LEASE
STATE OF NORTH CAROLINA
COUNTY OF WAKE
CAROLANTIC REALTY, INC.
THIS LEASE, made this the 8th day of October ,1997, by and between:
AIRPORT BOULEVARD PARTNERS, LLC having, a notice address of
XXXX XXXXXX XXX 00000
XXXXXXX, XXXXX XXXXXXXX 00000 hereinafter called "LANDLORD", AND
MULTIMEDIA ACCESS CORPORATION
A DELAWARE CORPORATION having a notice address of
000 XXXXXXX XXXXXXXXX, XXXXX 000
XXXXXXXXXXX, XXXXX XXXXXXXX 00000 hereinafter called "TENANT";
WITNESSETH:
Upon the terms and conditions hereinafter set forth, the Landlord leases to
Tenant and the Tenant leases from Landlord, the property hereinafter described:
1. DEMISED PREMISES. The property hereby leased to Tenant (the
"Demised Premises") is that area shown on Exhibit A hereto attached, which
consists of approximately 10,037 square feet, WHICH INCLUDES 000 XXXXXX XXXX XX
XXXXXX XXXXXXXX SPACE located at 000 XXXXXXX XXXXXXXXX, XXXXX 000, XXXXXXXXXXX
(27560) Raleigh , North Carolina, together with the common areas, if any, in the
building(s) and on the lot(s) where the Demised Premises are located (said
building(s) and lot(s), including the Demised Premises, being hereafter called
the "Landlord Property") described on Exhibit A attached hereto.
2. TERM.
2. 1. Initial Term. The Commencement Date of this Lease shall be the
earlier of the date that Tenant opens for business in any part of the Demised
Premises, or January 1, 1998 . This Lease shall terminate (unless extended as
herein provided) at midnight on DECEMBER 31, 2002.
2.3. Year. The initial term of this Lease and any properly exercised
extension periods are hereafter together called the "Lease Term". The first
"Calendar Year" of this Lease shall begin on January I of the year of the
Commencement date, and end December 31 of that same year.
3. USE. Tenant shall occupy the Demised Premises on commencement of
the Lease Term and thereafter continuously use the Demised Premises only for
GENERAL OFFICES FOR A COMPUTER DEVELOPMENT COMPANY purposes, but for none other
without Landlord's prior written consent. Tenant shall remain open for business
during normal business hours for other businesses of a similar nature during the
full Lease Term. In no event shall Tenant make any use of the Demised Premises
which: (a.) violates any governmental laws, rules or regulations; (b.) violates
any recorded restrictive covenants applicable to the Demised Premises; (c.) is
or might constitute a nuisance; or (d.) makes hazard, liability, casualty,
property, or other required insurance unavailable to Landlord on Landlord's
Property. Tenant shall not permit its agents, employees, contractors, or
invitees to place damaging loads on the parking lots and drives located thereon.
4. RENT.
4.1. Minimum Rent. For the purposes of this Lease, all Minimum Rent
payable under Section 4. and 5. of this Lease and all Additional Rent payable
under Section 6. of this Lease are hereafter together called "Rent." All Rent
payable by Tenant shall be paid without previous demand by landlord, and
without setoff or deduction. Subject to any adjustments provided in Section 5.
hereof, Tenant shall pay Minimum Rent during the Lease Term in the amount of
$8,364.17 per month, payable in advance on or before the
first day of each calendar month during the Lease Term, unless the Lease Term
commences other than on the first day of the month, in which event Minimum Rent
at the above rate prorated until the end of the first calendar month of the
Lease Term, shall be due and payable on the Commencement Date, and on the first
day of each month thereafter.
4.2. Late Fees - Bad Check Fees. In addition to such remedies as may be
provided under Section 15. of this Lease, Landlord shall be entitled to a late
charge for each monthly Minimum Rent payment which is past due more than ten
(10) days, equal to four percent (4%) of such past due Minimum Rent payment. In
addition to said late charge, Landlord shall be entitled to receive a service
charge of five percent (5%) of the amount of any rent check given by Tenant to
Landlord which is not honored when first presented for payment by Landlord.
5. RENT ADJUSTMENTS.
THE MINIMUM RENT SHALL BE INCREASED BY THREE PERCENT (3%) BEGINNING WITH THE
THIRTEENTH (13 TH) MONTH FOLLOWING THE ANNIVERSARY OF THE COMMENCEMENT DATE.
THE NEW RATE OF RENT AS DETERMINED BY THE ABOVE ADJUSTMENT SHALL BE PAYABLE IN
MONTHLY INSTALLMENTS BEGINNING ON THE FIRST DAY OF THE THIRTEENTH (13'H) MONTH
OF THE INITIAL TERM OF THIS LEASE AND ON THE FIRST DAY OF EVERY MONTH
THEREAFTER. THE SAID RATE SHALL BE INCREASED BY AN ADDITIONAL THREE PERCENT
(3%) UPON EACH SUBSEQUENT TWELVE (12) MONTH PERIOD IN ACCORDANCE WITH THE
AFORESAID PROCEDURE WITH THE NEW RENT PAYABLE MONTHLY FOR THE BALANCE OF SAID
TWELVE (12) MONTH PERIOD. At least fifteen ( 15) days prior to each requested
rent adjustment, Landlord shall furnish to Tenant a written statement of the
additional Minimum Rent payable from said Adjustment Date through the day
immediately prior to the following Adjustment Date, or the end of the Lease
Term, as applicable.
6. TICAM EXPENSES.
6.1. Defined. For the purposes of this Lease, "TICAM Expenses" (Taxes,
Insurance, and Common Area Maintenance Expenses) shall mean and include: all
costs and expenses incurred by Landlord attributable to the ownership,
operation, maintenance, and management of the Landlord Property, including, but
not limited to, (a.) the cost during the Lease Term, as reasonably amortized by
Landlord, with interest on the unamortized amount at the rate of ten percent (
10%) per annum, of any capital improvements made to the Landlord Property after
the shell and core of the Landlord Property have been substantially completed
which are intended to keep the Landlord Property in compliance with all
governmental laws, ordinances, rules and regulations applicable to the Landlord
Property, and which laws, ordinances, rules, or regulations where first enacted
or amended, or were first made applicable to the Landlord Property, after the
Commencement Date; (b.) all ad valorem taxes, (C) ) hazard and liability
insurance premiums, (d.) common area maintenance; and (e.) the following
additional expenses (if none put "None") CARDBOARD RECYCLING DUMPSTER SERVICE
AND COLD WATER.
6.2. Tenant Prorata Share. Tenant agrees to pay to Landlord, as
Additional Rent, Tenant's Proportionate Share of all TICAM Expenses. Tenant's
Proportionate Share of TICAM Expenses shall be calculated by dividing the square
footage of the Demised Premises by the total net rentable square footage of the
Landlord Property (68,000 square feet). As of the date hereof, only the first of
two building HAS BEEN COMPLETED, WHICH CONTAINS 34,000 SQUARE FEET UNTIL SUCH
TIME AS THE SECOND BUILDING IS COMPLETED, TENANT'S PROPORTIONATE SHARE OF TICAM
EXPENSES WILL BE 29.5%. AT SUCH TIME AS THE SECOND BUILDING OF LANDLORD'S
PROPERTY IS COMPLETED, TENANT'S PROPORTIONATE SHARE WILL BE 14.8%.
6.3. Monthly TICAM Expense Payment. Tenant shall pay to Landlord in
advance with each monthly Minimum Rent payment, a sum equal to one-twelfth
(1/12th) of the amount estimated by Landlord as Tenant's TICAM Expenses for the
Calendar Year in which such Minimum Rent payment is due. For the
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first Calendar Year the amount of the estimated monthly TICAM Expenses under
this Lease shall be $1,388.45 per month.
6.4. Annual Adjustment. Each Calendar year of the Lease Term, within
thirty (30) days after delivery of a statement of the actual TICAM Expenses for
the Calendar Year just concluded, Tenant shall pay to Landlord the amount by
which such estimated TICAM Expenses payments are less than the actual TICAM
Expenses due from Tenant, and Landlord shall likewise refund any excess of
estimated TICAM Expenses payments over actual TICAM Expenses within said thirty
(30) day period.
7. UTILITIES. Tenant shall promptly pay all charges for utilities
serving the Demised Premises, including, without limitation, electricity,
telephone, gas, water, and sewer. In the event any utilities are not separately
metered for Tenant, Tenant shall pay its proper prorata portion of such
utilities in common with others using off the same meter.
8. TENANT'S ACCEPTANCE AND MAINTENANCE OF DEMISED PREMISES
8. 1. "As-Is " Condition. Except for Punch List items described in any
Attachment appended hereto, Tenant's occupancy of the Demised Premises
represents to the Landlord that Tenant has examined and inspected the same,
finds them to be as represented by the Landlord, and satisfactory for Tenant's
intended use; and evidences Tenant's acceptance of the Demised Premises in all
respects "AS IS" and "WHERE IS".
8.2. Landlord Maintenance. Landlord's only obligations with respect to
the repair and maintenance of the Demised Premises under this Section shall be:
(a.) for repairs necessitated by structural defects in the original construction
of the Landlord Property, or by the negligence or willful acts of Landlord or
another tenant of the Landlord Property, or any of their agents, employees,
invitees, or contractors; (b.) to assign all warranties and use reasonable best
efforts to assist Tenant in enforcing any and all warranties provided by any
contractor, subcontractor, mechanic or materialmen with respect to the Demised
Premises; (c.) for maintenance, upkeep and repair of the roof and structural
portions of the Demised Premises (excluding, however, plate glass and doors of
every description); (d.) for repairs of all paved areas, including, without
limitation, all driveways, curbs and parking areas; and for replacement of items
required to be replaced under Section 8.3.(d.) below.
8.3. Tenant Maintenance. Tenant shall take good care of the Demised
Premises and the Landlord's personal property, fixtures, and appurtenances
therein and thereon during the Lease Tenn, and shall perform all maintenance and
make all repairs to the Demised Premises thereon necessary to keep the same in
good order and condition, excepting only. (a.) Landlord's obligations set forth
above; (b.) ordinary wear and tear; (c.) loss or damage resulting from fire,
casualty or condemnation; and (d.) complete replacement of, or repairs to, any
mechanical system, which repair would cost in excess of forty percent (40%) of
the original cost of said system. Tenant shall pay the first Two Hundred Dollars
($200.00) of all costs associated with each repair required of the Landlord
under Section 8.3.(d.), and the Landlord shall pay the balance.
8.4. Maintenance Contracts. Tenant during the entire Lease Term shall
enter into and maintain, at its expense, a maintenance contract covering the
HVAC system located in or serving exclusively the Demised Premises with a
service contractor acceptable to and approved by Landlord, which contract shall
provide for routine maintenance, including, but not limited to, timely changing
of all filters (at recommended intervals), adjustment and inspection of air
handling mechanisms and control equipment, performance of necessary lubrication,
and testing and other such normal maintenance procedures.
8.5. Tenant's Liability. Subject to the provisions of Section 9.7.
hereof, all damage or injury to the Demised Premises or the remainder of the
Landlord Property caused by any willful act or negligence of Tenant, its agents,
employees, licensees, contractors, invitees or visitors, shall be repaired by
Landlord at Tenant's sole expense, and Tenant shall reimburse Landlord for all
costs and expenses thus incurred by Landlord within thirty (30) days after
receipt of invoice from Landlord.
8.6. Tenant Alterations and Trade Fixtures. Tenant shall not make any
alterations or changes to the Demised Premises without Landlord's prior written
consent. Tenant shall be permitted to install trade fixtures in the Demised
Premises, and. absent a Default by Tenant hereunder, to remove said trade
fixtures from the Demised Premises upon the termination of this Lease. If Tenant
does remove such trade fixtures, Tenant shall return the Demised Premises ,to
the same condition as existed at the time of original entry, ordinary wear and
tear excepted. Provided, however, Tenant shall not remove permanent improvements
made by Tenant to the Demised Premises; and all such improvements shall belong
to Landlord at the termination of this Lease, and shall not be damaged in the
removal of Tenant's trade fixtures. If Tenant does not remove the trade fixtures
at the Lease Term, Landlord shall have the option either to declare such
fixtures abandoned and Landlord the owner thereof, or to demand that tenant
promptly remove the same at Tenant's expense, returning the Demised Premises to
the condition required herein.
8.7 Licensed Contractors. Tenant shall not permit any work to be
performed anywhere within the Landlord Property except by duly licensed
contractors, each of whom must carry adequate general public liability,
builder's risk, and xxxxxxx'x compensation insurance, certificates of which
shall be furnished Landlord prior to the commencement of any such work on the
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Landlord Property. At no time may Tenant do any work that results in a claim of
lien against Tenant's or Landlord's interest in the Demised Premises, and Tenant
shall release of record irom the Landlord Property under N.C.G.S. 44A- 16 any
lien so filed, within thirty (30) days after such lien has been filed.
8.8. No Dangerous Condition. Tenant shall not permit or allow any act
or deed to be performed on the Demised Premises which is likely to cause injury
to any person or to the Landlord Property. Tenant shall, at all times, keep the
Demised Premises and the entryways, parking areas, sidewalks and delivery areas
(if any) adjoining the Demised Premises in a clean, neat, and orderly condition
and free from rubbish, dirt, snow, standing water and ice.
8.9 Access by Landlord. Landlord shall have the right, either itself or
through its authorized agents, to enter the Demised Premises at all reasonable
times to examine the same, to show them to prospective tenants for other spaces
in the Landlord Property or for the demised Premises, to allow inspection by
mortgagees, and to make such repairs, alterations, or changes as Landlord deems
necessary.
9. INDEMNIFICATION AND INSURANCE.
9. 1. Liability Insurance. Subject to the terms of section 9.7. hereof,
Tenant shall indemnify Landlord and save Landlord harmless from and against all
claims, actions, damages, liability and expenses in connection with loss of
life, bodily injury, and damage to property occurring in or about the Demised
Premises, occasioned wholly or in part by any act or omission of Tenant, its
agents, licensees, contractors, customers, invitees or employees. Tenant shall,
at all times, maintain in effect a comprehensive general public liability policy
applicable to the Demised Premises through an insurance company approved by
Landlord, with combined single limits of liability of at least ONE MILLION AND
00/100 DOLLARS ($1,000,000.00). SUCH POLICY SHALL BE FURNISHED TO LANDLORD PRIOR
TO THE COMMENCEMENT DATE TOGETHER WITH A CERTIFICATE FROM THE COMPANY WHICH
ISSUED THE POLICY CERTIFYING THAT THE POLICY IS IN EFFECT AND THAT LANDLORD AND
LANDLORD'S MANAGING AGENT WILL RECEIVE A COPY OF ANY TERMINATION, CANCELLATION
DATE OR LAPSE NOTICE SENT BY THE INSURANCE COMPANY TO TENANT. AT LEAST FIFTEEN
(15) DAYS PRIOR TO THE LAPSE, TERMINATION, OR CANCELLATION DATE OF SUCH POLICY,
OR ANY RENEWAL OR REPLACEMENT POLICY, TENANT SHALL DELIVER TO LANDLORD A RENEWAL
OR REPLACEMENT POLICY TOGETHER WITH A CERTIFICATE AS REQUIRED HEREIN FROM THE
NEW ISSURER.
9.2. Litigation and Attorney Fees. In case Landlord shall be made a
party to any litigation commenced by or against Tenant, or its partners,
officers, directors, agents, contractors, customers or employees, Tenant shall
protect and hold Landlord harmless therefrom, and shall pay all costs, expenses,
and reasonable attorneys' fees incurred or paid by Landlord in connection with
such litigation.
9.3. Tenant's Property and Insurance Thereon. Tenant shall properly
maintain and care for its property on the Demised Premises, and shall also
carry, at Tenant's expense, hazard insurance with extended coverage, insuring
against loss or damage to Tenant's property situated in or about the Demised
Premises to the full reasonable insurable value thereof with insurers acceptable
to Landlord.
9.4. Thirty (30) Day Notice. All policies of insurance to be maintained
by Tenant under this Lease shall provide that: (a.) they may not be canceled or
amended except upon not less than thirty (30) days' prior written notice to
Landlord and any mortgagee of Landlord of which such insurer has actual notice;
and (b.) coverage may not be denied thereunder, nor may the amount payable
thereunder be diminished, by any negligent act or omission of Landlord or
Tenant, or their successors or assigns.
9.5. Landlord's Insurance. Landlord shall maintain during the Lease
Term a Commercial Package Policy of casualty insurance (or the successor to such
coverage) on Landlord's interest in the Landlord Property for the full
replacement cost of the Landlord Property, and with agreed amount and inflation
cost endorsements; provided, however, Landlord shall not be obligated to insure
any furniture, equipment or other personal property placed in the Demised
Premises by or at the expense of Tenant.
9.6. Tenant Increases Landlords Insurance. If because of anything done,
caused to be done, permitted, or omitted by Tenant, the premium rate for any
casualty insurance maintained by Landlord shall be raised, Tenant agrees that
the amount of the increase in premium for insurance maintained by Landlord shall
be paid by Tenant to Landlord within fifteen (15) days after receipt of written
demand from Landlord, and shall be in addition to all other payments to be made
by Tenant under this Lease. In addition, if Landlord shall demand that Tenant
remedy such condition within thirty (30) days after receipt of written demand
from Landlord. Such policy shall be furnished to Landlord prior to the
Commencement Date together with a certificate from the company which issued the
policy certifying that the policy is in effect and that Landlord and Landlord's
managing Agent will receive a copy of any termination, or cancellation date of
such policy, or any renewal or replacement policy, Tenant shall deliver to
Landlord a renewal or replacement policy together with a certificate as required
herein from the new insurer.
9.7 Mutual Waiver of Subrogation. Each party waives all claims
arising in any manner in its (the Injured Party's) favor and against the other
party for loss or damage to the Injured Party's property located within or
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constituting a part or all of the Landord's Property. This waiver applies to the
extent the loss or damage is covered by: (a.) the Injured Party's insurance; or
(b.) the insurance the Injured Party is required to carry under this Lease,
whichever is greater. This waiver also applies to each party's directors,
officers, employees, shareholders, partners, and agents, but does not apply to
claims caused by Landlord's, Tenant's, or such other parties' willful
misconduct. All policies of insurance maintained by either Landlord or Tenant
under the terms of this Lease shall contain a provision whereby the insurer
waives all rights of subrogation against Landlord or Tenant.
10. CASUALTY LOSS.
10.1. Landlord's Duty to Restore. If the Demised Premises shall be
partially damaged by fire or other casualty insured under insurance policies
which Landlord maintains under this Lease ("Landlord's POLICIES"), AND IF
LANDLORD'S LENDER(S) SHALL PERMIT SUCH INSURANCE PROCEEDS TO be so used, then,
upon LANDLORD'S RECEIPT OF THE INSURANCE PROCEEDS, LANDLORD shall, EXCEPT AS
OTHERWISE PROVIDED HEREIN, PROMPTLY repair and restore the same (exclusive of
Tenant's property) substantially to the condition thereof existing immediately
prior to such damage or destruction; limited, however, to the extent of the
insurance proceeds received by Landlord for such casualty. If, by reason of such
occurrence: (a.) the Demised Premises is rendered wholly untenantable; (b.) the
Demised Premises is damaged in whole or in part as a result of a risk which is
not covered by Landlord's Policies; (c.) Landlord's lender(s) shall not permit a
sufficient amount of the insurance proceeds to be used for restoration purposes;
(d.) the Demised Premises is damaged in whole or in part during the final Lease
Year of the Lease Term (including any then properly exercised extension
periods); or (e.) the improvements included in the Landlord Property are damaged
(whether or not the Demised Premises is damaged) to an extent of fifty percent
(50) or more of their then fair market value; Landlord may elect either to
repair the damage, or to cancel this Lease by written notice of cancellation
given to Tenant within sixty (60) days after the date of such casualty; and
thereupon this Lease shall terminate, and Tenant shall vacate and surrender the
Demised Premises to Landlord within fifteen ( 15) days after receipt of such
notice. If no such notice is given by Landlord within said sixty (60) day
period, then Landlord shall restore the Demised Premises, as provided above. In
addition, Tenant may also terminate this Lease, by written notice to Landlord at
any time between the one hundred eighty-first (181 st) and one hundred
ninety-fifth (195th) days after the occurrence of any such casualty, if Landlord
shall fail to restore the damaged portions of the Demised Premises within one
hundred eighty ( 180) days after such casualty. However, if Landlord is
prevented by any cause beyond its reasonable control, from completing the
restoration within said one hundred eighty ( 180) day period, and if Landlord
shall provide Tenant with written notice of such cause for delay within fifteen
(15) days after the occurrence thereof, then Landlord shall have an additional
period beyond said one hundred eighty (180) days, equal to the period Landlord
is delayed by causes beyond its reasonable control, in which to restore the
damaged areas of the Demised Premises; and Tenant may not elect to terminate
this Lease until said additional period has expired with Landlord having failed
to complete such restoration. In such case, Tenant's fifteen (15) day right of
termination shall begin to run upon the expiration of Landlord's additional
period for restoration. Upon the termination of this Lease, Tenant's liability
for the Rent and other charges reserved hereunder shall cease as of the
effective date of the termination of this Lease.
10.2. Tenant's Insurance. Unless this Lease is terminated as
aforesaid, Tenant shall promptly repair or replace Tenant's property in the
Demised Premises to at least the condition which existed prior to the casualty
to the Demised Premises, and the proceeds of all insurance carried by Tenant on
its said property shall be held and disbursed for the purposes of such repair
or replacement, to the extent required for such purposes.
10.3. Rent Abatement. Except as hereafter provided to the contrary,
if by reason of such casualty the Demised Premises is rendered wholly
untenantable, the Rent and other charges payable by Tenant shall be fully
abated, or if only partially damaged, such Rent and other charges shall be
abated proportionately as to that portion of the Demised Premises rendered
untenantable, in either event (unless the Lease is terminated, as aforesaid)
from the date of such casualty until fifteen (15) days after notice by Landlord
to Tenant that the Demised Premises have been substantially restored, or until
Tenant has resumed its business operations in the Demised Premises, whichever
shall occur sooner. Tenant shall continue the operation of Tenant's business in
the Demised Premises or any part thereof not so damaged during any such period,
to the extent reasonably practicable from the standpoint of prudent business
management, and, except for such abatement of Rent and other charges as herein
above set forth, nothing herein contained shall be construed to xxxxx Tenant's
obligations hereunder. Provided, however, and subject to the terms of Section
9.7. hereof, Tenant shall reimburse Landlord, within thirty (30) days after the
completion of such restoration. for the full cost of such restoration if any
such damage or casualty shall be caused by the GROSS negligence or other
wrongful act or omission of Tenant, or of Tenant's subtenants, concessionaires,
licensees, contractors employees , agents, or invites, and there shall be no
abatement of Rent or other charges which are Tenant's obligation under this
Lease. Except for the abatement of the Rent and other charges herein above set
forth, Tenant shall not be entitled to , and hereby waives, all claims against
Landlord for any compensation or damage for loss of use of the whole or any part
of the Demised Premises, and for any inconvenience or annoyance occasioned by
such damage, destruction, repair, or restoration.
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11. ENVIRONMENTAL COMPLIANCE.
11.1 Tenant's Responsibility. Tenant covenants and agrees that the
demised Premises will, at all times during its use or occupancy thereof, be
kept and maintained so as to comply with all now existing or hereafter enacted
or issued statutes, laws, rules, ordinances, orders, permits, and regulations of
all state, federal, local, and other governmental and regulatory authorities,
agencies, and bodies applicable to the Demised Premises pertaining to
environmental matters, or regulating, prohibiting or otherwise having to do with
asbestos, radon, PCBs and all other toxic, radioactive, or hazardous wastes or
materials, including, but not limited to, the Federal Clean Air Act, the Federal
Water Pollution Control Act, and the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as from time to time amended (all
hereafter collectively called "Laws"). No material shall be installed anywhere
else within the Landlord's Property, by Tenant, or any employee, agent, or
contractor of Tenant, which contains any asbestos or other toxic or hazardous
waste or substance; or which causes, or could cause all or any of Landlord
Property to be in violation of any Laws: (a.) when such material is installed;
(b.) while such material remains thereon; or (c ) when such material is
disturbed or removed.
11.2. Tenant's Liability. Tenant shall hold Landlord free, harmless,
and indemnified from any penalty, fine, claim, demand, liability, cost, or
charge whatsoever which Landlord does or may incur by reason of Tenant's failure
to comply with this Section; including, but not limited to: (a.) the cost of
bringing the Landlord's Property into compliance with all Laws; (b.) the
reasonable cost of all appropriate tests and examinations of the Landlord
Property to confirrn that the same has been brought into compliance with all
Laws; and (c.) the reasonable fees and expenses of Landlord's attorneys,
engineers, and consultants incurred by Landlord in enforcing and confirming
compliance with this Section.
11.3. Inspections by Landlord. Landlord and its engineers,
technicians, and consultants (collectively the "Auditors") may, from time to
time as Landlord deems appropriate, conduct periodic tests and examinations
("Audits") of the demised Premises to confirm and monitor Tenant's compliance
with this Section. Such Audits shall be conducted in such manner as to minimize
the interference with Tenant's permitted activities on the demised Premises;
however, in all cases, the Audits shall be of such nature and scope as shall be
reasonably required by then existing technology to confirm Tenant's compliance
with this Section. Tenant shall fully cooperate with the Auditors in the conduct
of such Audits. The cost of such Audits shall be paid by Landlord unless a
Default has occurred under this Lease, or unless an Audit shall disclose a
material failure of Tenant to comply with this Section, in either of which cases
the cost of such Audit, and the cost of all subsequent Audits made during the
Lease Term and within thirty (30) days thereafter (not to exceed two [2] such
Audits in any consecutive twelve [ 12] month period), shall be paid for by
Tenant within thirty (30) days of receipt by Tenant of invoices for such audits.
11.4. Limitation on Tenant Liability. Provided, however, the foregoing
covenants and undertakings of Tenant contained in this Section shall not apply
to any condition or matter constituting a violation of any Law: (a.) which
existed prior to the commencement of Tenant's use or occupancy of any portion of
the demised Premises, and was not caused, in whole or in part, by Tenant or
Tenant's agents, employees, officers, partners, contractors, or invitees; or
(b.) to the extent such violation is caused by, or results from, the acts or
neglects of Landlord, other tenants in the Landlord Property, or Landlord's or
such other tenants' employees, officers, partners, contractors, guests or
invitees.
11.5. Tenant's Liability After Termination of Lease. The covenants
contained in this Section shall survive the expiration or termination of this
Lease, and shall continue for so long as Landlord, or its successors and
assigns, may be subject to any expense, liability, charge, penalty, or
obligation against which Tenant has agreed to indemnify Landlord under this
Section.
12. RULES AND REGULATIONS. Tenant shall comply with all applicable
laws, ordinances and regulations affecting the Demised Premises, and general
rules and regulations for tenants of the Landlord Property as may be developed
from time to time by Landlord and delivered to Tenant.
13. SUBORDINATION - ATTORNMENT. This Lease shall be subordinate to any
mortgage or deed of trust (both hereafter a "Mortgage") which may heretofore or
hereafter be placed against the demised Premises by Landlord, unless the
mortgagee or beneficiary thereunder (both hereafter a "mortgagee") requests
that this Lease be superior to its Mortgage, in which event this Lease shall be
superior. In the event any proceedings are brought for foreclosure of any
Mortgage on the Demised Premises, Tenant will attorn to the purshaser at a
foreclosure sale, and
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any assignee thereof, and recognize such purchaser or assignee as Landlord under
this Lease provided such purchaser or assignee agrees not to disturb Tenant's
possession or rights under this Lease or in the Demised Premises, so long as
Tenant is not in Default under the terms of this Lease. Tenant shall execute,
within five (5) days after Landlord's request, such instruments evidencing such
attornment and subordination of this Lease and related matters as andlord or its
mortgagee shall request; and, as often as requested, shall sign estoppel
certificates confirming any factual matter requested which is true and is within
Tenant's knowledge regarding this Lease, the Demised Premises, or Tenant's use
thereof. Tenant agrees to give any such mortgagee of whom Tenant has been
informed written notice of any Default or failure to perform by Landlord under
this Lease. Such mortgagee shall have a reasonable period of time after such
notice, in all events at least thirty (30) days, to cure any Default; and Tenant
shall accept such cure if timely made by such mortgagee. Further, Tenant agrees
to permit any such mortgagee, purchaser, or their successors and assigns, on
acquiring Landlord's interest in the Demised Premises or the Lease, to become
substitute Landlord hereunder, with liability only for such Landlord obligations
under this Lease as accrue after Landlord's interest is so acquired.
14. SIGNS. Tenant may not erect, install or display any sign or
advertising material upon the Landlord Property without the prior written
consent of Landlord. UPON APPROVAL BY LANDLORD OF TENANT'S SIGNS, LANDLORD WILL
PROVIDE TENANT A $500.00 ALLOWANCE TOWARD THE COST OF SUCH SIGNAGE.
15. DEFAULT.
15. 1. Remedies. If Tenant fails to pay any Rent or other sums payable
by Tenant as provided in this Lease within ten ( 10) days after the due date
thereof; or breaches any other agreement or obligation herein set forth, and
fails to cure such breach within ten ( 10) days after delivery of written notice
thereof from Landlord; then a "Default" by Tenant shall have occurred under this
Lease, and, in addition to any other legal right or remedy which Landlord may
have for such Default, Landlord may, at its sole election and without further
notice to Tenant, exercise one or more or all of the following remedies:
(a.) Re-enter the Demised Premises and Correct or repair any
condition which shall constitute a failure on Tenant's part to perform or abide
by the terms of this Lease, and Tenant shall reimburse Landlord within fifteen (
15) days of receipt of invoice by Tenant for any expenditures made by Landlord
in making such corrections or repairs;
(b.) Re-enter the Demised Premises and Remove therefrom Tenant
and all Tenant property, and place or store such Tenant property in any public
warehouse or place of safekeeping selected by Landlord, at the sole expense and
risk of Tenant, all of which property Tenant shall be deemed to have abandoned
and forfeited to Landlord if Tenant shall not claim and remove such property and
pay all reasonable storage charges applicable thereto within thirty (30) days
after delivery of written notice to remove from Landlord;
(c.) Re-let the Demised Premises or any part thereof for such
periods, and at such rentals and other terms and conditions as Landlord, in its
sole discretion, may deem advisable, and Landlord may make alterations or
repairs to the demised Premises which it may deem necessary or appropriate to
facilitate such re-letting; and Tenant shall pay on demand all costs of such
re-letting including the cost of any such repairs to the demised Premises. If
this Lease shall not have been terminated, Tenant shall continue to pay all Rent
due under this Lease up to and including the date of beginning of payment of
rent by any subsequent tenant of part or all of the Demised Premises, and
thereafter Tenant shall pay monthly during the remainder of the Lease Term the
difference, if any, between the rent collected from any such subsequent tenant
or tenants and the Rent reserved in this Lease, but Tenant shall not be entitled
to receive any excess of any such rents collected over the Rents reserved
herein; or
(d.) Terminate this Lease, which termination shall be effected
by delivery to Tenant of written notice of such termination; and upon such
termination, Landlord shall recover from Tenant all damages Landlord may suffer
by reason of such termination, including, without limitation, the cost,
including legal expenses and reasonable attorneys' fees, of recovering
possession of the demised Premises, and the cost of any repairs to the demised
Premises which are reasonably necessary to prepare the same for reletting.
15.2. No Waiver of Rights. No course of dealing between Landlord and
Tenant, or any delay on the part of Landlord in exercising any rights it may
have under this Lease, shall operate as a waiver of any of the rights of
Landlord hereunder, nor shall any waiver of a prior Default operate as a waiver
of any subsequent Default or Defaults, and no
express waiver shall affect any condition, covenant, rule or regulation other
than the one specified in such waiver, and that one only for the time and in
the manner specifically stated.
15.3. Remedies are Cumulative. The exercise by Landlord of any one or
more of the remedies provided in this Lease shall not prevent the subsequent
exercise by Landlord of any one or more of the other remedies herein provided.
All remedies provided for in this Lease are cumulative, and may, at the
election of Landlord, be exercised alternatively, successively, or in any other
manner, and are in addition to any other rights provided by law.
15.4 Written Termination. No exercise of any right or remedy by
Landlord under this Lease shall effect a termination thereof unless Landlord
shall elect to terminate this Lease by written notice to Tenant; Provided,
however, this Lease shall be deemed terminated upon delivery of such notice of
termination.
15.5 Attorney's Fees. Tenant shall be liable to Landlord for all
reasonable attorney's fees and expenses incurred by Landlord in enforcing all
rights and remedies afforded to Landlord under this Lease.
16. QUIET ENJOYMENT. If Tenant promptly complies with all of its
obligations hereunder, it shall peacefully have possession of the Demised
Premises during the Lease Term, provided that no action of Landlord in its work
in the remainder of the Landlord Property, or in repairing or restoring the
Demised Premises, shall be deemed a breach of this covenant, or give Tenant any
right to terminate or modify this
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Lease. In addition, Landlord shall not be liable to Tenant for injury or damage
resulting from acts or omissions of parties other than Landlord occupying or
using any part of the remainder of the Landlord Property.
17. CONDEMNATION. If the whole or at least twenty percent (20%) of the
Demised Premises are taken by any governmental body, whether by Court action or
by settlement in lieu thereof, and if the property so taken renders the
remainder of the Demised Premises unfit for the use thereof by Tenant, then
Tenant shall have the option to terminate this Lease by written notice to
Landlord within sixty (60) days of such taking. If the Tenant shall not elect to
terminate, or if the taking does not include at least twenty percent (20%) of
the Demised Premises, there shall be an adjustment of the Rent reflecting, on a
pro rata basis, any reduction in Tenant's leased space. All of the condemnation
award, except for damage to or the taking of Tenant's property and Tenant's
relocation award, if any, shall be the exclusive property of Landlord.
18. NO TERMINATION BY SALE. No transfer or assignment of Landlord's
interest in the Demised Premises of this Lease shall terminate this Lease, or
modify or amend the terms hereof, unless Tenant shall agree thereto in writing .
The term "Landlord" as used in this Lease means only the owner of the fee title
to the Landlord Property. The current Landlord, upon any transfer or conveyance
of its interest in the demised Premises, shall be entirely freed and relieved
of all covenants and obligations of the Landlord hereunder, provided that the
transferee of Landlord's interest in the Landlord Property has assumed and
agreed to carry out any and all covenants and obligations of Landlord hereunder.
19. NO PERSONAL LIABILITY. The liability of Landlord and any partners,
agents, employees, stockholders, officers, or directors of Landlord shall be
limited to Landlord's interest in the Landlord Property. No other assets of
Landlord or any such other party shall be liable for, or subject to, any
liabilities pertaining to this Lease.
20. HOLDING OVER. This Lease shall automatically terminate on the last
day of the Lease Term without the requirement of notice from either party.
Provided, however, if Tenant shall continue to occupy the demised Premises
after the last day of the Lease Term with the prior written approval of
Landlord, such occupancy shall be on a month to month basis, and shall otherwise
be upon the same terms and conditions as herein set forth, except that either
party may terminate such month to month tenancy upon 30 days prior written
notice to the other party.
21. TENANT'S ASSIGNMENT - SUBLEASE. Tenant shall not transfer,
mortgage, encumber, assign, or sublease all or any part of the demised
Premises, without Landlord's prior written consent.
22. MISCELLANEOUS. (a.) This Lease shall be binding upon the
respective parties hereto, and upon their heirs, executors, successors and
assigns. (b.) This Lease supersedes and cancels all prior negotiations between
the parties, and all changes in this Lease shall be in writing and signed by the
party affected by such change. (c.) The singular shall include the plural, and
the masculine or neuter includes the other. (d.) Each party hereto which is a
corporation or partnership (hereafter an "Organization") warrants and represents
to the other party hereto that the Organization, and any of its partners or
constituent members which are partnerships or corporations, are each valid and
existing legal entities, in good standing and duly authorized to transact
business in North Carolina, and, if different, their states of organization; and
that all persons executing this Lease on behalf of an Organization, or any
partner or constituent member thereof, have been duly authorized to do so.
Further, the execution of this Lease has been duly authorized by all appropriate
action of each Organization. (e.) The Demised Premises are leased subject to all
recorded easements, restrictions, and rights of way legally affecting the same.
23. RECORDING. This Lease shall not be recorded, but, at the request
of either party and at such party's expense, a memorandum hereof, containing
such information as is necessary to provide adequate record notice of the
existence of the Leasee and the terms hereof, including whether options to renew
or purchase exist, shall be prpared and records in the county where the Demised
Premises are located.
24. NOTICES. Any notices which Landlord or Tenant is required or
desires to be given to the other shall be deemed sufficiently given or rendered
if in writing and delivered personally, or sent by certified or registered mail,
postage or fees prepaid, to the address listed for such party at the beginning
of the Lease, or to such other address as the intended recipient shall have
previously provided to the sender by like notice. All such notices or other
communications shall be deemed delivered, given, and received on the earlier of:
(a) the date of actual delivery: or (b) two (2) business days after mailing by
certified or registered mail, all
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regardless of refusal to accept delivery or inability to deliver due to the
recipient having failed to keep the sender informed of the recipient's current
address.
25. COMMISSIONS.
25.1. Initial Term. No commission shall be payable by Tenant in
connection with this Lease. Landlord shall pay to Carolantic Realty, Inc.,
within ten (10) days after the Commencement Date, a commission of 6% of the
Minimum Rent payable for the initial term of the Lease, of which commission
Carolantic Realty, Inc. shall promptly forward (if none, put "NONE") 50% of
said commission to XXX XXXXX OF EQUITY AND INVESTORS MANAGEMENT CORPORATION,
hereinafter called "Co-Broker."
25.2. Option Periods. On or before the first day of each exercised
extension period, Landlord shall pay to Carolantic Realty, Inc. a commission of
six percent (6%) of the Minimum Rent payable for such extension period, of which
commission Carolantic Realty, Inc. shall promptly forward NONE % (if none, put
"None") of said commission to Co-Broker.
26. SECURITY DEPOSIT. Landlord acknowledges receipt from Tenant of the
sum of $8,364.17, which sum Landlord shall retain, without any interest payable
to the Tenant, as security for the performance by Tenant of each of its
obligations hereunder. After a Default by Tenant under this Lease, Landlord may,
at its option, apply said deposit to cure Tenant's Default; but if, prior to the
termination of this Lease, Landlord depletes said deposit, Tenant shall
immediately restore the amount so used by Landlord. Unless the Landlord uses the
same to cure a Default of Tenant, or at the conclusion of the Lease Term to
restore the demised Premises to its condition on the Commencement Date,
reasonable wear and tear excepted, Landlord shall, within thirty (30) days of
the termination of the Lease, refund to Tenant the balance of the deposit that
the Landlord holds.
27. PAYMENTS. All Rent and other charges (which total $9,752.62 per
month as of the first full regular month's payment called for in this lease)
shall be payable by Tenant to and addressed to:
AIRPORT BOULEVARD PARTNERS, LLC
XXXX XXXXXX XXX 00000
XXXXXXX, XXXXX XXXXXXXX 00000
or to such other payee and such other address as Landlord shall designate by
prior written notice to Tenant.
28. OTHER PROVISIONS. The following additional provisions are attached hereto
and by this reference made a part hereof (if none, insert "None" in the blank
space which follows):
28.1. Parking. Tenant shall have the right to thirty-eight unassigned (38)
parking spaces in the parking lots, as shown on Exhibit A, which surrounds the
Landlord's Property.
28.2. First Right of Refusal. During the initial term of this Lease, in the
building where the Demised Premises are located, upon receipt of notice from
other building tenants of such tenant's intent to vacate, Landlord will notify
Tenant of such vacancy. Tenant upon notice from Landlord shall have 30 days
exclusive right to negotiate mutually agreeable terms to take such space. After
the 30 day period this right is null and void.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed in duplicate originals, all as of the day and year first above written.
TENANT: MULTIMEDIA ACCESS CORPORATION LANDLORD: AIRPORT BOULEVARD PARTNERS,
LLC
(By:)Signature: (SEAL) (By:)Signature: (SEAL)
-------------------- ----------------------
(By:)Signature: (SEAL) (By:)Signature: (SEAL)
-------------------- ------------------------
Printed Name: Xxxxxxx X. Xxxxxxxx Printed Name
-------------------- ------------------------
Chief Financial Officer
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