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EXHIBIT 10.19
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
LEASE
THIS LEASE, made and entered into this the 27th day of April, 2000, by and
between BCI Property Company No. 11, a North Carolina general partnership,
hereinafter referred to as "Landlord" and YOUcentric, Inc., a North Carolina
corporation, hereinafter referred to as "Tenant";
W I T N E S S E T H:
In consideration of the mutual agreements of the parties herein, including the
rental agreed to be paid by Tenant to Landlord, Landlord leases to Tenant, and
Tenant leases from Landlord the following described premises upon the following
terms and conditions:
ARTICLE I
BASIC LEASE TERMS
SECTION 1.1. BUILDING, PREMISES, TERM, BASE RENT, ALLOWANCES, AND SECURITY
DEPOSIT.
Building and Address Brixham Green Two
14045 Ballantyne Corporate Place
Charlotte, North Carolina 28277
Location of Premises: Suite 300 on the third (3rd) floor of the
Building. (21,052 rsf)
Suite 400 on the fourth (4th) floor of the
Building (21,052 rsf)
Suite 500 on the fifth (5th) floor of the
Building (20,164 rsf)
Rentable Area of Premises: approximately 62,268 square feet
Lease Term:
Commencement Date: For Suite 300 - September 1, 2000
For Suite 400 - September 1, 2000
For Suite 500 - October 1, 2000
Termination Date: September 30, 2005
Base Rent:
Initial Annual Base Rent: $20.00 per rentable square foot of the Premises
($20.00 x 62,268 = $1,245,360.00)
Initial Monthly Base Rent: $103,780.00 (Monthly Base Rent for Suite 300
shall abate for the first two (2) months of the
Lease term, and Monthly Base Rent for Suites
400 and 500 shall begin on their respective
Commencement Dates as provided above, so that
on September 1, 2000, Tenant shall pay Monthly
Base Rent for Suite 400 in the amount of
$35,086.67 , and on October 1, 2000 Tenant
shall pay Monthly Base Rent for Suite 400 and
500 in the amount of $68,693.34. Tenant shall
begin paying Monthly Base Rent for the entire
Premises on November 1, 2000 and therefore, the
Monthly Base Rent due for November 1, 2000
shall be the Initial Monthly Base Rent in the
amount of $103,780.00 as provided above. The
foregoing partial rent abatement shall not
operate to reduce the Annual or Monthly Base
Rent as provided above or the annual
escalations thereof during the remainder of the
Lease term.)
Plans Allowance: $1.00 per rsf ($62,268.00) pursuant to
Section 2.2
Upfit Allowance: $16.00 per rsf ($996,288.00)
Security Deposit: $311,340.00 plus Letter of Credit
SECTION 1.2. ADDRESS OF LANDLORD AND TENANT; NOTICES.
Rental and Other
Payments To: BCI Property Company No. 11 - Dept. R
BISSELL PATRICK, LLC
D/B/A GRUBB & ELLIS BISSELL PATRICK
15720 JOHN J. DELANEY DRIVE, SUITE 500
CHARLOTTE, NC 28277
Correspondence To: BCI Property Company No. 11
c/o Bissell Patrick, LLC
D/B/A Grubb & Ellis Bissell Patrick
15720 John J. Delaney Drive, Suite 500
Charlotte, NC 28277
with copy to: Lease Administrator
c/o Bissell Patrick, LLC
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D/B/A Grubb & Ellis Bissell Patrick
15720 John J. Delaney Drive, Suite 500
Charlotte, NC 28277
Address of Tenant: YouCentric, Inc.
14045 Ballantyne Corporate Place
Charlotte, North Carolina 28277
with copy to: _______________________________________________
_______________________________________________
_______________________________________________
All moneys due and notices required under this Lease shall be sent to the
respective addresses of Landlord and Tenant set forth above, as applicable, and
unless otherwise provided, shall be in writing. Notice shall be deemed served
(a) if sent by certified mail, return receipt requested, when the return receipt
is signed or refused, (b) if sent by recognized national overnight courier, next
day delivery, as of the next business day after delivery to such courier, or (c)
if in any other manner, upon actual delivery to the party to whom/ which such
notice is addressed. Either party may change the address to which or notices
shall be sent by giving the other party written notice of such change of
address.
SECTION 1.3. MEASUREMENT OF PREMISES. The respective rentable square footages of
the Premises as set forth in Section 1.1 have been calculated in accordance with
the following agreed upon formula:
21,417 Gross square feet inside face of glass per BOMA
- - 223 Square feet Stair#2
- - 223 Square feet Stair #1
- - 171 Square feet elevators
- - 24 Mechanical Shaft
- -----------------------
20,776 Rentable square feet per BOMA for respective floors
+ 276 Portion of building lobby
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21,052 RENTABLE SQUARE FEET PER FLOOR FOR THE THIRD (3RD) AND FOURTH (4TH)
FLOORS
20,609 Gross square feet inside face of glass per BOMA
- - 223 Square feet Stair #2
- - 223 Square feet Stair #1
- - 171 Square feet elevators
- - 24 Mechanical Shaft
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19,968 Rentable square feet per BOMA for respective floors
+ 196 Portion of building lobby
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20,164 RENTABLE SQUARE FEET PER FLOOR FOR THE FIFTH (5TH) FLOOR
The parties agree that for all purposes under this Lease, the Premises are
deemed to contain the square footages set forth in Section 1.1, which shall not
be changed for any reason, by remeasurement or otherwise, except as may be
specifically agreed upon in writing by Landlord and Tenant, each acting in its
sole discretion.
ARTICLE II
LEASED PREMISES
SECTION 2.1. DESCRIPTION OF PREMISES. The premises (the "Premises") described in
Section 1.1 are located within the building (the "Building") also described in
Section 1.1, which is located on the real property described in Exhibit A
attached hereto and incorporated herein by reference (said land and the Building
and other improvements thereon being herein called the "Property"), and are
shown on the floor plan attached hereto as Exhibit B and incorporated herein by
reference.
SECTION 2.2. UPFITTING PLANS AND SPECIFICATIONS. Upon full execution of this
Lease, Landlord, shall prepare plans and specifications for upfitting the
Premises (the "Plans") and submit the same to Tenant for Tenant's approval, not
to be unreasonably, withheld, conditioned or delayed. Landlord will provide up
to $1.00 per rentable square foot of the Premises for the costs incurred by
Landlord in preparing such Plans, construction documents in connection
therewith, and for Landlord to provide construction management for upfitting the
Premises. Any cost of such Plans, construction documents, and construction
management in excess of said allowance shall be paid by Tenant to Landlord
within thirty (30) days of submission of invoice. Landlord represents to
Landlord's best knowledge, that if Tenant uses Smith Design of Charlotte, North
Carolina to do the above plan and document preparation and construction
management, and if Tenant does not make material changes to the initial Plans or
make repeated requests for alterations thereto or do any act (or fail to act
when required to do so) which act or failure to act increases the cost of such
plan and document preparation and construction management, that the above
allowance should cover the cost of such plan and document preparation and
construction management.
SECTION 2.3. UPFITTING. Upon Tenant's approval of the Plans, Landlord will
contract with a contractor licensed to do business in the state of North
Carolina to upfit the Premises in substantial accordance with the approved
Plans. The work to be provided by Landlord at Landlord's cost (the "Landlord's
Work"), and the work, the cost of which is to be deducted from the Upfitting
Allowance provided in Section 2.4 below (the Tenant's Work"), are set forth in
Exhibit C attached hereto and incorporated herein by reference. Landlord will
competitively bid the upfitting of the Premises to three (3) contractors on
Landlord's approved list of contractors.
SECTION 2.4. UPFITTING ALLOWANCE. Upon completion of the Plans and approval
thereof by Tenant as provided in Section 2.2, Landlord shall contract with a
contractor licensed to do business in the state of North Carolina to upfit the
Premises in substantial accordance with said plans. Landlord shall provide
Tenant with an upfitting allowance of up to $16.00 per rentable square foot of
the Premises for upfitting actually performed in the Premises above and below a
semi-finished standard ceiling. Any cost of upfitting in excess of said
allowance shall be paid by Tenant to
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Landlord within thirty (30) days of receipt of invoice for the same. All costs
incurred by Landlord in upfitting the Premises shall be applied against the said
upfitting allowance and reimbursed by Tenant to Landlord as provided above to
the extent such costs exceed the said upfitting allowance. It is provided
however that if Tenant increases the amount of the Letter of Credit required
under Section 14.22 of this Lease on a dollar for dollar basis by the amount by
which such upfitting costs exceed the said upfitting allowance, and furnishes to
Landlord documentation satisfactory to Landlord, evidencing such increase, then
in such case, Tenant may amortize and pay up to $5.00 per rentable square foot
of the Premises in additional upfitting costs in excess of the above upfitting
allowance over the original term of the Lease in additional equal monthly
payments of principal and accrued interest amortized at an annual interest rate
of eleven percent (11%) and paid at the same times as, and in addition to,
Monthly Base Rent. In the event this Lease is terminated for any reason, all
unpaid principal of and accrued interest on the excess upfitting costs shall
become immediately due and payable. Any excess upfitting costs over $5.00 per
rentable square foot of the Premises may not be so amortized , but must be paid
as provided hereinabove within thirty (30) days of receipt of an invoice for the
same. At the end of the second (2nd) year of the Lease term, if Tenant has a
minimum net worth of at least Fifty Million Dollars ($50,000,000.00) as
determined by an independent certified public accountant, and Tenant has not
been and is not then in default of this Lease, then in such case the increase in
the amount of the letter of credit due to the above excess upfitting costs may
be reduced by one-half. At the end of the fourth (4th) year of the Lease term,
if Tenant has a minimum net worth of at least Fifty Million Dollars
($50,000,000.00) as determined by an independent certified public accountant,
and at that time Tenant has not been and is not then in default of this Lease,
then in such case, any remaining portion of the increase in the amount of the
letter of credit due to the above excess upfitting costs may be removed from the
said letter of credit. Whenever a certification of minimum net worth is required
under this section, or any other section of this Lease, it is agreed that such
certification shall be in accordance with generally accepted accounting
principles consistently applied.
SECTION 2.5. TENANT'S ACCEPTANCE OF PROPERTY. Except as provided above, Tenant
shall accept the Premises in "as is" condition and Landlord shall have no
obligation to upfit the same and the taking of possession of the Premises by
Tenant shall be conclusive evidence that the Premises, Building and Property
were in satisfactory condition at the time possession was taken. If Landlord is
required to do any work in the Premises, then Tenant must notify Landlord within
thirty (30) days of the taking of possession of the Premises of any incomplete
"punch list" items required to be completed by Landlord, and any items not
contained in such notice shall be deemed fulfilled.
SECTION 2.6. COMMON AREAS. Tenant, its employees, agents, and invitees shall
have the right, in common with others and subject to the exclusive control and
management thereof at all times by Landlord, to the nonexclusive use of such of
the areas as are from time to time designated by Landlord as the common areas
(the "Common Areas") of the Property, which shall include to the extent
provided, any parking areas, sidewalks, roadways, loading platforms, restrooms,
ramps, maintenance and mechanical areas, lobbies, corridors, elevators,
stairwells and landscaped areas, and subject to such restrictions on the use
thereof as Landlord may reasonably require.
SECTION 2.7. QUIET ENJOYMENT. Tenant, upon performing its obligations hereunder,
shall hold and enjoy the Premises for the term aforesaid, subject, however, to
the terms of this Lease.
ARTICLE III
LEASE TERM
SECTION 3.1. TERM. The term of this Lease (the "Term") shall commence and end on
the Commencement Date and Termination Date, respectively, set forth in Section
1.1, provided however, if due to causes beyond Landlord's reasonable control (a
"force majeure event"), including without limitation, the inability of Landlord,
despite due diligence, to complete any work that it is obligated to perform in
the Premises or to obtain possession of the Premises because of a holdover
tenant therein, Landlord is unable to deliver the Premises to Tenant by the
Commencement Date, then in such case the Commencement and Termination Dates
shall be deferred until Landlord is able to do so, provided further, however, if
Landlord's delay is due to the acts, delays or omissions of Tenant, then
notwithstanding said deferral, Tenant shall begin paying rent on the originally
scheduled Commencement Date and continue doing so through the deferred
Termination Date. Tenant shall have no right, to enter the Premises prior to the
Commencement Date except only as expressly permitted by Landlord; provided, that
such entry shall not interfere with any work being done by or on behalf of
Landlord therein, and Tenant shall indemnify Landlord and hold Landlord harmless
against any claim, loss or liability arising from such entry, including without
limitation, any claim, loss or liability for bodily injury, including death,
and/or property damage. If, due to no fault or delay on the part of Tenant and
if not due to delays caused by above Building Standard upfitting or upfitting
upgrades or other force majeure events, Landlord does not deliver the Suite 300,
400 or 500 of the Premises to Tenant with upfitting substantially complete
within sixty (60) days of the scheduled Commencement Date each such Suite,
Tenant, as its sole remedy, may terminate this Lease thereafter by giving
Landlord written notice of termination, and if Landlord does not so deliver the
relevant Suite or Suites of the Premises to Tenant within thirty (30) days of
receipt of such notice, this Lease shall terminate, but if Landlord does deliver
the relevant Suite or Suites of the Premises to Tenant with upfitting
substantially complete prior to the end of such thirty (30) day notice period,
this Lease shall not terminate. After any such effective termination by Tenant,
neither party shall have any further obligations hereunder, except as arise
prior to the date of termination. In order to exercise its option to terminate
above, Tenant must have also notified Landlord in writing of each Landlord delay
at the time of each such delay, which Tenant believes qualifies as part of the
sixty (60) day Landlord delay referred to above.
SECTION 3.2. OPTION TO RENEW. Provided Tenant is not in default hereunder,
Tenant shall have the option to renew this Lease for two (2) additional terms of
five (5) years each upon the same terms and conditions of this Lease except as
hereinafter provided. In order to exercise its option to renew for each such
renewal term, Tenant must notify Landlord in writing of the exercise of said
option to renew at least one hundred eighty (180) days prior to the end of the
original term, or prior renewal term, as applicable. If Tenant fails to notify
Landlord of its exercise of said option at least one hundred eighty (180) days
prior to the end of the original term, or prior renewal term, as applicable,
this option to renew shall terminate and expire and be of no further force and
effect. If Tenant exercises its option to renew for the first renewal term as
provided above, then in such case the Lease shall be renewed for a five (5) year
term upon the same terms and conditions as this Lease including without
limitation, the same Annual and Monthly Base Rent in effect at the end of the
original term, increased as of the next Base Rent escalation date and on an
annual basis thereafter as provided in Section 4.2 as if the first renewal term
were part of the original term, except that Tenant shall accept the Premises in
"as is" condition and Landlord shall have no obligation to upfit
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the same, and Tenant shall not be deemed to have any additional renewal option,
except as hereinafter provided. If Tenant exercises its option to renew for the
second renewal term by giving the one hundred eighty (180) day notice prior to
the end of the first renewal term, the Lease shall be renewed for a second five
(5) year renewal term upon the same terms and conditions as the Lease except as
hereinafter provided. The Annual and Monthly Base Rent for the second renewal
term shall be the same as at the end of the prior renewal term, increased
however on the next Base Rent escalation date by the percentage increase in CPI
(as hereinafter defined) from the third month immediately preceding the month
during which the last increase in Annual and Monthly Base Rent occurred in the
first renewal term to the third month immediately preceding the month during
which the next Base Rent escalation occurs under Section 4.2 during the second
renewal term as if the second renewal term were part of the original term and
first renewal term. Thereafter, Annual and Monthly Base Rent shall continue to
increase during the second renewal term at the times provided in Section 4.2,
but instead of the 4% increase provided in Section 4.2, Annual and Monthly Base
Rent shall increase by the same percentage as the percentage increase in CPI for
the third month immediately preceding the last rent escalation date under
Section 4.2 to the third month immediately preceding the date of the current
increase in Annual and Monthly Base Rent under Section 4.2. The term "CPI" shall
mean the Consumer Price Index published monthly for all urban consumers, all
items, U.S. City Average, Base Year 1982-84=100, issued by the Bureau of Labor
Statistics of the United States Department of Labor, as the said CPI Base Year
may change, or in the event such index is no longer published, then such other
index as shall be generally accepted as being comparable thereto.
SECTION 3.3. HOLDING OVER. If Tenant continues to occupy the Premises after the
last day of the Term, or any extension thereof, and if Landlord elects to accept
rent, a monthly tenancy terminable at will by either party on not less than
thirty (30) days notice shall be created which shall be on the same conditions
as those herein specified, except that Tenant shall pay 150% of the monthly rent
paid for the last full month of the Term, or extension thereof, as applicable,
for each month or partial month during which Tenant retains possession of the
Premises after such expiration or termination date, and Tenant shall indemnify
Landlord against all liabilities and damages sustained by Landlord by reason of
such retention of possession, provided, however, that the provisions of this
section shall not constitute a waiver by Landlord of any reentry rights
available under this Lease or in law or equity.
ARTICLE IV
BASE RENT AND ADJUSTMENTS
SECTION 4.1. BASE RENT. The Tenant agrees to pay to Landlord on the first day of
each month, in advance, without setoff or demand, during the term of this Lease,
the Initial Monthly Base Rent set forth in Section 1.1, subject to annual
increases as provided in Section 4.2 below and, with the security deposit, if
any, being due upon Lease execution; provided, however, that if the term of this
Lease does not begin on the first day or end on the last day of a calendar
month, the Monthly Base Rent for that partial month at the beginning and/or end
of the Term, as applicable, shall be prorated and paid in advance.
SECTION 4.2. ANNUAL INCREASE OF BASE RENT. Annual and Monthly Base Rent for the
entire Premises shall increase on the first day of the month during which each
anniversary of the Commencement Date for Suite 300 occurs during the Term, and
the first renewal term thereof, by four percent (4.0%) of the Annual and Monthly
Base Rent in effect on the day immediately prior thereto. Refer to Exhibit D for
an illustration of how the increases provided under this Section are computed.
SECTION 4.4. LATE PAYMENT. If Monthly Base Rent or any other payment due
hereunder from Tenant to Landlord remains unpaid five (5) days after said
payment is due, the amount of such unpaid rent or other payment shall be
increased by a late charge equal to five percent (5%) of the amount of the
delinquent rent or other payment, the parties hereto agreeing that such late
charge shall not be deemed to be a penalty, it being understood between the
parties that late payments by Tenant shall result in additional expense to
Landlord which is difficult and impractical to ascertain and that such late
charge is a reasonable estimate of the loss and expense to be suffered by
Landlord as a result of such late payment. If rent or any other sum due Landlord
by Tenant hereunder is collected by or through an attorney at law, Tenant agrees
to pay Landlord's reasonable attorneys' fees incurred with respect thereto.
Nothing herein however shall relieve Tenant of the obligation to pay rent or any
other payment on or before the date on which any such payment is due, nor in any
way limit Landlord's remedies under this Lease or at law in the event said rent
or other payment is unpaid after it is due.
SECTION 4.5. APPLICATION OF PAYMENTS RECEIVED FROM TENANT. Landlord, acting in
its sole discretion, shall have the right to apply any payments made by Tenant
to the satisfaction of any debt or obligation of Tenant to Landlord under this
Lease regardless of the instructions of Tenant as to application of any sum,
whether endorsed upon Tenant's check or otherwise, and the acceptance by
Landlord of a check or checks drawn by anyone other than Tenant shall in no way
affect Tenant's liability hereunder nor be deemed an approval of any assignment
of this Lease by Tenant.
SECTION 4.6. SECURITY DEPOSIT. Tenant shall deposit with Landlord upon execution
and delivery of this Lease by Tenant to Landlord, the security deposit set forth
in Section 1.1, to be held as collateral security for the payment of rentals and
other sums of money owed by Tenant to Landlord hereunder, and for the
performance by Tenant of its obligations hereunder. If during the Term any such
rental or other payment become overdue and unpaid, then Landlord may, at its
option, appropriate and apply any portion of said deposit to the payment of any
such overdue rent or other payment, or, if Tenant fails to perform any of its
other obligations hereunder, then Landlord, at its sole option, may appropriate
and apply said entire deposit, or so much thereof as may be necessary, to make
such payment or compensate Landlord for the loss or damage sustained by Landlord
as a result of Tenant's default. Should any portion of the deposit, be
appropriated and applied as provided above, then, upon the written demand of
Landlord, Tenant shall forthwith remit to Landlord a sufficient amount in cash
to restore said security deposit to the original sum deposited, and Tenant's
failure to do so within ten (10) days after receipt of such demand shall
constitute a breach of this Lease. The Security Deposit shall be returned to
Tenant at the end of the term of this Lease provided Tenant shall have made all
such payments and performed all such covenants and agreements. Landlord's
obligation with respect to the security deposit are those of a debtor and not a
trustee. Landlord shall maintain the security deposit in an interest bearing
account and any interest earned on said security deposit shall be the property
of Tenant and Tenant shall be responsible for any income taxes due thereon. In
the event, as of the beginning of the 25th month of the Lease term, Tenant has
not been and is not then in default of this Lease, and has
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a minimum net worth of at least Fifty Million Dollars ($50,000,000.00) as
determined by an independent certified public accountant, the Monthly Base Rent
payment due by Tenant for such 25th month shall be deducted by Landlord from the
Security Deposit, and likewise for the 37th month and the 49th month,
respectively, of the Lease term, contingent upon and provided that as of the
beginning of said 37th and 49th months, respectively, Tenant has not been and is
not then in default of this Lease and has a minimum net worth of at least Fifty
Million Dollars ($50,000,000.00). In the event there are not sufficient funds
remaining in the Security Deposit to completely pay any of the above Monthly
Base Rent payments, then so much of the Security Deposit as is remaining shall
be used as a credit against the relevant Monthly Base Rent payment and Tenant
shall pay the balance thereof. In the event of a default of Tenant beyond any
applicable cure period, Landlord shall first exhaust any remaining Security
Deposit funds, including any interest earned thereon, to cure said default prior
to collecting on the letter of credit provided for in Section 14.22.
ARTICLE V
UTILITIES, SERVICES AND MAINTENANCE
SECTION 5.1. LANDLORD'S SERVICES AND MAINTENANCE. Landlord shall provide at its
expense the following services in a manner reasonably consistent with the
standard of other suburban, first class office buildings in the area within
which the Building is located:
(i) Heating, ventilation, and air conditioning (HVAC) for the Premises
during business hours in substantial accordance with Exhibit E
attached hereto;
(ii) Automatic passenger elevator(s) providing service to the floor on
which the Premises are located;
(iii) Janitorial services to the Premises for normal office use in
substantial accordance with Exhibit F attached hereto;
(iv) Hot and cold water sufficient for drinking, lavatory, toilet, and
ordinary cleaning purposes to be drawn from approved fixtures in the
Building;
(v) Electricity to the Premises in reasonable amounts necessary for
normal office use, lighting, and HVAC, twenty four (24) hours per
day, seven (7) days per week, not to exceed, however, six (6) watts
per rentable square foot of the Premises for lights and receptacles,
subject to Tenant's obligation to reimburse Landlord for after
business hours use of electricity as provided in Section 5.3 or use
in excess of six (6) watts per rentable square foot of the Premises
for lights and receptacles;
(vi) Replacement of Building Standard lighting tubes, lamp ballasts, and
bulbs for 2X2 or 2X4 fluorescent fixtures only;
(vii) Window washing in the Premises, inside and outside, at reasonable
intervals;
(viii) Extermination and pest control when necessary; and
(viii) Maintenance of the Common Areas.
SECTION 5.2. BUSINESS HOURS. In Section 5.1, business hours means:
(i) Monday through Friday, 8:00 a.m. through 6:00 p.m., and
(ii) Saturday, 8:00 a.m. through 1:00 p.m., but excludes the following
holidays or the days on which the holidays are designated for
observance: New Year's Day, Memorial Day, July Fourth, Labor Day,
Thanksgiving Day, and Christmas Day, and any other recognized
national holiday generally observed by other first class office
buildings in the area of the Building.
SECTION 5.3. 24 HOUR ACCESS. Tenant, its employees, agents, and invitees shall
have access to the Premises twenty-four (24) hours a day, seven (7) days a week.
During nonbusiness hours Landlord may restrict access by requiring persons to
show a badge or identification card issued by Landlord. Landlord shall not be
liable for denying entry to any person unable to show the proper identification.
Landlord may temporarily close the Building if required because of a
life-threatening or Building-threatening situation. Landlord shall use its best
efforts to close the Building during nonbusiness hours only.
SECTION 5.4. EXTRA SERVICES. If Tenant uses any Landlord-provided services in
excess of that required for normal and customary office use or after business
hours as defined in Section 5.2, Tenant shall pay to Landlord the reasonable
cost of such extra use within thirty (30) days of receipt of an invoice for the
same from Landlord. HVAC required by Tenant during non-business hours shall be
supplied upon reasonable advance verbal notice to, and the reasonable approval
of, Landlord, or Tenant may activate an automated HVAC override system that may
be provided by Landlord during the term, and Tenant shall pay the cost incurred
by Landlord in providing such non-business hours HVAC. Landlord is not obligated
to provide any services other than those listed in Section 5.1 above, but at
Tenant's request, such other services may be provided by Landlord, in Landlord's
sole discretion, provided the cost of such services is paid by Tenant, and
Tenant's failure to pay such charges within thirty (30) days after receiving an
invoice for the same shall entitle Landlord to the same remedies it has upon
Tenant's failure to pay Base Rent, or any other charges due under the Lease, and
the right to terminate any such services. At the present time, Landlord charges
$35.00 per hour for after-business-hours HVAC, subject to Landlord's right to
increase such charge during the term, based on increased costs incurred by
Landlord.
SECTION 5.5. INTERRUPTION OF SERVICES.
(i) INTERRUPTION. Landlord does not warrant that any services Landlord
supplies will not be interrupted, including without limitation interruptions due
to accidents, storms, Acts of God, repairs, alterations, improvements, labor
troubles, or any other reason beyond the reasonable control of Landlord, and any
interruption shall not: (a) be
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considered an eviction or disturbance of Tenant's use and possession of the
Premises; (b) make Landlord liable to Tenant for damages; (c) abate Base Rent,
Additional Rent, Additional Monthly Rent, or any other charge under this Lease;
or (d) relieve Tenant from performing Tenant's Lease obligations, provided
however, Landlord will use reasonable efforts to have any interrupted services
resumed as soon as is reasonable under the circumstances.
(ii) REMEDY. If any essential services (such as HVAC, passenger elevators
if necessary for reasonable access, electricity, water) supplied by Landlord are
interrupted, and the interruption does not result from the negligence or willful
misconduct of Tenant, its employees, invitees, or agents, Tenant shall be
entitled to an abatement of Base Rent and Additional Rent to the extent such
interruption causes the Premises to become untenantable. The abatement shall
begin on the fourth (4th) consecutive business day of the interruption or when
Tenant stops using the Premises because of the interruption, whichever is later.
The abatement shall end when the services are restored. Tenant shall have the
option to cancel the Lease if the interruption unreasonably and materially
interferes with Tenant's use of or access to the Premises for at least thirty
(30) consecutive days and Landlord is not exercising commercially reasonable
efforts to restore the services. To exercise this option Tenant must give
Landlord notice of the cancellation within ten (10) days from the end of the
thirty (30) day period.
SECTION 5.6. TENANT'S SERVICES AND MAINTENANCE. Tenant shall make arrangements
directly with the telephone company serving the Building for all telephone
service required by Tenant in the Premises and shall pay for all telephone
service used or consumed in the Premises. Further, Tenant shall be responsible
for the maintenance, repair or replacement of any systems which are located
within the Premises and are supplemental or special to the Building's standard
systems, whether installed pursuant to a work letter or otherwise, and for any
lamps, whether fluorescent or incandescent, for any special or non-Building
standard lighting fixtures, for floor and wall coverings in the Premises, and
for all other services, maintenance and repairs not specifically delegated to
Landlord hereunder which are required to keep the interior of the Premises in
good condition and repair or are required by Tenant to conduct business in the
Premises, provided however, Tenant must obtain Landlord's prior written consent
before obtaining or contracting for any service not specifically provided for in
this Lease. If heat generating machines or equipment are used in the Premises by
Tenant which affect the temperature otherwise maintained by the Building heating
and air conditioning system, Landlord shall have the right to install
supplemental air conditioning units in the Premises and the cost of the units,
and the cost of installation, operation and maintenance thereof, shall be paid
by Tenant to Landlord within thirty (30) days of demand by Landlord.
ARTICLE VI
ALTERATIONS, REPAIRS AND MAINTENANCE
SECTION 6.1. ALTERATIONS. Tenant shall make no alterations, additions or
improvements (collectively "Improvements") to the Premises, whether before or
during the Term, without the prior written consent of Landlord, and all such
Improvements, including without limitation, subdividing partitions, walls and
railings of whatever type, material or height, shall, when made, become the
property of Landlord and remain upon and be surrendered with the Premises as a
part thereof at the end of the Term, unless at the end of the Term, with regard
to Improvements made to the Premises during the Term, Landlord shall notify
Tenant to remove same, in which latter event Tenant shall do so. Tenant shall
not core drill or in any other manner attempt to penetrate or penetrate the
floors of the Building without the prior consent of Landlord, which Landlord may
withhold in its sole discretion. All Improvements shall be constructed in a
diligent, good and workmanlike manner, using at a minimum finishes which are
standard to the Building ("Building Standard") according to plans and
specifications and using only contractors and subcontractors approved by
Landlord in advance, and in compliance with all applicable legal requirements,
including without limitation, the procurement of a building permit. At
Landlord's request, Tenant shall obtain a Builders' Risk Insurance Policy
covering the Improvements in such amount as is reasonably requested by Landlord,
naming Landlord as an additional insured and providing that it will not be
canceled without giving Landlord at least 15 days prior written notice thereof,
and upon completion of such Improvements, Tenant shall furnish Landlord with a
complete set of as-built plans and specifications for the same. Tenant has no
authority to allow, will not permit, and will indemnify Landlord and hold it
harmless from, any mechanic's or materialmen's liens filed against the Premises
in connection with any Improvements.
SECTION 6.2. RIGHT OF ENTRY. Landlord shall have the right to enter and grant
licenses to enter the Premises at any time upon reasonable advance verbal notice
(except in emergencies and normal and customary janitorial and maintenance
services when no notice is required) (i) to examine the Premises, (ii) to make
alterations and repairs to the Premises or to the Building (including the right,
during the progress of such alterations or repairs, to store within the Premises
necessary materials, tools and equipment), and (iii) to exhibit the Premises to
prospective purchasers or tenants, and that no such entry shall render the
Landlord liable to any claim or cause of action for loss of or damage to the
property of the Tenant by reason thereof, nor in any manner affect the
agreements in this Lease.
SECTION 6.3. TENANT'S CARE OF PREMISES. Tenant shall keep the Premises and
fixtures therein in good condition, including without limitation, maintenance,
repair and replacement if necessary, of doors (exterior and interior), interior
plate glass and interior window glass, and wall and floor coverings, effecting
all such maintenance, repairs and replacements at its own expense, employing
materials and labor of a kind and quality equal to the original installations.
If Tenant fails to maintain, repair or replace such equipment or other
installations in or about the Premises as above provided within a reasonable
time after written request from Landlord to do so, then Landlord may accomplish
the required work and Tenant shall pay the cost thereof to Landlord within ten
(10) days of receipt of invoice for the same. Further, Tenant shall reimburse
Landlord for the cost of repairing any damage to the Building or Property to the
extent caused by the acts or omissions of Tenant, or Tenant's employees or
agents.
SECTION 6.4. LANDLORD'S REPAIRS. Subject to Tenant's obligations in Section 6.3
above, Landlord shall maintain the structural portions of the Building and the
Common Areas in a condition reasonably comparable to other first class office
buildings in the area in which the Building is located, including the roof,
foundation, exterior walls, interior structural walls, structural components,
mechanical, electrical, HVAC, and plumbing system, parking areas, and sidewalks,
except as otherwise provided in this Lease.
SECTION 6.5. TIME FOR REPAIRS. Repairs or replacements required under Sections
6.3 or 6.4 shall be made within a reasonable time (depending on the nature of
the repair or replacement needed) after receiving notice of the need for a
repair or replacement.
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SECTION 6.6. SURRENDERING THE PREMISES. Tenant shall schedule its move date, in
writing, with Landlord in advance of the Termination Date or the date the last
extension term, if any, ends, whichever is later and surrender the Premises to
Landlord in the same broom clean condition that the Premises were in on the
Commencement Date except for: (i) ordinary wear and tear; (ii) damage by the
elements, fire, and other casualty unless Tenant would be required to repair
under Section 6.3; (iii) condemnation; and (iv) permitted Improvements unless
Landlord requires their removal under Section 6.1. On surrender, Tenant shall
remove from the Premises its personal property, trade fixtures, and any
Improvements required to be removed under Section 6.1 and repair any damage to
the Premises caused by such removal. Any items not removed by Tenant as required
above shall be considered abandoned and Landlord may dispose of abandoned items
as Landlord chooses and bill Tenant for the cost of their disposal, minus any
revenues received by Landlord for their disposal.
ARTICLE VII
USE AND COVENANTS
SECTION 7.1. USE AND OCCUPANCY. Tenant shall use the Premises for general office
purposes only, including without limitation, the use of mainframe computers for
a technology/software company, and shall make no unlawful use of the Premises,
and shall not place or affix any sign, name, legend, notice or advertisement of
any kind on any part of the Building or Property without the prior written
approval of Landlord, which Landlord may withhold in its sole discretion.
SECTION 7.2. SIGNAGE. Landlord, at Landlord's cost, shall provide for the name
and suite number of the Tenant to be displayed at the entry to the Premises and,
if the Building contains a lobby directory, on a line in said directory, in a
manner prescribed by Landlord. Tenant shall also have the right to have its name
placed on the top slot of the Building monument sign in a manner prescribed by
Landlord, at Landlord's cost. Such Building monument signage rights of Tenant is
not assignable or available to subtenants of Tenant other than wholly owned
subsidiaries of Tenant.
SECTION 7.3. PARKING. Tenant, and its employees, agents and invitees shall be
required by Tenant to comply with the Parking Rules and Regulations attached
hereto as Exhibit G together with all modifications thereto which Landlord may
hereafter make, and to use the parking areas (the "Parking Areas"), provided by
Landlord for the Building, only in a manner which is compatible with the
day-to-day general use of the Building and Property by other tenants in the
Building, the Landlord, the employees, agents, visitors, and invitees of the
same, and others entitled to the use thereof. Landlord shall have the right to
tow vehicles of Tenant and Tenant's employees, agents, visitors and invitees
that are parked in violation of the Parking Rules and Regulations. Upon
Landlord's request, Tenant will provide Landlord with the license tag numbers of
all its employees and agents using the Premises or Building. Landlord reserves
the right from time to time without notice to Tenant to (i) change the location
or configuration of the Parking Areas within a reasonable proximity of the
Building; (ii) change the number of parking spaces located within the Parking
Areas, but not below a ratio of 4.25 parking spaces per 1,000 rentable square
feet of the Building; (iii) install systems to control and monitor parking in
the Parking Areas, including without limitation, a parking gate and
identification card system; (iv) utilize parking guards or attendants to
supervise and control parking within the Parking Areas; (v) make repairs,
alterations, and improvements to the Parking Areas; (vi) modify the parking
rules; and (vii) enforce the parking rules by appropriate legal action,
including without limitation, towing of vehicles parked in violation of the
Parking Rules. If Landlord grants a tenant of the Building reserved parking
spaces, Landlord shall provide Tenant its prorata share of reserved parking
spaces based on the lesser of (a) the ratio of such tenant's number of reserved
parking spaces compared to the size of such tenant's premises in the Building,
or (b) the ratio of such tenant's number of reserved parking spaces compared to
such tenant's total proportionate share of all parking spaces .
SECTION 7.4. BUILDING RULES AND REGULATIONS. Tenant shall obey and require its
employees, agents and invitees to obey the Building Rules and Regulations
attached hereto as Exhibit H and to such further rules and regulations as the
Landlord may hereafter make or adopt for the Building or Property. Landlord may
waive or modify any of such rules in the case of any one or more tenants, or
their employees, agents, invitees and visitors, without affecting the Tenant's
obligations under this Lease, and Landlord shall not be responsible to the
Tenant for the nonconformance by any other tenant, or its employees, agents,
invitees or visitors to any of said rules or regulations.
SECTION 7.5. HAZARDOUS SUBSTANCES. Tenant shall not use, store, generate or
dispose of any Hazardous Substances (as defined below), or permit the same, in,
on, above or below any part of the Premises, Building or Property except only
reasonable quantities of normal and customary office supplies used in compliance
with applicable law which Tenant shall remove from the Premises and Property at
the end of the Term. Tenant shall indemnify and hold Landlord harmless from all
claims, damages, fines, judgments, penalties, costs, liabilities or losses
(including, without limitation, a decrease in the value of the Premises,
Building, or Property due to loss or restriction of rentable or usable space,
any damages due to adverse impact on marketing of the space, and any and all
sums paid for settlement of claims, attorney's fees, consultant and expert fees)
arising during or after the Term as a result of a breach of this section by
Tenant. "Hazardous Substance" means any substance which is toxic, ignitable,
reactive, or corrosive and which is regulated by any governmental body having
jurisdiction over the same, and includes any and all materials or substances
which are defined as "hazardous waste", "extremely hazardous waste" or a
"hazardous substance" pursuant to state, federal or local law. "Hazardous
Substance" includes but is not restricted to asbestos, polychlorobiphenyls
("PCB's") and petroleum.
ARTICLE VIII
INSURANCE AND INDEMNITY
SECTION 8.1. LANDLORD'S INSURANCE. Landlord shall keep the Building insured
against damage and destruction by fire and such other perils as Landlord in
Landlord's sole discretion shall determine, in the amount of at least ninety
(90%) percent of the replacement value of the Building. Landlord shall also
maintain commercial general liability insurance with respect to the Common
Areas, covering bodily injury, including death and property damage in the amount
of at least Five Million Dollars ($5,000,000.00) per occurrence. Landlord is not
obligated to insure fixtures or other property of Tenant.
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SECTION 8.2. TENANT'S INSURANCE. Tenant shall keep in force, during the term of
this Lease, or any renewal or extension thereof, workmen's compensation
insurance as required by law, and commercial general liability insurance, with
such limits as may be reasonably requested by Landlord, but with minimum limits
not less than Five Million Dollars ($5,000,000.00) in the aggregate on account
of bodily injury, including death, and property damage, in or about the Premises
or Property, in any one occurrence, with a contractual liability endorsement,
which liability insurance shall name Landlord as an additional insured and
provide that it shall not be canceled for any reason unless Landlord is given
fifteen (15) days' notice in writing by the insurance company. Tenant shall
deposit satisfactory evidence of the above coverages prior to occupancy of the
Premises.
SECTION 8.3. INSURANCE CRITERIA. Insurance policies required by this Lease
shall: (i) be issued by insurance companies licensed to do business in the state
of North Carolina with general policyholder's ratings of at least A and the
financial rating of at least XI in the most current Best's Insurance Reports
available on the Commencement Date. If the Best's ratings are changed or
discontinued, the parties shall agree to an equivalent method of rating
insurance companies. If the parties cannot agree they shall submit the dispute
to arbitration; (ii) be primary policies - not as contributing with, or in
excess of, the coverage that the other party may carry; (iii) be permitted to be
carried through a "blanket policy" or "umbrella" coverage; and (v) be maintained
during the entire Term and any extension Terms.
SECTION 8.4. INCREASE IN INSURANCE PREMIUM. If Tenant uses the Premises in any
manner which causes the premium rate for any kind of insurance maintained by
Landlord on the Building or Property to be raised, Tenant shall pay on demand
the amount of the increase in such premium and, at the request of Landlord,
remedy the condition which caused the increase in premium.
SECTION 8.5. INDEMNITY. Each party hereto agrees to indemnify and hold harmless
the other party and such other party's employees and agents, from any and all
claims for bodily injury, including death, and property damage, occurring in the
Premises, Building or on the Property, to the extent occasioned by the acts or
omissions of , or the breach of this Lease by, the indemnifying party, or such
indemnifying party's employees or agents, provided that Tenant shall also
indemnify and hold harmless Landlord, and Landlord's employees and agents, from
any and all claims for bodily injury, including death, and property damage
occurring within the Premises, due to the acts or omissions of invitees of
Tenant, except only to the extent such claims result from the acts or omissions
of, or breach of this Lease by, Landlord or Landlord's agents or employees.
Landlord shall not be liable to Tenant for the acts or omissions of other
tenants of the Building or the owners or occupants of adjoining or contiguous
property.
SECTION 8.6. TENANT'S PERSONAL PROPERTY. Tenant shall insure its personal
property, trade fixtures, and non-Building Standard improvements in the Premises
and Building with "all risks" insurance in an amount to cover the full
replacement cost of the same, and all personal property, trade fixtures and non
Building Standard improvements in the Premises, including that of Tenant, and
Tenant's employees, agents, invitees and visitors, shall remain therein at
Tenant's sole risk, and Landlord shall not be liable for any damage to, or loss
of such personal property, trade fixtures or non-Building Standard improvements
arising from fire or the leaking of the roof, or from the bursting, leaking, or
overflowing of water, sewer or steam pipes or from any other cause whatsoever,
and Tenant shall indemnify and hold Landlord harmless in all such cases.
SECTION 8.7. WAIVER OF SUBROGATION. Each party hereto waives claims arising in
its (Injured Party's) favor against the other party for loss or damage to
Injured Party's property located within or constituting a part or all of the
Building, which waiver applies to the extent the loss or damage is covered by
the Injured Party's insurance or the insurance the Injured Party is required to
carry under Article VIII, whichever is greater, and shall apply to each party's
directors, officers, employees, shareholders, and agents. Each party hereto
shall cause its property insurance to contain an insurance industry standard
waiver of subrogation endorsement.
ARTICLE IX
DAMAGES TO PREMISES
SECTION 9.1. DEFINITION. "Relevant Space" means: (i) the Premises as defined in
Article II, excluding Tenant's non Building Standard fixtures; (ii) access to
the Premises; and (iii) any part of the Building that provides essential
services to the Premises.
SECTION 9.2. REPAIR OF DAMAGE. If the Relevant Space is damaged by fire, storm,
flood, earthquake or other insured casualty and can be substantially repaired
and restored within one (1) year from the date of the damage using standard
working methods and procedures, unless Landlord cancels the Lease under Section
9.5 below, Landlord shall use reasonable efforts to repair and restore the
Relevant Space to its previous condition, provided however, if the Relevant
Space cannot be repaired and restored within the one (1) year period, then
either party may, within ten (10) days after determining that the repairs and
restoration cannot be made within one (1) year, cancel the Lease by giving
notice to the other party, provided further however, Tenant shall not be able to
cancel this Lease if its willful misconduct caused the damage.
SECTION 9.3. ABATEMENT. Unless the damage is caused by Tenant's willful
misconduct, the Base Rent and other rentals hereunder shall abate in proportion
to that part of the Premises that is unfit for use in Tenant's business,
considering the nature and extent of interference to Tenant's ability to conduct
business in the Premises and the need for access and essential services, and
shall continue until repairs and restoration to the Relevant Space are
completed, provided that in the event of a full abatement of rent, the Term
shall be extended automatically for a period equal to the period of such full
abatement.
SECTION 9.4. TENANT'S PROPERTY. Landlord is not obligated to repair or restore
damage to Tenant's trade fixtures, furniture, equipment, or other personal
property, or any Tenant improvements, unless such Tenant improvements are
considered a part of the Building and covered under Landlord's casualty
insurance policy.
SECTION 9.5. LANDLORD'S RIGHT TO CANCEL. If with regard to damage to the
Relevant Space: (i) more than forty percent (40%) of the Building is damaged;
(ii) any secured lender of the Landlord and Building shall not allow adequate
insurance proceeds for repair and restoration; (iii) the damage is not covered
by Landlord's insurance; or (iv) the Lease is in the last twelve (12) months of
the Term; then Landlord may cancel this Lease by giving notice to Tenant within
thirty (30) days after Landlord knows of the event which gives Landlord the
right to cancel, which
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notice shall specify the cancellation date, which shall be at least thirty (30)
but not more than sixty (60) days after the date notice is given.
SECTION 9.6. CANCELLATION. If either party cancels this Lease as permitted by
this Article, Base Rent, and any other rentals hereunder shall be payable up to
the cancellation date and account for any abatement.
ARTICLE X
EMINENT DOMAIN
SECTION 10.1. RIGHT TO TERMINATE. If any part of the Premises is taken by right
of eminent domain or private purchase in lieu thereof, then either party hereto
shall have the right to terminate this Lease effective on the date physical
possession is taken by the condemning authority or private purchaser, by written
notice to the other party prior to or within ten (10) days after said effective
date, provided however, if the Lease is not terminated, the rental specified
herein shall be reduced during the unexpired Term in proportion to the area of
the Premises so taken and shall be effective on the date physical possession is
taken by the condemning authority or private purchaser.
SECTION 10.2. COMPENSATION. All compensation awarded for any taking (or the
proceeds of private sale in lieu thereof) whether for the whole or a part of the
Premises, shall be the property of Landlord whether such award is compensation
for damages to Landlord's or Tenant's interest, provided Landlord shall have no
interest in any award made to Tenant for loss of business, moving expenses, or
for the taking of Tenant's fixtures and other tangible personal property within
the Premises, if a separate award for such items is made to Tenant.
ARTICLE XI
DEFAULT AND WAIVER
SECTION 11.1 TENANT'S DEFAULT. Tenant shall be in default under this Lease if:
(i) Tenant's fails to pay Monthly Base Rent or any other sum due
hereunder within five (5) days after Tenant receives notice from
Landlord of such nonpayment by the due date;
(ii) Tenant's fails to pay Monthly Base Rent by its due date, at any time
during a calendar year in which Tenant has already received two
notices of its failure to pay Monthly Base Rent, by its due date;
(iii) Tenant fails to perform any other Tenant obligation within a period
of thirty (30) days or the additional time, if any, that is
reasonably necessary to promptly and diligently cure the failure,
after Tenant receives notice from Landlord setting forth in
reasonable detail the nature and extent of the failure and
identifying the applicable Lease provision, provided however that
such cure period shall not apply to emergencies or the failure to
maintain the insurance required by Article VIII, Section 2;
(iv) Tenant fails to vacate or stay any of the following within thirty
(30) days after they occur:
A. a petition in bankruptcy is filed by or against Tenant;
B. Tenant is adjudicated as bankrupt or insolvent;
C. a receiver, trustee, or liquidator is appointed for all or
a substantial part of Tenant's property; or
D. Tenant makes an assignment for the benefit of creditors.
SECTION 11.2. LANDLORD'S REMEDIES.
(i) Upon Tenant's default, Landlord shall have all remedies provided in
this Lease, as well as in law or equity, including without
limitation, the right to end this Lease or Tenant's right to
possession hereunder, in which case Tenant shall immediately vacate
the Premises; with or without process of law, and if necessary,
remove Tenant, with or without having ended the Lease, and alter
locks and other security devices at the Premises, and Tenant waives
any claim for damages by reason of Landlord's reentry, repossession,
or alteration of locks or other security devices and for damages by
reason of any legal process.
(ii) Landlord's exercise of any of its remedies or its receipt of Tenant's
keys shall not be considered an acceptance of surrender or a
surrender of the Premises by Tenant, unless such surrender is agreed
to in writing by Landlord.
(iii) If Landlord ends this Lease or Tenant's right to possess the Premises
hereunder, Tenant shall be liable to Landlord for Monthly Base Rent,
Additional Monthly Rent, Additional Rent, and any other indebtedness
of Tenant under the Lease, accrued to the date the Lease ends and
thereafter scheduled during the remainder of the Term, reduced only
by any sums Landlord receives by reletting the Premises during the
scheduled term, provided however, if Landlord relets the Premises
during the remainder of the scheduled term, at a rental in excess of
that provided for under this Lease, Tenant shall not be entitled to
any such excess rental and Tenant waives any claim thereto.
(iv) Tenant shall also be liable for that part of the following sums paid
by Landlord and attributable to that part of the term ended due to
Tenant's default:
A. reasonable broker's fees incurred by Landlord for
reletting part or all of the Premises prorated for the
part of the reletting term ending concurrently with the
scheduled term of this Lease;
B. the cost of removing and storing Tenant's property;
C. the cost of minor repairs, alterations, and remodeling
necessary to put the Premises in a condition reasonably
acceptable to a new tenant; and
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D. other necessary and reasonable expenses incurred by
Landlord in enforcing its remedies.
(v) Landlord may sue and take any other action provided by law to collect
the amounts due hereunder at any time and from time to time without
waiving its rights to sue for and collect further amounts due from
Tenant hereunder.
SECTION 11.3. PARTIAL PAYMENT. In the event Landlord brings a summary ejectment
or other legal proceeding against Tenant based on Tenant's default hereunder,
Landlord may accept less than full payment of any monetary obligations then
owing by Tenant to Landlord during the pendency of such proceeding without
waiving its rights to prosecute it's claim to completion, and Tenant
acknowledges and agrees that Landlord may continue its proceeding
notwithstanding such partial payment by Tenant and Tenant waives any legal or
equitable defenses to Landlord's continued prosecution of its claim, except only
if Landlord agrees in writing to suspend the prosecution of its claim for a time
certain, in which case if Tenant fails to pay its monetary obligations in full
within such time certain, Landlord may thereupon continue the prosecution of its
claim. Further, if Landlord terminates this Lease or Tenant's right to
possession hereunder based on Tenant's default hereunder, Landlord may accept
full payment or a portion of Tenant's monetary obligations hereunder without
waiving its right to obtain possession of the Premises in summary ejectment or
other legal proceeding, both parties acknowledging that the monetary obligations
of Tenant are due to Landlord notwithstanding Landlord's taking possession of
the Premises, for the period up to the date Landlord obtains possession of the
Premises, and thereafter, subject however, to Landlord's obligation to mitigate
its damages by using reasonable efforts to relet the Premises subsequent to
taking possession of the Premises.
SECTION 11.4. WAIVER. The waiver of the breach of any agreement herein by either
party in any one instance shall not be deemed to be a waiver of such agreement
or any subsequent breach of the same or any other agreement herein contained,
and the acceptance of rent hereunder by Landlord subsequent to the breach of
this Lease by Tenant shall not be deemed to be a waiver of such breach, other
than the failure of Tenant to pay the particular rental so accepted, regardless
of Landlord's knowledge of such breach at the time of acceptance of such rent.
SECTION 11.5. LANDLORD'S DEFAULT. Landlord shall not be in default for failure
to perform any of its Lease obligations until after a period of thirty (30) days
or the additional time, if any, that is reasonably necessary to promptly and
diligently cure the failure after receiving notice from Tenant, in writing and
giving in reasonable detail the nature and extent of the failure and identifying
the Lease provisions(s) containing the obligations(s).
SECTION 11.6. SURVIVAL. The remedies provided in this Article XI and any other
provision of this Lease which by its nature would require the survival of the
ending of this Lease, shall survive the ending of this Lease.
ARTICLE XII
ASSIGNMENT AND SUBLETTING
SECTION 12.1. CONSENT REQUIRED. Tenant shall not transfer, mortgage, grant a
security interest in, encumber, or assign this Lease, or any interest therein,
or sublease all or part of the Premises, without Landlord's advance written
consent, which in the case of an assignment or sublease, shall not be
unreasonably withheld or delayed, provided however, Landlord may withhold its
consent to the granting of a security interest in, or mortgaging of Tenant's
leasehold estate, or any interest therein, in Landlord's sole discretion.
Assignments requiring Landlord's consent shall include, and be deemed to mean,
without limitation, assignments by operation of law, an imposition (whether or
not consensual) of a lien, mortgage, or encumbrance upon Tenant's interest in
this Lease (the consent to which Landlord may withhold in its sole discretion as
provided above), an arrangement (including, without limitation, management
agreements, concessions and licenses) that allow the use and occupancy of all or
part of the Premises by anyone other than Tenant, a transfer of voting control
of Tenant (if Tenant is a corporation) other than in the sale and transfer of
shares of Tenant on a nationally recognized stock exchange such as Dow Jones,
NASDAQ or other exchange comparable thereto, and a transfer of more than fifty
percent (50%) of the interest in the capital of Tenant if Tenant is a
partnership or limited liability company.
SECTION 12.2. AFFILIATES. Notwithstanding Section 12.1 above and subject to
Section 12.4 below, Tenant, upon at least thirty (30) days prior written notice
to Landlord, may assign this Lease or sublease part or all of the Premises
without Landlord's consent to: (i) any corporation or partnership that controls,
is controlled by, or is under common control with, Tenant; or (ii) any
corporation resulting from the merger or consolidation with Tenant or to any
entity that acquires all of Tenant's assets as a going concern of the business
that is being conducted on the Premises, as long as the assignee or sublessee is
a bona fide entity and assumes the obligations of Tenant.
SECTION 12.3. REASONABLENESS. The Landlord's consent, with regard to subleases
and assignments, shall not be considered unreasonably withheld if: (i) the
proposed subtenant's or assignee's financial responsibility does not meet the
same criteria Landlord uses to select comparable Building tenants; (ii) the
proposed subtenant's or assignee's business is not suitable for the Building
considering the business of the other tenants and the Building's prestige; (iii)
the proposed use is inconsistent with the use permitted by Section 7.1; (iv) the
proposed use violates an exclusive use granted to a prior tenant; or (v) any
other reason exists which Landlord, acting reasonably, believes is sufficient to
justify its withholding of consent.
SECTION 12.4. PROCEDURE. With regard to a proposed sublease or assignment,
Tenant shall provide Landlord in writing: (i) the name and address of the
proposed subtenant or assignee; (ii) the nature of the proposed subtenant's or
assignee's business it will operate in the Premises; (iii) the terms of the
proposed sublease or assignment; and (iv) reasonable financial information so
that Landlord can evaluate the proposed subtenant or assignee under this
article, and Landlord shall, with regard to a sublease or assignment only,
within thirty (30) days after receiving the information required, give notice to
Tenant to permit or deny the proposed sublease or assignment.
SECTION 12.5. CONDITIONS. Subleases and Assignments by Tenant are also subject
to: (i) the terms of this Lease; (ii) the Term shall not extend beyond the Term;
(iii) Tenant is not released and shall remain liable for all Lease obligations;
(iv) consent to one sublease or assignment does not waive the consent
requirement for future assignments or subleases; and (v) fifty (50%) percent of
the consideration (Excess Consideration) received by Tenant from an assignment
or sublease that exceeds the amount Tenant must pay Landlord, which amount is to
be
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prorated where a part of the Premises is subleased or assigned, shall also be
paid to Landlord, within ten (10) days of receipt of same, with a detailed
statement showing the total consideration paid to Tenant by the subtenant or
assignee. Landlord shall have the right to audit Tenant's books and records to
verify the accuracy of the detailed statement.
SECTION 12.6. LEASEHOLD MORTGAGE OR SECURITY INTEREST. If Landlord consents to
Tenant's granting a security interest in, or mortgaging, Tenant's leasehold
estate, which consent Landlord may withhold in its sole discretion, Tenant shall
indemnify Landlord and hold Landlord harmless from any loss, cost or expense,
including reasonable attorney's fees, incurred by Landlord with respect thereto,
as a result of such security interest or mortgage, and such consent shall not be
considered a waiver of the requirement to obtain Landlord's consent with regard
to any future security interest or mortgage, of the Tenant's leasehold estate.
SECTION 12.7. REMEDY. If Tenant believes that Landlord has unreasonably withheld
its consent under this Article, Tenant's sole remedy will be to seek a
declaratory judgment that Landlord has unreasonably withheld its consent or an
order of specific performance or mandatory injunction of Landlord's agreement to
give its consent and Tenant shall not have any right to recover damages or to
terminate this Lease.
ARTICLE XIII
SUBORDINATION
SECTION 13.1. SUBORDINATION. This Lease, and Tenant's rights hereunder shall at
all times be subordinate to all mortgages and deeds of trust now existing or
hereafter placed on the Building or Property; provided however, Tenant will not
be disturbed in the use or enjoyment of the Premises so long as it is not in
default hereunder, this Lease shall remain in full force and effect
notwithstanding any default or foreclosure under any such mortgage or deed of
trust and Tenant will attorn to the mortgagee, trustee or beneficiary of such
mortgage or deed of trust, and the successor or assign of any of them, and to
the purchaser or assignee under any foreclosure, provided further however, any
secured lender of Landlord holding a mortgage or deed of trust on, or security
interest in, the Building or Property, may in its sole discretion, subordinate
its interest to Tenant's interest in this Lease by written notice of such
subordination to Tenant.
SECTION 13.2. EXECUTION OF INSTRUMENTS. Tenant will, upon request by Landlord,
execute and deliver to Landlord, or to any other person designated by Landlord,
any instrument or instruments, including but not limited to such subordination,
attornment and nondisturbance agreements, or estoppel letters, as may be
required by any mortgagee in a mortgage or beneficiary in any deed of trust, on
the Building or Property, or other secured lender, to give effect to the
provisions of Section 13.1 above or requested by Landlord in connection with a
sale or mortgage of the Building or Property and shall execute and deliver to
Landlord such amendments to this Lease as may be required by such proposed
mortgagee, beneficiary, or other secured lender, on the Building or Property;
provided, however, that such amendments do not materially increase the
obligations and duties of Tenant hereunder.
ARTICLE XIV
GENERAL PROVISIONS
SECTION 14.1. TRANSFER OF LANDLORD'S INTEREST. The term "Landlord" as used in
this Lease means only the owner, or the mortgagee in possession, for the time
being of the Building or Property, or the owner of any lease of the Building or
Property, so that in the event of any sale of said Building or Property, or of
said lease, or in the event of a lease of said Building or Property, the
transferring landlord shall be entirely freed and relieved of all obligations of
Landlord hereunder, and it shall be deemed without further agreement between the
parties or their successors in interest or between the parties and the
transferee, purchaser or lessee at any such sale or lease of the Building or
Property, that the transferee, purchaser or lessee of the Building or Property
has assumed all obligations of Landlord hereunder, and Landlord's assignment,
sale or transfer of the Lease or of any of its rights herein shall in no manner
affect Tenant's obligations hereunder, and Tenant shall thereafter attorn to
such assignee, transferee, purchaser or lessee, as Landlord, provided Tenant
first has written notice of such transfer, assignment, purchase or lease of
Landlord's interest. Any security given by Tenant to Landlord to secure
performance of Tenant's obligations hereunder must be transferred by Landlord to
the successor in interest to 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 this Lease, Landlord shall thereby be discharged of any further obligation
relating thereto.
SECTION 14.2. LANDLORD'S LIMITED LIABILITY. Notwithstanding any other provision
in this Lease to the contrary, the liability of Landlord shall be limited to the
equity of Landlord in the Property in the event of a failure by Landlord to
perform any of the terms, covenants, conditions or agreements of this Lease to
be performed by Landlord, and Tenant agrees that any judgment it may obtain
against Landlord, or Landlord's general partners, if any, as a result of the
breach of this Lease as aforesaid, shall be enforceable solely against the
Landlord's equity interest in the Property.
SECTION 14.3. LANDLORD NOT PARTNER. It is agreed that Landlord is not a partner,
joint venturer or associate of Tenant in the conduct of Tenant's business, that
the provisions of this Lease with respect to the payment by Tenant of rent are
not sharing of profits, that the relationship between the parties is and shall
remain at all times that of landlord and tenant, and that no provision of this
Lease shall be construed to impose upon the parties hereto any obligation or
restriction not expressly set forth herein.
SECTION 14.4. RECORDING. The recording of this Lease is prohibited, provided
however, at the request of either party, the parties shall promptly execute and
record, at the cost of the requesting party, a short form memorandum describing
the Premises and stating the term of this Lease, its Commencement and
Termination Dates, and any other information the parties agree to include.
SECTION 14.5. ADDITIONAL INSTRUMENTS. The parties agree to execute and deliver
any instruments in writing necessary to carry out any agreement, term, condition
or assurance in this Lease whenever occasion shall arise and reasonable request
for any such instrument shall be made.
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SECTION 14.6. LEASE NOT AN OFFER. Landlord has given this Lease to Tenant for
review, which does not constitute an offer to lease and shall not be binding
unless signed by both parties.
SECTION 14.7. PRONOUNS. All pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine, neuter, singular or plural, as the identity
of the person(s), firm(s), or corporation(s) may require.
SECTION 14.8. COUNTERPARTS. This Lease may be executed in counterparts, all of
which taken together, shall be deemed one original.
SECTION 14.9. ENTIRE AGREEMENT, AMENDMENT AND MODIFICATION. This Lease embodies
the full agreement of the parties and supersedes all prior understandings
concerning the subject matter of this Lease, and any amendment or modification
must be in writing and signed by both parties.
SECTION 14.10. CONTROLLING LAW. This Lease shall be construed and enforced in
accordance with the law of the State of North Carolina.
SECTION 14.11. PARTIAL INVALIDITY. In the event that any provision of this lease
shall be determined to be invalid or unenforceable, the remaining provisions of
this Lease which can be separated from the invalid, unenforceable provision
shall continue in full force and effect.
SECTION 14.12. CAPTIONS. The section titles, numbers and captions contained in
this Lease are only for convenience and reference, and in no way define, limit,
extend, modify or describe the scope or intent of this Lease nor any provision
herein.
SECTION 14.13. RELOCATION. In the event the Premises contains less than fifty
percent (50%) of the total area of the floor on which it is located, Landlord,
upon thirty (30) days prior written notice to Tenant, shall have the right to
relocate the Tenant to another reasonably comparable location within the
Building, in which case, Landlord will pay all actual costs of the relocation.
SECTION 14.14. TIME OF ESSENCE. Except as otherwise provided in this Lease, time
is of the essence in the performance of the provisions of this Lease.
SECTION 14.15. WARRANTIES. Tenant warrants that it has had no dealing with any
broker or agent in connection with the negotiation or execution of this Lease
other than Bissell Patrick, LLC, DBA Grubb & Ellis Bissell Patrick ("Bissell
Patrick") and TC Carolinas, Inc., and Tenant agrees to indemnify and hold
Landlord harmless from and against any claims by any other broker, agent or
other person claiming a commission or other form of compensation by virtue of
having dealt with Tenant with regard to this leasing transaction. Landlord is
responsible for paying the commission due to its broker, Bissell Patrick
pursuant to a separate agreement regarding the same, and Bissell Patrick has
agreed to share such commission with TC Carolinas, Inc., Tenant's broker,
pursuant to a separate agreement between Bissell Patrick and TC Carolinas, Inc.
regarding the same.
SECTION 14.16. AUTHORITY OF PARTIES. Each party warrants that it is authorized
to enter into this Lease, that the person signing on its behalf is duly
authorized to execute the Lease, and that no other signatures are necessary, and
each person signing this Lease certifies that he or she is authorized by the
party on whose behalf such person is signing and that no further authorization
or signatures are required for such person's signature to bind such party
hereunder.
SECTION 14.17. CONSENT NOT UNREASONABLY WITHHELD. When either party hereto is
required to give its consent to the other party prior to doing or refraining
from doing some act hereunder, it is agreed that the party whose consent is
required shall not unreasonably withhold or delay such consent, unless it is
specifically stated that the party whose consent is required may withhold such
consent in its sole discretion, or words of similar import.
SECTION 14.18. ESTOPPEL CERTIFICATES. Tenant shall execute, acknowledge and
deliver to Landlord, from time to time during the term of this Lease within ten
(10) days after Landlord provides Tenant with written notice to do so, an
estoppel certificate certifying in writing that the Lease is in full force and
effect, unmodified, or modified solely as set forth in such estoppel certificate
including confirmation of the Commencement Date and the Initial Termination
Date, the date or dates to which rent has been paid and that Landlord has, as of
the date of such estoppel certificate, fully and completely performed and
complied with each of the terms and conditions of this Lease, without exception
or except as only set forth in such estoppel certificate. Any such estoppel
certificate may be conclusively relied upon by any prospective purchaser or
encumbrancer of the Building or Property, and the failure of Tenant to so
deliver such estoppel certificate in such period of time shall mean that the
Lease is in full force and effect, without modification, that rent has not been
prepaid under the Lease except as expressly required in the Lease and that
Landlord has, as of the date on which Tenant failed to deliver such estoppel
certificate, fully and completely performed and complied with each of these
terms and conditions, without exception.
SECTION 14.19. RIGHTS RESERVED BY LANDLORD. Notwithstanding any other provision
of this Lease, Landlord shall at all times have the right to (a) grant to any
tenant an exclusive use to conduct a particular type of business in the Building
without limiting Tenant's intended use of the Premises as provided hereunder,
(b) change the name or address of the Building, (c) install and maintain signs
on the exterior or interior of the Building, (d) retain pass keys to all locks
within or into the Premises, and (e) make any alterations, additions or
improvements to the Building or Property as Landlord may deem in its sole
discretion necessary for the safety, protection, preservation, or improvement of
the Building or Property, and to change the arrangement and/or location of
entrances, passageways, doors, corridors, elevators, stairs, toilets and public
parts of the Building and Property.
SECTION 14.20. FINANCIAL INFORMATION. Tenant acknowledges that the financial
capability of Tenant to perform its obligations hereunder is material to
Landlord and that Landlord would not enter into this Lease but for its belief,
based on its review of Tenant's financial statements, that Tenant is capable of
performing such financial obligations. Tenant hereby represents, warrants and
certifies to Landlord that its financial statements previously furnished to
Landlord were at the time given true and correct in all material respects and
that there have been no material subsequent changes thereto as of the date of
this Lease. At any time during the Lease term, Tenant shall provide
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Landlord, upon ten (10) days prior written notice from Landlord, with a current
financial statement and financial statements of the two (2) years prior to the
current financial statement year, which statements shall be prepared in
accordance with generally accepted accounting principles and, if such is the
normal practice of Tenant, shall be adjusted by an independent certified public
accountant.
SECTION 14.21. RIGHT OF REFUSAL. Provided Tenant is not in default hereunder,
Tenant shall have an ongoing right of first refusal to lease any unoccupied
space available for rent in the Building (other than the space currently leased
to Time Warner) hereinafter referred to as the "Refusal Space", after the
initial lease of such space, and when such space thereafter becomes unoccupied
or otherwise available for Lease to other prospective tenants, provided however,
that with regard to any such space located on the second floor of the Building,
Time Warner, its successors or assigns, has a prior right of first opportunity
to lease such space and with regard to such second floor space before Tenant may
exercise its refusal right hereunder, Time Warner must first have failed to
exercise its right of first opportunity with regard to said space. In the event
Landlord has a bona fide prospect (other than Time Warner, its successor or
assigns) interested in leasing all or any part of the said space (and with
regard to any such space on the second floor of the Building, Time Warner has
failed to exercise its right of first opportunity referred to above), then prior
to leasing the Refusal Space to such prospect, Landlord shall notify Tenant in
writing of the prospect for such space and the terms and conditions offered to
such prospect for the space and Tenant shall have five (5) days thereafter to
agree in writing to lease from Landlord all of the said space offered to such
prospect upon the same terms and conditions offered to the prospect. If Tenant
fails to notify Landlord in writing of its exercise of said right of first
refusal within said five (5) day period, then in such case, Landlord shall be
free to lease said space to the prospect in substantial accordance with the
terms offered to Tenant, or in accordance with any other terms and conditions to
which Landlord and such prospect or any other prospect shall thereafter agree
without Landlord having to submit any other offer to Tenant. Notwithstanding the
foregoing, this right of second refusal is subject to a prior right of first
opportunity in Time Warner, its successors or assigns, and Landlord at all times
shall have the right to renew the lease of any then existing tenant in any such
space. Until May 17, 2000, Tenant shall also have a right of first refusal to
lease that certain suite of space consisting of approximately 5,259 rentable
square feet between the lobby and lobby exit on the first floor of the Building
before such space is initially leased, to be exercised in the same manner as
provided above.
SECTION 14.22. LETTER OF CREDIT. As additional security for the performance of
its obligations under this Lease, Tenant shall, upon the full execution of this
Lease by both parties, deliver to Landlord an irrevocable, unconditional,
transferable, standby letter of credit in favor of Landlord, as beneficiary, and
issued for Tenant, as account party (the "Letter of Credit") issued by a
national banking association, reasonably acceptable to Landlord, insured by the
Federal Deposit Insurance Corporation, with offices located in Charlotte, North
Carolina, and in form and content satisfactory to Landlord, in the amount of
$934,020.00 plus the amount of any upfitting cost in excess of the upfitting
allowance which is amortized over the term of the Lease as is provided for in
Section 2.4 of this Lease. In the event Tenant fails to deliver the Letter of
Credit to Landlord, Landlord may, until such time as the Letter of Credit is
delivered to Landlord, at Landlord's sole option, postpone commencement of
upfitting in the Premises (but such postponement shall be deemed a Tenant delay
and not a Landlord delay) or terminate the Lease by giving written notice
thereof to Tenant, without prejudice to or in limitation of any other remedies
Landlord may have for such failure on the part of Tenant. The Letter of Credit
shall permit partial draws and have an expiration date of the sixty-first (61st)
day next following the Termination Date. Landlord shall be permitted to draw
upon the Letter of Credit to fund the performance of any obligation(s) of Tenant
under the Lease which Tenant has failed to perform beyond the expiration of any
applicable notice and cure period under the Lease, after Landlord has first
exhausted the Security Deposit under Section 4.5. The issuing bank shall be
required (up to the face amount of the Letter of Credit) to disburse amounts to
Landlord under the Letter of Credit based solely on the written statement of
Landlord (i) certifying that Tenant is in default of the performance of its
obligation(s) under the Lease beyond the expiration of any applicable notice and
cure period (if any) pursuant to the Lease and (ii) certifying the amount due to
Landlord as a result of such uncured default(s) (which shall be the amount
payable, up to an aggregate ceiling amount equal to the face amount of the
Letter of Credit, to Landlord under the Letter of Credit). If Landlord's
interest in the Premises is sold or otherwise transferred, Landlord shall have
the right to transfer the Letter of Credit to the new owner (and the Letter of
Credit shall expressly permit such transfers), and Landlord shall thereupon be
released from all liability for the safekeeping and administration of the Letter
of Credit and Tenant shall thereafter look solely to such new owner for the
safekeeping and administration of the Letter of Credit. The terms hereof shall
apply to every transfer of the Letter of Credit. Said Letter of Credit must be
payable in Charlotte, North Carolina, and no other requirements other than those
set forth above shall be necessary for Landlord to collect on the same. Upon a
successful initial public offering of Tenant upon either the New York Stock
Exchange or NASDAQ Stock Exchange, or other nationally recognized national or
international exchange comparable thereto, that results in a minimum net worth
of Tenant in the amount of $80,000,000.00 (as determined by an independent
Certified Public Accountant), the amount of the Letter of Credit may be reduced
to $622,680.00 plus the unamortized portion of the excess upfitting costs which
are being amortized over the original term of the Lease by Tenant under Section
2.4 hereof. Provided Tenant has not defaulted in the first four (4) years of the
Lease term and as of the beginning of the fifth year of the Lease term has a
minimum net worth of $50,000,000.00 (as determined by an independent Certified
Public Accountant) then as of the beginning of the fifth (5th) year of the Lease
term upon Tenant's request, Landlord will consent to a termination of the Letter
of Credit. Upon completion of the Lease term, provided Tenant is not then in
default of the Lease, and upon the expiration of a period of sixty (60) days
next following the end of the Lease term, the Letter of Credit then in effect
will terminate unless Landlord has already received full payment thereon or made
claim thereon or the Letter of Credit has been terminated at the beginning of
the fifth (5th) year of the Lease term as provided above. In the event the
original Letter of Credit remains in effect and is not replaced, the original
Letter of Credit (or if replaced the then existing Letter of Credit) shall
remain in force from the period beginning as of the execution of the Lease and
extending through the sixtieth (60th) day next following the end of the
scheduled original term of the Lease.
SECTION 14.23. SATELLITE DISH. Tenant shall be allowed to install a
non-penetrating satellite dish which shall not be larger than three feet (3') in
diameter, in substantial conformity to the specifications approved by Landlord
in advance, on the roof of the Building at a location to be determined by
Landlord in Landlord's reasonable discretion. The weight of the Satellite Dish
shall not exceed the load factor of the roof. All costs associated with the
installation, maintenance, use, repair and removal of the satellite dish shall
be paid by Tenant, and Tenant shall repair, or at Landlord's option reimburse
Landlord for the repair of, any damage to the roof or any other part of the
Building caused by the installation, maintenance, repair, use or removal of the
satellite dish. Tenant shall use and operate the satellite dish so as not to
interfere with the use of satellite dishes, antennae, receivers, or
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other telecommunications equipment placed on the roof by other tenants, or
interfere with the operation of the Building by Landlord or the use of adjoining
properties by persons entitled thereto. Any claims for bodily injury, including
death, or property damage resulting from the installation, maintenance, use,
repair or removal of the satellite dish shall be covered by Tenant's indemnity
and insurance obligations under this Lease Agreement, including without
limitation Tenant's causing the area of the roof used by Tenant for such
satellite dish to be covered under Tenant's commercial general liability
insurance policy required under the above Lease Agreement. Tenant shall also
conform to any reasonable rules or regulations that Landlord may adopt from time
to time governing the use of satellite dishes, antennae, receivers and other
telecommunications equipment on the roof of the Building. Any cable from the
satellite dish to the Premises must be in conduit or be rated for plenum
installation. Also, any penetration of the roof for this cable or for the
satellite dish must be approved in advance by Landlord. Subject to the foregoing
terms and conditions, Landlord shall provide Tenant with reasonable access to
the roof of the Building for the installation, maintenance, use, repair or
removal of the said satellite dish.
SECTION 14.24. AMERICANS WITH DISABILITIES ACT. Landlord represents to
Landlord's best knowledge, without having performed an independent investigation
thereof, that the Building and all common areas thereof comply with all
applicable laws, ordinances and codes including, but not limited to, the
Americans with Disabilities Act of 1990 (the "ADA") to the extent not
grandfathered, excused or otherwise unenforceable under such laws, ordinances
and codes, and to the extent not the responsibility of Tenant under such laws,
ordinances and codes; provided, however, Tenant, and not Landlord, shall be
responsible for compliance with any applicable laws, ordinances and codes,
including the ADA, which relate to Tenant's particular use of the Premises.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed
under seal the date and year first above written.
WITNESS: LANDLORD:
BCI Property Company No. 11
/s/ L.S. Barrett By: /s/ H.C. Bissell (SEAL)
- ------------------------------- ----------------------------
L.S. Barrett H.C. Bissell
Print Name
ATTEST: TENANT:
YouCentric, Inc.
/s/ Robert Kear By: /s/ Thomas Fedell
- ------------------------------- ----------------------------------
Robert Kear, Secretary President Corporate Seal
Thomas Fedell
Print Name
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EXHIBIT A
REAL PROPERTY DESCRIPTION
BRIXHAM GREEN TWO
Lying and being in the County of Mecklenburg, State of North Carolina and more
particularly described as follows:
To find the place of beginning, begin at the intersection of the centerline of
Ballantyne Corporate Place and Brixham Hill Avenue and proceed S 58-16-40 W
480.73 feet to a point on the southeasterly right of way margin of Ballantyne
Corporate Place (R/W varies), the TRUE POINT AND PLACE OF BEGINNING; thence from
said Beginning Point so established, S 27-32-49 E 22.81 feet to a point; thence
with the arc of a circular curve to left having a radius of 420.00 feet, an arc
distance of 214.39 feet (chord bearing and distance S 42-10-13 E 212.07 feet) to
a point; thence S 14-11-44 W 51.85 feet to a point; thence with the arc of a
circular curve to the right having a radius of 230.00 feet, an arc distance of
49.65 feet (chord bearing and distance S 20-22-45 W 49.55) to a point; thence S
26-33-47 W 37.78 feet to a point; thence N 63-26-13 W 65.15 feet to a point;
thence with the arc of a circular curve to the left having a radius of 250.00
feet, an arc distance of 65.68 feet (chord bearing and distance N 70-57-50 W
65.50 feet) to a point; thence N 78-29-26 W 348.80 feet to a point on the
easterly right of way margin of Ballantyne Corporate Place (R/W varies); thence
with the aforesaid right of way margin of Ballantyne Corporate Place with the
arc of a circular curve to the right having a radius of 790.00 feet, an arc
distance of 852.37 feet (chord bearing and distance N 31-32-37 E 811.62 feet) to
a point; thence N 62-27-11 E 28.14 feet to the point and place of BEGINNING;
containing 7.092 acres, all as shown on Boundary Survey of Property of Brixham
Green Two, LLC, prepared by Mitchell W. Davis, NCRLS dated October 20, 1998,
reference to which is hereby made for a more particular description of the
property.
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EXHIBIT C
LANDLORD'S WORK:
BASE BUILDING:
Landlord shall provide the following work in the Premises as part of the Base
Building at Landlord's cost:
1. 2' by 4' parabolic light fixtures stacked on floor, in the
amount of one (1) light fixture per eighty (80) usable
square feet of the Premises.
2. Standard ceiling grid hung with ceiling tiles stacked on
floor.
3. Building standard horizontal mini-blinds installed
(manufacturer type and finish yet to be specified).
4. HVAC in place and ready for operation, exclusive of
flexible ductwork and ceiling diffusers.
Landlord shall also provide for the restrooms located on the floor on which the
Premises are located to be complete and ready for use. Elevator lobbies on each
floor of the Premises shall be turned over to Tenant in finished condition ready
for Tenant's installation of paint and carpet, etc., the cost of which shall be
deducted from the upfitting allowance.
TENANT'S WORK:
Except as provided above, all upfitting for the Premises shall be deemed
Tenant's Work, and the cost of such Tenant's Work shall be deducted from the
Upfitting Allowance provided in Section 2.4 of the Lease and paid by Tenant to
Landlord within ten (10) days of submission of invoice for the same to the
extent the cost of such upfitting exceeds the Upfitting Allowance.
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EXHIBIT D
BASE RENT ADJUSTMENT ILLUSTATION
(1) Assume the following for illustration purposes only:
(a) Commencement Date - 8/15/00
(b) Termination Date - 9/30/05
(c) Percentage Increase - 4% per year
(d) Initial Monthly Base Rent - $103,780.00
(e) Annual Increases:
Monthly Base Rent
-----------------
8/1/01 $103,780.00 x 1.04 = $107,931.20
8/1/02 $107,931.20 x 1.04 = $112,248.44
8/1/03 $112,248.44 x 1.04 = $116,738.37
8/1/04 $116,738.37 x 1.04 = $121,407.90
8/1/05 $121,407.90 x 1.04 = $126,264.22
First Renewal Term
------------------
8/1/06 $126,264.22 x 1.04 = $131,314.79
8/1/07 $131,314.79 x 1.04 = $136,567.38
8/1/08 $136,567.38 x 1.04 = $142,030.08
8/1/09 $142,030.08 x 1.04 = $147,711.28
8/1/10 $147,711.28 x 1.04 = $153,619.73
Second Renewal Term
-------------------
8/1/11 CPI
8/1/12 CPI
8/1/13 CPI
8/1/14 CPI
8/1/15 CPI
The foregoing is for illustration purposes only and shall not operate to
change the terms of the Lease.
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EXHIBIT E
HVAC SPECIFICATIONS
Type--Vertical self contained water cooled package units on each floor feeding
variable Volume boxes and fan powered boxes in each zone. Electric strip reheat
is provided on perimeter fan powered boxes.
Electronic digital controls provide constant control for total energy management
system. HVAC system can handle an occupancy load of 1 person/150 SF and meet or
exceed ASHRAE standard 62-1989 of outside air equivalent to 20 CPM per person.
Additional heat load retention capacity of 100 tons available at cooling tower.
Plenum mounted unit heaters provide make-up heat at roof level.
Separate independent 24 hour HVAC capability can be provided at tenant cost for
computer and wiring rooms at tenant's direct cost.
Zoning 1200 GSF maximum per interior zone
450 GSF maximum per exterior zone
250 GSF maximum per corner zone
Exterior and corner FPU's to have make up
Resistance heat for morning warm-up.
Approximately 25 zone per floor
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EXHIBIT F
JANITORIAL SPECIFICATIONS
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COMMON SPACE
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DAILY
- -----
1. The first floor lobby floors will be swept and mopped, to insure a high
luster appearance. Damp mop marble.
2. Clean weather mats with a vacuum and damp wipe vinyl edges to remove all
dust.
3. Vacuum all carpeted areas. Remove stains with carpet stain remover as per
manufacturer specifications and remove any gum, staples, paper clips, tar,
etc. which has adhered to the surface.
4. Clean all baseboards, ledges, moldings directory and window frames.
5. Clean all cigarette urns and trash receptacles. Replace sand as required
and/or wash metal urns to remove stains and dust.
6. Clean all water fountains with germicidal cleanser and polish.
7. Spot clean all doors, door frames, walls and light switches to remove
fingerprints, spills and other markings.
8. Wash glass on entrance doors and sidelights to tenant suites.
9. Sweep and dry mop all hard surface flooring. Remove matters such as gum and
tar which has adhered to the floor.
10. Clean and polish all lobby chrome or anodized metal finishes (includes
brass).
11. Clean and polish all entry thresholds.
12. Wash all entry-level glass up to six (60) feet.
13. Dust all mullions and sills.
14. Empty all waste receptacles and plastic liners where required. Plastic
liners to fit waste receptacles in such a manner as to not overhang the
top. Plastic liners to be replaced on an as needed basis, but no less than
one time per week.
15. Keep janitor closets clean including mop sinks, floors and walls.
16. Police entrances.
17. Turn lights out and secure doors when work is complete.
WEEKLY
- ------
1. Dust all doors with treated cloth.
2. Sweep and wet mop all entries at building entrances.
3. Wash down all planters in the lobby.
4. Detail clean areas in corners and at baseboards where the wall and floors
meet to remove lint and dirt missed by vacuuming.
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QUARTERLY
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1. High dust all horizontal and vertical surfaces not reached in night
cleaning: pipes, light fixtures, door frames, etc.
2. Damp wipe diffusers, vent grills, including surrounding walls and ceiling
areas that are soiled.
ANNUALLY
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1. Clean all vertical surfaces not attended to in nightly, weekly, quarterly
cleaning specifications.
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RESTROOMS
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DAILY
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1. Clean with detergent/disinfectant and polish all sinks, counters, toilets,
and urinals. Use non-acid bowl cleaner in the interior of toilets, making
sure to clean the inner lip of closet and urinals. Pour one (1) ounce of
bowl cleaner into urinal after cleaning and do not flush.
2. Damp wipe all ledges, toilet stalls, and doors using a clean cloth.
3. Spot clean light switches, doors, partitions, and walls to remove
fingerprints, spills and other markings. All graffiti will be removed from
all walls, partitions and exposed surfaces.
4. Sweep and wet mop with a germicide all floor areas. Rinse with clear water
and dry buff to eliminate streaks.
5. Clean and polish all mirrors, soap dispensers, flushometers, shelves,
chrome fixtures, piping, toilet hinges, and disposal container exteriors
using a detergent/disinfectant and water. Dry with a clean cloth to remove
streaks.
6. Furnish and refill all toilet tissue, paper towels, and sanitary napkin
dispensers. Refill soap dispensers and check operation.
7. Empty and clean paper towel and sanitary napkin disposal receptacles.
Replace plastic and waxed paper liners.
8. Clean all baseboards with a germicidal detergent.
9. Remove and clean urinal screens to remove foreign matter.
10. Agent's philosophy is: DO NOT USE DEODORANTS TO MASK ODORS. If it is clean
and disinfected, it should not have an odor.
11. Report all stopped up sinks, urinals, or toilets and leaks or burned out
lights to Property Management.
12. Turn out lights when work is finished.
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WEEKLY
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1. CLEAN AND DISINFECT FLOOR DRAINS. POUR ONE (1) QUART OF WATER DOWN THE
FLOOR DRAIN TO PREVENT GASES FROM ESCAPING. POLISH CHROME OR BRASS DRAIN
COVERS.
2. CLEAN OUT SOAP DISPENSE NOZZLES WITH PIPE CLEANERS TO REMOVE DRIED SOAP.
(COCONUT OIL BASED SOAP IS PREFERRED).
QUARTERLY
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1. WASH DIFFUSERS (BOTH SUPPLY AND RETURN), GRILLS, TOILET STALLS, DOORS, AND
TILE WALLS WITH DISINFECTANT/DETERGENT.
2. REMOVE SCALE FROM ALL FIXTURES USING AN ACID DECAL, OR COMPARABLE NON-ACID
FORMULA.
3, SCRUB FLOOR AREA WITH GERMICIDAL SOLUTION.
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TENANT SPACE
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DAILY
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1. Empty all wastebaskets and damp wipe ashtrays. Remove trash from
wastebaskets and replace plastic lining. Plastic liners to fit waste
receptacles in such a manner as to not overhang the top by more than two
(2) inches. Replace old plastic liners no less than one (1) time per week.
2. Dust mop all hardwood floor areas.
3. Sweep, dry mop, or vacuum all traffic areas with hard surface flooring or
carpet. Spot clean carpet as needed.
4. Dust all horizontal surfaces with treated dust cloth or dust wand including
furniture, files, equipment, blinds, shelves, and louvers, including high
dusting.
5. Wash all, chalkboards, cafeteria tables, coffee tables, coffee bars, and
ashtrays. Wash, sanitize and polish water drinking fountains.
6. Dust all grillwork within reach.
7. Spot clean doors, doorframes, walls, and switch plates to remove
fingerprints, spills, and other markings.
8. Spot clean all metal trim work, removing fingerprints, smudges, and water
and other marks.
9. Push tenant employee's chairs up into desks and conference room chairs into
conference tables.
10. Spot clean all interior partitions, walls, glass, windows, and glass
entrance doors.
11. Empty and wash all wastebaskets if tenant prefers not to use liners.
WEEKLY
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1. Spot clean all wastebaskets inside and out.
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2. Wet mop all hard surface flooring. Wipe all baseboards and furniture legs
clean after mopping.
3. Spot clean all carpet stains.
4. Detail vacuum in corners and where the wall meets the floor.
5. Brush all fabric-covered chairs with a lint brush and all smooth covered
chairs with a damp cloth.
6. Dust all baseboards.
MONTHLY
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1. Vacuum all ceiling air supply and exhaust diffusers or grills.
2. Wash all vinyl and metal kickplates on doors.
3. Dust venetian blinds.
QUARTERLY
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1. High dust all horizontal and vertical surfaces not reached in the nightly
cleaning, such as pipes, light fixtures, door jams, and other wall
hangings.
2. Vacuum or dust all books in place.
3. Damp wipe diffusers, vents, grills, and other such items, including
surrounding wall or ceiling areas that are soiled.
ANNUALLY
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1. Dust all storage areas, including shelves and contents, such as supply and
stock closets and damp mop floor areas.
2. Clean all vertical surfaces not attended by nightly, weekly, or quarterly
schedules.
3. Wash both sides of interior glass partitions.
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EXHIBIT G
PARKING RULES AND REGULATIONS
Parking: The following rules and regulations apply to the use of the Parking
Areas (the Parking Areas"):
(a) Tenants may park their motor vehicles only in those portions of the Parking
Areas designated by Landlord from time to time as unreserved tenant parking
areas (the "Unreserved Parking Areas") and may not park in any other
parking spaces except as specifically provided herein.
(b) Only visitors of tenants may park their motor vehicles in those portions of
the Parking Areas designated by Landlord from time to time as visitor
parking areas (the "Visitor Parking Areas").
(c) Only persons entitled to use the Parking Areas who are physically
handicapped may park their motor vehicles in those portions of the Parking
Areas designated by Landlord from time to time as handicapped parking areas
(the "Handicapped Parking Areas").
(d) Parking in Unreserved Parking Areas, Visitor Parking Areas and Handicapped
Parking Areas shall be on a nonexclusive, "as-available" basis.
(e) No representation or warranty is made by Landlord as to the number or
location of parking spaces comprising the Parking Areas, or any portion
thereof, except as specifically provided in Section 7.3..
(f) Motor vehicles may only be parked in striped parking spaces located within
the Parking Areas and no motor vehicles may be parked in any other location
within the Property.
(g) Not more than one motor vehicle may be parked on each parking space and no
motor vehicle may be parked on more than one parking space within the
Parking Areas.
(h) Parking Areas shall not be used for any purpose other than the parking of
permitted motor vehicles thereon and no commercial activity shall be
conducted from the Parking Areas.
(i) No repairs (other than emergency repairs) or washing of motor vehicles are
permitted in the Parking Areas.
(j) All persons using the Parking Areas assume full responsibility for, and
Landlord shall have no liability for, (a) loss, damage, injury or death
caused to the person or property of anyone using the Parking Areas; and (b)
for protecting their motor vehicles against theft, vandalism and damage.
(k) A violation of these Rules shall entitle Landlord to revoke the parking
privileges of the offending party, in addition to other rights and remedies
available to Landlord.
(l) The term "tenant" when used herein shall be deemed to also include such
tenant's agents and employees.
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EXHIBIT H
BUILDING RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by tenants or used by any tenant for any purpose
other than ingress and egress to and from the leased premises and for going
from one to another part of the Building.
2. Corridor doors, when not in use, shall be kept closed.
3. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed therein.
4. Landlord shall provide all locks for doors into each tenant's leased area,
and no tenant shall place any additional lock or locks on any door in its
leased area without Landlord's prior written consent. Two keys for each
lock on the doors in each tenant's leased area shall be furnished by
Landlord. Additional keys shall be made available to tenants at each
tenant's cost. Tenants shall not have any duplicate keys made except by
Landlord.
5. Electric current shall not be used for cooking, or heating or any other
purpose not specifically provided for in the Lease without Landlord's prior
written permission. Subject to applicable zoning laws and insurance
underwriting rules, Tenant shall have the right to have a microwave oven
within a break room for use only by Tenant, its employees and invitees.
6. Tenants shall refer all contractors, contractors' representatives and
installation technicians who are to perform any work within the Building to
Landlord or Landlord's designated Building Manager (the "Building Manager")
for Landlord's supervision, approval and control before the performance of
any such work. This provision shall apply to all work performed in the
Building including, but not limited to, installations of telephones,
medical type equipment, telegraph equipment, electrical devices and
attachments, and any and all installations of every nature affecting
floors, walls, woodwork, trim, windows, ceilings, equipment, and any other
physical portion of the Building.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by tenants of any heavy equipment, bulky material or
merchandise shall be performed only in such manner, during such hours and
using such elevators and passageways as the Landlord may designate and
approve in advance and, if reasonable, necessary or appropriate in view of
all the circumstances, and then only upon having been scheduled in advance
with the Landlord or Landlord's manager.
8. The location, weight and supporting devices for any medical type equipment,
safes and other heavy equipment shall in all cases be approved by Landlord
prior to initial installation or relocation.
9. No portion of any tenant's leased area shall be used for cooking, sleeping
or lodging quarters, no birds, animals or pets of any type, with the
exception of guide dogs accompanying visually handicapped persons, shall be
brought into or kept in, on or about any tenant's leased area or the
Building.
10. Tenant shall not bring bicycles or other vehicles within the Premises or
Building; engage in or permit games of chance or any form of gambling or
immoral conduct in or about the Premises or Building; mark or defile any
part of the Building or Property; fasten any article, drill holes, drive
nails or screws into walls, floors, doors or partitions, or otherwise mar
or deface any of them by paint, paper or otherwise (except for the hanging
of customary pictures, licenses, artwork, mementos or other articles which
do not materially damage the walls of the Premises) or except as otherwise
specifically allowed in the Lease; or tamper or interfere in any way with
windows, doors, locks, air conditioning controls, heating, lighting,
electric or plumbing fixtures.
11. All moving in or out of leased premises be done so after business hours, as
defined in the Lease.
12. Landlord is not responsible for damage to furniture caused by janitor or
any other cleaning personnel, nor for any loss of property from the
Premises however occurring.
13. The attaching of wires to the outside of the Building is absolutely
prohibited, and no wires shall be run or installed in any part of the
Building without the Landlord's permission and at Landlord's direction.
14. Tenants shall not make or permit any loud or annoying noises in or about
the Building or otherwise interfere in any way with other tenants or
persons having business with them.
15. Each tenant shall endeavor to keep its leased area neat and clean. Nothing
shall be swept or thrown into the corridors, halls, elevator shafts or
stairways, nor shall tenants place any trash receptacles in these areas.
16. Tenants shall not employ any person for the purpose of cleaning other than
the authorized cleaning and maintenance personnel for the Building unless
otherwise approved in writing by Landlord.
17. No tenant shall allow concessionaires, vending machine operators or other
distributors of cold drinks, coffee, food or other concessions, water,
towels or newspapers or other similar products, within the Premises or
Building without the prior consent of Landlord which Landlord may withhold
in its sole discretion. Subject to applicable zoning laws and insurance
underwriting rules, Tenant shall have the right to have and maintain within
the Premises in designated breakrooms, coffee machines, water dispensers,
and soft drink and snack vending machines, for use only by Tenant, its
employees and invitees.
18. Landlord is not responsible for any loss of money, jewelry or other
personal property from leased premises or Common Areas or for any damage to
any property therein from any cause whatsoever whether such loss or damage
occurs when an area is locked against entry or not.
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19. Tenants shall exercise reasonable precautions in protection of their
personal property from loss or damage by keeping doors to unattended areas
locked. Tenants shall also report any thefts or losses to the Building
Manager and security personnel as soon as reasonably possible after
discovery and shall also notify the Building Manager and security personnel
of the presence of any persons whose conduct is suspicious or causes a
disturbance.
20. Tenants, their employees, patients, guests and invitees may be called upon
to show suitable identification and sign a Building register when entering
or leaving the Building at times other than normal Building business hours,
and all tenants shall cooperate fully with Building personnel in complying
with such requirements.
21. Tenants shall not solicit from or circulate advertising material among
other tenants of the Building, or allow its employees, agents or invitees
to do so, except through the regular use of the U.S. Postal Service.
Tenants shall notify the Building Manager or the Building personnel
promptly if it comes to their attention that any unauthorized persons are
soliciting from or causing annoyance to tenants, their employees, guests or
invitees.
22. Landlord reserves the right to deny entrance to the Building or remove any
person or persons from the Building in any case where the conduct of such
person or persons involves a hazard or nuisance to any tenant of the
Building or to the public or in the event of fire or other emergency, riot,
civil commotion or similar disturbance involving risk to the Building,
tenants or the general public. Solicitation or similar conduct shall not be
allowed in the Building or Property without Landlord's prior approval,
which approval Landlord may withhold in its sole discretion. Landlord shall
have no liability for denying access to the Building or Property by any
person or persons engaging in such conduct.
23. Landlord reserves the right to rescind or modify any of these rules and
regulations and to make such other and further rules and regulations as in
its judgment shall from time to time be needful for the safety, protection,
care and cleanliness of the Building, the operation thereof, the
preservation of good order therein and the protection and comfort of the
tenants and their agents, employees and invitees, which rules and
regulations, when made and written notice thereof is given to a tenant,
shall be binding upon it in like manner as if originally herein prescribed.
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