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EXHIBIT 10.8
OFFICE LEASE
1. BASIC LEASE PROVISIONS AND IDENTIFICATION OF EXHIBITS
1.01 BASIC LEASE PROVISIONS
A. BUILDING AND ADDRESS: 6000 Fairview
SouthPark Towers
6000 Fairview Road
Charlotte, NC 28210
B. LANDLORD AND ADDRESS: 6000 Fairview Associates, LLC
c/o Queens Properties, Inc.
6060 J.A. Jones Drive
Charlotte, NC 28287
C. TENANT AND PREMISES ADDRESS: Sales Vision, Inc.
SouthPark Towers
6000 Fairview Road
Suite 1180
Charlotte, NC 28210
D. DATE OF LEASE: November 11, 1997
E. LEASE TERM: 60 months
F. COMMENCEMENT DATE OF TERM: March 1, 1998
G. EXPIRATION DATE OF TERM: February 28, 2003
H. MONTHLY BASE RENT: ($23.00 per rentable square foot) ($4,849.17)
I. APPROXIMATE RENTABLE AREA OF THE PREMISES: 2,530 s.f.
J. SECURITY DEPOSIT: ($4,849.17)
K. FLOOR: Eleventh
L. TENANT'S BROKER: Queens Properties, Inc.
M. OPERATING EXPENSE BASE: First year actual operating expense
N. CPI ADJUSTMENT BASE: $18.00
O. APPROXIMATE RENTABLE SQUARE FOOTAGE OF THE BUILDING: 289,000
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P. FIRST MONTH RENT PAID WITH LEASE EXECUTION: ($4,849.17)
1.02 IDENTIFICATION OF EXHIBITS
The exhibits set forth below and attached to this Lease are
incorporated in this Lease by this reference:
EXHIBIT A - Plan of Premises/Tenant Improvements
EXHIBIT B - Rules and Regulations
EXHIBIT C - Legal Description Of The Land On Which The Building is
Located
EXHIBIT D - ERISA List
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2. PREMISES AND TERM
2.01 LEASE OF PREMISES
Landlord leases to Tenant and Tenant leases from Landlord the
Premises ("Premises") shown on Exhibit A which are or will be contained in the
office building ("Building") located at the address stated in 1.01A, which
Building is part of an office building complex known as the name given in
1.01A, upon the following terms and conditions. For purposes of this Lease,
"Complex" shall mean all land, building and improvements including the "Common
Areas" (hereinafter defined) associated with the Building and located on the
real property described in Exhibit C. The Rentable Area of the Premises is as
shown on Exhibit A and contains the Rentable Areas as stated in 1.01I.
2.02 TERM
The term of this Lease ("Term") shall commence on the date
("Commencement Date") which is the earlier to occur of the (i) date stated in
1.01F, or (ii) the date Tenant first occupies all or part of the Premises for
the conduct of business. The Term shall expire on the date ("Expiration Date")
stated in 1.01G, unless sooner terminated as otherwise provided in this Lease.
The Commencement Date and the Expiration Date may be extended in accordance
with Exhibit A.
3. RENT
Tenant agrees to Pay to Landlord at the office of the Landlord's
building manager ("Manager"), or at such other place designated by Landlord,
without any prior notice or demand and without any deduction whatsoever, base
rent at the initial monthly rate stated in 1.01H ("Monthly Base Rent"). Monthly
Base Rent is subject to adjustment pursuant to 22.02 and 22.03, and as adjusted
is called "Adjusted Monthly Base Rent". Monthly Base Rent and Adjusted Monthly
Base Rent shall be paid monthly in advance on the first day of each month of
the Term, except that the first installment of Monthly Base Rent shall be paid
by Tenant to Landlord at lease execution. Adjusted Monthly Base Rent shall be
prorated for partial months within the Term. All charges, costs and sums
required to be paid by Tenant to Landlord under this Lease and under the Work
Letter, in addition to Adjusted Monthly Base Rent shall be considered
additional rent, and Adjusted Monthly Base Rent and additional rent shall be
collectively called "Rent". Tenant's covenant to pay Rent shall be independent
of every other covenant in this Lease.
4. SECURITY DEPOSIT
As security for the performance of its obligations under this Lease
and the Work Letter, Tenant, upon its execution of this Lease, has paid to
Landlord a security deposit ("Security Deposit") in the amount stated in 1.01J.
The Security Deposit may be applied by Landlord to cure any default of Tenant
under this Lease or the Work Letter, and upon notice by Landlord of such
application, Tenant shall replenish the Security Deposit in full by promptly
paying to Landlord the amount so applied. Landlord shall not pay any interest on
the Security Deposit. Within forty-five (45) days after the Expiration Date,
Landlord shall return to Tenant the balance, if any, of the Security Deposit.
The Security Deposit shall not be deemed as advance payment of Rent or a
measure of damages for any default by Tenant under this Lease, nor shall it be
a bar or defense to any action which Landlord may at any time commence against
Tenant.
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5. SERVICES
5.01 LANDLORD'S GENERAL SERVICES
Landlord shall provide the following services:
(1) heat and air-conditioning in the Premises, Monday through Friday
from 8:00 a.m. to 5:30 p.m., excluding national holidays, to the extent
reasonably necessary for the comfortable occupancy of the Premises under normal
business operations (subject, however, to applicable legal requirements and
restrictions) and in the absence of the use of machines, equipment or devices
which affect the temperature otherwise maintained in the Premises; (2) city
water from the regular Building fixtures for drinking, lavatory and toilet
purposes only; (3) customary cleaning and janitorial services in the Premises
Monday through Friday, excluding national holidays; (4) customary cleaning,
mowing, groundskeeping, and trash removal in the "Common Areas" (hereinafter
defined); (5) adequate passenger elevator service in common with other tenants
of the Building; (6) electricity for normal building usage; if the Tenant
shall require electrical current or install electrical equipment including but
not limited to electrical heating, refrigeration equipment, unusually heavy
computer use, electronic data processing machines, punch card machines, or
machines or equipment using current which will, in the judgment of the
Landlord, in any way increase the amount of the electricity usually furnished
for use in general office space, Tenant will obtain prior written approval from
the Landlord and pay periodically for the additional direct expense involved,
including any installation cost of equipment for metering said electricity; and
(7) all lamps furnished to the Tenant by Landlord shall be paid for by the
Tenant at not more than the current retail price charged therefore.
5.02 ADDITIONAL AND AFTER-HOUR SERVICES
Landlord shall not be obligated to furnish any services or utilities,
other than those stated in 5.01 above. If Landlord elects to furnish services
or utilities requested by Tenant in addition to those listed in 5.01 or at
times other than those stated in 5.01, Tenant shall pay to Landlord the
prevailing charges for such services and utilities, within ten (10) days after
billing. If Tenant fails to make any such payment, Landlord may, without notice
to Tenant and in addition to Landlord's other remedies under this Lease,
discontinue any or all of such additional or after-hours services. No such
discontinuance of any service shall result in any liability of Landlord to
Tenant or be considered an eviction or a disturbance of Tenant's use of the
Premises.
5.03 DELAYS IN FURNISHING SERVICES
If as a result of any failure to furnish or delay in furnishing any
of the services described in 5.01, the Premises are rendered substantially
untenantable for said period of seventy-two (72) consecutive hours and Tenant
is unable to occupy the Premises due to such untenantability, then, commencing
upon the expiration of said 72-hour period, Adjusted Monthly Base Rent shall
abate for the duration of such untenantability until Tenant is able to resume
or does resume occupancy of the Premises. Tenant agrees that Landlord shall not
be liable for damages for failure to furnish or delay in furnishing any service
if attributable to any of the causes described in 26.06 and if not thus
attributable, then only to the extent of abatement of Rent. No failure or
delay shall be considered to be an eviction or disturbance of Tenant's use or
possession of Premises.
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5.04 TELEPHONE
Tenant acknowledges and agrees that securing and arranging for
telephone service to the Premises is the sole responsibility of Tenant and that
Landlord has no responsibility or obligation to provide or arrange such
telephone service, nor to permit installation of any facilities or equipment in
the Building outside the Premises in connection with providing telephone
service to the Premises.
6. POSSESSION, USE AND ENJOYMENT
6.01 POSSESSION AND USE OF PREMISES
Tenant shall be entitled to possession of the Premises when the Work
is substantially completed. Tenant shall occupy and use the Premises for
general office purposes only. Tenant shall not occupy or use the Premises or
permit the use or occupancy of the Premises for any purpose or in any manner
which: (1) is unlawful or in violation of any applicable legal, governmental or
quasi-governmental requirement, ordinance or rule (including the Board of Fire
Underwriters); (2) may be dangerous to persons or property; (3) may invalidate
or increase the amount of premiums for any policy of insurance affecting the
Building or the Complex, and if any additional amounts of insurance premiums
are so incurred, Tenant shall pay to Landlord the additional amounts on demand
and such payment shall not authorize such use; (4) may create a nuisance,
disturb any other Tenant of the Building or the Complex or the occupants of
neighboring property or injure the reputation of the Building or the Complex;
or (5) violates the Rules and Regulations of the Building or any restrictions
of record.
6.02 QUIET ENJOYMENT
So long as Tenant is not in default under this Lease, Tenant shall be
entitled to peaceful and quiet enjoyment of the Premises, subject to the terms
of this Lease.
6.03 COMMON AREAS
A. For purposes of this Lease "Common Areas" shall mean all areas,
improvements, space, equipment and special services in or at the Complex
provided by Landlord for the common or joint use and benefit of tenants,
customers, and other invitees, including without limitation garage access,
roads, driveways, parking areas, entrances and exits, retaining walls,
landscaped areas, truck serviceways, loading docks, pedestrian walk-ways,
atriums, walls, courtyards, concourses, stairs, ramps, sidewalks, washrooms,
maintenance and utility rooms and closets, hallways, lobbies, elevators and
their housing and rooms, common window areas, walls and ceilings in Common
Areas, and trash or rubbish areas.
B. Provided Tenant is not in default under this Lease, Tenant shall
be entitled to use, in common with others entitled thereto, the Common Areas as
may be designated from time to time by Landlord, subject however to the terms
and conditions of this Lease and to the rules and regulations for the use
thereof as may be prescribed from time to time by Landlord. If the size or
configuration of the Common Areas is diminished or altered, Landlord shall not
be liable to Tenant therefor, nor shall Tenant be entitled to any compensation
or diminution or abatement of Adjusted Monthly Base Rent, nor shall such
diminution or alteration of the Common Areas be considered a constructive or
actual eviction.
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C. Subject to the other provisions of this Lease, Tenant shall have
free non-exclusive use of parking facilities, driveways and islands for Tenant,
Tenant's employees, Tenant's business invitees and Tenant's agents. Such areas
for non-exclusive parking space shall serve all tenants, their employees,
business invitees and agents. Tenant shall not at any time park any trucks or
any delivery vehicles in the parking areas or driveways, except as specifically
designated by Landlord from time to time, and shall confine all truck parking,
loading and unloading to times and locations specifically designated by
Landlord from time to time. Tenant shall require all trucks servicing Tenant to
be promptly loaded or unloaded and removed from the Complex. Landlord hereby
reserves the exclusive right with respect to the use of parking facilities,
roadways, sidewalks, driveways, islands and walkways for advertising purposes.
Tenant covenants and agrees to enforce the provisions of this Lease against
Tenant's employees and business invitees.
7. CONDITION OF PREMISES
Tenant shall notify Landlord in writing within ten (10) days after
Tenant takes possession of the Premises of any defects in the Premises claimed
by Tenant. Except for defects stated in such notice, Tenant shall be
conclusively presumed to have accepted the Premises in the condition existing
on the date Tenant first takes possession, and to have waived all claims
relating to the condition of the Premises. No agreement of Landlord to alter,
remodel, decorate, clean or improve the Premises, the Building, the Common
Areas or the Complex and no representation regarding the condition of the
Premises, the Building, the Common Areas or the Complex has been made by or on
behalf of Landlord to Tenant, except as stated in this Lease or in the Work
Letter.
8. ASSIGNMENT AND SUBLETTING
8.01 ASSIGNMENT AND SUBLETTING
Without the prior written consent of Landlord, Tenant shall not
sublease the Premises, or assign, mortgage, pledge, hypothecate or otherwise
transfer or permit the transfer of this Lease or the interest of Tenant in this
Lease, in whole or in part, by operation of law, court decree or otherwise.
Such consent shall not be unreasonably withheld by Landlord. If Tenant desires
to assign this Lease or enter into any sublease of the Premises, Tenant shall
deliver written notice of such intent to Landlord, together with a copy of the
proposed assignment or sublease at least sixty (60) days prior to the effective
date of the proposed assignment or commencement date of the term of the
proposed sublease. Tenant agrees to pay Landlord a reasonable administrative
fee and reimburse Landlord for any reasonable (legal, engineering, etc.) costs
incurred to respond to Tenant's subleasing or assignment requests. Any approved
sublease shall be expressly subject to the terms and conditions of this Lease,
and Tenant shall pay Landlord on the first day of each month during the term of
the sublease, the excess of all rent and other consideration due from the
subtenant for such month over that portion of the Adjusted Monthly Base Rent
due under this Lease for said month which is allocable on a square footage
basis to the space sublet. In the event of any approved sublease or assignment,
Tenant shall not be released or discharged from any liability, whether past,
present or future, under this Lease, including any renewal term of this Lease.
For purposes of this Section, an assignment shall be considered to include a
change in the majority ownership or control of Tenant if Tenant is a
partnership or a corporation whose shares of stock are not traded publicly.
Such sublease or assignment shall not allow any usage or occupancy that
violates any term or condition contained in any lease of other tenants in the
building.
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8.02 RECAPTURE
If Tenant desires to enter into any sublease of the Premises,
Landlord shall have the option to amend this Lease to exclude from the Premises
covered by this Lease the space proposed to be sublet by Tenant, effective as
of the proposed commencement date of sublease of said space by Tenant. Landlord
may exercise said option by giving Tenant written notice within twenty (20)
days after receipt by Landlord of Tenant's notice of the proposed sublease. If
Landlord exercises said option, Tenant shall surrender possession of the
proposed sublease space to Landlord on the effective date of exclusion of said
space from the Premises covered by this Lease, and neither party hereto shall
have any further rights or liabilities with respect to said space under this
Lease. Effective as of the date of exclusion of any portion of the Premises
covered by this Lease pursuant to this paragraph, (i) the Monthly Base Rent
shall be reduced in the same proportion as the number of square feet of
Rentable Area contained in the portion of the Premises so excluded bears to the
number of square feet of Rentable Area contained in the Premises immediately
prior to such exclusion, and (ii) the Rentable Area of the Premises specified
in 1.01I shall be decreased by the number of square feet of Rentable Area
contained in the portion of the Premises so excluded, for all purposes under
this Lease.
9. MAINTENANCE
9.01 LANDLORD'S MAINTENANCE
Landlord, at its expense, shall maintain and make necessary repairs
to the structural elements and exterior windows of the Building and the Common
Areas, and, subject to 15.04, the electrical, plumbing, heating, ventilation
and air conditioning systems of the Building and the Common Areas, except that:
A. Landlord shall not be responsible for the maintenance, repair or
replacement or any such systems which are located within the Premises and are
supplemental or special to the Building's standard systems, whether installed
pursuant to the Work Letter or otherwise, or floor or wall coverings in the
Premises; and
B. The cost of performing any of said maintenance or repairs caused
by the negligence of Tenant, its employees, agents, servants, licensees,
subtenants, contractors or invitees, or the failure of Tenant to perform its
obligations under this Lease shall be paid by Tenant, except to the extent of
insurance proceeds, if any, actually collected by Landlord with regard to the
damage necessitating such repairs.
9.02 TENANT'S MAINTENANCE
Tenant, at its expense, shall keep and maintain the Premises in good
order, condition and repair and in accordance with all applicable legal,
governmental and quasi-government requirements, ordinances and rules (including
the Board of Fire Underwriters).
9.03 MAINTENANCE OF COMMON AREAS
The Common Areas shall be subject to the control, management,
operation and maintenance of Landlord. Landlord shall have the right from time
to time to establish, modify and enforce rules and regulations with respect to
the Common Areas. Tenant agrees to comply with such rules and regulations, to
cause its officers, agents, contractors and employees to so comply and to use
its best efforts to cause its customers, invitees, concessionaires, suppliers
and licensees to so comply. Landlord shall have the right to construct,
maintain and operate lighting and other facilities in and on the Common Areas;
to grant third parties temporary rights of use thereof; from time to time
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change the area, level, location or arrangement of parking areas and other
facilities located in the Common Areas; to close all or any portion of the
Common Areas to such extent as may, in the opinion of Landlord, be legally
sufficient to prevent a dedication thereof or accrual of any rights to any
person or the public therein; to close temporarily all or any part of the
parking areas or parking facilities; and to do and perform such other acts in
and to the Common Areas as, in the exercise of good business judgment, Landlord
shall determine to be advisable. Landlord will operate and maintain the Common
Areas in such manner as Landlord, in its sole discretion, shall determine from
time to time.
10. ALTERATION AND IMPROVEMENTS SUBSEQUENT TO INITIAL OCCUPANCY
10.01 TENANT'S ALTERATIONS SUBSEQUENT TO INITIAL OCCUPANCY
Tenant shall not, without the prior written consent of Landlord
(which consent shall not be unreasonably withheld), make or cause to be made
any alterations, improvements, additions or installations in or to the Premises
subsequent to the initial occupancy of the Premises by Tenant. If Landlord so
consents, before commencement of any such work or delivery of any materials
into the Premises or the Building, Tenant shall furnish to Landlord for
approval; architectural plans and specifications, names and addresses of all
contractors, contracts, necessary permits and licenses, certificates of
insurance and instruments of indemnification against any and all claims, costs,
expenses, damages and liabilities which may arise in connection with such work,
all in such form and amount as may be satisfactory to Landlord. In addition,
prior to commencement of any such work or delivery of any materials into the
Premises, Tenant shall provide Landlord with evidence reasonably satisfactory
to Landlord of Tenant's ability to pay for such work and materials in full,
and, if requested by Landlord, shall deposit with Landlord at such time
security for the payment of said work and materials as Landlord may require.
Tenant agrees to hold Landlord, the Manager and their respective agents and
employees forever harmless against all claims and liabilities of every kind,
nature and description which may arise out of or in any way be connected with
such work. All such work shall be done only by contractors or mechanics
approved by Landlord and at such time and in such manner as Landlord may from
time to time designate. Tenant shall pay the cost of all such work. Upon
completion of such work, Tenant shall furnish Landlord with contractor's
affidavits and full and final waivers of lien and receipted bills covering all
labor and materials expended. All such work shall be in compliance with all
applicable legal, governmental and quasi-governmental requirements, ordinances
and rules (including the Board of Fire Underwriters), and all requirements of
applicable insurance companies. All such work shall be done in a good and
workmanlike manner and with the use of good grades of materials including fire
protection grades equivalent with those of the Building. Tenant shall permit
Landlord, if Landlord so desires, to supervise construction operations in
connection with such work; provided, however, that such supervision or right to
supervise by Landlord and the approval or disapproval of the plans and
specifications for such work in any situation shall not constitute any warranty
by Landlord to Tenant of the adequacy of the design, workmanship or quality of
such work or materials for Tenant's intended use or impose any liability upon
Landlord in connection with their performance of such work. All alterations,
improvements, additions and installations to or on the Premises shall (subject
to Article 13) become part of the Premises at the time of their installation
and shall remain in the Premises at the expiration or termination of this Lease
or termination of Tenant's right to possession of the Premises, without
compensation or credit to Tenant. Notwithstanding the foregoing, nothing herein
shall be deemed to require the Landlord's consent for decorative alterations
such as installation of wall coverings, hanging or paintings, prints and other
wall hangings, painting of walls or similar alterations affecting only the
interior of the Premises.
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10.02 LIENS
Tenant shall not permit any lien or claim for lien of any mechanic,
laborer or supplier of any other lien to be filed against the Complex, the
Building, the Common Areas, the land which comprises the Complex, the Premises,
or any part of such property arising out of work performed, or alleged to have
been performed by, or at the direction of, or on behalf of Tenant. If any such
lien or claim for lien is filed, Tenant shall within five (5) days after such
filing either have such lien or claim for lien released of record or shall
deliver to Landlord a bond or other security in form, consent, amount and
issued by a company satisfactory to Landlord indemnifying Landlord, Manager and
others designated by Landlord against all costs and liabilities resulting from
such lien or claim for lien and the foreclosure or attempted foreclosure
thereof. If Tenant fails to have such lien or claim for lien so released or to
deliver such bond to Landlord, Landlord, without investigating the validity of
such lien, may pay or discharge the same and Tenant shall reimburse Landlord
upon demand for the amount so paid by Landlord, including Landlord's expenses
and attorneys' fees.
11. WAIVER OF CLAIMS AND INDEMNITY
11.01 WAIVER
[Deleted]
11.02 INDEMNIFICATION
Tenant agrees to indemnify, defend and hold harmless Landlord, the
Manager and their respective agents and employees, from and against any and all
liabilities, claims, demands, costs and expenses of every kind and nature
(including reasonable attorney's fees), including those arising from any injury
to person (including death) or damage to property (a) sustained in or about the
Premises (b) resulting from the negligence or willful act of Tenant, its
employees, agents, servants, invitees, licensees or subtenants, or (c) resulting
from the failure of Tenant to perform its obligations under this Lease. In case
of any action or proceeding brought against Landlord, the Manager or their
respective agents or employees, by reason of any such claim, upon written notice
from Landlord, Tenant covenants and agrees to defend such action or proceeding
using counsel reasonably satisfactory to Landlord. Landlord agrees to indemnify,
defend and hold harmless Tenant and its agents and employees, from and against
any and all liabilities, claims, demands, costs and expenses of every kind and
nature (including reasonable attorney's fees), including those arising from any
injury to person (including death) or damage to property (a) resulting from the
gross negligence or willful act of Landlord, its employees, agents, servants,
invitees, licensees or tenants, or (b) resulting from the failure of Landlord to
perform its obligations under this Lease. Neither Tenant, on the one hand, nor
Landlord, on the other hand, shall be obligated to indemnify the other to the
extent of any amount which the other has been compensated for by insurance or
any amount for which the other has the right to compensation or indemnification
by any other party or for any claims to the extent such claims arise from the
negligence or willful act of the other party or its employees, agents, servants,
invitees, licensees or tenants. In case of any action or proceeding brought by
one party against the other party by reason of any claim for indemnity
hereunder, upon written notice from the indemnified party, the indemnifying
party covenants and agrees to defend such action or proceeding using counsel
reasonably satisfactory to the indemnified party.
11.03 WAIVER OF SUBROGATION
Notwithstanding such waiver and indemnification or anything else to
the contrary contained in this Lease:
A. Tenant shall not be responsible or liable to Landlord for any
event, act or omission to the extent actually paid by the proceeds of insurance
obtained and maintained under this Lease Agreement by Landlord in connection
with the Building. Landlord shall cause its policy or policies of insurance to
contain effective waivers of subrogation for the benefit of Tenant.
B. Landlord and the Manager shall not be responsible or liable to
Tenant for any event, act or omission to the extent covered by insurance
required to be obtained and maintained by Tenant with respect to the Premises
and its use and occupancy thereof (whether or not such insurance is actually
obtained or maintained) or otherwise covered by the proceeds of such other
insurance as is obtained and maintained by Tenant with respect to the Premises
and to its use and occupancy thereof. Tenant shall from time to time provide
Landlord with effective waivers of subrogation by its insurers for the benefit
of Landlord and Manager in a form reasonably satisfactory to legal counsel for
Landlord.
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C. Tenant also waives claims against other tenants in the Building,
and releases same from all liability for injury to persons (including death)
and any damage to property occurring in or about the Building and Complex
resulting from the negligence of any other tenants, its agents, employees and
servants, to the amount of insurance maintained by Tenant for such injury or
damage if, and only if, such tenant(s) has in its lease (or otherwise) provided
and afforded Tenant a similar waiver and release and if appropriate waivers of
subrogation are contained in such Tenant's insurance policies. Tenant shall
cause its policy or policies of insurance to contain effective waivers of
subrogation for the benefit of all tenants which thus waive and release their
claims with respect to Tenant.
12. EVENTS OF DEFAULT
12.01 EVENTS OF DEFAULT
Each of the following shall constitute an event of default by Tenant
under this Lease: (1) Tenant fails to pay any installment of Rent when due;
(2) Tenant fails to observe or perform any of the other covenants, conditions
or provisions of this Lease or under the Work Letter to be observed or
performed by Tenant and fails to cure such default within fifteen (15) days
after written notice to Tenant; provided, however, that if the nature of
Tenant's default is such that more than fifteen (15) days are reasonably
required for its cure, then Tenant shall not be deemed to be in default if
Tenant commences such cure within said fifteen (15) days and thereafter
diligently pursues such cure to completion; (3) the interest of Tenant in this
Lease is levied upon under execution or other legal process; (4) a petition is
filed by or against Tenant to declare Tenant bankrupt or seeking a plan of
reorganization or arrangement under any Chapter of the Bankruptcy Code, or any
amendment, replacement or substitution therefor, or to delay payment of, reduce
or modify Tenant's debts, or any petition is filed or other action taken to
reorganize or modify Tenant's capital structure or upon dissolution of Tenant;
(5) Tenant is declared insolvent by law or any assignment of Tenant's property
is made for the benefit of creditors; (6) a receiver is appointed for Tenant or
Tenant's property; or (7) Tenant abandons or vacates the Premises.
12.02 LANDLORD'S REMEDIES
Upon the occurrence of an event of default by Tenant under this Lease,
Landlord, at its option, without further notice or demand to Tenant, may in
addition to all other rights and remedies provided in this Lease, at law or in
equity:
A. Terminate this Lease and Tenant's right of possession of the
Premises, and at Landlord's option, discontinue any or all services set forth
in Paragraph 5.01 and 9.01, and recover all damages to which Landlord is
entitled under law, specifically including, without limitation, all Landlord's
expenses of reletting (including repairs, alterations, improvements, additions,
decorations, legal fees and brokerage commissions).
B. Terminate Tenant's right of possession of the Premises without
terminating this Lease, in which event Landlord may, but shall not be obligated
to, relet the Premises, or any part thereof for the account of Tenant, for such
rent and upon such terms and conditions as are acceptable to Landlord. For
purposes of such reletting, Landlord is authorized to redecorate, repair, alter
and improve the Premises to the extent reasonably necessary. Until Landlord
does relet the Premises, Tenant shall pay Landlord monthly on the first day of
each month during the period that Tenant's right of possession is terminated, a
sum equal to the amount of Rent due under this Lease for such month (less any
amount which Landlord could have realized if Landlord relet the premises to a
reputable, credit-worthy substitute tenant procured by Tenant and presented to
Landlord in writing which substitute
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tenant was ready, willing and able to lease to the form of this Lease). If and
when the Premises are relet and a sufficient sum is not realized from such
reletting after payment of all Landlord's expenses of reletting (including
repairs, alterations, improvements, additions, decorations, legal fees and
brokerage commissions) to satisfy the payment of Rent due under this Lease for
any month, Tenant shall pay Landlord any such deficiency monthly upon demand.
Tenant agrees that Landlord may file suit to recover any sums due to Landlord
under this section from time to time and that such suit or recovery of any
amount due Landlord shall not be any defense to any subsequent action brought
for any amount not previously reduced to judgment in favor of Landlord. If
Landlord elects to terminate Tenant's right to possession only without
terminating this Lease, Landlord may, at its option, enter into the Premises,
remove Tenant's signs and other evidences of tenancy, and take and hold
possession thereof, as stated in Article 13; provided, however, that such entry
and possession shall not terminate this Lease or release Tenant, in whole or in
part, from Tenant's obligation to pay the Rent reserved hereunder for the full
Term or from any other obligation of Tenant under this Lease.
C. In the event a petition is filed by or against Tenant seeking a plan
or reorganization or arrangement under the Bankruptcy Code, Landlord and Tenant
agree, to the extent permitted by law, that the trustee in bankruptcy shall
determine within sixty (60) days after commencement of the case, whether to
assume or reject this Lease.
D. To the extent permitted by law, declare the entire balance of rent
for the remainder of the term of this Lease as due payable in full, and
Landlord shall have a lien on all property and fixtures of Tenant in or on the
Premises to secure the payment of all sums due.
E. Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state wherein the Premises are
located.
12.03 ATTORNEYS' FEES
If the Tenant is finally determined to be in default hereunder, Tenant
shall pay, upon demand, all costs and expenses including attorneys' fees,
incurred by Landlord in enforcing Tenant's obligations under this Lease, and
the Work Letter or resulting from Tenant's default under this Lease.
13. SURRENDER OF PREMISES
Upon the expiration or termination of this Lease or termination of
Tenant's right of possession of the Premises, Tenant shall surrender and vacate
the Premises immediately and deliver possession thereof to Landlord in a clean,
good and tenantable condition, ordinary wear excepted. Upon any termination
which occurs other than by reasons of Tenant's default, Tenant shall be
entitled to remove from the Premises all unattached and movable trade fixtures
and personal property of Tenant without credit or compensation from Landlord,
provided Tenant immediately shall repair all damage resulting from such removal
and shall restore the Premises to a tenantable condition. In the event
possession of the Premises is not immediately delivered to Landlord or if
Tenant shall fail to remove any unattached and movable trade fixtures and
personal property which may be removed from the Premises by Tenant but which
are not so removed upon the vacancy of the Premises shall be conclusively
presumed to have been abandoned by Tenant and title to such property shall pass
to Landlord without any payment or credit and Landlord may, at its option and
at Tenant's expense, store and/or dispose of such property.
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14. HOLDING OVER
Tenant shall pay Landlord double the Adjusted Monthly Base Rent then
applicable for each month or partial month during which Tenant retains
possession of the Premises, or any part of the Premises, after the expiration
or termination of this Lease, or the termination of Tenant's right of
possession of the Premises. In addition, Tenant shall indemnify Landlord
against all liabilities and damages sustained by Landlord by reason of such
retention of possession. The provisions of this Article shall not constitute a
waiver by Landlord of any re-entry rights of Landlord available under this
Lease or by law. If Tenant retains possession of the Premises, or any part of
the Premises, for thirty (30) days after the expiration or termination of this
Lease, then at the sole option of Landlord expressed by written notice to
Tenant, but not otherwise, such holding over shall constitute a renewal of this
Lease for a period of one (1) year on the same terms and conditions and at
double the Adjusted Monthly Rent then applicable.
15. DAMAGE BY FIRE OR OTHER CASUALTY
15.01 SUBSTANTIAL UNTENANTABILITY
If either the Premises, the Building or the Complex is rendered
substantially untenantable by fire or other casualty, Landlord may elect by
giving Tenant written notice within one hundred twenty (120) days after the
date of said fire or casualty, either to: (1) terminate this Lease as of the
date of the fire or other casualty; or (2) proceed to repair or restore the
Premises, the Building or the Complex (other than leasehold improvements and
personal property installed by Tenant), to substantially the same condition as
existed immediately prior to such fire or casualty.
If Landlord elects to proceed pursuant to subsection (2) above,
Landlord's notice shall contain Landlord's reasonable estimate of the time
required to substantially complete such repair or restoration. If such estimate
indicates that the time so required will exceed one hundred eighty (180) days
from the date of the casualty, then Tenant shall have the right to terminate
this Lease as of the date of such casualty by giving written notice to Landlord
not later than twenty (20) days after the date of the Landlord's notice. If
Landlord's estimate indicates that the repair or restoration can be
substantially completed within one hundred eighty (180) days, or if Tenant
fails to exercise its said right to terminate this Lease, this Lease shall
remain in force and effect.
15.02 INSUBSTANTIAL UNTENANTABILITY
If either the Premises, the Building or the Complex is damaged by
fire or other casualty but is not rendered substantially untenantable, then
Landlord shall diligently proceed to repair and restore the damaged portions
thereof, other than the leasehold improvements and personal property installed
by Tenant, to substantially the same condition as existed immediately prior to
such fire or casualty, unless such damage occurs during the last twelve (12)
months of the Term, in which event Landlord shall have the right to terminate
this Lease as of the date of such fire or other casualty by giving written
notice to Tenant within thirty (30) days after the date of such fire or other
casualty.
15.03 RENT ABATEMENT
If all or any part of the Premises are damaged by fire or other
casualty and this Lease is not terminated, Adjusted Monthly Base Rent shall
abate for all or that part of the Premises which are untenantable on a per diem
and proportionate area basis from the date of the fire or other casualty until
Landlord has substantially completed the repair and restoration work in the
Premises which it is required to perform, provided, that as a result of such
fire or other casualty, Tenant does not occupy the portion of the Premises
which are untenantable during such period.
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15.04 TENANT'S RESTORATION
If all or any part of the Premises are damaged by fire or other
casualty and this Lease is not terminated, Tenant shall promptly and with due
diligence repair and restore the leasehold improvements and personal property
previously installed by Tenant pursuant to this Lease.
16. EMINENT DOMAIN
16.01 SUBSTANTIAL TAKING
If all or any part of the Premises, the Building or the Complex is
permanently taken or condemned by any competent authority for any public use or
purpose (including a deed given in lieu of condemnation), which renders the
Premises substantially untenantable, this Lease shall terminate as of the date
title vests in such authority, and Adjusted Monthly Base Rent shall be
apportioned as of such date.
16.02 INSUBSTANTIAL TAKING
If any part of the Premises, the Building or the Complex is taken or
condemned for any public use or purpose (including a deed given in lieu of
condemnation) and this Lease is not terminated pursuant to 16.01, Adjusted
Monthly Base Rent shall be reduced for the period of such taking by an amount
which bears the same ratio to Adjusted Monthly Base Rent then in effect as the
number of square feet of Rentable Area in the Premises so taken or condemned,
if any, bears to the number of square feet of Rentable Area specified in 1.01I.
Landlord, upon receipt and to the extent of the award in condemnation or
proceeds of sale, shall make necessary repairs and restorations (exclusive of
leasehold improvements and personal property installed by Tenant) to restore
the Premises remaining to as near its former condition as circumstances will
permit, and to the Building and Complex to the extent necessary to constitute
the portion of same not so taken or condemned as a complete architectural
unit. On the event of any taking or condemnation described in this Section
16.02, the Rentable Area of the Premises stated in 1.01I and the Rentable Area
of the Complex as specified in this Lease, shall be reduced, respectively, for
all purposes under this Lease by the number of square feet of Rentable Area of
the Premises, if any, and the Complex, if any, so taken or condemned as
determined and certified by an independent professional architect selected by
Landlord.
16.03 COMPENSATION
Landlord shall be entitled to receive the entire price or award from
any such sale, taking or condemnation without any payment to Tenant, and Tenant
hereby assigns to Landlord Tenant's interest, if any, in such award; provided,
however, Tenant shall have the right separately to pursue against the
condemning authority an award in respect of the loss, if any, to leasehold
improvements paid for by Tenant without any credit or allowance from Landlord.
Under no circumstances shall the Tenant seek or be entitled to any compensation
for the value of its leasehold estate.
17. TENANT'S INSURANCE
Tenant, at its expense, shall maintain in force during the Term:
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A. comprehensive general public liability insurance, which shall
include coverage for contractual liability and tenant's legal liability,
including personal injury (including death) and property damage, all on an
occurrence basis with respect to the business carried on in or from the
Premises and Tenant's use and occupancy of the Premises with coverage for any
one occurrence or claim of not less than $1,000,000 or such other amount as
Landlord may reasonably require.
B. fire and extended coverage insurance for the replacement value of
Tenant's property (including fixtures, leasehold improvements and equipment)
located in the Premises and such other insurance against such other perils and
in such amounts as Landlord may from time to time reasonably require upon not
less than ninety (90) days' prior written notice, such requirements to be made
on the basis that the required insurance is customary at the time for prudent
tenants of properties similar to the Complex in the area of the city stated in
1.01A.
All insurance required to be maintained by Tenant shall be on terms
and with insurers reasonably acceptable to Landlord. Landlord shall be named as
an additional insured party in each policy required hereunder. Each policy
shall contain a waiver by the insurer of any rights of subrogation or indemnity
or any other claim to which the insurer might otherwise be entitled as provided
in Section 11.03 and shall also contain an undertaking by the insurer that no
material change adverse to Landlord or Tenant will be made, and the policy will
not lapse or be canceled except after not less than thirty (30) days prior
written notice to Landlord of the intended change, lapse or cancellation.
Tenant shall furnish to Landlord, if and whenever requested by it, certificates
or other evidences acceptable to Landlord as to the insurance from time to time
maintained by Tenant and the renewal or continuation in force of such
insurance.
18. RULES AND REGULATIONS
Tenant agrees for itself and for its subtenants, employees, agents,
and invitees to comply with the rules and regulations attached hereto as Exhibit
B.
19. LANDLORD'S RIGHTS
Landlord shall have the following rights exercisable without notice
(except as expressly provided to the contrary) and without being deemed an
eviction or disturbance of Tenant's use or possession of the Premises or giving
rise to any claim for set-off or abatement or Rent: (1) to change the name or
street address of the Building or Complex, upon thirty (30) days' prior written
notice to Tenant; (2) to install, affix and maintain all signs on the exterior
and/or interior of the Building and in and about the Complex; (3) to designate
and/or approve prior to installation all types of signs, window shades, blinds,
drapes, awnings or other similar items, and all internal lighting that may be
visible from the exterior of the Premises; (4) to display the Premises to
prospective tenants at reasonable hours and with reasonable advance notice
during the last twelve (12) months of the Term; (5) to change the arrangement
of entrances, doors, corridors, elevators and stairs in the Building, provided
that no such change shall materially adversely affect access to the Premises;
(6) to grant to any party the exclusive right to conduct any business or render
any service in or to the Building, provided such exclusive right shall not
operate to prohibit Tenant from using the Premises for the purposes permitted
hereunder; (7) to prohibit the placing of vending or dispensing machines of any
kind in or about the Premises other than for use by Tenant's employees; (8) to
have access for Landlord and other tenants of the Building to any mail chutes
and boxes located in or on the Premises according to the rules of the United
States Post Office; (9) to close the Building after normal business hours,
except that Tenant and its employees and invitees shall
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be entitled to admission at all times under such regulations as Landlord
prescribes for security purposes; (10) to take any and all reasonable
measures, including inspections and repairs to the Premises or to the Building,
as may be necessary or desirable in the operation or protection thereof; (11)
to retain at all times master keys or pass keys to the Premises; (12) to
install, operate and maintain security systems which monitor, by close circuit
television or otherwise, all persons entering and leaving the Building or the
Complex; and (13) to install and maintain pipes, ducts, conduits, wires and
structural elements located in the Premises which serve other parts or other
tenants of the Building.
20. ESTOPPEL CERTIFICATE
Tenant shall from time to time, upon not less than ten (10) days'
prior written request by Landlord or any mortgagee or ground lessor of the
Complex, deliver to Landlord or such mortgagee or ground lessor a statement in
writing certifying: (1) that this Lease, and the Work Letter are unmodified
and in full force and effect or, if there have been modifications, that this
Lease and the Work Letter, as modified, are in full force and effect; (2) the
amount of Adjusted Monthly Base Rent then payable under this Lease and the date
to which Rent has been paid; (3) that Landlord is not in default under this
Lease or any work letter agreement, or if in default, a detailed description of
such default(s); (4) that Tenant is or is not in possession of the Premises,
as the case may be, and (5) such other information as may be requested.
21. RELOCATION OF TENANT
At any time after the date of this Lease, Landlord may substitute
for the Premises, other premises in the Complex (the "New Premises"), in which
event the New Premises shall be deemed to be the Premises for all purposes
under this Lease, provided: (1) the New Premises shall be functionally
equivalent to the Premises; (2) the substitution shall be made in order to
lease the Premises to a tenant of the Complex who then occupies, or as a
result of such substitution will occupy, all or a substantial part of the floor
of the Building on which the Premises are located; (3) if Tenant is then
occupying the Premises, Landlord shall pay the actual and reasonable expenses
of physically moving Tenant, its property and equipment to the New Premises;
(4) Landlord shall give Tenant not less than thirty (30) days' prior written
notice of such substitution; and (5) Landlord, at its expense, shall improve
the New Premises with improvements substantially similar to those in the
Premises at the time of such substitution, if the Premises are then improved,
or if not then improved, Landlord, at its expense, shall improve the New
Premises in accordance with the Work Letter.
22. ADJUSTMENTS TO MONTHLY BASE RENT
22.01 DEFINITIONS
For the purpose of this Article 22, the following words and phrases
shall have the following meanings:
A. "Adjustment Date" shall mean each January 1 occurring within the
Term.
B. "Adjustment Year" shall mean each calendar year during which an
Adjustment Date occurs.
C. "Consumer Price Index" shall mean the Consumer Price Index
for All Urban Consumers (1982-84=100) published by the United States
Department of Labor, Bureau of Labor Statistics. If the Consumer Price Index is
discontinued, calculated in a different manner or is unavailable, Landlord
will substitute a comparable index reflecting changes in the cost of living or
purchasing power of the consumer dollar published by any other governmental
agency, bank or other financial institution, or any recognized authority.
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D. "CPI Adjustment Base" shall mean the dollar amount stated in 1.01N
hereof.
E. "Operating Costs" shall mean all costs, expenses, Taxes and
disbursements of every kind and nature which Landlord shall pay or become
obligated to pay in connection with the management, operation maintenance,
replacement and repair of all building improvements and land comprising the
Complex and of the personal property, fixtures, machinery, equipment, systems
and apparatus located in or used in connection therewith. Operating Expenses
shall not include the following: (1) costs of improvement of the Premises and
the premises of other tenants of the Building; (2) charges for depreciation
of the building and improvements comprising the Complex; (3) interest and
principal payments on mortgages; (4) ground rental payments; (5) real estate
brokerage and leasing commissions; (6) salaries and other compensation of
executive officers of the Manager senior to the individual Building or Complex
manager; (7) any expenditures for which Landlord has been reimbursed (other
than pursuant to proration of Operating Costs, rent adjustment and escalation
provisions provided in leases); (8) capital improvements to the Complex,
except with respect to the costs associated with capital improvements
installed by Landlord for the purpose of reducing Operating Costs or which may
be required by governmental authorities and then only the annual straight line
amortization of such costs over the useful like thereof; and (9) replacements
other than as a result of obsolescence.
F. "Operating Expense Base" shall mean the dollar amount stated in
1.01M hereof.
G. "Per Square Foot Operating Costs" shall mean the amount of
Operating Costs for any Adjustment Year divided by the Rentable Square Footage
of the Building as stated in 1.01O,
H. "Taxes" shall mean all federal, state and local governmental
taxes, assessments and charges (including transit or district taxes or
assessments) of every kind or nature, whether general, special, ordinary or
extraordinary, which Landlord shall pay or become obligated to pay because of
or in connection with the ownership, improvements and land comprising the
Complex, or of the personal property, fixtures, machinery, equipment systems
and apparatus located therein or used in connection therewith (including any
rental or similar taxes levied in lieu of or in addition to general real and/or
personal property taxes). For purposes hereof, Taxes for any year shall be
Taxes which are due for payment or paid in that year, rather than Taxes which
are assessed or become a lien during such year. There shall be included in
Taxes for any year the amount of all fees, costs and expenses (including
reasonable attorneys' fees) paid by Landlord during such year in seeking or
obtaining any refund or reduction of Taxes. Taxes in any year shall be reduced
by the net amount of any tax refund received by Landlord during such year. If a
special assessment payable in installments is levied against the Complex,
Taxes for any year shall include only the installment of such assessment and
any interest payable or paid during such year. Taxes shall not include any
federal, state or local sales, use, franchise, capital stock, inheritance,
general income, gift or estate taxes, except that it a change occurs in the
method of taxation resulting in whole or in part in the substitution of any
such taxes, or any other assessment, for any Taxes as above defined, such
substituted taxes or assessments shall be included in the Taxes.
22.02 CPI ADJUSTMENT TO MONTHLY BASE RENT
Effective as of each Adjustment Date, Monthly Base Rent shall be
increased by an amount equal to 1/12 of the product of: (i) the CPI Adjustment
Base stated in 1.01N hereof; multiplied by (ii) the square footage of the
Premises stated in 1.01I hereof; multiplied by (iii) the percentage increase, if
any, in the Consumer Price Index on the Adjustment Date over the Consumer Price
Index on January 1 of the year in which the Term commences. Notwithstanding
anything to the contrary contained in this Lease, Monthly Base Rent shall be
adjusted or decreased below the amount set forth in 1.01H.
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22.03 EXPENSE ADJUSTMENT TO MONTHLY BASE RENT
Effective as of each Adjustment Date, the Monthly Base Rent shall also
increase by an amount equal to 1/12 of the product of (i) the Rentable Area of
the Premises as stated In 1.01I, multiplied by (ii) the amount by which the Per
Square Foot Operating Costs for the Adjustment Year in which the Adjustment Date
occurs is projected to exceed the Operating Expense Base, as defined in 22.01F
hereof.
22.04 PROJECTIONS
For purposes of calculating Operating Costs for any Adjustment Year,
Landlord may make reasonable estimates, forecasts or projections (collectively,
the "Projections") of Operating Costs for such Adjustment year. Not less than
ten (10) days prior to each Adjustment Date, Landlord shall deliver to Tenant a
written statement setting forth the Projections of Operating Costs for the
Adjustment Year in which such Adjustment Date occurs and providing a calculation
of the increase in installments of Monthly Base Rent to become effective as of
said Adjustment Date; provided, however, that the failure of Landlord to provide
any such statement shall not relieve Tenant from its obligation to continue to
pay Adjusted Monthly Base Rent at the rate then in effect under this Lease,
and if and when Tenant receives such statement from Landlord, Tenant shall pay
any increases in Monthly Base Rent reflected thereby effective retroactively to
the most recently preceding Adjustment Date.
22.05 READJUSTMENTS
On or about April lst following the end of each Adjustment Year, or at
such later time as Landlord shall be able to determine the actual amounts of
Operating Costs for the Adjustment Year last ended adjusted in accordance with
this Section, Landlord shall notify Tenant in writing of such actual amounts. If
such actual amounts exceed the Projections for such Adjustment Year, the Tenant
shall, within thirty (30) days after the date of such written notice from
Landlord, pay to Landlord its proportionate share of the excess based on the Net
Rentable Area of the Premises as compared to the total rentable office area. The
obligation to make such payments shall survive the expiration or earlier
termination of the Term. If the total Adjusted Monthly Base Rent paid by Tenant
during such Adjustment Year exceeds the amount thereof payable for such year
based upon actual Operating Costs for such Adjustment Year, then Landlord shall
credit such excess to installments of Adjusted Monthly Base Rent payable after
the date of Landlord's notice until such excess has been exhausted, or if this
Lease shall expire prior to full application of such excess, Landlord shall pay
to Tenant the balance thereof not theretofore applied against Rent. No interest
or penalties shall accrue on any amounts which Landlord is obligated to credit
or to pay Tenant by reason of this Section. Notwithstanding any provision hereof
to the contrary, in no event shall there be any readjustment as herein provided
such that the Adjusted Monthly Base Rent shall be less than the initial Monthly
Base Rent as specified in 1.01H hereof.
22.06 PARTIAL OCCUPANCY
For purposes of determining adjustments and readjustments to
installments of Monthly Base Rent for any Adjustment Year in which less than
ninety-five percent (95%) of the rentable area of the Building is occupied by
tenants, the amount of Taxes and Operating Expenses for such Adjustment Year
shall be increased to the amount that would have been payable had there been at
least ninety-five percent (95%) occupancy in the Building during such Adjustment
Year.
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22.07 BOOKS AND RECORDS
Landlord shall maintain books and records showing Operating Costs in
accordance with sound accounting and management practices and shall retain such
books and records for a period of one (1) year after the end of each calendar
year during which such operational costs were paid or incurred. The books and
records shall be available to Tenant for inspection during normal business hours
upon prior reasonable notice.
23. REAL ESTATE BROKERS
Tenant represents that, except for the broker, if any, setforth in
1.01L hereof as Tenant's Broker, Tenant has not dealt with any real estate
broker, salesperson, or finder in connection with this Lease, and no such person
initiated or participated in the negotiation of this Lease, or showed the
Premises to Tenant. Tenant agrees to indemnify and hold harmless Landlord and
the Manager from and against any and all liabilities and claims for commissions
and fees arising out of a breach of the foregoing representation. Landlord shall
only be responsible for the payment of all commissions to the broker, if any,
specified in this Article 23, based upon the leasing commission policy of
Landlord applicable to the Complex as of the date of this Lease.
24. SUBORDINATION AND ATTORNMENT
24.01 SUBORDINATION
This Lease and the rights of Tenant hereunder are expressly subject and
subordinate to the lien and provisions of any first lien mortgage now or
hereafter existing encumbering the Complex, or any part thereof, and all
amendments, renewals and modifications and extensions of and to any said
mortgage, and to all advances made or hereafter to be made upon the security of
said mortgage. Tenant agrees to execute and deliver such further instruments
subordinating this Lease to the Lien of any such mortgage as may be requested in
writing by Landlord from time to time. As used herein, the term mortgage shall
mean any first lien mortgage, deed of trust, deed to secure debt or other
instruments used to secure debt.
24.01 ATTORNMENT
In the event of the foreclosure of any such mortgage by voluntary
agreement or otherwise, or the commencement of any judicial action seeking such
foreclosure, Tenant, at the request of the then Landlord, shall attorn to and
recognize such mortgagee or purchaser in foreclosure as Tenant's Landlord under
this Lease. Tenant agrees to execute and deliver at any time upon request of
such mortgagee, purchaser, or their successors, any instrument to further
evidence such attornment.
25. NOTICES
All notices required or permitted to be given under this Lease shall be
in writing and shall be deemed given and delivered, whether or not received,
when deposited in the United States Mail, postage prepaid and properly
addressed, certified mail, return receipt requested, at the addresses shown in
Section 1.01 hereof, to the Premises addressed to Tenant or such other address
as either party may designate for itself from time to time by written notice to
the other party. In addition, any notice may be given by hand delivery to the
notice address of either party with a signed receipt obtained.
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26. MISCELLANEOUS
26.01 LATE CHARGES
In the event any monthly rent is not paid within five (5) days after
it is due, Tenant agrees to pay a late charge of ten percent (10%) of the amount
of the rent due within five (5) days.
26.02 ENTIRE AGREEMENT
This Lease and the Exhibits attached hereto contain the entire
agreement between Landlord and Tenant concerning the Premises and there are no
other agreements, either oral or written. Neither Landlord nor any agent of
Landlord has made any representations, warranties or promises with respect to
the Premises, or the Building of which the Premises is a part, or the Complex in
which the Building is located, or the use of any amenities or facilities, except
as herein expressly set forth. Any agreement hereinafter made shall be
ineffective to change, waive, modify, discharge or terminate it in whole or in
part unless such agreement is in writing and signed by the party against whom
enforcement of the change, waiver, modifications, discharge or termination is
sought.
26.03 NO OPTION
The execution of the Lease by Tenant and delivery of same to Landlord
or Manager does not constitute a reservation of or option for the Premises or an
agreement to enter into a Lease and this Lease shall become effective only if
and when Landlord executes and delivers same to Tenant; provided, however, the
execution and delivery by Tenant of this Lease to Landlord or the Manager shall
constitute an irrevocable offer by Tenant to lease the Premises on the terms and
conditions herein contained, which offer may not be withdrawn or revoked for
thirty (30) days after such execution and delivery. If Tenant is a corporation,
it shall, if requested by Landlord, deliver to Landlord certified resolutions of
Tenant's directors authorizing execution and delivery of this Lease and the
performance by Tenant of its obligations hereunder. If Tenant is a partnership,
every general partner thereof shall execute this Lease, unless a lesser number
is deemed sufficient in the reasonable opinion of Landlord's legal counsel.
26.04 ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than any
installment or payment of Rent due shall be deemed to be other than on account
of the amount due, and no endorsement or statement on any check or any latter
accompanying and check or payment of Rent shall be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such installment or payment of rent
or pursue any other remedies available to Landlord. No receipt of money by
Landlord from Tenant after the termination of this Lease or Tenant's right of
possession of the Premises shall reinstate, continue or extend the Term.
Landlord may apply any such payment to any obligation of Tenant to Landlord then
outstanding, in Landlord's sole discretion.
26.05 BINDING EFFECT
This Lease shall be binding upon an inure to the benefit of Landlord
and Tenant and their respective heirs, legal representatives, successors and
permitted assigns.
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26.06 FORCE MAJEURE
Neither party hereto shall be deemed in default with respect to any
of the terms, covenants and conditions of this Lease, if such party fails to
timely perform same and such failure is due in whole or in part to any strike
lockout, labor trouble (whether legal or illegal), civil disorder, inability
to procure materials, failure of power, restrictive governmental laws and
regulations, riots, insurrections, war, fuel shortages, accidents, casualties,
Acts of God, acts caused directly or indirectly by the other party (or such
other party's agents, employees or invitees) or any other cause beyond the
commercially reasonable control of the non-performing party; provided,
however, that nothing herein shall excuse Tenant's failure to pay Adjusted
Monthly Rent or any other charges due to Landlord hereunder.
26.07 CAPTIONS
The Article and Section captions in this lease are inserted only as a
matter of convenience and in no way define, limit, construe, or describe the
scope or intent of such Articles and Sections.
26.08 APPLICABLE LAW
This Lease shall be construed in accordance with the laws of the State
of North Carolina, without regard to the conflict of law provisions thereof.
26.09 TIME
Time is of the essence of this Lease and the performance of all
obligations hereunder.
26.10 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES
If Tenant fails to timely perform any of its duties under this Lease or
the Work Letter, Landlord shall have the right (but not the obligation), after
the expiration of any grace period elsewhere under this Lease or the Work Letter
expressly granted to Tenant for the performance of such duty, to perform such
duty on behalf and at the expense of Tenant without further prior notice to
Tenant, and all sums expanded or expenses incurred by Landlord in performing
such duty shall be deemed to be additional Rent under this Lease and shall be
due and payable upon demand by Landlord.
26.11 RELATIONSHIPS
The relationship between Landlord and Tenant is that of landlord and
tenant and nothing herein shall be construed to give rise to any other
relationships including, without limitation, a creditor and debtor relationship.
26.12 INVALIDITY
If any terms(s), condition(s), covenant(s), clause(s) or provision(s)
herein contained shall operate or would prospectively operate to invalidate this
Lease in whole or in part, then such term(s), condition(s), covenant(s),
clause(s), and provision(s) shall be held for naught as though not herein
contained and the remainder of this Lease shall remain operative and in full
force and effect.
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26.13 LIMITATION OF LANDLORD'S LIABILITY
Anything contained in this Lease to the contrary notwithstanding,
Tenant agrees that it shall look solely to the estate and property of the
Landlord in the Building and the land thereunder for the collection of any
judgment (or other judicial process) requiring the payment of money by Landlord
for any default or breach by Landlord of any of its obligations under this
Lease, subject, however, to the prior rights of any ground or underlying
landlord or the holder of any mortgage covering the Building or of Landlord's
interest therein. No other assets of the Landlord shall be subject to levy,
execution or other judicial process for the satisfaction of Tenant's claim.
These provisions shall not be deemed, construed or interpreted to be or
constitute an agreement, express or implied, between Landlord and Tenant that
the Landlord's interest hereunder and in the Building shall be subject to
impressment or an equitable lien or otherwise. Nothing herein contained shall be
construed to limit any right of injunction against the Landlord, where
appropriate.
26.14 HAZARDOUS MATERIALS AND ENVIRONMENTAL LAWS
As used in this Section, "Hazardous Substance" means any pollutant,
contaminant, toxic or hazardous waste, dangerous substance, potentially
dangerous substance, noxious substance, toxic substance, flammable, explosive,
radioactive material, urea formaldehyde foam insulation, asbestos, PCBs, or any
other substances the removal of which is required, or the manufacture,
production, generation, use, maintenance, disposal, treatment, storage,
transfer, handling or ownership of which is restricted, prohibited, regulated or
penalized by any federal, state, county or municipal statues or laws now or at
any time hereafter in effect, including but not limited to, the Comprehensive
Environmental Response, Compensation, and Liability Act (U.S.C. 9601 et. seq.),
the Hazardous Materials Transportation Act (49 U.S.C. 1801 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. 6901 et. seq.), the Federal
Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Clean Air Act (42
U.S.C. 7401 et seq.), the Toxic Substances Control Act, as amended (15 U.S.C.
2601 et seq.), and the Occupational Safety and Health Act (29 U.S.C. 651 et
seq.), as these laws have been amended or supplemented.
Tenant shall not use, or knowingly permit others to use the Premises or
any other part of the Building or the Complex for the production, generation,
manufacture, treatment, transportation, storage or disposal of any Hazardous
Substance, except with the prior written consent of Landlord and in compliance
with any and all applicable federal, state and local environmental laws,
ordinances and regulations.
Tenant shall indemnify, defend and hold harmless Landlord, its
officers, agents and employees, from and against any and all claims, damages,
expenses, penalties, liability and costs, resulting or arising from a breach of
the covenant contained In the paragraph above.
The provisions of this Section 26.14 shall survive the expiration or
termination of this Lease Agreement.
26.15 TRANSFER OF LANDLORD'S INTEREST
In the event of the sale, assignment or transfer by Landlord of its
interest in the Building or in this Lease (other than a collateral assignment to
secure a debt of Landlord) to a successor in interest who expressly assumes the
obligations of Landlord hereunder, Landlord shall thereupon be released or
discharged from all of its covenants and obligations hereunder, except such
obligations as shall have accrued prior to any such sale, assignment or
transfer; and tenant agrees to look solely to such successor in interest of
Landlord for performance of such obligations. Any security given by Tenant to
Landlord to secure performance by Tenant of its obligations hereunder may be
assigned by
Page 20
21
Landlord to such successor in interest of Landlord; and, upon acknowledgment by
such successor of receipt of such security and its express assumption of the
obligation to account to Tenant for such security in accordance with the terms
of the Lease, Landlord shall thereby be discharged of any further obligation
relating thereto. Landlord's assignment of the Lease or of any or all of its
rights herein shall in on manner affect Tenant's obligations hereunder. Tenant
shall thereafter attorn and look to such assignee, as Landlord, provided Tenant
has first received written notice of such assignment of Landlord's interest.
Landlord shall have the right to freely sell, assign or otherwise transfer its
interest in the Building and/or this Lease.
26.16
It is understood that Landlord is subject to the Employee Retirement
Income Security Act ("ERISA") and has furnished to Tenant a list of individuals
and entities transactions with which might result in a prohibited transaction
under ERISA or would otherwise cause a breach of an ERISA related requirement.
Tenant hereby warrants and represents that Tenant is not related to or
affiliated with any person or entity shown on a list to be furnished by
Landlord such that Tenant is a "party in interest" to such person or entity as
that term is defined in ERISA Section 3(14) and (15), a copy of which section
is attached hereto as Exhibit D, as that Section may be interpreted or amended.
Tenant agrees that each time that Landlord makes additions to such list that
Tenant will either make the warranty requested above or shall disclose to
Landlord the relationship with such party on the list that would cause Tenant
to be unable to make such warranty and representation. Tenant agrees to
indemnify and hold Landlord harmless form any cost, expense or damages which
may result from a breach of the warranty and representation made by Tenant.
26.17 RIDERS
All Riders attached hereto and executed both by Landlord and Tenant
shall be deemed to be a part hereof and hereby incorporated herein.
IN WITNESS WHEREOF, this Lease has been executed as of the date set
forth in 1.01D hereof.
LANDLORD: 6000 FAIRVIEW ASSOCIATES, LLC
BY: Connecticut General Life Insurance Co.
On Behalf Of Its Separate Account R, Member
BY: CIGNA Investments, Inc.
ATTEST: /s/ Leon Pouncy By: /s/ James H. Rogers
------------------ ------------------------------------------
Secretary James H. Rogers
Leon Pouncy Title: Managing Director 12/23/97
Managing Director ---------------------------------------
(Corporate Seal) Date
TENANT: SALES VISION, INC.
ATTEST: /s/ By: /s/ Thomas Fedell
------------------ ------------------------------------------
Secretary
(Corporate Seal) Title: President 12/8/97
---------------------------------------
Date
22
"EXHIBIT "A"
Tenant Improvements
1. SPACE PLANNING If, at the time this Lease is executed, a space
plan has not been prepared end approved by both
Landlord and Tenant, Tenant shall provide Landlord's
space planner with its space requirements in order to
prepare a space plan. This information should be
provided by December 1, 1997. Once the space plan has
been prepared by the space planner, and delivered to
Tenant, Tenant shall have three (3) days to modify,
if necessary, and approve the plan. Landlord shall
then estimate the cost of building out the space
pursuant to the plan and shall submit such estimate
to Tenant for approval. Tenant shall have three (3)
days to approve the budget for the buildout of its
space.
In the event Tenant's improved space is not available
for occupancy by the Commencement Date stated in
Section 1.01F of this Lease and Tenant has met all
of the deadlines described above, Tenant's obligation
to pay rent will begin on the date the space is ready
for occupancy. However, if Tenant has not met the
time table described above and the space is not ready
for occupancy on the Commencement Date, the
obligation to pay rent will commence an the
Commencement Date.
2. Landlord's Work: In addition to the allowance provided below, Landlord
shall provide building standard light fixtures and
ceiling tile stacked on the floor, ceiling grid in
place, sprinkler system installed on a 12 foot grid,
HVAC high pressure duct and VAV boxes in place for an
open floor plan.
3. Landlord's Allowance: Landlord shall provide a buildout based upon the
attached floor plan.
23
EXHIBIT A (cont'd)
Landlord shall provide the following tenant improvements:
1. Walls built as described below.
2. New paint throughout the office suite.
3. New building standard 30 ounce carpet throughout the office suite.
4. Floor-to-ceiling glass in the wall of the conference room and glass
inserts in five (5) of the private offices. (Each insert shall be two
feet wide/floor-to-ceiling).
5. Building standard electrical throughout office suite (approximately 2
duplex receptacles per private office, 4 duplex outlets in the
conference room, one outlet in the closet to power telephone equipment,
and wall receptacles to power the cubicles).
24
EXHIBIT "B"
RULES AND REGULATIONS
1. The Landlord may refuse admission to the Building outside of ordinary
business hours to any person not known to the watchmen in charge or not
properly identified, and may require all persons admitted to or leaving the
Building outside of ordinary business hours to register. Any person whose
presence in the Building at any time shall, in the judgment of the Landlord, be
prejudicial to the safety, character, reputation and interest of the Building
or its Tenants may be denied access to the Building or may be ejected
therefrom. In case of invasion, riot, public excitement or other commotion, the
Landlord may prevent all access to the Building during the continuance of the
same, by closing the doors or otherwise, for the safety of the Tenants, the
Building and protection of property in the Building. The Landlord may require
any person leaving the Building with any package or other object to exhibit a
pass from the Tenant from whose Premises the package or object is being
removed, but the establishment and enforcement of such requirement shall not
impose any responsibility on the Landlord for the protection of any Tenant
against the removal of property from the Premises of the Tenant. The Landlord
shall in no way be liable to any Tenant for damages or loss arising from the
admission, exclusion or ejection of any person to or from the Tenant's Premises
or the Building under the provisions of this rule.
2. Landlord reserves the right to exclude or expel from the building any
person who in the judgment of Landlord is intoxicated or under the influence of
liquor or drugs.
3. Tenants shall not do or permit anything to be done in their Premises or
bring or keep anything therein which will in any way obstruct or interfere with
the rights of other tenants, or do, or permit anything to be done in their
Premises which shall, in the judgment of the Landlord or its manager, in any
other way injure or annoy them, or conflict with the laws relating to fire, or
with the regulations of the fire department or with any insurance policy upon
the Building or any part thereof or any contents therein or conflict with any
of the Rules and Ordinances of the public building or health authorities.
4. All electrical equipment used by Tenants shall be U.L. approved. Nothing
shall be done or permitted in Tenant's Premises, and nothing shall be brought
into or kept in the Premises which would impair or interfere with any of the
Building services or the proper and economic heating, cooling, cleaning or
other servicing of the Building or the Premises.
Page 1
25
5. Tenants shall not install or operate any steam or gas engine or boiler, or
carry on any mechanical business, in the building. The use of oil, gas or
inflammable liquids for heating, lighting or other purposes is expressly
prohibited. Explosives or other articles deemed extra hazardous shall not be
brought into the Building. Tenants shall not use any other method of heating
than that supplied by the Landlord.
6. Tenants shall give Landlord prompt notice of all accidents to or defects
in air-conditioning equipment, plumbing, electric facilities or any part or
appurtenance of their Premises.
7. Tenants shall use electric, gas and any other form of energy only from
such sources of supply as is furnished in the Building.
8. All deliveries to the Building for or by any Tenant are to be made through
the service entrance to Building as designated by Landlord, unless special
permission is granted by Landlord for the use of other Building entrances.
9. Furniture, equipment or supplies shall be moved in or out of the Building
as designated by Landlord, unless special permission is granted by Landlord for
the use of other Building entrances.
10. Should any Tenant desire to place in the Building any unusually heavy
equipment, including, but not limited to, large files, safes and electronic
data processing equipment, it shall first obtain approval of the Landlord to
place such items within the Building, for the use of the Building elevators,
and for the proposed location in which such equipment is to be installed. The
Landlord shall have the power to prescribe the weight and position of any
equipment that may exceed the weight load limits of the building structure, and
may further require, at the tenant's expense, the reinforcement of any flooring
on which such equipment may be placed, and/or to have an engineering study
performed to determine such weight and position of equipment, to determine
added reinforcement required, and/or determine whether or not such equipment
can be safely placed within the Building.
11. Tenants shall not place additional locks or bolts of any kind upon any of
the doors of their Premises and no lock on any door therein shall be changed or
altered in any respect. Duplicate keys for Tenant's Premises and toilet rooms
(if applicable) shall be procured only from Landlord, which may make a
reasonable charge therefor. Upon the termination of a Tenant's lease, all keys
of the Premises and toilet rooms shall be delivered to the Landlord.
12. Tenants shall not leave any refuse in the public hallways or other areas
of the Building (excepting Tenant's own Premises) for disposal.
Page 2
26
13. Landlord shall have the right to prohibit any advertising by Tenants
which, in Landlord's opinion, tends to impair the reputation of the Building or
its desirability as a building or offices; upon written notice from the
Landlord, Tenant shall refrain from or discontinue such advertising.
14. If a Tenant employs laborers or others outside of the Building, such
Tenant shall not have its employees paid in at the Building, but shall arrange
to pay their payrolls elsewhere. Tenants shall not advertise for laborers,
giving an address at the Building.
15. Bicycles or other vehicles shall not be permitted in the offices, halls,
corridors, lobbies and elevators of the Building, nor shall any obstruction of
sidewalks or entrances of the Building by such be permitted.
16. The sidewalks, entries, passages, elevators and staircases shall not be
obstructed or used by Tenants, their servants, agents or visitors for any other
purpose than ingress and egress to and from the respective offices.
17. Canvassing, soliciting and peddling in the Building is prohibited and
tenants shall cooperate to prevent the same.
18. No animals, birds or pets (other than seeing-eye dogs) of any kind shall be
allowed in Tenant's Premises or Building.
19. The water closets, urinals, waste lines, vents or flues of the Building
shall not be used for any purpose other than those for which they were
constructed, and no rubbish, acids, vapors, newspapers or other such substances
of any kind shall be thrown into them. The expense caused by any breakage,
stoppage or damage resulting from a violation of this rule by any Tenant, its
employees, visitors, guests or licensees, shall be paid by Tenant.
20. All decorating, carpentry work or any labor required for the installation
of Tenant's equipment, furnishings or other property shall be performed at
Tenant's expense, subject to Landlord's prior written approval and, by
Landlord's employees or at Landlord's option and consent by persons or
contractors authorized in writing by Landlord. This shall apply to all work
including, but not limited to, installation of telephone or telegraph
equipment, electrical devices and attachments, and all installations affecting
floors, walls, windows, doors, ceilings, equipment or any other physical
feature of the Building. None of this work shall be done by Tenant without
Landlord's prior written approval.
Page 3
27
21. If any Tenants desires radio signal, communication, alarm or other utility
or service connection installed or changed, such work shall be done at the
expense of tenant, with the prior written approval and under direction of
Landlord. No wiring shall be installed in any part of the building without
Landlord's approval and direction. Landlord reserves the right to disconnect
any radio, signal or alarm system when, in Landlord's opinion, such
installation or apparatus interferes with the proper operation of the Building
or systems within the Building.
22. Except as permitted by Landlord, Tenants shall not mark upon, paint signs
upon, cut, drill into, drive nails or screws into, or in any way deface the
walls, ceilings, partitions or floors of their Premises or of the Building and
the repair cost of any defacement, damage or injury caused by any Tenant, its
agents or employees, shall be paid for by the Tenant.
23. All glass, lighting fixtures, locks and trimmings in or upon the doors and
windows of the Tenant's Premises shall be kept whole and whenever any part
thereof shall be broken through cause attributable to any tenant, its agents,
guests or employees, the same shall immediately be replaced or repaired by
Landlord at Tenant's expense.
24. The cost of repairing any damage to the public portions of the Building or
the public facilities or to any facilities used in common with other Tenants,
caused by any Tenants or the employees, licensees, agents or invitees of the
Tenant, shall be paid by such Tenant.
25. Tenants shall not remove any carpet, or wall coverings, window blinds, or
window draperies in their Premises without the prior written approval from
Landlord.
26. The sashes, sash doors, windows, side glass, glass floors and any lights
or skylights that reflect or admit light into the halls or other places of the
Building shall not be covered or obstructed by Tenant without the prior written
approval from Landlord.
27. Tenant shall cooperate fully with the life safety plans of the Building as
established and administered by the Landlord. This includes participation by
Tenant and employees of the Tenant in exit drills, fire inspection, life safety
orientations and other programs relating to fire safety that may be promulgated
by the Landlord.
Page 4
28
EXHIBIT D
EMPLOYEE RETIREMENT INCOME SECURITY ACT
SECTION 3(14) AND (15)
(14) The term "party in interest" means, as to an employee benefit plan--
(A) any fiduciary (including, but not limited to, any administrator,
officer, trustee, or custodian), counsel, or employee of such
employee benefit plan;
(B) a person providing services to such plan;
(C) an employer any of whose employees are covered by such plan;
(D) an employee organization any of whose members are covered by such
plan;
(E) an owner, direct or indirect, of 50 percent of more of
(I) the combined voting power of all classes of stock entitled to
vote or the total value of shares of all classes of stock of a
corporation,
(II) the capital interest or the profits interest of a partnership,
or
(III) the beneficial interest of a trust or unincorporated
enterprise,
which is an employer or an employee organization described in subparagraph (C)
or (D);
(F) a relative defined in paragraph (15) of any individual described in
subparagraph (A), (B), (C) or (E);
(G) a corporation, partnership, or trust or estate of which (or in
which) 50 percent or more of
(I) the combined voting power of all classes of stock entitled to
vote or the total value of shares of all classes of stock of
such corporation,
(II) the capital interest or profits interest of such partnership.
(15) The term "relative" means a spouse, ancestor, lineal descendent, or spouse
of a lineal descendent.
ERISA PARTIES IN INTEREST LIST
SEPARATE ACCOUNT R
1. Treasurer of the State of North Carolina
2. The United Nations Joint Staff Pension Fund
3. Maryland State Retirement System
4. International Bank for Reconstruction and Development World Bank
Pension Department (Staff Retirement Plan 1)
5. The School Employees Retirement Board of Ohio
6. International Monetary Fund as Trustee of the Staff Retirement
Plan
7. Public School Teachers Pension & Retirement Fund of Chicago
PLEASE BE ADVISED THAT THE PRECEDING IS A LIST OF RETIREMENT PLANS WHICH MAY
HAVE AN INTEREST IN SEPARATE ACCOUNT R AS OF THE DATE HEREOF IN EXCESS OF TEN
PERCENT (10%). THIS EXHIBIT IS SUBJECT TO CHANGE AS HOLDERS OF INTERESTS ARE
EITHER ADDED OR SUBTRACTED OR THE PERCENTAGE INTEREST HELD BY ANY PLAN CHANGES.
As of May 1, 1997
29
STATE OF NORTH CAROLINA
COUNTY OF MECKLEBURG
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE made this 12th day of March, 1998, by and between
6000 FAIRVIEW ASSOCIATES, LLC, a limited liability corporation, ("Landlord")
and SALES VISION, INC., ("Tenant").
WITNESSETH:
WHEREAS, Landlord and tenant have heretofore entered into a Lease Agreement
located at 6000 Fairview Road, Charlotte, NC, dated November 11, 1997, herein
called ("Lease").
WHEREAS, Landlord and Tenant hereby agree to expand the Premises by 250
rentable square feet.
NOW, THEREFORE, in consideration of the Premises, Landlord and Tenant hereby
agree for themselves, their successors and assigns, that the said Lease is
amended as follows:
1. 1.01H Monthly Base Rent: "$4,849.17" is deleted and "$5,328.33" is
inserted.
2. 1.01I Rentable Area of Premises: "2,530" is deleted and "2,780 is
inserted.
3. Exhibit A is replaced with the attached Exhibit A-1.
All other terms and conditions of the aforesaid Lease shall remain unchanged
and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of
the day and year first above written.
ATTEST: LANDLORD: 6000 FAIRVIEW ASSOCIATES, LLC
BY: CONNECTICUT GENERAL LIFE INSURANCE CO.
OF BEHALF OF ITS SEPARATE ACCOUNT R, MEMBER
BY: CIGNA INVESTMENTS, INC.
By: /s/ Thomas M. Smith By: /s/ James H. Rogers
----------------------- ------------------------------------------
THOMAS M. SMITH James H. Rogers
MANAGING DIRECTOR Title: Managing Director 5/12/98
---------------------------------------
Date
ATTEST: TENANT: SALES VISION, INC.
By: By: /s/ Thomas Fedell
------------------ ------------------------------------------
Title: President 2/6/98
---------------------------------------
Date
30
STATE OF NORTH CAROLINA
COUNTY OF MECKLEBURG
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE made this 12th day of March, 1998, by and
between 6000 FAIRVIEW ASSOCIATES, LLC, a limited liability corporation,
("Landlord") and SALES VISION, INC., ("Tenant").
WITNESSETH:
WHEREAS, Landlord and tenant have heretofore entered into a Lease Agreement
located at 6000 Fairview Road, Charlotte, NC, dated November 11, 1997, and a
First Amendment dated February 6, 1998, herein called ("Lease").
WHEREAS, Landlord and Tenant hereby agree to expand the Premises by 438
rentable square feet.
NOW, THEREFORE, in consideration of the Premises, Landlord and Tenant hereby
agree for themselves, their successors and assigns, that the said Lease is
amended effective March 15, 1998, as follows:
1. 1.01H Monthly Base Rent: "$5,328.33" is deleted and "$6,167.83" is
inserted.
2. 1.01I Rentable Area of Premises: "2,780" is deleted and "3,218" is
inserted.
3. Exhibit A-1 is replaced with the attached Exhibit A-2.
All other terms and conditions of the aforesaid Lease shall remain unchanged
and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the
day and year first above written.
ATTEST: LANDLORD: 6000 FAIRVIEW ASSOCIATES, LLC
BY: CONNECTICUT GENERAL LIFE INSURANCE CO.
OF BEHALF OF ITS SEPARATE ACCOUNT R, MEMBER
BY: CIGNA INVESTMENTS, INC.
By: /s/ Thomas M. Smith By: /s/ James H. Rogers
----------------------- -------------------------------------------
THOMAS M. SMITH James H. Rogers
MANAGING DIRECTOR Title: Managing Director 3/12/98
---------------------------------------
Date
ATTEST: TENANT: SALES VISION, INC.
By: By: /s/ Thomas Fedell 2/10/98
------------------ ------------------------------------------
Title: President Date
---------------------------------------
31
STATE OF NORTH CAROLINA
COUNTY OF MECKLEBURG
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE made this 29th day of May, 1998, by and between
6000 FAIRVIEW ASSOCIATES, LLC, a limited liability corporation, ("Landlord")
and SALES VISION, INC., ("Tenant").
WITNESSETH:
WHEREAS, Landlord and tenant have heretofore entered into a Lease Agreement
located at 6000 Fairview Road, Charlotte, NC, dated November 11, 1997, a First
Amendment dated February 6, 1998, and a Second Amendment dated March 12, 1998,
herein called ("Lease").
WHEREAS, Landlord and Tenant hereby agree to expand the Premises by 1,176
rentable square feet ("Expansion Space").
NOW, THEREFORE, in consideration of the Premises, Landlord and Tenant hereby
agree for themselves, their successors and assigns, that the said Lease is
amended effective July 10, 1998, as follows:
1. The Second Amendment to Lease shall not be effective until April 6,
1998.
2. 1.01H Monthly Base Rent: "$6,167.83" is deleted and "$8,421.83" is
inserted.
3. 1.01I Rentable Area of Premises: "3,218" is deleted and "4,394" is
inserted.
4. Exhibit A-2 is replaced with the attached Exhibit A-3.
All other terms and conditions of the aforesaid Lease shall remain unchanged
and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the
day and year first above written.
WITNESS: LANDLORD: 6000 FAIRVIEW ASSOCIATES, LLC
BY: CONNECTICUT GENERAL LIFE INSURANCE CO.
OF BEHALF OF ITS SEPARATE ACCOUNT R, MEMBER
BY: CIGNA INVESTMENTS, INC.
By: By: /s/ Stephen J. Olstein
----------------------- ------------------------------------------
Stephen J. Olstein
Title: Managing Director 6/10/98
---------------------------------------
Date
ATTEST: TENANT: SALES VISION, INC.
By: By: /s/ Thomas Fedell
------------------ ------------------------------------------
Title: President 5/29/98
---------------------------------------
Date
32
STATE OF NORTH CAROLINA
COUNTY OF MECKLEBURG
FOURTH AMENDMENT TO LEASE
THIS FOURTH AMENDMENT TO LEASE made this 17th day February, 1999, by and
between 6000 FAIRVIEW ASSOCIATES, LLC, a partnership ("Landlord") and SALES
VISION, INC., ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant have heretofore entered into a Lease Agreement
located at 6000 Fairview Road, Charlotte, NC, dated November 11, 1997, and
amended March 12, 1998, and May 29, 1998, herein called ("Lease").
WHEREAS, Landlord and Tenant hereby agree to expand the Premises by 1,176
rentable square feet ("Expansion Space").
NOW, THEREFORE, in consideration of the Premises, Landlord and Tenant hereby
agree for themselves, their successors and assigns, that the said Lease is
amended effective July 15, 1998, as follows:
1. The Second Amendment to Lease shall not be effective until April
6, 1998.
2. 1.01H Initial Monthly Base Rent: "$6,167.83" is deleted and
"$8,421.83" is inserted.
3. 1.01I Rentable Area of the Premises: "3,218" is deleted and "4,394"
is inserted.
4. Exhibit A-2 is replaced with the attached Exhibit A-3.
All other terms and conditions of the aforesaid Lease shall remain unchanged
and in full force and effect.
Upon the effectiveness of this Fourth Amendment, the Third Amendment shall be
null and void.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the
day and year first above written.
ATTEST: 6000 FAIRVIEW ASSOCIATES, LLC A NORTH
------------------ CAROLINA PARTNERSHIP
BY: CONNECTICUT GENERAL LIFE INSURANCE CO.
ON BEHALF OF ITS SEPARATE ACCOUNT R, MEMBER
BY: CIGNA INVESTMENTS, INC.
By: /s/ John G. Eisele
------------------------------------------
John G. Eisele
Title: Managing Director 2/17/99
---------------------------------------
Date
ATTEST: TENANT: SALES VISION, INC.
By: By: /s/ Thomas Fedell
------------------ ------------------------------------------
Title: President
---------------------------------------
Date