AMENDMENT FOUR TO LEASE AGREEMENT
THIS AMENDMENT FOUR TO LEASE AGREEMENT (this "Amendment"), made and
entered into as of the 27th day of March, 1998, by and between RBC CORPORATION
("Landlord") and BUSINESS TELECOM, INC. (referred to in the Lease (defined
below) as Business Telecommunication, Inc.
("Tenant");
WITNESSETH THAT:
WHEREAS, Landlord and Tenant entered into that certain Lease dated May
13, 1994; as amended by that certain Amendment One to Lease Agreement dated as
of March 1, 1995 (the "First Amendment"), as further amended by that certain
Amendment Two to Lease Agreement dated November 30, 1995 (the "Second
Amendment") and letter agreement of even date therewith (the "Modified Option"),
as further amended by that certain Amendment Three to Lease Agreement dated May
15, 1997 (the "Third Amendment") (the Lease, the First Amendment, the Second
Amendment, the Modified Option and the Third Amendment being collectively
hereinafter referred to as the "Lease") for certain premises consisting of
approximately 81,887 rentable square feet of office space (the "Demised
Premises") in the building at 4300 Six Forks Road, Raleigh, North Carolina (the
"Building");
WHEREAS, Landlord has agreed to lease additional premises to Tenant and
Tenant has agreed to lease such additional premises from Landlord, and
WHEREAS, Landlord and Tenant desire to evidence such expansion of the
Demised Premises and to amend certain other terms and conditions of the Lease
and evidence their agreements and other matters by means of this Amendment;
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the Lease is hereby amended and
the parties hereto do hereby agree as follows:
1. Paragraph 3 of the Third Amendment provides that Tenant shall
vacate and return to Landlord approximately 8,912 rentable
square feet of space on the second floor and being more
particularly described therein as the "Released Space" (and
referred to in this Amendment as the "Expansion Space") as of
January 1, 1998 (the "Effective Date"). As of the Effective
Date, Paragraph 3 of the Third Amendment shall be deleted from
the Lease and Landlord agrees to lease to Tenant and Tenant
agrees to lease from Landlord the Expansion Space upon the
following terms and conditions:
a. The Expansion Space shall be added as part of the
Demised Premises for all purposes, except as
otherwise expressly provided herein, as of the
Effective Date. Annual Minimum Rent and additional
rent with respect to the Expansion Space shall
commence as provided in Section l(e) below. The Base
Amount and Tax Base Amount applicable to the
Expansion
Space shall be those amounts currently in place for
the balance of the Demised Premises (excluding the
first floor area).
b. All references in this Lease for purposes of
determining Tenant's percentage of the Building shall
include the Expansion Space for purposes of
calculating such percentage or pro rata portion. As
of the Effective Date, the Demised Premises shall
contain 90,799 rentable square feet of space.
c. Annual Minimum Rent with respect to the Expansion
Space only shall be $19.SO per rentable square foot
commencing as provided in Section l(e) below, subject
to escalations as set forth in the Lease; provided,
however, that in place of all Annual Minimum Rent
(Base Rent) increase limitations of any nature
otherwise set forth in the Lease, Annual Minimum Rent
for the Expansion Space shall not be increased by
more than six percent (6%) per annum calculated on an
annual basis from the previous year; and provided
further, that the increases in Annual Minimum Rent
for the Expansion Space to go into effect as of
January 1 of each calendar year shall be calculated
based on the percentage increases in the Index (using
the Index for December of the year immediately prior
to each January 1 as the numerator and the Index for
December of 1997 as the denominator) applied only to
$14.66, which is the $19.50 Annual Minimum Rent less
the Base Amount ($3.85) and Tax Base Amount ($0.99)
applicable to the Expansion Space, multiplied times
the rentable square feet in the Expansion Space.
d. Tenant hereby accepts the Expansion Space "AS IS" and
acknowledges and agrees Landlord shall have no
obligation to construct any tenant improvements in
the Expansion Space or make any alterations or
additions thereto.
e. Irrespective of the Effective Date for the Expansion
Space, Tenant shall be entitled to four (4) months
free rent, with obligations as to Annual Minimum Rent
and additional rent to commence as of May 1, 1998.
f. Landlord shall deliver to Tenant within five (5) days
from the full execution of this Amendment the sum of
$ 166,990.44 representing sums due Tenant with
respect to the Expansion Space after adjustments
agreed upon by Landlord and Tenant.
2. Landlord and Tenant agree that the escalations called for by
Section 9, Note 3 of Schedule I (Revised March 1, 1995)
attached to the First Amendment establishes Annual Minimum
Rent for the Demised Premises (excluding portions located on
the First Floor and Second Floor) at $17.49 per rentable
square foot effective January 1, 1998. No escalations are
applicable to those portions of the Demised Premises located
on the First Floor or the Expansion Space for calendar year
1998. For 1999 and future years, Landlord shall notify Tenant
in writing of all
escalations in Annual Minimum Rent for all portions of the
Demised Premises by no later than April 15 of the applicable
year. In the event of any failure to so notify Tenant,
Landlord shall not be entitled to recover any escalation in
Annual Minimum Rent for any month prior to the first full
month after the escalation notice is actually given in writing
by Landlord to Tenant.
3. All capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Lease.
4. This Amendment represents the entire agreement between the
parties hereto. Landlord and Tenant agree that there are no
collateral or oral agreements or understandings between them
with respect to the Demised Premises or the Building. This
Amendment supersedes all prior negotiations, agreements,
letters or other statements with respect to the Expansion
Space.
5. Simultaneously with the execution of this Amendment, the
parties shall execute the attached Memorandum of Lease and
cause the same to promptly be recorded with the Wake County,
North Carolina Register of Deeds.
EXCEPT AS expressly amended and modified hereby, the Lease shall
otherwise remain in full force and effect, the parties hereto hereby ratifying
and confirming the same. To the extent of any inconsistency between the Lease
and this Amendment, the terms of this Amendment shall control.
IN WITNESS WHEREOF, the undersigned parties have duly executed this
Amendment as of the day and year first above written.
TENANT: LANDLORD:
BUSINESS TELECOM, INC. RBC CORPORATION
(referred to in the Lease as Business
Telecommunications, Inc.)
By:_____________________________ By:______________________________
Title:__________________________ Title:___________________________
AGREEMENT
THIS AGREEMENT is made and entered into as of March ___, 1998, by and
between HIGHWOODS/FORSYTH LIMITED PARTNERSHIP, a North Carolina limited
partnership, as proposed purchaser ("Highwoods") and BUSINESS TELECOM, INC.,
(identified in prior Lease documents as Business Telecommunications, Inc.), a
North Carolina corporation, as Tenant ("BTI").
R E C I T A L S:
THAT WHEREAS, RBC Corporation ("RBC") as Landlord and BTI as Tenant
entered into a lease dated May 13, 1994, as amended by Amendment One to Lease
Agreement together with Schedule I attached thereto dated March 1, 1995,
Amendment Two to Lease Agreement dated November 30, 1995, Modified Option Letter
Agreement dated November 30, 1995, Amendment Three to Lease Agreement dated May
15, 1997 and Amendment Four to Lease Agreement dated _________ ___, 1998
("Lease"), relating to the "Demised Premises" as therein described in an office
building (the "Building") situated on property located at 4300 Six Forks Road,
Raleigh, North Carolina ("Subject Property"); and
WHEREAS, BTI claims that RBC has defaulted in certain provisions
contained in the Lease; and
WHEREAS, Highwoods has agreed to purchase the Subject Property subject
to compliance by RBC with the various provisions of a purchase agreement and
upon obtaining this agreement with BTI.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. WAIVER OF DEFAULTS. If Highwoods completes the purchase of the
Subject Property and obtains title thereto and performs its obligations under
Sections 2, 4 and 9 of this Agreement, then BTI agrees to waive and does hereby
waive all of its claims that RBC as Landlord, or Highwoods as successor
Landlord, is in default under the terms of the Lease for matters arising prior
to the date of this Agreement solely relating to (I) Landlord's obligation under
the Lease to provide to BTI as Tenant certain parking ratios as outlined in
Schedule I, Section 18 (Revised March 1, 1995) of the Lease and (II) BTI's Right
of First Refusal as defined in Amendment No. 2 Section 1 of the Lease with
respect to space currently occupied by Duffus and Associates, P.A. and T.G. Soda
Ash, Inc. on the eighth (8th) for of the Building. BTI represents and warrants
that it has no actual knowledge of any other Landlord defaults under the Lease
at this moment. Nothing contained herein shall be deemed to waive BTI's rights
to claim first rights of occupancy with respect to available space on the third
and seventh floors of the Building pursuant to the terms of the Lease.
2. NEW PARKING. If Highwoods completes the purchase of the Subject
Property, then Highwoods agrees that, within a reasonable time, not to exceed
one (1) year from the date of the closing of the purchase of the Subject
Property, it will construct and open a new parking facility, on the Subject
Property, for the tenants of the Subject Property, including BTI.
Highwoods agrees that BTI will be provided with such number of parking spaces in
the new parking facility to be constructed as may be necessary to comply in full
with all parking requirements specified in the Lease for BTI. Highwoods shall
cause its agents and contractors to construct such new parking deck in a good
and workmanlike manner and in substantial conformity with the drawings set out
in EXHIBIT A attached hereto and made a part hereof. During construction of such
parking deck BTI retains its exclusive use of the l00 spaces in the Adjacent
Parking Lot until the new parking facility is opened for use. In addition
Highwoods will make available to BTI additiona1 parking across the street from
the Building at North Hills Mall such number of parking spaces as will equal the
number of parking spaces no longer available as a result of the construction
process and Highwoods shall provide shuttle service not less frequently than
every fifteen (15) minutes between such Mall parking area and the Building
between the hours of 7:00 A.M. and 6:00 P.M. Monday through Friday. If during
construction of the new parking deck there remains available on the Subject
Property any parking, BTI shall have the right to use a pro rata share of these
remaining spaces equal to the pro rata share of BTI's of rented space in the
Building at the time provided BTI shall extend all reasonable accommodations
such that other tenants have an equal opportunity for equally convenient parking
to the Building during the construction period.
3. ADJACENT PARKING LOT. It is understood and agreed that, upon
completion and opening of the new parking facility as above provided, the
parking lot parcel located on the south side of Dartmouth Street and described
as the second parcel of EXHIBIT A to the Lease shall be removed therefrom by a
new Amendment to the Lease Agreement.
4. GENERATOR. Highwoods will cause, at no expense to BTI, a 350
kilowatt generator to be installed at the Subject Property for the exclusive use
of BTI during the term of the Lease. Highwoods will commence the installation
within thirty (30) days from the Closing Date and pursue diligently the
completion of the installation thereafter (such installation in any event to be
completed within one hundred and eighty (180) days from the Closing Date). BTI
shall maintain the generator at its expense and risk subject to completion of
its installation by Highwoods. Highwoods shall cause its agents and contractors
to complete such installation in a good and workmanlike manner and shall assign
any manufacturers' and contractors' warranties to BTI or to the extent such
warranties are not assignable to BTI. Highwoods will reasonably cooperate with
BTI in enforcing any warranties covering the generator. The make and design of
the generator and related cabling shall be subject to the reasonable approval of
BTI. In the event that an extended manufacturer's warranty is available for the
generator covering all or a portion of the balance of the term of the Lease
(including any renewal periods), Highwoods shall made available to BTI the
option to purchase such warranty at BTI's own expense. Upon installation the
generator shall become a part of the Building and at the expiration or earlier
termination of the Lease, BTI shall have no obligation with respect to the
removal of the generator.
5. RESERVED PARKING. Highwoods agrees that it will provide additional
reserved parking spaces on that covered ground floor of the new parking deck at
the rate of one (1) reserved parking space for BTI for every additional 10,000
rentable square feet of office space leased by BTI at the Subject Property
subsequent to the date of the Fourth Amendment to the Lease.
6. PARKING DECK EXPANSION. Highwoods agrees that BTI shall have the
right, but not the obligation, at BTI's sole expense, to expand the parking deck
by one additional level provided that the plans for such expansion and the
selection of the contractor for such expansion are subject to Highwoods
approval, not to be unreasonably withheld or delayed, and Highwoods may
condition such approval on BTI and its contractor providing evidence of adequate
insurance and adequate security for providing for the timely completion and
payment for such expansion. Such expansion shall be subject to BTI obtaining all
required permits from appropriate governmental authorities for such expansion
and shall be subject to BTI proposing reasonable alternate parking arrangements
for tenants including BTI during any such expansion, reasonable proposals to
include without limitation continuation of the shuttle service from the North
Hills Mall parking area as defined in Section 2 of this Agreement at BTI's
expense. In the event BTI elects to expand the parking deck as herein provided,
BTI shall have exclusive rights to one of the covered parking levels in the deck
in addition to any other parking rights granted to BTI under the Lease. If BTI
desires to exercise its option to expand the parking deck while such new deck is
under construction by Highwoods, Highwoods and BTI will reasonably cooperate
with one another to coordinate such BTI expansion to achieve such economy of
construction as is practicable under the circumstances.
7. EIGHTH FLOOR/ADDITIONAL SPACE. If BTI desires to occupy that certain
space on the eighth floor of the Building now leased to Duffus & Associates,
P.A. and T.G. Soda Ash, Inc., it shall give at least one hundred twenty (120)
days notice to Highwoods of when it desires to occupy such space, such notice to
specify which of the two spaces (or both) it wishes to occupy, such occupancy to
be on the same terms and conditions as the Demised Premises with rent and
operating expenses to be adjusted for the additional space. Upon receipt of such
notice, Highwoods will use all commercially reasonable efforts to relocate such
tenant(s) to make such space available to BTI. If Highwoods is unable to
relocate such tenant(s), Highwoods will provide an equivalent amount of space in
an equivalent building acceptable to BTI in as close proximity to the Building
as reasonably possible at a rate equivalent to the base rate paid by BTI per
rentable square foot in the Building for floors 5, 6 and 9 and at the same terms
and conditions as set out in the Lease or if BTI elects to take space in a
building with a market rate lower than BTI's current base rate for floors 5, 6
and 9 in the Building. BTI will take the space at that market rate under the
same terms and conditions as set out in the Lease. In the event it becomes
necessary to relocate a portion of BTI's space as provided herein, Highwoods
agrees that it will pay BTI's moving expenses for both moving to an alternate
site and for moving back to the Building when additional space in the Building
becomes available as well as up to $15.00 per square foot of space for tenant
upfit for both locations. Provided however, the allowance for tenant upfit in
the BTI building shall be reduced at the rate of $5.00 per year for the period
less than three (3) years that BTI occupies and pays rent on such substitute
space. Highwoods will also pay for the reasonable cost of such data and
communications wiring as is reasonably necessary for BTI to maintain that
portion of its operations at such new location. It is expressly understood and
agreed that the terms and provisions of this Section 7 shall be binding on
Highwoods and any successor owner of the Building.
8. TELECOMMUNICATIONS SERVICE. Highwoods agrees that at the termination
of the current period of its existing local telecommunications contract that it
will execute an exclusive two (2) year contract with BTI provided the market
rates for such contract are comparable to those Highwoods currently receives
from other bona fide telecommunications providers.
Highwoods further agrees that at the termination of the current period of its
existing contract for long distance and frame relay data telecommunications
service it will allow BTI the opportunity to match or better any bid acceptable
to Highwoods from any third party to provide long distance and frame relay data
service prior to entering into any agreement with any other party to provide
such telecommunications service to Highwoods. The foregoing is subject to BTI
being able to provide at market rates the same level of service and reliability
as of other bona fide telecommunication providers. Highwoods further agrees that
during the term of the Lease, that it will seek bids from BTI for any other
telecommunication needs, such bids to be evaluated by Highwoods in its
discretion with such other bids as it may receive.
Highwoods and BTI agree to actively pursue in good faith a mutual
partnership or other arrangements giving BTI the ability to enter buildings
owned or controlled by Highwoods and place equipment necessary for BTI to
provide telecommunications to occupants of such buildings.
9. LANDLORD AND TENANT. It is understood and agreed that, upon the
completion of the purchase of the Subject Property by Highwoods by the
acquisition of title thereto, Highwoods will become the successor Landlord under
the Lease with BTI as Tenant, and that the parties agree to be bound by the
terms thereof, subject to the provisions of this Agreement and the provisions of
this Agreement shall be made a part of the Lease by amendment thereto. Except to
the extent specifically modified by the terms of this Agreement the Lease
between BTI and Highwoods (should Highwoods purchase the Subject Property from
RBC) shall remain in full force and effect as written and Highwoods shall take
title to the Subject Property subject to the Lease. Highwoods agrees that it
shall not complete the purchase of the Subject Property, prior to the
recordation in the Wake County Registry by BTI of a Memorandum of Lease
acceptable to BTI and made a part hereof. Highwoods acknowledges that BTI has
exclusive rights to exterior signage pursuant to the terms of the Lease.
10. CONDITION AND TIME. This Agreement shall be conditioned upon
Highwoods completing the purchase of the Subject Property and obtaining title
thereto on or before April 30, 1298, and in the event such purchase is not
completed by that date, then this Agreement shall become null and void.
11. ENTIRE AGREEMENT. This Agreement contains all of the promises,
agreements, conditions, inducements and understandings between Highwoods and BTI
concerning the subject matter hereof and there are no promises, agreements,
conditions, understandings, inducements, warranties or representations, written,
express or implied, between them other than as expressly set forth herein and
therein. This Agreement may not be assigned by either party without the express
written consent of the other party. This Agreement shall be construed under the
laws of the State of North Carolina.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers or representatives.
HIGHWOODS/FORSYTH LIMITED PARTNERSHIP
By: HIGHWOODS PROPERTIES, INC., DATE: _________________
a Maryland Corporation, its General Partner
By: ___________________________________
___________ President
BUSINESS TELECOM, INC.
By: ___________________________________ DATE: _________________
Its: __________________________________
LEASE AMENDMENT NUMBER FIVE
This LEASE AMENDMENT NUMBER FIVE made this ___ day of ________, 1998,
(the "Fifth Amendment"), by and between HIGHWOODS REALTY LIMITED PARTNERSHIP
(formerly known as Highwoods Realty Limited Partnership) (successor in interest
to RBC Corporation), a North Carolina Limited Partnership, with its principal
office at 3100 Smoketree Court, Suite 600, Raleigh, North Carolina 27604, (the
"Landlord"), and BUSINESS TELECOM, INC., a North Carolina Corporation, with its
principal office at 4300 Six Forks Road, Suite 900, Raleigh, North Carolina
27609 (the "Tenant").
WITNESSETH:
WHEREAS, Tenant and RBC Corporation entered into that certain Lease
Agreement dated May 13,1994 (the "Original Lease"), as amended by Amendment One
to Lease Agreement dated March 1,1995 (the "First Amendment), Option Letter
dated March 28, 1995 (the "Option Letter"), Amendment Two To Lease Agreement
dated November 30, 1995 (the "Second Amendment"), Modified Option Letter dated
November 30, 1995 (the "Modified Option Letter"), Memorandum of Understanding
dated April 24, 1997 (the "MOU"), Amendment Three to Lease Agreement dated May
15,1997 (the "Third Amendment"), Agreement dated March 24, 1998 (the
"Agreement"), and Amendment Four to Lease Agreement dated March 27, 1998 (the
"Fourth Amendment") (collectively, the "Lease") for certain Premises consisting
of approximately 90,799 rentable square feet, located in the BTI Building (the
"Building"), located at the following address:
4300 Six Forks Road, Raleigh, Wake County, North Carolina; and
WHEREAS, the parties hereto desire to alter and modify said Lease in
the manner hereinafter set forth,
NOW THEREFORE, in consideration of the mutual and reciprocal promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Landlord and Tenant hereby agree to
amend the Lease as follows, effective July 1,1998:
1. Under Article II, Section 2.01, entitled "Demised Premises", and all
modifications thereafter, amend Tenant's square footage from 90,799 rentable
square feet to 93,304 rentable square feet to reflect Tenant's expansion into an
additional 2,505 rentable square feet on the fourth floor as a part of Suite 450
(the "Second Expansion Space") as shown on Exhibit A attached hereto and made a
part hereof.
2. The term for the Second Expansion Space shall commence October 1,
1998 (the "Second Expansion Commencement Date") and shall run coterminous with
the Lease, therefore expiring on April 30, 2005 (the "Expiration Date").
3. Rent for the Second Expansion Space shall be payable in accordance
with the Lease and in accordance with the following payment schedule commencing
on October 1, 1998 and continuing though the Expiration Date:
- ----------------------------- ---------------------------------------------------------
SECOND EXPANSION SPACE
TERM TOTAL MONTHLY RENT (2,505 RSF)
- ----------------------------- ---------------------------------------------------------
- ----------------------------- ---------------------------------------------------------
10/01/98-1/31/99
Free Rent
- ----------------------------- ---------------------------------------------------------
2/01/99-04/30/05 3,402.63
- ----------------------------- ---------------------------------------------------------
The above rent schedule does not include CPI adjustments, Operating
Expense adjustments, or Tax adjustments as set forth in the Lease, which
adjustments shall apply to the Second Expansion Space.
4. Tenant's proportionate share shall be calculated by dividing the
72,425 rentable square feet of the Premises (exclusive of the 20,879 rentable
square feet, which has a separate base year) by the 162,820 rentable square feet
of the Building, which equals 44.4816%. The Base Year shall remain the actual
expenses incurred during the calendar year 1995.
5. TENANT IMPROVEMENTS. Landlord agrees, at its sole cost and expense
to provide an allowance of $15.00 per rentable square foot, to design, engineer,
install, supply and otherwise to construct the Tenant Improvements in the
Premises that will become part of the Building (the "Allowance"); otherwise,
Tenant is fully responsible for the payment of all costs in connection with the
Tenant Improvements. If Tenant elects to manage the construction process,
Landlord will pay to Tenant $37,575.00 upon final approval of plans; however,
should Landlord manage the construction process, then Tenant shall pay to
Landlord a fee of $35.00 per hour to reimburse Landlord for the cost to manage
and oversee work to be done on Tenant's behalf. Any requested changes subsequent
to submission of prices will not be made without written approval by an
authorized BTI representative. Rent shall commence on February 1, 1999
regardless of completion of construction.
6. The foregoing is intended to be an addition and a modification to
the Lease. Unless otherwise defined herein, all capitalized terms used in this
Fifth Amendment shall have the same definitions ascribed in the Lease. Except as
modified and amended by this Fifth Amendment, the Lease shall remain in full
force and effect.
TO THE BEST OF Tenant's knowledge, Landlord has complied with all of
its obligations under said Lease to date, and, to the extent not expressly
modified hereby, all of the terms and conditions of said Lease shall remain
unchanged and in full force and effect.
IN WITNESS WHEREOF, Tenant and Landlord have caused this instrument to
be executed as of the date first above written, by their respective officers or
parties "hereunto duly authorized.
Tenant: BUSINESS TELECOM, INC.
a North Carolina Corporation
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
Date: _______________________________________
Attest: _____________________________________
___________________________Secretary
Corporate Seal
Landlord: HIGHWOODS REALTY LIMITED PARTNERSHIP
By: Highwoods Properties, Inc., its general partner
By: ______________________________________
James A. Ciao, Vice President
Date: ____________________________________
Attest: __________________________________
Cathleen C. Morgan, Assistant Secretary
LEASE AMENDMENT NUMBER SIX
This LEASE AMENDMENT NUMBER SIX made this ___ day of __________, 1998,
(the "Sixth Amendment"), by and between HIGHWOODS REALTY LIMITED PARTNERSHIP
(formerly known as Highwoods/Forsyth Limited Partnership) (successor in interest
to RBC Corporation), a North Carolina Limited Partnership, with its principal
office at 3100 Smoketree Court, Suite 600, Raleigh, North Carolina 27604, (the
"Landlord"), and BUSINESS TELECOM, INC., a North Carolina Corporation, with its
principal office at 4300 Six Forks Road, Suite 900, Raleigh, North Carolina
27609 (the "Tenant").
W I T N E S S E T H:
WHEREAS, Tenant and RBC Corporation entered into that certain Lease
Agreement dated May 13,1994 (the "Original Lease"), as amended by Amendment One
to Lease Agreement dated March 1,1995 (the "First Amendment"), Option Letter
dated March 28, 1995 (the "Option Letter"), Amendment Two To Lease Agreement
dated November 30, 1995 (the "Second Amendment"), Modified Option Letter dated
November 30, 1995 (the "Modified Option Letter"), Memorandum of Understanding
dated April 24, 1997 (the "MOU"), Amendment Three to Lease Agreement dated May
15, 1997 (the "Third Amendment"), Agreement dated March 24, 1998 (the
"Agreement"), Amendment Four to Lease Agreement dated March 27, 1998 (the
"Fourth Amendment") and Amendment Five to Lease Agreement dated August 25, 1998
(the "Fifth Amendment") (collectively, the "Lease") for certain Premises
consisting of approximately 93,304 rentable square feet, located in the BTI
Building (the "Building"), located at the following address:
4300 Six Forks Road, Raleigh, Wake County, North Carolina; and
WHEREAS, the parties hereto desire to alter and modify said Lease in
the manner hereinafter set forth,
NOW THEREFORE, in consideration of the mutual and reciprocal promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Landlord and Tenant hereby agree to
amend the Lease as follows, effective SEPTEMBER 1, 1998:
1. Under Article II, Section 2.01, entitled "Demised Premises", and all
modifications thereafter, amend Tenant's square footage from 93,304 rentable
square feet to 94,708 rentable square feet to reflect Tenant's expansion into an
additional 1,404 rentable square feet on the eighth floor known as Suite 810
(the "Third Expansion Space") as shown on Exhibit A attached hereto and made a
part hereof.
2. The term for the Third Expansion Space shall commence September 1,
1998 (the "Third Expansion Commencement Date") and shall run coterminous with
the Lease, therefore expiring on April 30, 2005 (the "Expiration Date").
3. Rent for the Third Expansion Space shall be payable in accordance
with the Lease and in accordance with the following payment schedule commencing
on September 1, 1998 and continuing though the Expiration Date:
- --------------------------------- --------------------------------------------------
THIRD EXPANSION
SPACE TOTAL
TERM MONTHLY RENT (1,404 RSF)
- --------------------------------- --------------------------------------------------
- --------------------------------- --------------------------------------------------
09/01/98-04/30/05 $1,907.10
- --------------------------------- --------------------------------------------------
The above rent schedule does not include CPI adjustments, Operating
Expense adjustments, or Tax adjustments as set forth in the Lease, which
adjustments shall apply to the Third Expansion Space.
4. Tenant's proportionate share shall be calculated by dividing the
73,829 rentable square feet of the Premises (exclusive of the 20,879 rentable
square feet, which has a separate base year) by the 162,820 rentable square feet
of the Building, which equals 45.3439%. The Base Year shall remain the actual
expenses incurred during the calendar year 1995.
5. Tenant and Landlord acknowledge and agree that Tenant shall accept
the Third Expansion Space in "as-is" condition and any improvements to the Third
Expansion Space shall be at Tenant's sole cost and expense and such improvements
shall be subject to the terms and conditions of the Lease.
6. The terms and conditions of this Sixth Amendment are contingent upon
the complete execution of Lease Amendment Number Two by and between Landlord and
Duffus & Associates, P.A. Should Lease Amendment Number Two by and between
Landlord and Duffus & Associates, P.A. not be executed, this Sixth Amendment
shall become null and void.
7. The foregoing is intended to be an addition and a modification to
the Lease. Unless otherwise defined herein, all capitalized items used in this
Sixth Amendment shall have the same definitions ascribed in the Lease. Except as
modified and amended by this Sixth Amendment, the Lease shall remain in full
force and effect.
TO THE BEST OF Tenant's knowledge, Landlord has complied with all of
its obligations under said Lease to date, to the extent not expressly modified
hereby, all of the terms and conditions of said Lease shall remain unchanged and
in full force and effect.
IN WITNESS WHEREOF, Tenant and Landlord have caused this instrument to
be executed as of the date first above written, by their respective officers or
parties thereunto duly authorized.
Tenant: BUSINESS TELECOM, INC.
a North Carolina Corporation
By: _______________________________________
Name: _______________________________________
Title:_______________________________________
Date: _______________________________________
Attest: _____________________________________
__________________________ Secretary
Corporate Seal
Landlord: HIGHWOODS REALTY LIMITED PARTNERSHIP
By: Highwoods Properties, Inc., its general partner
By: __________________________________________
James A. Ciao, Vice President
Date: _________________________________________
Attest: _______________________________________
Cathleen C. Morgan, Assistant Secretary