EXHIBIT 99(K)(6)
Published on August 13, 2008
Exhibit (k)(6)
OFFICE LEASE AGREEMENT
BETWEEN
3700 GLENWOOD LLC
AS LANDLORD
AND
TRIANGLE CAPITAL CORPORATION
AS TENANT
DATED
March 27, 2008
TABLE OF CONTENTS
1.
|
Definitions and Basic Provisions | 5 | ||||
2.
|
Lease Grant | 5 | ||||
3.
|
Tender of Possession | 5 | ||||
4.
|
Rent | 6 | ||||
5.
|
Delinquent Payment; Handling Charges | 6 | ||||
6.
|
Security Deposit | 6 | ||||
7.
|
Services; Utilities; Common Areas | 6 | ||||
(a) Services | 6 | |||||
(b) Excess Utility Use | 7 | |||||
(c) Common Areas | 8 | |||||
8.
|
Alterations; Repairs; Maintenance; Signage | 9 | ||||
(a) Alterations | 9 | |||||
(b) Repairs; Maintenance | 10 | |||||
(i) By Landlord | 10 | |||||
(ii) By Tenant | 11 | |||||
(iii) Performance of Work | 11 | |||||
(c) Mechanics Liens | 12 | |||||
(d) Signs | 12 | |||||
9.
|
Use | 13 | ||||
10.
|
Assignment and Subletting | 14 | ||||
(a) Transfers | 14 | |||||
(b) Consent Standards | 14 | |||||
(c) Request for Consent | 15 | |||||
(d) Conditions to Consent | 15 | |||||
(e) Attornment by Subtenants | 15 | |||||
(f) Cancellation | 16 | |||||
(g) Additional Compensation | 16 | |||||
11.
|
Insurance; Waivers; Subrogation; Indemnity | 16 | ||||
(a) Tenants Insurance | 16 | |||||
(b) Landlords Insurance | 17 | |||||
(c) No Subrogation | 17 | |||||
(d) Indemnity | 18 | |||||
12.
|
Subordination; Attornment; Notice to Landlords Mortgagee | 19 | ||||
(a) Subordination | 19 | |||||
(b) Attornment | 19 | |||||
(c) Notice to Landlords Mortgagee | 19 | |||||
(d) Landlords Mortgagees Protection Provisions | 20 | |||||
13.
|
Rules and Regulations | 20 | ||||
14.
|
Condemnation | 20 | ||||
(a) Total Taking | 20 | |||||
(b) Partial Taking Tenants Rights | 20 | |||||
(c) Partial Taking Landlords Rights | 21 | |||||
(d) Award | 21 | |||||
15.
|
Fire or Other Casualty | 21 | ||||
(a) Repair Estimate | 21 |
i
(b) Tenants Rights | 21 | |||||
(c) Landlords Rights | 21 | |||||
(d) Repair Obligation | 21 | |||||
(e) Abatement of Rent | 22 | |||||
16.
|
Personal Property Taxes | 22 | ||||
17.
|
Events of Default | 22 | ||||
(a) Payment Default | 22 | |||||
(b) Abandonment | 22 | |||||
(c) Estoppel/Financial Statement/Commencement Date Letter | 22 | |||||
(d) Insurance | 23 | |||||
(e) Mechanics Liens | 23 | |||||
(f) Other Defaults | 23 | |||||
(g) Insolvency | 23 | |||||
18.
|
Remedies | 23 | ||||
(a) Termination of Lease | 23 | |||||
(b) Termination of Possession | 23 | |||||
(c) Perform Acts on Behalf of Tenant | 24 | |||||
(d) Alteration of Locks | 24 | |||||
19.
|
Payment by Tenant; Non-Waiver; Cumulative Remedies | 25 | ||||
(a) Payment by Tenant | 25 | |||||
(b) No Waiver | 25 | |||||
(c) Cumulative Remedies | 25 | |||||
20.
|
INTENTIONALLY DELETED | 25 | ||||
21.
|
Surrender of Premises | 25 | ||||
22.
|
Holding Over | 26 | ||||
23.
|
Certain Rights Reserved by Landlord | 26 | ||||
(a) Building Operations | 26 | |||||
(b) Security | 26 | |||||
(c) Repairs and Maintenance | 27 | |||||
(d) Prospective Purchasers and Lenders | 27 | |||||
(e) Prospective Tenants | 27 | |||||
24.
|
Substitution Space | 27 | ||||
25.
|
Hazardous Materials | 27 | ||||
26.
|
USA Patriot Act and Anti-Terrorism Laws | 30 | ||||
27.
|
Miscellaneous | 30 | ||||
(a) Landlord Transfer | 30 | |||||
(b) Landlords Liability | 30 | |||||
(c) Force Majeure | 31 | |||||
(d) Brokerage | 31 | |||||
(e) Estoppel Certificates | 31 | |||||
(f) Notices | 31 | |||||
(g) Separability | 31 | |||||
(h) Amendments; Binding Effect | 32 | |||||
(i) Quiet Enjoyment | 32 | |||||
(j) No Merger | 32 | |||||
(k) No Offer | 32 |
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(l) Entire Agreement | 32 | |||||
(m) Waiver of Jury Trial | 32 | |||||
(n) Governing Law | 32 | |||||
(o) Recording | 32 | |||||
(p) Joint and Several Liability | 33 | |||||
(q) Financial Reports | 33 | |||||
(r) Landlords Fees | 33 | |||||
(s) Telecommunications | 34 | |||||
(t) Confidentiality | 34 | |||||
(u) Authority | 34 | |||||
(v) List of Exhibits | 34 | |||||
28.
|
Other Provisions | 35 |
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BASIC LEASE INFORMATION
This Basic Lease Information is attached to and incorporated by reference to an Office Lease
Agreement between Landlord and Tenant, as defined below.
Lease Date:
|
March 27, 2008 | |
Landlord:
|
3700 GLENWOOD LLC, a North Carolina limited liability company | |
Tenant:
|
TRIANGLE CAPITAL CORPORATION, a Maryland corporation (doing business in North Carolina as Triangle
Capital Corporation of Maryland) |
|
Premises:
|
Suite No. 530, containing approximately 11,027 rentable square feet on the fifth floor of the building
commonly known as 3700 Glenwood (the Building), and whose street address is 3700 Glenwood Avenue,
Raleigh, North Carolina. The Premises are outlined on the plan attached to the Lease as Exhibit A. The
land on which the Building is located (the Land) is described on Exhibit B. The term Project shall
collectively refer to the Building, the Land and the driveways, parking facilities, and similar
improvements and easements associated with the foregoing or the operation thereof, including without
limitation the Common Areas (as defined in Section 7(c)). The term Complex shall collectively refer to
the Building and any other buildings which comprise a multi-building Complex owned by Landlord, if
applicable. |
|
Term:
|
Approximately 60 months, commencing on the Commencement Date and ending at 5:00 p.m. local time on the
last day of the 60th full calendar month following the Commencement Date, subject to
adjustment and earlier termination as provided in the Lease. |
|
Commencement
|
January 1, 2009. | |
Date: |
||
Base Rent:
|
Base Rent shall be the following amounts for the following periods of time: |
Annual Gross Rent Rate | Additional Rent | |||||||
Lease Month | Per Rentable Square Foot | (Expense Stop) | ||||||
1-12 |
$ | 24.95 | $ | 6.00 | ||||
13-24 |
$ | 25.52 | $ | 6.00 | ||||
25-36 |
$ | 26.10 | $ | 6.00 | ||||
37-48 |
$ | 26.71 | $ | 6.00 | ||||
49-60 |
$ | 27.33 | $ | 6.00 |
2
As used herein, the term Lease Month shall mean each calendar month during the Term (and if the Commencement Date does not
occur on the first (1st) day of a calendar month, the period from the Commencement Date to the first (1st)
day of the next calendar month shall be included in the first (1st) Lease Month for purposes of determining the
duration of the Term and the monthly Base Rent rate applicable for such partial month).
Upon execution of the Commencement Date Agreement (attached as Exhibit F hereto), Landlord and Tenant shall confirm and ratify
the Base Rent for the Term of the Lease.
Security Deposit:
|
WAIVED | |
Rent:
|
Annual Gross Base Rent (as shown above), including Tenants Proportionate Share
of Operating Expenses, Additional Rent as defined in Exhibit C hereto, and all
other sums that Tenant may owe to Landlord or otherwise be required to pay under
the Lease. |
|
Rent Commencement Date
|
January 1, 2009. | |
Permitted Use:
|
General office use. | |
Tenants Proportionate Share:
|
9.77%, which is the percentage obtained by dividing (a) the number of rentable
square feet in the Premises as stated above by (b) the rentable square feet in
the Building at the time a respective charge is incurred, which at the time of
execution of this Lease is 112,894 rentable square feet. Landlord and Tenant
agree that upon the Commencement Date the Premises shall be re-measured using
ANSI/BOMA Z65.1-1996 standards, by an Architect reasonably approved by Tenant
for office properties and then multiplied by a core area factor of 1.15 to
determine the actual rentable square footage of the Premises. For the purposes
of re-measurement, Philips Architecture shall be deemed approved by Tenant.
This final, actual measurement of the Premises shall be used to calculate the
final pro rata share of Tenant, and that number shall be binding upon both of
them. |
|
Initial Liability |
||
Insurance Amount:
|
$3,000,000 | |
Broker/Agent:
|
For Tenant: None | |
For Landlord: Sam Crutchfield of Grubb Management, Inc. |
Tenants Address:
|
For all Notices: | With a copy to (following Commencement Date): | ||
Triangle Capital Corporation | ||||
3700 Glenwood Avenue, Suite 530 | ||||
Raleigh, NC 27612 | ||||
Attn: Mr. Steven C. Lilly |
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Landlords Address:
|
For all Notices: | With a copy to: | ||
3700 Glenwood LLC | Grubb Ventures LLC | |||
c/o Grubb Properties, Inc. | 3733 National Drive, Suite 125 | |||
3700 National Drive, Suite 100 | Raleigh, NC 27612 | |||
Raleigh, NC 27612 | Attention: R. Gordon Grubb | |||
Attention: Property Manager | Telephone: (919)786-9905 | |||
Telephone: (919) 781-0079 | Facsimile: (919) 786-9961 | |||
Facsimile: (919) 781-8570 |
The foregoing Basic Lease Information is incorporated into and made a part of the Lease identified
above. If any conflict exists between any Basic Lease Information and the Lease, then the Basic
Lease Information shall control.
LANDLORD: | 3700 GLENWOOD LLC, a North Carolina limited liability company |
|||||
By: Name: |
/s/ R. Gordon Grubb
|
|||||
Title: | Manager |
|||||
TENANT: | TRIANGLE CAPITAL CORPORATION, a Maryland corporation |
|||||
By: Name: |
/s/ Steven C. Lilly
|
|||||
Title: | CFO |
4
OFFICE LEASE AGREEMENT
This Office Lease Agreement (this Lease) is entered into as of March 27, 2008,
between 3700 Glenwood LLC, a North Carolina limited liability company (Landlord), and
Triangle Capital Corporation, a Maryland corporation (Tenant).
1. Definitions and Basic Provisions. The definitions and basic provisions set forth in
the Basic Lease Information (the Basic Lease Information) executed by Landlord and Tenant
contemporaneously herewith are incorporated herein by reference for all purposes. Additionally,
the following terms shall have the following meanings when used in this Lease: Affiliate
means any person or entity which, directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with the party in question; Buildings
Structure means the Buildings exterior walls, roof, elevator shafts (if any), footings,
foundations, structural portions of load-bearing walls, structural floors and subfloors, and
structural columns and beams; Buildings Systems means the Premises and Buildings HVAC,
life-safety, plumbing, electrical, and mechanical systems; Business Day(s) means Monday
through Friday of each week, exclusive of Holidays; Holidays means New Years Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and any other
nationally recognized holiday; including means including, without limitation;
Laws means all federal, state, and local laws, ordinances, rules and regulations, all
court orders, governmental directives, and governmental orders and all interpretations of the
foregoing, and all restrictive covenants affecting the Project, and Law shall mean any of
the foregoing; Normal Business Hours means 7:30 a.m. to 7:00 p.m. on Business Days and
9:00 a.m. to 3:00 p.m. on Saturdays, exclusive of Holidays; Tenants Off-Premises
Equipment means any of Tenants equipment or other property that may be located on or about
the Project (other than inside the Premises); and Tenant Party means any of the following
persons: Tenant; any assignees claiming by, through, or under Tenant; any subtenants claiming by,
through, or under Tenant; and any of their respective agents, contractors, employees, and invitees.
2. Lease Grant. Subject to the terms of this Lease, Landlord leases to Tenant, and Tenant
leases from Landlord, the Premises (as defined in the Basic Lease Information).
3. Tender of Possession. Landlord and Tenant presently anticipate that possession of the
Premises will be tendered to Tenant in the condition required by this Lease on or about July 1,
2008 (the Early Delivery Date). If Landlord is unable to tender possession of the
Premises in such condition to Tenant by the Early Delivery Date, then: (a) the validity of this
Lease shall not be affected or impaired thereby; (b) Landlord shall not be in default hereunder or
be liable for damages therefor; and (c) Tenant shall accept possession of the Premises when
Landlord tenders possession thereof to Tenant. Tenant may take possession of the Premises on the
Early Delivery Date, but the Term of the Lease shall not actually commence until the Commencement
Date. Tenant affirms that
occupancy of the Premises by Tenant prior to the Commencement Date shall be subject to all of
the provisions of this Lease excepting only those requiring the payment of Rent.
5
By occupying the Premises, Tenant shall be deemed to have accepted the Premises in their
condition as of the date of such occupancy, subject to the performance of punch-list items that
remain to be performed by Landlord, if any. Prior to occupying the Premises, Tenant shall execute
and deliver to Landlord a letter substantially in the form of Exhibit F hereto confirming:
(1) the Early Delivery Date, the Commencement Date (as defined in the Basic Lease Information) and
the expiration date of the initial Term (as defined in the Basic Lease Information); (2) that
Tenant has accepted the Premises; and (3) that Landlord has performed all of its obligations with
respect to the Premises (except for punch-list items specified in such letter); however, the
failure of the parties to execute such letter shall not defer the Early Delivery Date, the
Commencement Date or otherwise invalidate this Lease. Tenants failure to either (x) execute such
document within ten (10) days of receipt thereof from Landlord or (y) deliver written objections to
the terms of such document to Landlord within ten (10) days of receipt thereof from Landlord shall
be deemed Tenants agreement to the contents of such document.
4. Rent. Tenant shall timely pay to Landlord all Rent (as defined in the Basic Lease
Information), including the amounts set forth in Exhibit C hereto, without notice, demand,
deduction or set-off (except as otherwise expressly provided herein), by good and sufficient check
drawn on a national banking association at Landlords address provided for in this Lease, by an
automatic draft arrangement, by wire or as otherwise specified by Landlord and shall be accompanied
by all applicable state and local sales or use taxes. The obligations of Tenant to pay Base Rent
(as defined in the Basic Lease Information) and other sums to Landlord and the obligations of
Landlord under this Lease are independent obligations. Base Rent, adjusted as herein provided,
shall be payable monthly in advance. The first (1st) monthly installment of Base Rent shall be
payable on the first (1st) day of each month beginning on the Rent Commencement Date.
The monthly Base Rent for any partial month at the beginning of the Term shall equal the product of
1/365 (or in the event of a leap year, 1/366) of the annual Base Rent in effect during the partial
month and the number of days in the partial month, and shall be due on the Commencement Date.
Payments of Base Rent for any fractional calendar month at the end of the Term shall be similarly
prorated. Tenant shall pay Additional Rent (as defined in Exhibit C) at the same time and
in the same manner as Base Rent.
5. Delinquent Payment; Handling Charges. Base Rent payments shall be considered past due
if received after the due date and, commencing with the second (2nd) such occurrence in
any one (1) calendar year, Landlord, in addition to all other rights and remedies available to it,
has the right to charge Tenant a fee equal to five percent (5%) of the delinquent payment to
reimburse Landlord for its cost and inconvenience incurred as a consequence of Tenants
delinquency. In no event, however, shall the charges permitted under this Section 5 or
elsewhere in this Lease, to the extent they are considered to be interest under applicable Law,
exceed the maximum lawful rate of interest.
6. Security Deposit. WAIVED
7. Services; Utilities; Common Areas.
(a) ServicesLandlord shall use commercially reasonable efforts to provide the following
services to Tenant: (i) water for drinking, lavatory and toilet purposes at those points of supply
provided for specific use of Tenant and for general use of tenants of the Building; (ii)
6
heated and
refrigerated air conditioning as appropriate, at such temperatures and in such amounts as are
required by governmental authority or as Landlord reasonably determines are standard for the
Building; (iii) janitorial service to the Premises on weekdays, other than Holidays, for
Building-standard installations and such window washing as may from time to time be reasonably
required; (iv) elevators for ingress and egress to the floor on which the Premises are located, in
common with other tenants, provided that Landlord may limit the number of operating elevators
during non-business hours, during repairs, and Holidays; (v) replacement of Building-standard light
bulbs and fluorescent tubes; (vi) electrical current for equipment whose electrical energy
consumption does not exceed normal office usage as reasonably determined by Landlord and Tenant,
and (vii) customary cleaning, mowing, groundskeeping, snow removal and trash removal in the Common
Area. If Tenant desires any of the services specified in Section 7(a)(ii) at a time other
than Normal Business Hours, then such services shall be supplied to Tenant upon the request of
Tenant delivered to Landlord before 3:00 p.m. on the Business Day preceding such extra usage, and
Tenant shall pay to Landlord the cost of such services within thirty (30) days after Landlord has
delivered to Tenant an invoice therefor. The charge for after hour services shall be at the rate
of Thirty-Five Dollars ($35.00) per hour for up to five (5) HVAC service zones within the Premises
(for the purposes of this Lease, each HVAC zone shall be equal to approximately 1,000 square feet
within the Premises, with the final calculation of the number of actual HVAC zones within the
Premises to be determined once the space plans are finalized pursuant to Exhibit D attached
hereto and incorporated herein by this reference).
(b) Excess Utility Use. Landlord shall not be required to furnish electrical current for
equipment whose electrical energy consumption exceeds normal office usage as reasonably determined
by Landlord and Tenant. If Tenants requirements for or consumption of electricity exceed the
electricity to be provided by Landlord as described in Section 7(a), Landlord shall, at
Tenants expense, make reasonable efforts to supply such service through the then-existing feeders
and risers and electrical panels serving the Building and the Premises, and Tenant shall pay to
Landlord the cost of such service within thirty (30) days after Landlord has delivered to Tenant an
invoice therefor. Landlord may determine the amount of such additional consumption and potential
consumption by any verifiable method, including installation of a separate meter in the Premises
installed, maintained, and read by Landlord, at Tenants expense. Tenant shall not install any
electrical equipment requiring special wiring or requiring voltage in excess of 110 volts unless
approved in advance by Landlord, which approval shall not be unreasonably withheld. However,
notwithstanding the foregoing, all equipment, machinery and appliances shown on Exhibit A
are deemed to be pre-approved by Landlord. Tenant shall not install any electrical equipment
requiring voltage in excess of Building capacity unless approved in advance
by Landlord, which approval may be withheld in Landlords sole discretion. The use of
electricity in the Premises shall not exceed the capacity of existing feeders and risers and
electrical panels to or wiring in the Premises. Any risers or wiring required to meet Tenants
excess electrical requirements shall, upon Tenants written request, be installed by Landlord, at
Tenants cost, if, in Landlords judgment, the same are necessary and shall not cause permanent
damage to the Building or the Premises, cause or create a dangerous or hazardous condition, entail
excessive or unreasonable alterations, repairs, or expenses, or interfere with or disturb other
tenants of the Building.
If Tenant uses machines or equipment in the Premises which affect the temperature otherwise
maintained by the air conditioning system or otherwise overload any utility, Landlord
7
may install
supplemental air conditioning units or other supplemental equipment in the Premises, and the cost
thereof, including the cost of installation, operation, use, and maintenance, shall be paid by
Tenant to Landlord within thirty (30) days after Landlord has delivered to Tenant an invoice
therefor. Landlords obligation to furnish services under Section 7(a) shall be subject to
the rules and regulations of the supplier of such services and governmental rules and regulations.
(c) Common Area. The term Common Area is defined for all purposes of this Lease as
that part of the Project and/or Complex intended for the common use of all tenants, including among
other facilities (as such may be applicable to the Complex), the ground floor lobby, elevator
lobbies and hallways on multi-tenant floors, parking areas, private streets and alleys,
landscaping, curbs, loading areas, sidewalks, malls and promenades (enclosed or otherwise),
lighting facilities, drinking fountains, meeting rooms, public toilets, the parking garage, and the
like, but excluding: (i) space in buildings (now or hereafter existing) designated for rental for
commercial purposes, as the same may exist from time to time; (ii) streets and alleys maintained by
a public authority; (iii) areas within the Complex which may from time to time not be owned by
Landlord (unless subject to a cross-access agreement benefiting the area which includes the
Premises); and (iv) areas leased to a single-purpose user where access is restricted. In addition,
although the roof(s) of the building(s) in the Complex is not literally part of the Common Area, it
will be deemed to be so included for purposes of: (i) Landlords ability to prescribe rules and
regulations regarding same; and (ii) its inclusion for purposes of Operating Costs reimbursements.
Landlord reserves the right to change from time to time the dimensions and location of the Common
Area, as well as the dimensions, identities, locations and types of any buildings, signs or other
improvements in the Complex. For example, and without limiting the generality of the immediately
preceding sentence, Landlord may from time to time substitute for any parking area (excluding any
reserved or designated spaces as set forth herein) other areas reasonably accessible to the tenants
of the Building or Complex, as applicable, which areas may be elevated, surface or underground.
Tenant, and its employees and customers, and when duly authorized pursuant to the provisions of
this Lease, its subtenants, licensees and concessionaires, shall have the non-exclusive right to
use the Common Area (excluding roof(s)) as constituted from time to time, such use to be in common
with Landlord, other tenants in the Building and/or Complex, as applicable, and other persons
permitted by the Landlord to use the same, and subject to rights of governmental authorities,
easements, other restrictions of record, and such reasonable rules and regulations governing use as
Landlord may from time to time prescribe. For example, and without limiting the generality of
Landlords ability to establish rules and regulations governing all aspects of the Common Area,
Tenant agrees as follows:
(i) Tenant shall not solicit business within the Common Area nor take any action which would
interfere with the rights of other persons to use the Common Area.
(ii) Landlord may temporarily close any part of the Common Area for such periods of time as
may be necessary to make repairs or alterations or to prevent the public from obtaining
prescriptive rights.
(iii) With regard to the roof(s) of the building(s) in the Project or Complex, as applicable,
use of the roof(s) is reserved to Landlord, or with regard to any tenant demonstrating to
Landlords satisfaction a need to use same, to such tenant after receiving prior written consent
from Landlord. In the event Landlord wishes to enter into a lease with a wireless
8
company who
wants to install a transmission tower on the roof of the Building, then at least ninety (90) days
prior to Landlord entering into a lease with a wireless company for the installation of an antenna
on the roof for the transmission of wireless signals, Landlord shall notify Tenant and allow Tenant
to make reasonable suggestions regarding the content of the wireless lease and the equipment and
radio frequency devices to be installed pursuant to the wireless lease. The right of Tenant to
review and comment on any possible wireless lease is personal to Tenant, and is not assignable to
any sublessee or assignee of Tenant.
8. Alterations; Repairs; Maintenance; Signage.
(a) Alterations. Tenant shall not make any alterations, additions or improvements to the
Premises (collectively, the Alterations) without the prior written consent of Landlord
which shall not be unreasonably withheld, delayed or conditioned, except no Landlord consent is
necessary (i) for the installation of unattached, movable trade fixtures which may be installed
without drilling, cutting or otherwise defacing the Premises, or (ii) for Alterations less than
$20,000.00 that are cosmetic or non-structural in nature. Tenant shall furnish complete plans and
specifications to Landlord for its approval at the time it requests Landlords consent to any
Alterations if the desired Alterations: (i) will affect the Buildings Systems or Buildings
Structure; (ii) will require the filing of plans and specifications with any governmental or
quasi-governmental agency or authority; or (iii) will cost in excess of Twenty Thousand and No/100
Dollars ($20,000.00). Subsequent to obtaining Landlords consent and prior to commencement of the
Alterations, Tenant shall deliver to Landlord any building permit required by applicable Law and a
copy of each executed construction contract (if any). Tenant shall reimburse Landlord within ten
(10) days after the rendition of a bill to Tenant for all of Landlords actual out-of-pocket costs
incurred in connection with any Alterations, including all engineering, outside consulting, and
construction fees incurred by or on behalf of Landlord for the review and approval of Tenants
plans and specifications. Landlord shall provide Tenant with a good faith estimate of such
out-of-pocket costs prior to Landlord commencing its review. If Landlord consents to the making of
any Alteration, such Alteration shall be made by Tenant at Tenants sole cost and expense by a
contractor reasonably approved in writing by Landlord. Tenant shall require its contractor to
maintain insurance in such amounts and in such form as Landlord may reasonably require. Without
Landlords prior written consent, Tenant shall not use any portion of the Common Areas either
within or without the Project or Complex, as applicable, in connection with the making of any
Alterations. If the Alterations which Tenant causes to be constructed result in Landlord being
required to make any alterations and/or improvements to other portions of the Project or Complex,
as applicable, in order to comply with any applicable Laws, then
Tenant shall reimburse Landlord upon demand for all costs and expenses incurred by Landlord in
making such alterations and/or improvements. Any Alterations made by Tenant shall become the
property of Landlord upon installation and shall remain on and be surrendered with the Premises
upon the expiration or sooner termination of this Lease, unless Landlord requires or agrees in
writing, at the time of approval and prior to the approved commencement of such Alteration the
removal of such Alterations. If Landlord requires the removal of such Alterations, Tenant shall at
its sole cost and expense, forthwith and with all due diligence (but in any event not later than
ten (10) days after the expiration or earlier termination of the Lease) remove all or any portion
of any Alterations made by Tenant which are designated by Landlord in writing at the same time
Landlord issues its approval of Tenant Alteration to be removed (including without limitation
stairs, bank vaults, and cabling, if applicable) and repair and restore
9
the Premises in a good and
workmanlike manner to their original condition, reasonable wear and tear excepted. All
construction work done by Tenant within the Premises shall be performed in a good and workmanlike
manner with new materials of first-class quality, lien-free and in compliance with all Laws, and in
such manner as to cause a minimum of interference with other construction in progress and with the
transaction of business in the Project or Complex, as applicable. Tenant agrees to indemnify,
defend and hold Landlord harmless against any loss, liability or damage resulting from such work.
The foregoing indemnity shall survive the expiration or earlier termination of this Lease.
Landlords consent to or approval of any alterations, additions or improvements (or the plans
therefor) shall not constitute a representation or warranty by Landlord, nor Landlords acceptance,
that the same comply with sound architectural and/or engineering practices or with all applicable
Laws, and Tenant shall be solely responsible for ensuring all such compliance.
(b) Repairs; Maintenance.
(i) By Landlord. Landlord shall, subject to reimbursement as set forth in Exhibit
C, keep and maintain in good repair and working order and make repairs to and perform
maintenance upon: (1) structural elements of the Building; (2) standard mechanical (including
HVAC), electrical, plumbing and fire/life safety systems serving the Building generally; (3) Common
Areas; (4) the roof of the Building; (5) exterior windows of the Building; and (6) elevators
serving the Building. Landlord shall promptly perform its duties hereunder after notification from
Tenant or any other tenant in the Building but shall not be liable for any failure to make any such
repairs or to perform any maintenance unless such failure shall persist for an unreasonable time
after written notice of the need of such repairs or maintenance is given to Landlord by Tenant. If
any of the foregoing maintenance or repair is necessitated due to the acts or omissions of any
Tenant Party, Tenant shall pay the costs of such repairs or maintenance to Landlord within thirty
(30) days after receipt of an invoice. Landlord shall not be liable to Tenant for any interruption
of Tenants business or inconvenience caused due to any work performed in the Premises or in the
Complex pursuant to Landlords rights and obligations under the Lease. To the extent allowed by
law, Tenant waives the right to make repairs at Landlords expense under any law, statute or
ordinance now or hereafter in effect.
10
(ii) By Tenant. Tenant shall be responsible to perform all maintenance and repairs to
the Premises that are not Landlords express responsibility under this Lease, at Tenants sole cost
and expense. Tenant shall keep the Premises in good condition and repair, ordinary wear and tear
excepted. Tenants repair obligations include, without limitation, repairs to: (1) floor covering
and/or raised flooring; (2) interior partitions; (3) doors; (4) the interior side of demising
walls; (5) electronic, phone and data cabling and related equipment (collectively, Cable)
that is installed by or for the benefit of Tenant and located in the Premises or other portions of
the Building or Project; (6) supplemental air conditioning units, private showers and kitchens,
including hot water heaters, plumbing, dishwashers, ice machines and similar facilities serving
Tenant exclusively; (7) phone rooms used exclusively by Tenant; (8) Alterations performed by
contractors retained by or on behalf of Tenant, including related HVAC balancing; and (9) all of
Tenants furnishings, trade fixtures, equipment and inventory. Landlord reserves the right to
perform any of the foregoing maintenance or repair obligations or require that such obligations be
performed by a contractor approved by Landlord, such approval not to be unreasonably withheld, all
at Tenants expense. All work shall be performed in accordance with the rules and procedures
described in Section 8(a). If Tenant fails to make any repairs to the Premises for more
than thirty (30) days after written notice from Landlord (although notice shall not be required if
there is an emergency, or if the area to be repaired is visible from the exterior of the Building),
or, if Tenant fails to commence a cure and diligently pursue a cure to completion if the cure
cannot be completed within said thirty (30) day period, then Landlord may, in addition to any other
remedy available to Landlord, make the repairs, and Tenant shall pay the reasonable cost of the
repairs to Landlord within thirty (30) days after receipt of an invoice. However, notwithstanding
the foregoing, Tenant shall not be liable for any failure to make repairs or to perform any
maintenance hereunder unless such failure shall persist for longer than a commercially reasonable
time after Tenants receipt of written notice from Landlord requesting such repairs or maintenance.
At the expiration of this Lease, Tenant shall surrender the Premises in good condition, excepting
reasonable wear and tear and losses required to be restored by Landlord. If Landlord elects to
store any personal property of Tenant, including goods, wares, merchandise, inventory, trade
fixtures and other personal property of Tenant, same shall be stored at the sole risk of Tenant.
It is generally understood that mold spores are present essentially everywhere and that mold
can grow in most any moist location. Emphasis is properly placed on prevention of moisture and on
good housekeeping and ventilation practices. Tenant acknowledges the necessity of housekeeping,
ventilation, and moisture control (especially in kitchens, janitors closets, bathrooms, break
rooms and around outside walls) for mold prevention. Tenant agrees to immediately notify Landlord
if it observes mold/mildew and/or moisture conditions (from any source, including leaks), and allow
Landlord to evaluate and make recommendations and/or take appropriate corrective action.
(iii) Performance of Work. All work described in this Section 8 shall be
performed only by contractors and subcontractors approved in writing by Landlord, which approval
shall not be unreasonably withheld, conditioned or delayed. Tenant shall cause all contractors and
subcontractors to
procure and maintain insurance coverage naming Landlord, Landlords property management
company, and Landlords mortgagee, if required by such mortgagee, as additional insureds against
such risks, in such amounts, and with such companies as Landlord may reasonably require. Tenant
shall provide Landlord with the identities, mailing
11
addresses and telephone numbers of all persons
performing work or supplying materials prior to beginning such construction and Landlord may post
on and about the Premises notices of non-responsibility pursuant to applicable Laws. All such work
shall be performed in accordance with all Laws and in a good and workmanlike manner so as not to
damage the Building (including the Premises, the Buildings Structure and the Buildings Systems).
All such work which may affect the Buildings Structure or the Buildings Systems, at Landlords
election, must be performed by Landlords usual contractor for such work or a contractor approved
by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed. All work
affecting the roof of the Building must be performed by Landlords roofing contractor or a
contractor approved by Landlord and no such work will be permitted if it would void or reduce the
warranty on the roof.
(c) Mechanics Liens.All work performed, materials furnished, or obligations incurred
by or at the request of an authorized Tenant Party in writing shall be deemed authorized and
ordered by Tenant only, and Tenant shall not permit any mechanics liens to be filed against the
Premises or the Project in connection therewith. Upon completion of any such work, Tenant shall
deliver to Landlord final lien waivers from all contractors, subcontractors and materialmen who
performed such work. If such a lien is filed, then Tenant shall, within thirty (30) days after
Landlord has delivered notice of the filing thereof to Tenant (or such earlier time period as may
be necessary to prevent the forfeiture of the Premises, Project or any interest of Landlord therein
or the imposition of a civil or criminal fine with respect thereto), either: (1) pay the amount of
the lien and cause the lien to be released of record; or (2) diligently contest such lien and
deliver to Landlord a bond or other security reasonably satisfactory to Landlord. If Tenant fails
to timely take either such action, then Landlord may pay the lien claim, and any amounts so paid,
including expenses and interest, shall be paid by Tenant to Landlord within ten (10) days after
Landlord has invoiced Tenant therefor. Landlord and Tenant acknowledge and agree that their
relationship is and shall be solely that of landlord-tenant (thereby excluding a relationship of
owner-contractor, owner-agent or other similar relationships). Accordingly, all materialmen,
contractors, artisans, mechanics, laborers and any other persons now or hereafter contracting with
Tenant, any contractor or subcontractor of Tenant or any other Tenant Party for the furnishing of
any labor, services, materials, supplies or equipment with respect to any portion of the Premises,
at any time from the date hereof until the end of the Term, are hereby charged with notice that
they look exclusively to Tenant to obtain payment for same. Nothing herein shall be deemed a
consent by Landlord to any liens being placed upon the Premises, Project or Landlords interest
therein due to any work performed by or for Tenant or deemed to give any contractor or
subcontractor or materialman any right or interest in any funds held by Landlord to reimburse
Tenant for any portion of the cost of such work. Tenant shall indemnify, defend and hold harmless
Landlord, its property manager, any subsidiary or affiliate of the foregoing, and their respective
officers, directors, shareholders, partners, employees, managers, contractors, attorneys and agents
(collectively, the Indemnitees) from and against all claims, demands, causes of action,
suits, judgments, damages and expenses (including attorneys fees) in any way arising from or
relating to the failure by any Tenant Party to pay for any work performed, materials furnished, or
obligations incurred by or at the request of a Tenant Party. The foregoing indemnity shall
survive termination or expiration of this Lease.
(d) Signs. Landlord and Tenant shall mutually agree on building directory signage,
building monument signage and suite signage in keeping with the sign plan for the Building no later
than thirty (30) days prior to the Commencement Date, provided, in any event, Tenant shall
12
have its
name displayed on the building monument sign. In the event of a name change to Tenant as a result
of merger, consolidation or the like, Landlord shall replace on the monument sign the former name
of Tenant with the current name of Tenant at Tenants sole cost and expense. Tenant shall not
place or permit to be placed any signs upon (i) the roof of the Building; or (ii) the Common Areas;
or (iii) any area visible from the exterior of the Premises without Landlords prior written
approval, which approval shall not be unreasonably withheld, conditioned or delayed, provided any
proposed sign is placed only in those locations as may be designated by Landlord and complies with
the sign criteria promulgated by Landlord from time to time. Upon request of Landlord, Tenant
shall immediately remove any sign, advertising material or lettering which Tenant has placed or
permitted to be placed upon the exterior or interior surface of any door or window or at any point
inside the Premises, which in Landlords reasonable opinion, is of such a nature as to not be in
keeping with the standards of the Building, and if Tenant fails to do so, Landlord may without
liability remove the same at Tenants expense. Tenant shall comply with such regulations as may
from time to time be promulgated by Landlord governing signs, advertising material or lettering of
all tenants in the Project. The Tenant, upon vacation of the Premises, or the removal or
alteration of its sign for any reason, shall be responsible for the repair, painting or replacement
of any portion of the Building where any signs that were never authorized by Landlord are attached.
If Tenant fails to do so, Landlord may have the sign(s) removed and the cost of removal plus
fifteen percent (15%) as an administrative fee shall be payable by Tenant within ten (10) days of
invoice.
9. Use. Tenant shall continuously occupy and use the Premises only for the Permitted Use
(as set forth in the Basic Lease Information) and shall comply with all Laws relating to the use,
condition, access to, and occupancy of the Premises and will not commit waste, overload the
Buildings Structure or the Buildings Systems or subject the Premises to use that would damage the
Premises. In the event Tenant fails to continuously occupy and use the Premises, except for a
period of sixty (60) days (or longer, upon prior approval by Landlord, which approval shall not be
unreasonably withheld) in the event of remodeling (provided in all events Tenant is diligently
pursuing to reopen for business in the Premises), Landlord shall have the right, exercisable by
Landlord at any time thereafter while Tenant has ceased operating its business on the Premises, in
Landlords discretion, to terminate the Lease upon written notice to Tenant.
Tenant, at its sole cost and expense, shall obtain and keep in effect during the term, all
permits, licenses, and other authorizations necessary to permit Tenant to use and occupy the
Premises for the Permitted Use in accordance with applicable Law. Tenant shall use commercially
reasonable efforts to not overburden the parking ratio (such ratio being calculated at 3.5 parking
spaces per 1000 rentable square feet within the Premises) for the Building on a
regular basis. Notwithstanding anything in this Lease to the contrary, as between Landlord
and Tenant: (a) Tenant shall bear the risk of complying with Title III of the Americans With
Disabilities Act of 1990, any state laws governing handicapped access or architectural barriers,
and all rules, regulations, and guidelines promulgated under such laws, as amended from time to
time (the Disabilities Acts) in the Premises; and (b) Landlord shall bear the risk of
complying with the Disabilities Acts in the all portions of the Building and Complex that do not
include the Premises, including the Common Areas (subject to reimbursement as set forth in
Exhibit C), other than compliance that is necessitated by the use of the Premises for other
than the Permitted Use or as a result of any alterations or additions made by Tenant (which risk
and responsibility
13
shall be borne by Tenant). Tenant shall not use any substantial portion of the
Premises for a call center, any other telemarketing use, or any credit processing use. In
addition, the Premises shall not be used for any purpose which creates strong, unusual, or
offensive odors, fumes, dust or vapors; which emits noise or sounds that are objectionable due to
intermittence, beat, frequency, shrillness, or loudness; which is associated with indecent or
pornographic matters; or which involves political or moral issues (such as abortion issues).
Tenant shall conduct its business and control each other Tenant Party so as not to create any
nuisance or unreasonably interfere with other tenants or Landlord in its management of the
Building. Tenant shall not knowingly conduct or permit to be conducted in the Premises any
activity, or place any equipment in or about the Premises or the Building, which will invalidate
the insurance coverage in effect or increase the rate of fire insurance or other insurance on the
Premises or the Building. If any invalidation of coverage or increase in the rate of fire
insurance or other insurance occurs or is threatened by any insurance company due to activity
conducted from the Premises, or any act or omission by Tenant, or its agents, employees,
representatives, or contractors, such statement or threat shall be conclusive evidence that the
increase in such rate is due to such act of Tenant or the contents or equipment in or about the
Premises, and, as a result thereof, Tenant shall be liable for such increase and shall be
considered Additional Rent payable with the next monthly installment of Base Rent due under this
Lease. In no event shall Tenant introduce or permit to be kept on the Premises or brought into the
Building any dangerous, noxious, radioactive or explosive substance.
10. Assignment and Subletting
(a) Transfers Tenant shall not, without the prior written consent of Landlord: (1)
assign, transfer, or encumber this Lease or any estate or interest herein, whether directly or by
operation of law; (2) if Tenant is an entity other than a corporation whose stock is publicly
traded, permit the transfer of an ownership interest in Tenant so as to result in a change in the
current control of Tenant; (3) sublet any portion of the Premises; (4) grant any license,
concession, or other right of occupancy of any portion of the Premises; or (5) permit the use of
the Premises by any parties other than Tenant (any of the events listed in Section 10(a)(1)
through Section 10(a)(6) being a Transfer). Notwithstanding the foregoing,
however, Tenant may assign or sublease part or all of the Premises without Landlords consent to:
(x) any corporation or partnership that controls, is controlled by, or is under common control
with, Tenant; or (y) any corporation resulting from the merger or consolidation with Tenant or to
any entity that acquires all of Tenants assets as a going concern of the business that is being
conducted on the Premises, as long as the assignee or sublessee is a bona fide entity and assumes
the obligations of Tenant, and continues the same use
as Tenant. However, Tenant must use commercially reasonable efforts to provide Landlord with
prior written notice of any such assignment or subletting, and at a minimum, Tenant shall notify
Landlord of such assignment or subletting as soon as reasonably practical.
(b) Consent Standards Landlord shall not unreasonably withhold its consent to any
assignment or subletting of the Premises, provided that Tenant is not then in default under the
Lease and the proposed transferee: (1) is generally creditworthy; (2) generally has a good
reputation in the business community; (3) will use the Premises for the Permitted Use (thus,
excluding without limitation, uses for credit processing and telemarketing) and will not use the
Premises in any manner that would conflict with any exclusive use agreement or other
14
similar agreement entered into by Landlord with any other tenant of the Project or Complex, as applicable;
(4) will not use the Premises, Project or Complex in a manner that would materially increase the
pedestrian or vehicular traffic to the Premises, Project or Complex; (5) is not a governmental
entity, or subdivision or agency thereof; (6) is not another occupant of the Building or Complex,
as applicable; and (7) is not a person or entity with whom Landlord is then, or has been within the
six-month period prior to the time Tenant seeks to enter into such assignment or subletting,
negotiating to lease space in the Building or Complex, as applicable, or any Affiliate of any such
person or entity; otherwise, Landlord may withhold its consent in its sole discretion.
(c) Request for Consent If Tenant requests Landlords consent to a Transfer, then, at
least thirty (30) days prior to the effective date of the proposed Transfer, Tenant shall provide
Landlord with a written description of all terms and conditions of the proposed Transfer, copies of
the proposed pertinent documentation, and the following information about the proposed transferee:
name and address; reasonably satisfactory information about its business and business history; its
proposed use of the Premises; banking, financial, and other credit information; and general
references sufficient to enable Landlord to determine the proposed transferees creditworthiness
and character. Tenant shall reimburse Landlord immediately upon request for Landlords reasonable
and actual attorneys fees incurred in connection with considering any request for consent to a
Transfer, provided, however, Landlord shall use commercially reasonable efforts to limit the use of
any attorney in connection with such consent.
(d) Conditions to Consent If Landlord consents to a proposed Transfer, then the
proposed transferee shall deliver to Landlord a written agreement whereby it expressly assumes
Tenants obligations hereunder; however, any transferee of less than all of the space in the
Premises shall be liable only for obligations under this Lease that are properly allocable to the
space subject to the Transfer for the period of the Transfer. Unless Landlord consents, no
Transfer shall release Tenant from its obligations under this Lease, but rather Tenant and its
transferee shall be jointly and severally liable therefor. Landlords consent to any Transfer
shall not be deemed consent to any subsequent Transfers. If an Event of Default occurs while the
Premises or any part thereof are subject to a Transfer, then Landlord, in addition to its other
remedies, may collect directly from such transferee all rents becoming due to Tenant and apply such
rents against Rent. Tenant
authorizes its transferees to make payments of rent directly to Landlord upon receipt of
notice from Landlord to do so following the occurrence of an Event of Default hereunder. Tenant
shall pay for the cost of any demising walls or other improvements necessitated by a proposed
subletting or assignment.
(e) Attornment by Subtenants Each sublease by Tenant hereunder shall be subject and
subordinate to this Lease and to the matters to which this Lease is or shall be subordinate, and
each subtenant by entering into a sublease is deemed to have agreed that in the event of
termination, re-entry or dispossession by Landlord under this Lease, Landlord may, at its option,
either terminate the sublease or take over all of the right, title and interest of Tenant, as
sublandlord, under such sublease, and such subtenant shall, at Landlords option, attorn to
Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not
be: (1) liable for any previous act or omission of Tenant under such sublease; (2) subject to any
counterclaim, offset or defense that such subtenant might have against Tenant; (3) bound by any
previous modification of such sublease or by any rent or additional rent or advance rent
15
which such
subtenant might have paid for more than the current month to Tenant, and all such rent shall remain
due and owing, notwithstanding such advance payment; (4) bound by any security or advance rental
deposit made by such subtenant which is not delivered or paid over to Landlord and with respect to
which such subtenant shall look solely to Tenant for refund or reimbursement; or (5) obligated to
perform any work in the subleased space or to prepare it for occupancy, and in connection with such
attornment, the subtenant shall execute and deliver to Landlord any instruments Landlord may
reasonably request to evidence and confirm such attornment. Each subtenant or licensee of Tenant
shall be deemed, automatically upon and as a condition of its occupying or using the Premises or
any part thereof, to have agreed to be bound by the terms and conditions set forth in this
Section 10(e). The provisions of this Section 10(e) shall be self-operative, and
no further instrument shall be required to give effect to this provision.
(f) Cancellation Landlord may, within thirty (30) days after submission of Tenants
written request for Landlords consent to an assignment or subletting, cancel this Lease as to the
portion of the Premises proposed to be sublet or assigned as of the date the proposed Transfer is
to be effective. If Landlord cancels this Lease as to any portion of the Premises, then this Lease
shall cease for such portion of the Premises, Tenant shall pay to Landlord all Rent accrued through
the cancellation date relating to the portion of the Premises covered by the proposed Transfer, and
Rent shall be reduced proportionately based on the remaining square footage in the Premises.
Thereafter, Landlord may lease such portion of the Premises to the prospective transferee (or to
any other person) without liability to Tenant.
(g) Additional Compensation Tenant shall pay to Landlord, as soon as practical upon
receipt thereof, one-half of the excess of all compensation received by Tenant for a Transfer over
the Rent allocable to the portion of the Premises covered thereby.
11. Insurance; Waivers; Subrogation; Indemnity.
(a) Tenants Insurance Effective as of the earlier of: (1) the date Tenant enters or
occupies the Premises; or (2) the Commencement Date, and continuing throughout the Term, Tenant
shall maintain the following insurance policies: (A) commercial general liability insurance in
amounts of $3,000,000 per occurrence, or, following the expiration of the initial Term, such other
amounts as Landlord may from time to time reasonably require, insuring Tenant, Landlord, Landlords
property management company, and Landlords mortgagee, if required by such mortgagee; (B)
INTENTIONALLY DELETED; (C) INTENTIONALLY DELETED; (D) contractual liability insurance sufficient to
cover Tenants indemnity obligations hereunder (but only if such contractual liability insurance is
not already included in Tenants commercial general liability insurance policy); (E) workers
compensation insurance in amounts not less than statutorily required; (F) business interruption
insurance in an amount that will reimburse Tenant for direct or indirect loss of earnings
attributable to all perils insured against under Section 11(a)(2)(C) or attributable to the
prevention of access to the Building or Premises, provided that Tenant may have such business
interruption insurance issued by an insurance company or Tenant may self-insure for business
interruption insurance purposes; (G) in the event Tenant hires a third party contractor to perform
any alterations or repairs in, on, or to the Premises, Tenant shall require such third party
contractor to provide (or Tenant shall provide) Builders Risk Insurance on an All Risk basis
(including collapse) on a completed value (non-reporting) form, or by endorsement including such
coverage pursuant to Section 11(a)(2)(C)
16
hereinabove, for full replacement value covering
all work incorporated in the Building and all materials and equipment in or about the Premises; and
(H) such other insurance or any changes or endorsements to the insurance required herein, including
increased limits of coverage, as Landlord, or any mortgagee or lessor of Landlord, may reasonably
require from time to time.
It is understood and acknowledged by Tenant that Tenant is solely responsible for the
replacement of all of Tenants Alterations, improvements, betterments, furniture, trade fixtures,
equipment and personal property (including the property of Tenant or others) placed in the
Premises. Except in the event of Landlords gross negligence or intentional misconduct, Tenant
shall not make Landlord subject to any claim by virtue of any theft or loss or damage to any
uninsured or inadequately insured Alterations, improvements, betterments, furniture, trade
fixtures, equipment or personal property in the Premises.
Tenants insurance shall provide primary coverage to Landlord and shall not require
contribution by any insurance maintained by Landlord, when any policy issued to Landlord provides
duplicate or similar coverage, and in such circumstance Landlords policy will be excess over
Tenants policy. Tenant shall furnish to Landlord certificates of such insurance, and such other
evidence satisfactory to Landlord of the maintenance of all insurance coverages required hereunder
at least ten (10) days prior to the earlier of the Commencement Date or the date Tenant enters or
occupies the Premises, and at least fifteen (15) days prior to each renewal of said insurance, and
Tenant shall obtain a written obligation on the part of each insurance company to notify Landlord
at least thirty (30) days before cancellation of any such insurance policies. All such insurance
policies shall be in form and content reasonably satisfactory to Landlord. If Tenant fails to
comply with the foregoing insurance requirements or to deliver to
Landlord the certificates or evidence of coverage required herein, Landlord, in addition to
any other remedy available pursuant to this Lease or otherwise, may, but shall not be obligated to,
obtain such insurance and Tenant shall pay to Landlord on demand the premium costs thereof. It is
expressly understood and agreed that the foregoing minimum limits of insurance coverage shall not
limit the liability of Tenant for its acts or omissions as provided in this Lease.
(b) Landlords Insurance Throughout the Term of this Lease, Landlord shall maintain,
as a minimum, the following insurance policies: (1) property insurance for the Buildings
replacement value (excluding property required to be insured by Tenant), less a
commercially-reasonable deductible if Landlord so chooses; and (2) commercial general liability
insurance in an amount of not less than $3,000,000. Landlord may, but is not obligated to,
maintain such other insurance and additional coverages as it may deem necessary. Tenant shall pay
its Proportionate Share of the cost of all insurance carried by Landlord with respect to the
Project or Complex, as applicable, as set forth on Exhibit C. The foregoing insurance
policies and any other insurance carried by Landlord shall be for the sole benefit of Landlord and
under Landlords sole control, and Tenant shall have no right or claim to any proceeds thereof or
any other rights thereunder.
(c) No Subrogation Landlord and Tenant each waives any claim it might have against the
other for any damage to or theft, destruction, loss, or loss of use of any property, to the extent
the same is insured against under any insurance policy that covers the Building, the Premises,
Landlords or Tenants fixtures, personal property, leasehold
17
improvements, or business, or is
required to be insured against under the terms hereof, regardless of whether the negligence of the
other party caused such Loss (defined below). Landlord and Tenant each hereby waive any right of
subrogation and right of recovery or cause of action for injury including death or disease to
respective employees of either as covered by Workers Compensation (or which would have been
covered if Tenant or Landlord as the case may be, was carrying the insurance as required by this
Lease). Each party shall cause its insurance carrier to endorse all applicable policies waiving the
carriers rights of recovery under subrogation or otherwise against the other party.
(d) Indemnity Subject to Section 11(c), Tenant shall indemnify, defend and
hold harmless Landlord and the Indemnitees from and against all claims, demands, liabilities,
causes of action, suits, judgments, damages, and expenses (including attorneys fees) and all
losses and damages arising from: (1) any injury to or death of any person or the damage to or
theft, destruction, loss, or loss of use of any property or inconvenience (a Loss)
arising from any occurrence on the Premises, the use of the Common Areas by any Tenant Party, or
arising out of the installation, operation, maintenance, repair or removal of any of Tenants
Off-Premises Equipment; or (2) Tenants failure to perform its obligations under this Lease, IN
EACH CASE EVEN THOUGH CAUSED OR ALLEGED TO BE CAUSED BY THE NEGLIGENCE OR FAULT OF LANDLORD OR ITS
AGENTS (OTHER THAN A LOSS ARISING FROM THE SOLE OR GROSS NEGLIGENCE OF LANDLORD OR ITS AGENTS), AND
EVEN THOUGH ANY SUCH CLAIM, CAUSE OF ACTION, OR SUIT IS BASED UPON OR ALLEGED TO BE
BASED UPON THE STRICT LIABILITY OF LANDLORD OR ITS AGENTS. THIS INDEMNITY IS INTENDED TO
INDEMNIFY LANDLORD AND ITS AGENTS AGAINST THE CONSEQUENCES OF THEIR OWN NEGLIGENCE OR FAULT AS
PROVIDED ABOVE WHEN LANDLORD OR ITS AGENTS ARE JOINTLY, COMPARATIVELY, CONTRIBUTIVELY, OR
CONCURRENTLY NEGLIGENT WITH TENANT. The indemnities set forth in this Section 11(d) shall
survive termination or expiration of this Lease and shall not terminate or be waived, diminished or
affected in any manner by any abatement or apportionment of Rent under any provision of this Lease.
If any proceeding is filed for which indemnity is required hereunder, Tenant agrees, upon request
therefor, to defend Landlord in such proceeding at its sole cost utilizing counsel satisfactory to
Landlord in its sole discretion.
Notwithstanding anything contained above or elsewhere in this Lease to the contrary, all
property placed on the Premises by, at the direction of, or with the consent of, the Tenant, its
employees, agents, licensees or invitees, shall be at the risk of the Tenant or the owner thereof,
and Landlord shall not be liable for any loss of or damage to said property resulting from any
cause whatsoever
Subject to Section 11(c), Landlord shall indemnify, defend and hold harmless Tenant
and the Indemnitees from and against all claims, demands, liabilities, causes of action, suits,
judgments, damages, and expenses (including attorneys fees) and all losses and damages arising
from: (1) any injury to or death of any person or the damage to or theft, destruction, loss, or
loss of use of any property or inconvenience (a Loss) arising from any occurrence in the
Building, the use of the Common Areas by any Landlord Party, or arising out of the installation,
operation, maintenance, repair or removal of any of Landlords Off-Premises Equipment; or (2)
Landlords failure to perform its obligations under this Lease, IN EACH CASE EVEN THOUGH CAUSED
18
OR ALLEGED TO BE CAUSED BY THE NEGLIGENCE OR FAULT OF TENANT OR ITS AGENTS (OTHER THAN A LOSS ARISING
FROM THE SOLE OR GROSS NEGLIGENCE OF TENANT OR ITS AGENTS), AND EVEN THOUGH ANY SUCH CLAIM, CAUSE
OF ACTION, OR SUIT IS BASED UPON OR ALLEGED TO BE BASED UPON THE STRICT LIABILITY OF TENANT OR ITS
AGENTS. THIS INDEMNITY IS INTENDED TO INDEMNIFY TENANT AND ITS AGENTS AGAINST THE CONSEQUENCES OF
THEIR OWN NEGLIGENCE OR FAULT AS PROVIDED ABOVE WHEN TENANT OR ITS AGENTS ARE JOINTLY,
COMPARATIVELY, CONTRIBUTIVELY, OR CONCURRENTLY NEGLIGENT WITH LANDLORD. The indemnities set forth
in this Section 11(d) shall survive termination or expiration of this Lease and shall not
terminate or be waived, diminished or affected in any manner by any abatement or apportionment of
Rent under any provision of this Lease. If any proceeding is filed for which indemnity is required
hereunder, Landlord agrees, upon request therefor, to defend Tenant in such proceeding at its sole
cost utilizing counsel satisfactory to Landlord in its sole discretion.
12. Subordination; Attornment; Notice to Landlords Mortgagee
(a) Subordination.
This Lease shall be subordinate to any deed of trust, mortgage, or other security instrument
(each, a Mortgage), or any ground lease, master lease, or primary lease (each, a
Primary Lease), that now or hereafter covers all or any part of the Premises (the
mortgagee
under any such Mortgage, beneficiary under any such deed of trust, or the lessor under any
such Primary Lease is referred to herein as a Landlords Mortgagee) provided that, if
there are no defaults after any applicable cure period hereunder on the part of Tenant, (1) the
right of possession of Tenant to the Premises and Tenants other rights arising out of this Lease
shall not be affected or disturbed by the Landlords Mortgagee or trustee or beneficiary under the
Mortgage in the exercise of any of its rights under the Mortgage or the notes secured thereby; (2)
Landlord and any mortgagee, trustee or beneficiary of Landlord shall execute and deliver to Tenant
an Agreement of Subordination, Non-Disturbance and Attornment in form reasonably acceptable to
Landlord, Tenant and Landlords Mortgagee for signature by Tenant. Tenant shall execute and return
to Landlord (or such other party designated by Landlord) within fifteen (15) calendar days after
written request therefor such reasonable documentation, in recordable form if required, to evidence
the subordination of this Lease to such Landlords Mortgagees Mortgage or Primary Lease.
(b) Attornment Tenant shall attorn to any party succeeding to Landlords interest in
the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale,
termination of lease, or otherwise, upon such partys request, and shall execute such agreements
confirming such attornment as such party may reasonably request.
(c) Notice to Landlords Mortgagee Provided Tenant has been provided with the
Landlords Mortgagee notice address, Tenant shall not seek to enforce any remedy it may have for
any default on the part of Landlord without first giving written notice by any of the means
provided herein, specifying the default in reasonable detail, to any Landlords Mortgagee, and
19
affording such Landlords Mortgagee the same opportunity to perform Landlords obligations
hereunder as provided to Landlord.
(d) Landlords Mortgagees Protection Provisions . If Landlords Mortgagee shall
succeed to the interest of Landlord under this Lease, Landlords Mortgagee shall not be: (1) liable
for any act or omission of any prior lessor (including Landlord); (2) bound by any rent or
additional rent or advance rent which Tenant might have paid for more than one (1) month in advance
to any prior lessor (including Landlord), and all such rent shall remain due and owing,
notwithstanding such advance payment; or (3) bound by any security or advance rental deposit made
by Tenant which is not delivered or paid over to Landlords Mortgagee and with respect to which
Tenant shall look solely to Landlord for refund or reimbursement. In the event of any act or
omission by Landlord by reason of which Tenant may claim the right to terminate this Lease or claim
a defense or offset against the Base Rent due hereunder, Tenant agrees not to exercise any such
right until: (i) Tenant has notified Landlords Mortgagee in writing of such act or omission by
Landlord, and (ii) Tenant has given Landlords Mortgagee a reasonable opportunity to cure such act
or omission, including the time as shall be reasonably required to obtain possession of the Project
and to commence and carry to completion the foreclosure of its Mortgage Landlords Mortgagee shall
have no liability or responsibility under or pursuant to the terms of this Lease or otherwise after
it ceases to own an
interest in the Building. Nothing in this Lease shall be construed to require Landlords
Mortgagee to see to the application of the proceeds of any loan, and Tenants agreements set forth
herein shall not be impaired on account of any modification of the documents evidencing and
securing any loan.
13. Rules and Regulations Tenant shall comply with the rules and regulations of the
Building which are attached hereto as Exhibit E. Landlord may, from time to time, change
such rules and regulations for the safety, care, or cleanliness of the Building and related
facilities, provided that such changes are applicable to all tenants of the Building, will not
unreasonably interfere with Tenants use of the Premises, are enforced by Landlord in a
non-discriminatory manner, will not increase Tenants financial obligations by imposing additional
charges or fees, and will not restrict Tenants rights expressly granted under the terms of this
Lease. Tenant shall be responsible for the compliance with such rules and regulations by each
Tenant Party.
14. Condemnation
(a) Total Taking If the entire Building or Premises are taken by right of eminent
domain or conveyed in lieu thereof (a Taking), this Lease shall terminate as of the date
of the Taking.
(b) Partial Taking Tenants Rights If any part of the Building becomes subject to a
Taking and such Taking will prevent Tenant from conducting its business in the Premises in a manner
reasonably comparable to that conducted immediately before such Taking for a period of more than
one hundred eighty (180) days, then Tenant may terminate this Lease as of the date of such Taking
by giving written notice to Landlord within thirty (30) days after the Taking, and Rent shall be
apportioned as of the date of such Taking. If Tenant does not terminate this Lease, then Rent
shall be abated on a reasonable basis as to that portion of the Premises rendered untenantable by
the Taking.
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(c) Partial Taking Landlords Rights If any material portion, but less than all, of
the Building becomes subject to a Taking, or if Landlord is required to pay any of the proceeds
arising from a Taking to a Landlords Mortgagee, then Landlord may terminate this Lease by
delivering written notice thereof to Tenant within thirty (30) days after such Taking, and Rent
shall be apportioned as of the date of such Taking. If Landlord does not so terminate this Lease,
then this Lease will continue, but if any portion of the Premises has been taken, Rent shall abate
as provided in the last sentence of Section 14(b).
(d) Award If any Taking occurs, then Landlord shall receive the entire award or other
compensation for the Land, the Building, and other improvements taken; however, Tenant may
separately pursue a claim (to the extent it will not reduce Landlords award) against the
condemnor for the value of Tenants personal property which Tenant is entitled to remove under
this Lease, leasehold interest, moving costs, loss of business, and other claims it may have.
15. Fire or Other Casualty
(a) Repair Estimate If the Premises or the Building are damaged by fire or other
casualty (a Casualty), Landlord shall use good faith efforts to deliver to Tenant within
sixty (60) days after such Casualty a good faith estimate (the Damage Notice) of the time
needed to repair the damage caused by such Casualty.
(b) Tenants Rights If a material portion of the Premises is damaged by Casualty such
that Tenant is prevented from conducting its business in the Premises in a manner reasonably
comparable to that conducted immediately before such Casualty and Landlord estimates that the
damage caused thereby cannot be repaired within one hundred eighty (180) days after the
commencement of repairs (the Repair Period), then Tenant may terminate this Lease by
delivering written notice to Landlord of its election to terminate within thirty (30) days after
the Damage Notice has been delivered to Tenant.
(c) Landlords Rights If a Casualty damages the Premises or a material portion of the
Building and: (1) Landlord estimates that the damage to the Premises cannot be repaired within the
Repair Period; (2) the damage to the Premises exceeds fifty percent (50%) of the replacement cost
thereof (excluding foundations and footings), as estimated by Landlord, and such damage occurs
during the last two (2) years of the Term; (3) regardless of the extent of damage to the Premises,
Landlord makes a good faith determination that restoring the Building would be uneconomical; or (4)
Landlord is required to pay any insurance proceeds arising out of the Casualty to a Landlords
Mortgagee, then Landlord may terminate this Lease by giving written notice of its election to
terminate within thirty (30) days after the Damage Notice has been delivered to Tenant.
(d) Repair Obligation If neither party elects to terminate this Lease following a
Casualty, then Landlord shall, within a reasonable time after such Casualty, begin to repair the
Premises and shall proceed with reasonable diligence to restore the Premises to substantially the
same condition as they existed immediately before such Casualty; however, other than building
standard leasehold improvements Landlord shall not be required to repair or replace any Alterations
or betterments within the Premises (which shall be promptly and with due diligence repaired and
restored by Tenant at Tenants sole cost and expense) or any furniture, equipment,
21
trade fixtures or personal property of Tenant or others in the Premises or the Building, and
Landlords obligation to repair or restore the Premises shall be limited to the extent of the
insurance proceeds actually received by Landlord for the Casualty in question. If this Lease is
terminated under the provisions of this Section 15, Landlord shall be entitled to the full
proceeds of the insurance policies providing coverage for all Landlord funded Alterations, Landlord
funded improvements and betterments in the Premises (and, if Tenant has failed to maintain
insurance on such items as required by this Lease, Tenant shall pay Landlord an amount equal to the
proceeds Landlord would have received had Tenant maintained insurance on such items as required by
this Lease).
(e) Abatement of Rent
If the Premises are damaged by Casualty, Rent for the portion of the Premises rendered
untenantable by the damage shall be abated on a reasonable basis from the date of damage until the
completion of Landlords repairs (or until the date of termination of this Lease by Landlord or
Tenant as provided above, as the case may be), unless a Tenant Party caused such damage, in which
case, Tenant shall continue to pay Rent without abatement.
16. Personal Property Taxes
Tenant shall be liable for all taxes levied or assessed against personal property, furniture,
or fixtures placed by Tenant in the Premises or in or on the Building or Project. If any taxes for
which Tenant is liable are levied or assessed against Landlord or Landlords property and Landlord
elects to pay the same, or if the assessed value of Landlords property is increased by inclusion
of such personal property, furniture or fixtures and Landlord elects to pay the taxes based on such
increase, then Tenant shall pay to Landlord, within thirty (30) days following written request
therefor, the part of such taxes for which Tenant is primarily liable hereunder.
17. Events of Default
Each of the following occurrences shall be an Event of Default:
(a) Payment Default.
Tenants failure to pay Rent when the same is due, and such failure continues for a period of
five (5) business days after receipt of written notice thereof from Landlord to Tenant; however,
in no event shall Landlord be required to provide written notice to Tenant more often than one (1)
time per lease year;
(b) Abandonment.
Tenant abandons the Premises or any substantial portion thereof, or fails to continuously
operate its business in the Premises, abandonment being defined as Tenants vacation of the
Premises and failure to meet one (1) or more lease obligations;
(c) Estoppel/Financial Statement/Commencement Date Letter.
Tenant fails to provide: (i) any estoppel certificate after Landlords written request
therefor pursuant to Section 27(e); or (ii) any financial statement after Landlords
written request therefor pursuant to Section 27(q), and such failure shall continue for
five (5) calendar days after Landlords second (2nd) written notice thereof to Tenant;
22
(d)
Insurance.
Tenant fails to procure, maintain and deliver to Landlord evidence of the insurance policies
and coverages as required under Section 11(a);
(e) Mechanics Liens.
Tenant fails to pay and release of record, or diligently contest and bond around, any
mechanics lien filed against the Premises or the Project for any work performed, materials
furnished, or obligation incurred by or at the request of Tenant, within the time and in the manner
required by Section 8(c);
(f) Other Defaults.
Tenants failure to perform, comply with, or observe any other agreement or obligation of
Tenant under this Lease and the continuance of such failure for a period of thirty (30) calendar
days or more after Landlord has delivered to Tenant written notice thereof, provided, however, if
Tenant has commenced to cure the default but, despite using commercially reasonable efforts and
diligently pursuing a cure, Tenant has been unable to cure the default within the initial 30 day
period, Tenant shall have up to an additional 30 days to complete the cure; and
(g) Insolvency.
The filing of a petition by or against Tenant (the term Tenant shall include, for
the purpose of this Section 17(g), any guarantor of Tenants obligations hereunder): (1) in
any bankruptcy or other insolvency proceeding; (2) seeking any relief under any state or federal
debtor relief law; (3) for the appointment of a liquidator or receiver for all or substantially all
of Tenants property or for Tenants interest in this Lease; or (4) for the reorganization or
modification of Tenants capital structure; however, if such a petition is filed against Tenant,
then such filing shall not be an Event of Default unless Tenant fails to have the proceedings
initiated by such petition dismissed within sixty (60) calendar days after the filing thereof.
18. Remedies. Upon any Event of Default, Landlord may, in addition to all other
rights and remedies afforded Landlord hereunder or by law or equity, take any one or more of the
following actions:
(a) Termination of Lease.
Terminate this Lease by giving Tenant written notice thereof, in which event Tenant shall pay
to Landlord the sum of: (1) all Rent accrued hereunder through the date of termination; (2) all
amounts due under Section 19(a); and (3) an amount equal to (A) the total Rent that Tenant
would have been required to pay for the remainder of the Term discounted to present value at a per
annum rate equal to the Prime Rate (Prime Rate shall be the per annum interest rate
publicly announced by a federally insured bank selected by Landlord in the state in which the
Premises is located as such banks prime or base rate) minus one percent (1%), minus (B) the then
present fair rental value of the Premises for such period, similarly discounted;
(b) Termination of Possession.
Terminate Tenants right to possess the Premises without terminating this Lease by giving
written notice thereof to Tenant, in which event Tenant shall pay to Landlord: (1) all Rent and
other amounts accrued hereunder to the date of termination of possession; (2) all amounts due from
time to time under Section 19(a); and (3) all Rent and other net sums required hereunder to
be paid by Tenant during the remainder of the Term, diminished by any net sums thereafter received
by Landlord through reletting the Premises during such period, after deducting all costs incurred
by Landlord in reletting the Premises. If
23
Landlord elects to proceed under this
Section 18(b), Landlord may remove all of Tenants property from the Premises and store the
same in a public warehouse or elsewhere at the cost of, and for the account of, Tenant, without
becoming liable for any loss or damage which may be occasioned thereby (except for Landlords gross
negligence). Landlord shall use commercially reasonable efforts to relet the Premises on such
commercially reasonable terms as Landlord in its sole discretion may determine (including a term
different from the Term, rental concessions, and alterations to, and improvement of, the Premises);
however, Landlord shall not be obligated to expend funds in connection with reletting the Premises,
nor to relet the Premises before leasing other portions of the Building or Complex, as applicable,
and Landlord shall not be obligated to accept any prospective tenant proposed by Tenant unless such
proposed tenant meets all of Landlords leasing criteria. Landlord shall not be liable for, nor
shall Tenants obligations hereunder be diminished because of, Landlords failure to relet the
Premises or to collect rent due for such reletting. Tenant shall not be entitled to the excess of
any consideration obtained by reletting over the Rent due hereunder. Reentry by Landlord in the
Premises shall not affect Tenants obligations hereunder for the unexpired Term; rather, Landlord
may, from time to time, bring an action against Tenant to collect amounts due by Tenant, without
the necessity of Landlords waiting until the expiration of the Term. Unless Landlord delivers
written notice to Tenant expressly stating that it has elected to terminate this Lease, all actions
taken by Landlord to dispossess or exclude Tenant from the Premises shall be deemed to be taken
under this Section 18(b). If Landlord elects to proceed under this Section 18(b),
it may at any time elect to terminate this Lease under Section 18(a);
(c) Perform Acts on Behalf of Tenant.
Perform any act Tenant is obligated to perform under the terms of this Lease (and enter upon
the Premises in connection therewith if necessary) in Tenants name and on Tenants behalf, without
being liable for any claim for damages therefor, and Tenant shall reimburse Landlord on demand for
any reasonable expenses which Landlord may incur in thus effecting compliance with Tenants
obligations under this Lease (including, but not limited to, collection costs and legal expenses),
plus interest thereon at the Default Rate; or
(d) Alteration of Locks.
Additionally, with or without notice, and to the extent permitted by Law, Landlord may alter
locks or other security devices at the Premises to deprive Tenant of access thereto, and Landlord
shall not be required to provide a new key or right of access to Tenant.
24
19. Payment by Tenant; Non-Waiver; Cumulative Remedies
(a) Payment by Tenant.
Upon any Event of Default, Tenant shall pay to Landlord all costs incurred by Landlord
(including court costs and reasonable attorneys fees and expenses) in: (1) obtaining possession of
the Premises; (2) removing and storing Tenants or any other occupants property; (3) repairing,
restoring, altering, remodeling, or otherwise putting the Premises into condition acceptable to a
new tenant; (4) if Tenant is dispossessed of the Premises and this Lease is not terminated,
reletting all or any part of the Premises (including brokerage commissions, cost of tenant finish
work, and other costs incidental to such reletting); (5) performing Tenants obligations which
Tenant failed to perform; and (6) enforcing Landlords rights, remedies, and recourses arising out
of the Event of Default. To the full extent permitted by Law, Landlord and Tenant agree the
federal and state courts of the state in which the Premises are located shall have exclusive
jurisdiction over any matter relating to or arising from this Lease and the parties rights and
obligations under this Lease.
(b) No Waiver.
Landlords acceptance of Rent following an Event of Default shall not waive Landlords rights
regarding such Event of Default. No waiver by Landlord of any violation or breach of any of the
terms contained herein shall waive Landlords rights regarding any future violation of such term.
Landlords acceptance of any partial payment of Rent shall not waive Landlords rights with regard
to the remaining portion of the Rent that is due, regardless of any endorsement or other statement
on any instrument delivered in payment of Rent or any writing delivered in connection therewith;
accordingly, Landlords acceptance of a partial payment of Rent shall not constitute an accord and
satisfaction of the full amount of the Rent that is due.
(c) Cumulative Remedies.
Any and all remedies set forth in this Lease: (1) shall be in addition to any and all other
remedies Landlord may have at law or in equity; (2) shall be cumulative; and (3) may be pursued
successively or concurrently as Landlord may elect. The exercise of any remedy by Landlord shall
not be deemed an election of remedies or preclude Landlord from exercising any other remedies in
the future.
20. INTENTIONALLY DELETED.
21. Surrender of Premises. No act by Landlord shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept a surrender of the Premises shall be valid
unless it is in writing and signed by Landlord. At the expiration or termination of this Lease,
Tenant shall deliver to Landlord the Premises with all improvements located therein in good repair
and condition, free of Hazardous Materials placed on the Premises during the Term, broom-clean,
reasonable wear and tear (and condemnation and Casualty damage, as to which Section 14 and
Section 15 shall control) excepted, and shall deliver to Landlord all keys to the Premises.
Provided that Tenant has performed all of its obligations hereunder, Tenant may remove all
unattached trade fixtures, furniture, and personal property placed in the Premises or elsewhere in
the Building by Tenant (but Tenant may not remove any such item which was paid
for, in whole or in part, by Landlord or any wiring or cabling unless Landlord requires such
removal).
25
Additionally, Tenant shall (not later than ten (10) days after the expiration or earlier
termination of the Lease) remove such specific Alterations, additions, improvements, trade
fixtures, personal property, equipment, wiring, conduits, cabling and furniture (including Tenants
Off-Premises Equipment) as Landlord requested in writing (and identified as such at the time
Landlord approved Tenants Working Drawings as defined in Exhibit D or subject to
Landlords approval of any Alterations in Section 8A) of Tenant to be removed at the
termination of the Lease. Landlord shall give written notice to Tenant of the requirement to
remove such items after Tenant submits its Working Drawings for the Premises but commensurate with
the approval of the Working Drawings if any such removal is required. Tenant shall repair all
damage caused by such removal. All items not so removed shall, at Landlords option, be deemed to
have been abandoned by Tenant and may be appropriated, sold, stored, destroyed, or otherwise
disposed of by Landlord at Tenants cost without notice to Tenant and without any obligation to
account for such items. The provisions of this Section 21 shall survive the expiration or
earlier termination of the Lease.
22. Holding Over.
If Tenant fails to vacate the Premises at the end of the Term, then Tenant shall be a tenant
at sufferance and, in addition to all other damages and remedies to which Landlord may be entitled
for such holding over: (a) Tenant shall pay, in addition to the other Rent, Base Rent equal to one
hundred fifty percent (150%) of the Base Rent payable during the last month of the Term; and (b)
Tenant shall otherwise continue to be subject to all of Tenants obligations under this Lease. The
provisions of this Section 22 shall not be deemed to limit or constitute a waiver of any
other rights or remedies of Landlord provided herein or at Law. If Tenant fails to surrender the
Premises upon the termination or expiration of this Lease, in addition to any other liabilities to
Landlord accruing therefrom, Tenant shall protect, defend, indemnify and hold Landlord harmless
from all loss, costs (including reasonable attorneys fees) and liability resulting from such
failure, including any claims made by any succeeding tenant founded upon such failure to surrender.
Notwithstanding the foregoing, if Tenant holds over with Landlords express written consent, then
Tenant shall be a month-to-month tenant and Tenant shall pay, in addition to the other Rent, Base
Rent equal to one hundred twenty-five percent (125%) of the Base Rent payable during the last month
of the Term.
23. Certain Rights Reserved by Landlord
Landlord shall have the following rights, with a minimum amount of interference to the
business operations of Tenant:
(a) Building Operations.
To decorate and to make inspections, repairs, alterations, additions, changes, or
improvements, whether structural or otherwise, in and about the Project or Complex, as applicable,
or any part thereof; to enter upon the Premises (after giving Tenant reasonable notice thereof,
which may be oral notice, except in cases of real or apparent emergency, in which case
no notice shall be required) and, during the continuance of any such work, to temporarily
close doors, entryways, public space, and corridors in the Building; to interrupt or temporarily
suspend Building services and facilities; to change the name of the Building; and to change the
arrangement and location of entrances or passageways, doors, and doorways, corridors, elevators,
stairs, restrooms, or other public parts of the Building;
(b) Security.
To take such reasonable security measures as Landlord deems advisable (provided, however,
Tenant acknowledges that Landlord is not a guarantor of the security or safety of any Tenant Party)
including evacuating the Building for cause, suspected
26
cause, or for drill purposes; temporarily
denying access to the Building; and temporarily closing the Building after Normal Business Hours
and on Sundays and Holidays, subject, however, to Tenants right to enter when the Building is
closed after Normal Business Hours under such reasonable regulations as Landlord may prescribe from
time to time, as Landlord recognizes Tenants need to access the Premises at all times;
(c) Repairs and Maintenance.
To enter the Premises at all reasonable hours and (except in the event of an emergency) upon
reasonable advance notice to perform Landlords repair and maintenance obligations and rights under
the Lease;
(d) Prospective Purchasers and Lenders.
To enter the Premises at all reasonable hours and upon reasonable advance notice to show the
Premises to prospective purchasers or lenders; and
(e) Prospective Tenants.
At any time during the last six (6) months of the Term (or earlier if Tenant has notified
Landlord in writing that it does not desire to renew the Term) or at any time following the
occurrence of an Event of Default, to enter the Premises at all reasonable hours and upon
reasonable advance notice to show the Premises to prospective tenants.
24. Substitution Space [INTENTIONALLY DELETED]
25. Hazardous Materials.
(a) During the term of this Lease, Tenant shall comply with all Environmental Laws (as defined
in Section 25(i) below) applicable to the operation or use of the Premises, will cause all
other persons occupying or using the Premises to comply with all such Environmental Laws, and will
immediately pay or cause to be paid all costs and expenses incurred by reason of such compliance.
(b) Tenant shall not generate, use, treat, store, handle, release or dispose of, or permit the
generation, use, treatment, storage, handling, release or disposal of Hazardous Materials (as
defined in Section 25(i) hereof) on the Premises, or the Complex, or transport or permit
the transportation of Hazardous Materials to or from the Premises or the Complex except for limited
quantities of household cleaning products and office supplies used or stored at the Premises and
required in connection with the routine operation and maintenance of the Premises, and in
compliance with all applicable Environmental Laws.
(c) At any time and from time to time during the term of this Lease, Landlord may perform, at
Landlords sole cost and expense, an environmental site assessment report concerning the Premises,
prepared by an environmental consulting firm chosen by Landlord, indicating the presence or absence
of Hazardous Materials caused or permitted by Tenant and the potential cost of any compliance,
removal or remedial action in connection with any such Hazardous Materials on the Premises. Tenant
shall grant and hereby grants to Landlord and its agents access to the Premises and specifically
grants Landlord an irrevocable non-exclusive license to undertake such an assessment. In the event
the environmental site assessment reveals environmental contamination within the Premises, and such
environmental contamination is a result of Tenants actions (or inaction) that is not permitted
hereunder, then the cost of such
27
assessment shall be paid by Tenant to Landlord within thirty (30)
days of Tenants receipt of an invoice therefor.
(d) Tenant will immediately advise Landlord in writing of any of the following: (1) any
pending or threatened Environmental Claim (as defined in Section 25(i) below) against
Tenant relating to the Premises or the Complex; (2) any condition or occurrence on the Premises or
the Complex that (a) results in noncompliance by Tenant with any applicable Environmental Law, or
(b) could reasonably be anticipated by Tenant, using its commercially reasonable judgment, to form
the basis of an Environmental Claim against Tenant or Landlord or the Premises; (3) any condition
or occurrence on the Premises that could reasonably be anticipated to cause the Premises to be
subject to any restrictions on the ownership, occupancy, use or transferability of the Premises
under any Environmental Law; and (4) the actual or anticipated taking of any removal or remedial
action by Tenant in response to the actual or alleged presence of any Hazardous Material on the
Premises or the Complex. All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action and Tenants response
thereto. In addition, Tenant will provide Landlord with copies of all communications regarding the
Premises with any governmental agency relating to Environmental Laws, all such communications with
any person relating to Environmental Claims, and such detailed reports of any such Environmental
Claim as may reasonably be requested by Landlord.
(e) Tenant will not change or permit to be changed the present use of the Premises.
(f) Tenant agrees to indemnify, defend and hold harmless the Indemnitees from and against all
obligations (including removal and remedial actions), losses, claims, suits, judgments,
liabilities, penalties, damages (including consequential and punitive damages), costs and expenses
(including reasonable attorneys and consultants fees and expenses) of any kind or nature
whatsoever that may at any time be incurred by, imposed on or asserted against such
Indemnitees directly or indirectly based on, or arising or resulting from (a) the actual or
alleged presence of Hazardous Materials on the Complex which is caused or permitted by Tenant or a
Tenant Party and (b) any Environmental Claim relating in any way to Tenants operation or use of
the Premises (the Hazardous Materials Indemnified Matters). The provisions of this
Section 25 shall survive the expiration or sooner termination of this Lease.
(g) To the extent that the undertaking in the preceding paragraph may be unenforceable because
it is violative of any law or public policy, Tenant will contribute the maximum portion that it is
permitted to pay and satisfy under applicable Law to the payment and satisfaction of all Hazardous
Materials Indemnified Matters incurred by the Indemnitees.
(h) All sums paid and costs incurred by Landlord with respect to any Hazardous Materials
Indemnified Matter shall bear interest at the Default Rate from the date so paid or incurred until
reimbursed by Tenant, and all such sums and costs shall be immediately due and payable on demand.
(i) Hazardous Materials means: (i) petroleum or petroleum products, natural or
synthetic gas, asbestos in any form that is or could become friable, urea formaldehyde foam
28
insulation, and radon gas; (ii) any substances defined as or included in the definition of
hazardous substances, hazardous wastes, hazardous materials, extremely hazardous wastes,
restricted hazardous wastes, toxic substances, toxic pollutants, contaminants or
pollutants, or words of similar import, under any applicable Environmental Law; and (iii) any
other substance exposure which is regulated by any governmental authority; (b) Environmental Law
means any federal, state or local statute, law, rule, regulation, ordinance, code, policy or rule
of common law now or hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative order, consent
decree or judgment, relating to the environment, health, safety or Hazardous Materials, including
without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, 42 U.S.C. §§ 9601 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et
seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §§ 1801 et seq.; the Clean Water Act,
33 U.S.C. §§ 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq.; the Clean
Air Act, 42 U.S.C. §§ 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq.; the
Atomic Energy Act, 42 U.S.C. §§ 2011 et seq.; the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. §§ 136 et seq.; the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq.; (c)
Environmental Claims means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of non-compliance or violation, investigations,
proceedings, consent orders or consent agreements relating in any way to any Environmental Law or
any Environmental Permit, including without limitation (i) any and all Environmental Claims by
governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law and (ii) any and all
Environmental Claims by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the environment.
29
26.
USA Patriot Act and Anti-Terrorism Laws
(a) Tenant represents and warrants to, and covenants with, Landlord that neither Tenant nor
any of its respective constituent owners or affiliates currently are, or shall be at any time
during the Term hereof, in violation of any laws relating to terrorism or money laundering
(collectively, the Anti-Terrorism Laws), including without limitation Executive Order No. 13224
on Terrorist Financing, effective September 24, 2001 and relating to Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (the
Executive Order) and/or the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56) (the USA Patriot
Act).
(b) Tenant covenants with Landlord that neither Tenant nor any of its respective constituent
owners or affiliates is or shall be during the Term hereof a Prohibited Person, which is defined
as follows: (i) a person or entity that is listed in the Annex to, or is otherwise subject to, the
provisions of the Executive Order; (ii) a person or entity owned or controlled by, or acting for or
on behalf of, any person or entity that is listed in the Annex to, or is otherwise subject to the
provisions of, the Executive Order; (iii) a person or entity with whom Landlord is prohibited from
dealing with or otherwise engaging in any transaction by any Anti-Terrorism Law, including without
limitation the Executive Order and the USA Patriot Act; (iv) a person or entity who commits,
threatens or conspires to commit or support terrorism as defined in Section 3(d) of the Executive
Order; (v) a person or entity that is named as a specially designated national and blocked person
on the then-most current list published by the U.S. Treasury Department Office of Foreign Assets
Control at its official website, http://www.treas.gov/offices/eotffc/ofac/sdn/t11sdn.pdf,
or at any replacement website or other replacement official publication of such list; and (vi) a
person or entity who is affiliated with a person or entity listed in items (i) through (v), above.
(c) At any time and from time-to-time during the Term, Tenant shall deliver to Landlord,
within ten (10) days after receipt of a written request therefor, a written certification or such
other evidence reasonably acceptable to Landlord evidencing and confirming Tenants compliance with
this Section 26.
27. Miscellaneous
(a) Landlord Transfer.
Landlord may transfer any portion of the Building and any of its rights under this Lease. If
Landlord assigns its rights under this Lease, then Landlord shall thereby be released from any
further obligations hereunder arising after the date of transfer, provided that the assignee
assumes Landlords obligations hereunder in writing.
(b) Landlords Liability.
The liability of Landlord (and its partners, shareholders or members) to Tenant (or any person
or entity claiming by, through or under Tenant) for any default by Landlord under the terms of this
Lease or any matter relating to or arising out of the occupancy or use of the Premises and/or other
areas of the Building or Complex shall be limited to Tenants actual direct,
but not consequential, damages therefor and shall be recoverable only from the interest of
Landlord in the Building, and Landlord (and its partners, shareholders or members) shall not be
personally liable for any deficiency.
30
Additionally, to the extent allowed by Law, Tenant hereby
waives any statutory lien it may have against Landlord or its assets, including without limitation,
the Building.
(c) Force Majeure.
Other than for Tenants obligations under this Lease that can be performed by the payment of
money (e.g., payment of Rent and maintenance of insurance), whenever a period of time is herein
prescribed for action to be taken by either party hereto, such party shall not be liable or
responsible for, and there shall be excluded from the computation of any such period of time, any
delays due to strikes, riots, acts of God, shortages of labor or materials, war, (declared or
undeclared), acts of terrorism, governmental laws, regulations, or restrictions, or any other
causes of any kind whatsoever which are beyond the control of such party.
(d) Brokerage.
Neither Landlord nor Tenant has dealt with any broker or agent in connection with the
negotiation or execution of this Lease, other than as set forth in the Basic Lease Information.
Tenant shall indemnify, defend and hold Landlord harmless from and against all costs, expenses,
attorneys fees, liens and other liability for commissions or other compensation claimed by any
broker or agent claiming the same by, through, or under Tenant. Landlord shall indemnify, defend
and hold Tenant harmless from and against all costs, expenses, attorneys fees, liens and other
liability for commissions or other compensation claimed by any broker or agent claiming the same
by, through, or under Landlord. The foregoing indemnities shall survive the expiration or earlier
termination of the Lease.
(e) Estoppel Certificates.
From time to time, Tenant shall furnish to any party designated by Landlord, within fifteen
(15) calendar days after Landlord has made a request therefor, a certificate signed by Tenant
confirming and containing such accurate and factual certifications and representations as to this
Lease as Landlord may reasonably request. Unless otherwise required by Landlords Mortgagee or a
prospective purchaser or mortgagee of the Building, the initial form of estoppel certificate to be
signed by Tenant is attached hereto as Exhibit G.
(f) Notices.
All notices and other communications given pursuant to this Lease shall be in writing (unless
otherwise noted herein) and shall be: (1) mailed by first class, United States Mail, postage
prepaid, certified, with return receipt requested, and addressed to the parties hereto at the
address specified in the Basic Lease Information; (2) hand delivered to the intended addressee; (3)
sent by a nationally recognized overnight courier service; or (4) sent by facsimile transmission
during Normal Business Hours followed by a copy of such notice sent in another manner permitted
hereunder. All notices shall be effective upon the earlier to occur of actual receipt or refusal,
one (1) Business Day following deposit with a nationally recognized overnight courier service, or
three (3) days following deposit in the United States mail. The parties hereto
may change their addresses by giving notice thereof to the other in conformity with this
provision.
(g) Separability.
If any clause or provision of this Lease is illegal, invalid, or unenforceable under present
or future laws, then the remainder of this Lease shall not be affected thereby and in lieu of such
clause or provision, there shall be added as a part of this Lease a clause or provision as similar
in terms to such illegal, invalid, or unenforceable clause or provision as may be possible and be
legal, valid, and enforceable.
31
(h) Amendments; Binding Effect.
This Lease may not be amended except by instrument in writing signed by Landlord and Tenant.
No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver is in
writing signed by Landlord, and no custom or practice which may evolve between the parties in the
administration of the terms hereof shall waive or diminish the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms hereof. The terms and conditions
contained in this Lease shall inure to the benefit of and be binding upon the parties hereto, and
upon their respective successors in interest and legal representatives, except as otherwise herein
expressly provided. This Lease is for the sole benefit of Landlord and Tenant, and, other than
Landlords Mortgagee, no third party shall be deemed a third party beneficiary hereof.
(i) Quiet Enjoyment.
Provided Tenant has performed all of its obligations hereunder, Tenant shall peaceably and
quietly hold and enjoy the Premises for the Term, without hindrance from Landlord or any party
claiming by, through, or under Landlord, but not otherwise, subject to the terms and conditions of
this Lease.
(j) No Merger.
There shall be no merger of the leasehold estate hereby created with the fee estate in the
Premises or any part thereof if the same person or entity acquires or holds, directly or
indirectly, this Lease or any interest in this Lease and the fee estate in the leasehold Premises
or any interest in such fee estate.
(k) No Offer.
The submission of this Lease to Tenant shall not be construed as an offer, and Tenant shall
not have any rights under this Lease unless Landlord executes a copy of this Lease and delivers it
to Tenant.
(l) Entire Agreement.
This Lease constitutes the entire agreement between Landlord and Tenant regarding the subject
matter hereof and supersedes all oral statements and prior writings relating
thereto. Except for those set forth in this Lease, no representations, warranties, or
agreements have been made by Landlord or Tenant to the other with respect to this Lease or the
obligations of Landlord or Tenant in connection therewith. The normal rule of construction that
any ambiguities be resolved against the drafting party shall not apply to the interpretation of
this Lease or any exhibits or amendments hereto.
(m) Waiver of Jury Trial.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, LANDLORD AND TENANT EACH WAIVE ANY RIGHT TO TRIAL BY
JURY IN ANY LITIGATION OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE ARISING OUT OF OR
WITH RESPECT TO THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
(n) Governing Law.
This Lease shall be governed by and construed in accordance with the laws of the state in
which the Premises are located.
(o) Recording.
Tenant shall not record this Lease without the prior written consent of Landlord, which
consent may be withheld or denied in the sole and absolute discretion of Landlord, and any
recordation by Tenant shall be a material breach of this Lease. Tenant grants to Landlord a power
of attorney to execute and record a release releasing any such
32
recorded instrument of record that
was recorded without the prior written consent of Landlord, which power of attorney is coupled with
an interest and is non-revocable during the Term. Such power of attorney shall also be restated in
the instrument placed of record. However, the parties hereto agree that Tenant may prepare,
deliver to Landlord for execution and notarization and record with the Wake County Register of
Deeds or file with the Securities Exchange Commission (if required) at its expense a memorandum of
this Lease, the form of which is subject to the reasonable approval of Landlord.
(p) Joint and Several Liability.
If Tenant is comprised of more than one (1) party, each such party shall be jointly and
severally liable for Tenants obligations under this Lease. All unperformed obligations of Tenant
hereunder not fully performed at the end of the Term shall survive the end of the Term, including
payment obligations with respect to Rent and all obligations concerning the condition and repair of
the Premises.
(q) Financial Reports
(i) So long as Tenant remains a publicly traded company, then within fifteen (15) days after
Landlords request, Tenant will furnish and disclose to Landlord any financial or other reports
that are furnished or disclosed publicly, including its most recent annual and quarterly reports.
Tenant will discuss its financial statements with Landlord. Tenant shall not be
required to deliver any financial reports required under this Section 27(q) more than
once in any twelve (12) month period unless requested by Landlords Mortgagee or a prospective
buyer or lender of the Building or an Event of Default occurs.
(ii) In the event that Tenant ceases to be a publicly traded company, then within fifteen (15)
days after Landlords request, Tenant will furnish Tenants most recent audited financial
statements (including any notes to them) to Landlord, or, if no such audited statements have been
prepared, such other financial statements (and notes to them) as may have been prepared by an
independent certified public accountant or, failing those, Tenants internally prepared financial
statements. If requested by Landlord, Tenant will discuss its financial statements with Landlord
and, following the occurrence of an Event of Default hereunder, will give Landlord access to
Tenants books and records in order to enable Landlord to verify the financial statements.
Landlord will not disclose any aspect of Tenants financial statements that Tenant designates to
Landlord as confidential except: (1) to Landlords Mortgagee or prospective mortgagees or
purchasers of the Building; (2) in litigation between Landlord and Tenant; and (3) if required by
court order. Tenant shall not be required to deliver the financial statements required under this
Section 27(q) more than once in any twelve (12) month period unless requested by Landlords
Mortgagee or a prospective buyer or lender of the Building or an Event of Default occurs.
(r) Landlords and Third Party Fees.
Whenever Tenant requests Landlord to take any action not required of it hereunder or give any
consent required or permitted under this Lease, Tenant will reimburse Landlord for Landlords
reasonable, out-of-pocket costs payable to third parties and incurred by Landlord in reviewing the
proposed action or consent, including reasonable attorneys, engineers or architects fees, within
thirty (30) days after Landlords delivery to Tenant of a statement of such costs. Tenant will be
obligated to make such reimbursement without regard to whether Landlord consents to any such
proposed
33
action. However, Landlord shall use commercially reasonable efforts to avoid the
employment of third parties in connection with such actions and consents.
(s) Telecommunications.
Tenant and its telecommunications companies, including local exchange telecommunications
companies and alternative access vendor services companies, shall have no right of access to and
within the Building, for the installation and operation of telecommunications systems, including
voice, video, data, Internet, and any other services provided over wire, fiber optic, microwave,
wireless, and any other transmission systems (Telecommunications Services), for part or
all of Tenants telecommunications within the Building and from the Building to any other location
without Landlords prior written consent, which consent shall not be unreasonably withheld, delayed
or conditioned, as Landlord recognizes Tenants absolute need for such Telecommunications Services.
All providers of Telecommunications Services shall be required to comply with the rules and
regulations of the Building, applicable Laws and Landlords policies and practices for the
Building. Tenant acknowledges that Landlord shall not be required to provide or arrange for any
Telecommunications Services and that Landlord shall have no liability to any Tenant Party in
connection with the installation, operation or maintenance of Telecommunications Services or
any equipment or facilities relating thereto. Tenant, at its cost and for its own account, shall
be solely responsible for obtaining all Telecommunications Services, with the initial installation
of the Telecommunication Services anticipated to be approximately thirty (30) days prior to
occupancy.
(t) Confidentiality.
Tenant acknowledges that the terms and conditions of this Lease are to remain confidential for
Landlords benefit, and may not be disclosed by Tenant to anyone, by any manner or means, directly
or indirectly, without Landlords prior written consent. The consent by Landlord to any
disclosures shall not be deemed to be a waiver on the part of Landlord of any prohibition against
any future disclosure.
(u) Authority.
Tenant (if a corporation, partnership or other business entity) hereby represents and warrants
to Landlord that Tenant is a duly formed and existing entity qualified to do business in the state
in which the Premises are located, that Tenant has full right and authority to execute and deliver
this Lease, and that each person signing on behalf of Tenant is authorized to do so.
(v) List of Exhibits.
All exhibits and attachments attached hereto are incorporated herein by this reference.
Exhibit A | Outline of Premises | |||
Exhibit B | Description of the Land | |||
Exhibit C | Additional Rent, Taxes and Insurance | |||
Exhibit D | Tenant Finish-Work | |||
Exhibit E | Building Rules and Regulations | |||
Exhibit F | Form of Confirmation of Commencement Date Letter | |||
Exhibit G | Form of Tenant Estoppel Certificate |
34
Exhibit H | Parking | |||
Exhibit H-1 | Site Plan | |||
Exhibit I | Expansion Rights and Renewal Option |
28. Other Provisions.
(a) Reasonable Attorneys Fees. As used in this Lease, the phrase attorneys fees,
reasonable attorneys fees or words of similar import shall mean fees and expenses actually
incurred at customary hourly rates without regard to any statutory presumption.
(b) Disclaimer. LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES
ARE SUITABLE FOR TENANTS INTENDED COMMERCIAL PURPOSE.
[the remainder of this page intentionally blank signatures follow]
35
This Lease is executed on the respective dates set forth below, but for reference purposes,
this Lease shall be dated as of the date first above written. If the execution date is left blank,
this Lease shall be deemed executed as of the date first written above.
LANDLORD: | 3700 GLENWOOD LLC, | |||||
a North Carolina limited liability company | ||||||
By: | /s/ R. Gordon Grubb | |||||
Name: |
|
|||||
Title: | Manager |
|||||
TENANT: | TRIANGLE CAPITAL CORPORATION, | |||||
a Maryland corporation | ||||||
By: | /s/ Steven C. Lilly | |||||
Name: |
|
|||||
Title: | CFO |
36
EXHIBIT A
OUTLINE OF PREMISES
[to be attached]
A-1
EXHIBIT B
DESCRIPTION OF THE LAND
Lying and being situate in Wake County, North Carolina, and being more particularly described as
follows:
BEING all of Lot 1, containing 3.16 acres, more or less, as shown on plat entitled
Recombination Map Glenwood Place North dated January 10, 2006 and prepared by
John A. Edwards & Company recorded in Book of Maps 2006, Page 237, Wake County
Registry.
B-1
EXHIBIT C
ADDITIONAL RENT, TAXES, AND INSURANCE
1. Additional Rent. Tenant shall pay to Landlord the amount (per each rentable square
foot in the Premises) (Additional Rent) by which the annual Operating Costs (defined
below) per rentable square foot in the Building exceed $6.00 per rentable square foot in the
Building (the Expense Stop). Landlord may make a good faith estimate of the Additional
Rent to be due by Tenant for any calendar year or part thereof during the Term. During each
calendar year or partial calendar year of the Term, Tenant shall pay to Landlord, in advance
concurrently with each monthly installment of Base Rent, an amount equal to the estimated
Additional Rent for such calendar year or part thereof divided by the number of months therein.
From time to time, Landlord may estimate and re-estimate the Additional Rent to be due by Tenant
and deliver a copy of the estimate or re-estimate to Tenant. Thereafter, the monthly installments
of Additional Rent payable by Tenant shall be appropriately adjusted in accordance with the
estimations so that, by the end of the calendar year in question, Tenant shall have paid all of the
Additional Rent as estimated by Landlord. Any amounts paid based on such an estimate shall be
subject to adjustment as herein provided when actual Operating Costs are available for each
calendar year.
2. Operating Costs. The term Operating Costs shall mean all expenses and
disbursements (subject to the limitations set forth below) that Landlord incurs in connection with
the ownership, operation, and maintenance of the Project or Complex, as applicable, determined in
accordance with sound accounting principles consistently applied, including the following costs:
(a) wages and salaries of all on-site employees engaged in the management, operation, maintenance,
repair or security of the Project or Complex, as applicable (together with Landlords reasonable
allocation of expenses of off-site employees who perform a portion of their services in connection
with the operation, maintenance or security of the Project or Complex, as applicable), including
taxes, insurance and benefits relating thereto; (b) all supplies and materials used in the
operation, maintenance, repair, replacement, and security of the Project or Complex, as applicable;
(c) costs for improvements made to the Project or Complex, as applicable which, although capital in
nature, are (i) reasonably expected to reduce the normal operating costs (including all utility
costs) of the Project or Complex, as applicable, as amortized using a commercially reasonable
interest rate over the time period reasonably estimated by Landlord to recover the costs thereof
taking into consideration the anticipated cost savings, as determined by Landlord using its good
faith, commercially reasonable judgment, as well as (ii) capital improvements made in order to
comply with any Law hereafter promulgated by any governmental authority or any interpretation
hereafter rendered with respect to any existing Law, as amortized using a commercially reasonable
interest rate over the useful economic life of such improvements as determined by Landlord in its
reasonable discretion, as well as (iii) capital improvements made to improve the health, safety and
welfare of the Building and its occupants, as amortized using a commercially reasonable interest
rate over the useful economic life of such improvements as determined by Landlord in its reasonable
discretion; (d) cost of all utilities; (e) repairs, replacements, and general maintenance of the
Project or Complex, as applicable; (f) fair market rental and other costs with respect to the
management office for the Building or Complex, if any; and (g) service, maintenance and management
contracts with independent contractors for the operation, maintenance, management, repair,
replacement, or security of the Project or Complex, as applicable. If the Building is part of a
C-1
Complex, Operating Costs may be prorated among the Project and the other buildings of the
Complex, as reasonably determined by Landlord.
Operating Costs shall not include costs for: (1) repair, replacements and general maintenance paid
by proceeds of insurance or by Tenant or other third parties; (2) interest, amortization or other
payments on loans to Landlord; (3) depreciation; (4) real estate brokerage and leasing commissions;
(5) legal expenses for services, other than those that benefit the Project or Complex tenants, as
applicable (e.g., tax disputes); (6) renovating or otherwise improving leased premises of the
Project or Complex, as applicable or vacant space in the Project or Complex, as applicable; (7)
capital improvements to the Complex outside of those set forth herein as inclusions in Operating
Costs; and (8) federal income taxes imposed on or measured by the income of Landlord from the
operation of the Project or Complex, as applicable.
3. Taxes. As part of the Operating Costs, Tenant shall pay Tenants Proportionate
Share of Taxes for each year and partial year falling within the Term. Taxes shall mean
taxes, assessments, and governmental charges or fees whether federal, state, county or municipal,
and whether they be by taxing districts or authorities presently taxing or by others, subsequently
created or otherwise, and any other taxes and assessments (including non-governmental assessments
for common charges under a restrictive covenant or other private agreement that are not treated as
part of Operating Costs) now or hereafter attributable to the Project or Complex, as applicable (or
its operation), excluding, however, penalties and interest thereon and federal and state taxes on
income (if the present method of taxation changes so that in lieu of or in addition to the whole or
any part of any Taxes, there is levied on Landlord a capital tax directly on the rents received
therefrom or a franchise tax, assessment, or charge based, in whole or in part, upon such rents for
the Project or Complex, as applicable, then all such taxes, assessments, or charges, or the part
thereof so based, shall be deemed to be included within the term Taxes for purposes hereof).
Taxes shall include the costs of consultants retained in an effort to lower taxes and all costs
incurred in disputing any taxes or in seeking to lower the tax valuation of the Project. For
property tax purposes, to the extent allowed by Law, Tenant waives all rights to protest or appeal
the appraised value of the Premises, as well as the Project and Complex, and all rights to receive
notices of reappraisement.
4. Insurance. As part of the Operating Costs, Tenant shall pay Tenants Proportionate
Share of Insurance for each year and partial year falling within the Term. Insurance
shall mean property, liability and other insurance coverages carried by Landlord, including without
limitation deductibles and risk retention programs and an allocation of a portion of the cost of
blanket insurance policies maintained by Landlord and/or its affiliates.
5. Operating Costs Statements. By May 1 of each calendar year, or as soon thereafter
as practicable, Landlord shall furnish to Tenant a statement of Operating Costs for the previous
year, adjusted as provided in Section 6 of this Exhibit, and of the Taxes and Insurance for
the previous year (the Operating Costs Statement). If Tenants estimated payments of
Operating Costs under this Exhibit C for the year covered by the Operating Costs Statement
exceed Tenants share of such items as indicated in the Operating Costs Statement, then Landlord
shall promptly credit or reimburse Tenant for such excess; likewise, if Tenants estimated payments
of Operating Costs under this Exhibit C for such year are less than Tenants share of such
items as indicated in the Operating Costs Statement, then Tenant shall promptly pay Landlord such
deficiency, notwithstanding that the Term has expired and Tenant has vacated the Premises.
C-2
If Tenant takes exception to any matter contained in the Operating Costs Statement, Tenant
shall notify Landlord of such exception no later than thirty (30) days after Tenants receipt of
the Operating Costs Statement from Landlord. If Tenant objects to any matter contained in the
Operating Costs Statement, then Landlord shall refer the matter to an independent certified public
accountant of Landlords choice, subject to Tenants reasonable approval, whose certification as to
the proper amount shall be final and conclusive as between Landlord and Tenant. Tenant shall
promptly pay the cost of such certification, including any attorneys fees incurred by Landlord in
connection therewith, unless such certification determines that Tenant was overbilled by more than
five percent (5%) in the aggregate for the applicable year. Pending resolution of any such
exceptions in the foregoing manner, Tenant shall continue paying Operating Costs in the amounts
determined by Landlord, subject to adjustment after any such exceptions are so resolved. In
addition to the foregoing, Tenant shall have a right to audit all books and reports of Landlord
that detail the Operating Costs, upon reasonable notice and at reasonable hours; provided,
however, that Tenant shall only have the right to audit the books and reports of Landlord detailing
the Operating Costs one (1) time per year and such audit shall be conducted within sixty (60) days
of Tenants receipt of the Operating Costs Statement from Landlord. Tenant acknowledges that any
information gathered through any audit is strictly confidential and shall not disclose such
confidential information to any person or entity other than Tenants financial and legal
consultants. The Operating Costs Statement shall be considered final, except as to matters to
which exception is taken in the manner and within the times specified herein.
6. Gross-Up. With respect to any calendar year or partial calendar year in which the
Building or Complex, as applicable, is not occupied to the extent of 95% of the rentable area
thereof, or Landlord is not supplying services to 95% of the rentable area thereof, the Operating
Costs for such period shall, for the purposes hereof, be increased to the amount which would have
been incurred had the Building or Complex, as applicable, been occupied to the extent of 95% of the
rentable area thereof and Landlord had been supplying services to 95% of the rentable area thereof.
7. Cap on Controllable Operating Expenses. Landlord agrees that Tenants share of the
controllable Operating Expenses for the Building shall not escalate more than six percent (6%) per
annum. For the purposes of this Lease, a controllable Operating Expense shall be defined as any
expense within the reasonable control of Landlord (hereinafter known as Controllables), such as
expenses for which the Landlord may obtain a competitive bid for materials or services, the
salaries of employees, management fees, and service contracts, but specifically excluding, taxes,
insurance, snow removal, utilities, or any other services for which Landlord does not control the
rates or costs.
C-3
EXHIBIT D
TENANT FINISH-WORK: LANDLORD BUILDS TO PLANS
1. Acceptance of Premises. Except as set forth in this Exhibit, Tenant accepts the
Premises in their AS-IS condition on the date that this Lease is entered into.
2. Space Plans. On or before the execution of this Lease, Tenant has delivered to
Landlord a space plan depicting improvements to be installed in the Premises, which plans were
prepared by Phillips Architecture (Landlords Architect) and attached to the Lease as Exhibit
A (the Space Plans).
3. Working Drawings.
(a) Preparation and Delivery. On or before the date which is fifteen (15) days
following the date on which this Lease is fully executed by both Landlord and Tenant, Landlord
shall cause to be prepared final working drawings of all improvements to be installed in the
Premises and deliver the same to Tenant for its review and approval (which approval shall not be
unreasonably withheld, delayed or conditioned). Such working drawings shall be prepared by
Landlords Architect.
(b) Approval Process. Tenant shall notify Landlord whether it approves of the
submitted working drawings within three (3) Business Days after Landlords submission thereof. If
Tenant disapproves of such working drawings, then Tenant shall notify Landlord thereof specifying
in reasonable detail the reasons for such disapproval, in which case Landlord shall, within five
(5) Business Days after such notice, revise such working drawings in accordance with Tenants
objections and submit the revised working drawings to Tenant for its review and approval. Tenant
shall notify Landlord in writing whether it approves of the resubmitted working drawings within two
(2) Business Days after its receipt thereof. This process shall be repeated until the working
drawings have been finally approved by Landlord and Tenant. If Tenant fails to notify Landlord
that it disapproves of the initial working drawings within three (3) Business Days (or, in the case
of resubmitted working drawings, within two (2) Business Days) after the submission thereof, then
Tenant shall be deemed to have approved the working drawings in question. Any delay caused by
Tenants withholding of its consent or delay in giving its written approval as to such working
drawings shall constitute a Tenant Delay Day (defined below).
(c) Landlords Approval; Performance of Work. If any of Tenants proposed
construction work will affect the Buildings Structure or the Buildings Systems, then the working
drawings pertaining thereto must be approved by Landlords engineer. Landlords approval of such
working drawings shall not be unreasonably withheld, provided that (1) they comply with all Laws,
(2) the improvements depicted thereon do not adversely affect (in the reasonable discretion of
Landlord) the Buildings Structure or the Buildings Systems (including the Buildings restrooms or
mechanical rooms), the exterior appearance of the Building, or the appearance of the Buildings
Common Areas or elevator lobby areas (if any), (3) such working drawings are sufficiently detailed
to allow construction of the improvements in a good and workmanlike manner, and (4) the
improvements depicted thereon conform to the rules and
D-1
regulations promulgated from time to time by Landlord for the construction of tenant
improvements (a copy of which has been delivered to Tenant). As used herein, Working
Drawings shall mean the final working drawings approved by Landlord, as amended from time to
time by any approved changes thereto, and Work shall mean all improvements to be
constructed by Landlord in accordance with and as indicated on the Working Drawings. Landlords
approval of the Working Drawings shall not be a representation or warranty of Landlord that such
drawings are adequate for any use or comply with any Law, but shall merely be the consent of
Landlord thereto. Tenant shall, at Landlords request, sign the Working Drawings to evidence its
review and approval thereof. After the Working Drawings have been approved, Landlord shall cause
the Work to be performed in substantial accordance with the Working Drawings, using contractors and
subcontractors selected by Landlord.
4. Change Orders. Tenant may initiate changes in the Work. Each such change must
receive the prior written approval of Landlord, such approval not to be unreasonably withheld or
delayed; however, (a) if such requested change would adversely affect (in the reasonable discretion
of Landlord) (1) the Buildings Structure or the Buildings Systems (including the Buildings
restrooms or mechanical rooms), (2) the exterior appearance of the Building, or (3) the appearance
of the Buildings Common Areas or elevator lobby areas (if any), or (b) if any such requested
change might delay the Commencement Date, Landlord may withhold its consent in its sole and
absolute discretion. With each Change Order request by Tenant, Landlord shall furnish in writing
to Tenant an estimate of the additional cost associated with such work, which Tenant must approve,
if at all, within two (2) Business Days of submittal to Tenant. Landlords Architect shall, upon
completion of the Work, furnish Landlord with an accurate architectural as-built plan of the Work
as constructed, which plan shall be incorporated into this Exhibit D by this reference for
all purposes.
5. Definitions. As used herein, a Tenant Delay Day shall mean each day of
delay in the performance of the Work that occurs (a) because of Tenants failure to timely deliver
or approve any required documentation such as the Space Plans or Working Drawings, (b) because of
any change by Tenant to the Space Plans or Working Drawings, (c) because of any specification by
Tenant of materials or installations in addition to or other than Landlords standard finish-out
materials, or (d) because a Tenant Party otherwise delays completion of the Work. As used herein
Substantial Completion, Substantially Completed, and any derivations thereof
mean the Work in the Premises has been performed in substantial accordance with the Working
Drawings, as reasonably determined by Landlord (other than any details of construction, mechanical
adjustment or other similar matter, the noncompletion of which does not materially interfere with
Tenants use or occupancy of the Premises) and as evidenced by a certificate of occupancy issued by
the City of Raleigh.
6. Walk-Through; Punchlist. When Landlord considers the Work in the Premises to be
Substantially Completed, Landlord will notify Tenant and within three (3) Business Days thereafter,
Landlords representative and Tenants representative shall conduct a walk-through of the Premises
and identify any necessary touch-up work, repairs and minor completion items that are necessary for
final completion of the Work. Neither Landlords representative nor Tenants representative shall
unreasonably withhold his or her agreement on punchlist items. Landlord shall use reasonable
efforts to cause the contractor performing the Work to complete all punchlist
D-2
items within thirty (30) days after agreement thereon; however, Landlord shall not be
obligated to engage overtime labor in order to complete such items.
7. Costs. Landlord shall bear the entire cost of performing the Work depicted on the
Space Plans initially submitted to and approved by Landlord. The scope of the Work is as outlined
on Exhibits A and D-1 attached hereto and incorporated herein by reference. Tenant has
reviewed and approved the scope on Exhibit D-1 prior to execution of the Lease. Tenant
shall bear all additional costs incurred by Landlord in performing the Work because of any event
specified in clause 5(a) or 5(d) of this Exhibit.
In the event Tenant requests any changes to the Space Plans, Working Drawings or Landlords
standard building finish materials, and such changes, after review by Landlord and Tenant, are
determined to be a Change Order, then in such event, Tenant shall pay Landlord an amount equal to
fifty percent (50%) of the estimated additional costs under the Change Order at the time of such
Change Order, and Tenant shall pay to Landlord the balance of the additional costs under the Change
Order upon Substantial Completion of the Work.
8. Construction Representatives. Landlords and Tenants representatives for
coordination of construction and approval of change orders will be as follows, provided that either
party may change its representative upon written notice to the other:
Landlords Representative:
|
Anne E. Stoddard, Project Manager | |
Martin Phillips, Construction Manager | ||
Grubb Ventures, LLC | ||
3733 National Drive, Suite 125 | ||
Raleigh, NC 27612 | ||
Telephone: (919)786-9905 | ||
Facsimile: (919) 786-9961 | ||
Tenants Representative:
|
Steven C. Lilly | |
(see address under Basic Lease Information) | ||
Telephone: (919) 719-4789 | ||
Telecopy: (919) 719-4777 |
9. Miscellaneous. To the extent not inconsistent with this Exhibit, Sections
8(a) and 21 of this Lease shall govern the performance of the Work and Landlords and
Tenants respective rights and obligations regarding the improvements installed pursuant thereto.
D-3
EXHIBIT D-1
SCOPE/COSTS
[to be attached]
D-4
EXHIBIT E
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the Premises, the Building, the parking
garage associated therewith, and the appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar areas shall not be
obstructed by tenants or used by any tenant for purposes other than ingress and egress to and from
their respective leased premises and for going from one to another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for the purposes for which designed,
and no sweepings, rubbish, rags or other unsuitable material shall be thrown or deposited therein.
Damage resulting to any such fixtures or appliances from misuse by a tenant or its agents,
employees or invitees, shall be paid by such tenant.
3. No signs, advertisements or notices (other than those that are not visible outside the
Premises) shall be painted or affixed on or to any windows or doors or other part of the Building
without the prior written consent of Landlord.
4. Landlord shall provide all door locks in each tenants leased premises, at the cost of such
tenant, and no tenant shall place any additional door locks in its leased premises without
Landlords prior written consent. Landlord shall furnish to each tenant a reasonable number of
keys to such tenants leased premises, at such tenants cost, and no tenant shall make a duplicate
thereof.
5. If the Building is multi-tenant, movement in or out of the Building of furniture or office
equipment, or dispatch or receipt by tenants of any bulky material, merchandise or materials which
require use of elevators or stairways, or movement through the Building entrances or lobby shall be
conducted under Landlords supervision at such times and in such a manner as Landlord may
reasonably require. Each tenant assumes all risks of and shall be liable for all damage to
articles moved and injury to persons or public engaged or not engaged in such movement, including
equipment, property and personnel of Landlord if damaged or injured as a result of acts in
connection with carrying out this service for such tenant.
6. Landlord may prescribe weight limitations and determine the locations for safes and other
heavy equipment or items, which shall in all cases be placed in the Building so as to distribute
weight in a manner acceptable to Landlord which may include the use of such supporting devices as
Landlord may require. All damages to the Building caused by the installation or removal of any
property of a tenant, or done by a tenants property while in the Building, shall be repaired at
the expense of such tenant.
7. Corridor doors, when not in use, shall be kept closed. Nothing shall be swept or thrown
into the corridors, halls, elevator shafts or stairways. No birds or animals (other than
seeing-eye dogs) shall be brought into or kept in, on or about any tenants leased premises. No
portion of any tenants leased premises shall at any time be used or occupied as sleeping or
lodging quarters.
E-1
8. Tenant shall not make or permit any vibration or improper, objectionable or unpleasant
noises or odors in the Building or otherwise interfere in any way with other tenants or persons
having business with them.
9. No machinery of any kind (other than normal office equipment) shall be operated by any
tenant on its leased area without Landlords prior written consent, nor shall any tenant use or
keep in the Building any flammable or explosive fluid or substance (other than typical office
supplies [e.g., photocopier toner] used in compliance with all Laws).
10. Landlord will not be responsible for lost or stolen personal property, money or jewelry
from tenants leased premises or public or common areas regardless of whether such loss occurs when
the area is locked against entry or not.
11. No vending or dispensing machines of any kind may be maintained in any leased premises
without the prior written permission of Landlord, other than those used for Tenants employees.
12. Tenant shall not conduct any activity on or about the Premises or Building which will draw
pickets, demonstrators, or the like.
13. No tenant may enter into phone rooms, electrical rooms, mechanical rooms, or other service
areas of the Building unless accompanied by Landlord or the Building manager.
14. Tenant shall not permit its employees, invitees or guests to smoke in the Premises or the
lobbies, passages, corridors, elevators, vending rooms, rest rooms, stairways or any other area
shared in common with other tenants in the Building. Nor shall the tenant permit its employees,
invitees, or guests to loiter at the Building entrances for the purposes of smoking. Landlord may,
but shall not be required to, designate an area for smoking outside the Building.
15. Canvassing, soliciting or peddling in or about the Premises or the Property is prohibited
and Tenant shall cooperate to prevent same.
[Exhibit E may be modified according to Building-specific needs]
E-2
EXHIBIT F
CONFIRMATION OF EARLY DELIVERY DATE
AND COMMENCEMENT DATE
, 200_
AND COMMENCEMENT DATE
, 200_
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
Re: Lease Agreement (the Lease) dated , 200___, between , a
(Landlord), and
, a
(Tenant). Capitalized terms used herein but not defined shall be given the meanings
assigned to them in the Lease.
Ladies and Gentlemen:
Landlord and Tenant agree as follows:
1. Condition of Premises. Tenant has accepted possession of the Premises pursuant to
the Lease. Any improvements required by the terms of the Lease to be made by Landlord have been
completed to the full and complete satisfaction of Tenant in all respects except for the punchlist
items described on Exhibit A hereto (the Punchlist Items), and except for such
Punchlist Items, Landlord has fulfilled all of its duties under the Lease with respect to such
initial tenant improvements. Furthermore, Tenant acknowledges that the Premises are suitable for
the Permitted Use.
2. Early Delivery Date. The Early Delivery Date is , 2008.
3. Commencement Date. The Commencement Date of the Lease is , 200___.
4. Rentable Square Feet. As of the Commencement Date of the Lease, the actual
Rentable Square Feet of the Premises is , and therefore Tenants Proportionate Share for
the purposes of the Lease is .
5. Expiration Date. The Term is scheduled to expire on the last day of the ___full
calendar month of the Term, which date is , 200___.
6. Base Rent. Notwithstanding anything contained in the Lease to the contrary,
Landlord and Tenant agree that during the Term of the Lease, the Base Rent shall be as follows:
Annual Gross Rent Rate Per | Additional Rent | |||
Lease Month
|
Rentable Square Foot | (Expense Stop) |
F-1
7. Contact Person. Tenants contact person in the Premises is:
Triangle Capital Corporation
3700 Glenwood Avenue, Suite 530
Raleigh, NC 27612
Attn: Mr. Steven C. Lilly
Telephone: (919) 719-4789
Telecopy: (919) 719-4777
3700 Glenwood Avenue, Suite 530
Raleigh, NC 27612
Attn: Mr. Steven C. Lilly
Telephone: (919) 719-4789
Telecopy: (919) 719-4777
8. Ratification. Tenant hereby ratifies and confirms its obligations under the Lease,
and represents and warrants to Landlord that it has no defenses thereto. Additionally, Tenant
further confirms and ratifies that, as of the date hereof, (a) the Lease is and remains in good
standing and in full force and effect, and (b) Tenant has no claims, counterclaims, set-offs or
defenses against Landlord arising out of the Lease or in any way relating thereto or arising out of
any other transaction between Landlord and Tenant.
9. Binding Effect; Governing Law. Except as modified hereby, the Lease shall remain
in full effect and this letter shall be binding upon Landlord and Tenant and their respective
successors and assigns. If any inconsistency exists or arises between the terms of this letter and
the terms of the Lease, the terms of this letter shall prevail. This letter shall be governed by
the laws of the state in which the Premises are located.
[the remainder of this page intentionally blank signatures follow]
F-2
Please indicate your agreement to the above matters by signing this letter in the space
indicated below and returning an executed original to us.
Sincerely, | ||||||
3700 GLENWOOD LLC, | ||||||
a North Carolina limited liability company | ||||||
By: | ||||||
Name: |
|
|||||
Title: |
|
|||||
|
Agreed and accepted: | ||||
TRIANGLE CAPITAL CORPORATION | ||||
a Maryland corporation | ||||
By: |
||||
Name:
|
|
|||
Title: |
||||
F-3
EXHIBIT A
PUNCHLIST ITEMS
Please insert any punchlist items that remain to be performed by Landlord. If no items are
listed below by Tenant, none shall be deemed to exist.
F-4
EXHIBIT G
FORM OF TENANT ESTOPPEL CERTIFICATE
The undersigned is the Tenant under the Lease (defined below) between ,
a , as Landlord, and the undersigned as Tenant, for the Premises on the
floor(s) of the industrial building located at ,
and
commonly known as , and hereby certifies as follows:
1. The Lease consists of the original Lease Agreement dated as of , 200___between
Tenant and Landlord [s predecessor-in-interest] and the following amendments or modifications
thereto (if none, please state none):
.
The documents listed above are herein collectively referred to as the Lease and represent
the entire agreement between the parties with respect to the Premises. All capitalized terms used
herein but not defined shall be given the meaning assigned to them in the Lease.
2. The Lease is in full force and effect and has not been modified, supplemented or amended in
any way except as provided in Section 1 above.
3. The Term commenced on , 200___, and the Term expires, excluding any
renewal options, on , 200___, and Tenant has no option to purchase all or any
part of the Premises or the Building or, except as expressly set forth in the Lease, any option to
terminate or cancel the Lease.
4. Tenant currently occupies the Premises described in the Lease and Tenant has not
transferred, assigned, or sublet any portion of the Premises nor entered into any license or
concession agreements with respect thereto except as follows (if none, please state none):
5. All monthly installments of Base Rent, all Additional Rent and all monthly installments of
estimated Additional Rent have been paid when due through . The current monthly
installment of Base Rent is $ .
6. All conditions of the Lease to be performed by Landlord necessary to the enforceability of
the Lease have been satisfied and Landlord is not in default thereunder. In addition, Tenant has
not delivered any notice to Landlord regarding a default by Landlord thereunder.
G-1
7. As of the date hereof, there are no existing defenses or offsets, or, to the undersigneds
knowledge, claims or any basis for a claim, that the undersigned has against Landlord and no event
has occurred and no condition exists, which, with the giving of notice or the passage of time, or
both, will constitute a default under the Lease.
8. No rental has been paid more than 30 days in advance and no security deposit has been
delivered to Landlord except as provided in the Lease.
9. If Tenant is a corporation, partnership or other business entity, each individual executing
this Estoppel Certificate on behalf of Tenant hereby represents and warrants that Tenant is a duly
formed and existing entity qualified to do business in the state in which the Premises are located
and that Tenant has full right and authority to execute and deliver this Estoppel Certificate and
that each person signing on behalf of Tenant is authorized to do so.
10. There are no actions pending against Tenant under any bankruptcy or similar laws of the
United States or any state.
11. Other than as approved by Landlord in writing and used in compliance with all applicable
laws and incidental to the ordinary course of the use of the Premises, the undersigned has not used
or stored any hazardous substances in the Premises.
12. All tenant improvement work to be performed by Landlord under the Lease has been completed
in accordance with the Lease and has been accepted by the undersigned and all reimbursements and
allowances due to the undersigned under the Lease in connection with any tenant improvement work
have been paid in full.
Tenant acknowledges that this Estoppel Certificate may be delivered to Landlord, Landlords
Mortgagee or to a prospective mortgagee or prospective purchaser, and their respective successors
and assigns, and acknowledges that Landlord, Landlords Mortgagee and/or such prospective mortgagee
or prospective purchaser will be relying upon the statements contained herein in disbursing loan
advances or making a new loan or acquiring the property of which the Premises are a part and that
receipt by it of this certificate is a condition of disbursing loan advances or making such loan or
acquiring such property.
Executed as of , 200_.
TENANT: | ||||||
|
||||||
a | ||||||
|
||||||
By: | ||||||
Name: |
|
|||||
Title: |
|
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|
G-2
EXHIBIT H
PARKING
Tenant shall have access to as many spaces in the parking deck attached to the Building (the
Parking Deck) as needed for Tenants non-exclusive, non-reserved parking of employees and
visitors of the Premises. Parking shall be free of charge for the duration of the Term.
Notwithstanding the foregoing, Landlord agrees to designate certain spaces on the first (ground)
floor of the parking deck as being available For Authorized Personnel Only (or similar language)
that will be available to tenants in the Building on a temporary basis.
H-1
EXHIBIT H-1
SITE PLAN
H-2
EXHIBIT I
RENEWAL OPTION
If Tenant has not committed an Event of Default at any time during the Term, and Tenant is
occupying the entire Premises at the time of such election, Tenant may renew this Lease for one (1)
additional period of five (5) years, by delivering written notice of the exercise thereof to
Landlord not later than nine (9) months before the expiration of the Term. The Base Rent payable
for each month during such extended Term shall be the prevailing market rental rate for comparable
Class A buildings in the immediate marketplace, including current and future phases of the rest of
the Complex of which the Building is a part (the Prevailing Rental Rate), at the
commencement of such extended Term, of equivalent quality, size, utility and location, with the
length of the extended Term and the credit standing of Tenant to be taken into account. Within
thirty (30) days after receipt of Tenants notice to renew, Landlord shall deliver to Tenant
written notice of the Prevailing Rental Rate and shall advise Tenant of the required adjustment to
Base Rent, if any, and the other terms and conditions offered. Tenant shall, within ten (10) days
after receipt of Landlords notice, notify Landlord in writing whether Tenant accepts or rejects
Landlords determination of the Prevailing Rental Rate. If Tenant timely notifies Landlord that
Tenant accepts Landlords determination of the Prevailing Rental Rate, then, on or before the
commencement date of the extended Term, Landlord and Tenant shall execute an amendment to this
Lease extending the Term on the same terms provided in this Lease, except as follows:
(a) Base Rent shall be adjusted to the Prevailing Rental Rate;
(b) Tenant shall have no further renewal option unless expressly granted by Landlord in
writing;
(c) Landlord shall lease to Tenant the Premises in their then-current condition, and Landlord
shall not provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the
like) or other tenant inducements.
If Tenant rejects Landlords determination of the Prevailing Rental Rate, or fails to timely
notify Landlord in writing that Tenant accepts or rejects Landlords determination of the
Prevailing Rental Rate, time being of the essence with respect thereto, Tenants rights under this
Exhibit shall terminate and Tenant shall have no right to renew this Lease.
Tenants rights under this Exhibit shall terminate if (1) this Lease or Tenants right to
possession of the Premises is terminated, (2) Tenant assigns any of its interest in this Lease or
sublets any portion of the Premises, or (3) Tenant fails to timely exercise its option under this
Exhibit, time being of the essence with respect to Tenants exercise thereof.
I-1