: | /s/ illegible signature | |
Title: | VP |