HIGHWOODS REALTY LIMITED PARTNERSHIP
OFFICE LEASE
TABLE OF CONTENTS
Section 1: BASIC DEFINITIONS AND PROVISIONS
a. Premises
b. Term
c. Permitted Use
d. Occupancy Limitation
e. Base Rent
f. Rent Payment Address
g. Security Deposit
h. Business Hours
i. Electrical Service
J. After Hours HVAC Rate
k. Parking
l. Construction Fee
m. Notice Addresses
n. Broker
Section 2. LEASED PREMISES
a. Premises
b. Rentable Square Foot Determination
c. Common Areas
Section 3: TERM
a. Commencement and Expiration Dates
b. Adjustments to Commencement Date
c. Termination by Tenant for Failure to Deliver Possession
d. Delivery of Possession
e. Adjustment of Expiration Date
f. Right to Occupy
g. Commencement Agreement
Section 4: USE
a. Permitted Use
b. Prohibited Uses
c. Prohibited Equipment in Premises
Section 5: RENT
a. Payment Obligations
b. Base Rent
c. Additional Rent
Section 6: SECURITY DEPOSIT
a. Amount of Deposit
b. Application of Deposit
c. Refund of Deposit
Section 7: SERVICES BY LANDLORD
a. Base Services
b. Landlord's Maintenance
c. No Abatement
d. Tenant's Obligation to Report Defects
e. Limitation on Landlord's Liability
Section 8: TENANT'S ACCEPTANCE AND MAINTENANCE OF PREMISES
a. Acceptance of Premises
b. Move-in Obligations
c. Tenant's Maintenance
d. Alterations to Premises
e. Restoration of Premises
f. Landlord's Performance of Tenant's Obligations
g. Construction Liens
h. Communications Compliance
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Section 9: PROPERTY OF TENANT
a. Property Taxes
b. Removal
Section 10: SIGNS
Section 11: ACCESS TO PREMISES
a. Tenant's Access
b. Landlord's Access
c. Emergency Access
Section 12: TENANT'S COMPLIANCE
a. Laws
b. Rules and Regulations
Section 13: ADA COMPLIANCE
a. Tenant's Compliance
b. Landlord's Compliance
c. ADA Notices
Section 14: INSURANCE REQUIREMENTS
a. Tenant's Liability Insurance
b. Tenant's Property Insurance
c. Certificates of Insurance
d. Insurance Policy Requirements
e. Landlord's Property Insurance
f. Mutual Waiver of Subrogation
Section 15: INDEMNITY
a. Indemnity
b. Defense Obligation
Section 16: QUIET ENJOYMENT
Section 17: SUBORDINATION; ATTORNMENT; NON-DISTURBANCE; AND ESTOPPEL
CERTIFICATE
a. Subordination and Attornment
b. Non-Disturbance
c. Estoppel Certificates
d. Foreclosure
e. Tenant Acknowledgement
f. Notices
Section 18: ASSIGNMENT - SUBLEASE
a. Landlord Consent
b. Definition of Assignment
c. Permitted Assignments/Subleases
d. Notice to Landlord
e. Prohibited Assignments/Sublease
f. Limitation on Rights of Assignee/Sublessee
g. Tenant Not Released
h. Landlord's Right to Collect Sublease Rents Upon Tenant Default
i. Excess Rents
j. Landlord's Fees
k. Unauthorized Assignment or Sublease
Section 19: DAMAGES TO PREMISES
a. Landlord's Restoration Obligations
b. Termination of Lease by Landlord
c. Termination of Lease by Tenant
d. Tenant's Restoration Obligations
e. Rent Abatement
f. Waiver of Claims
Section 20: EMINENT DOMAIN
a. Effect on Lease
b. Right to Condemnation Award
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Section 21: ENVIRONMENTAL COMPLIANCE
a. Environmental Laws
b. Tenant's Responsibility
c. Tenant's Liability
d. Limitation on Tenant's Liability
e. Inspections by Landlord
f. Landlord's Liability
g. Property
h. Tenant's Liability after Termination of Lease
Section 22: DEFAULT
a. Tenant's Default
b. Landlord's Remedies
c. Landlord's Expenses
d. Remedies Cumulative
e. No Accord and Satisfaction
f. No Reinstatement
g. Summary Ejectment
Section 23: MULTIPLE DEFAULTS
a. Loss of Option Rights
b. Increased Security Deposit
c. Effect on Notice Rights and Cure Periods
Section 24: BANKRUPTCY
a. Trustee's Rights
b. Adequate Assurance
c. Assumption of Lease Obligations
Section 25: NOTICES
a. Addresses
b. Form; Delivery; Receipt
c. Address Changes
d. Notice by Legal Counsel
Section 26: HOLDING OVER
Section 27: RIGHT TO RELOCATE
a. Substitute Premises
b. Notice
c. Upfit of Substitute Premises
d. Relocation Costs
e. Lease Terms
f. Limitation on Landlord's Liability
Section 28: BROKER'S COMMISSIONS
a. Broker
b. Landlord's Obligation
c. Indemnity
Section 29: MISCELLANEOUS
a. No Agency
b. Force Majeure
c. Building Standard Improvements d. Limitation on Damages
e. Satisfaction of Judgments Against Landlord
f. Interest
g. Legal Costs
h. Sale of Premises or Building
i. Time of the Essence
j. Transfer of Security Deposit
k. Tender of Premises
l. Tenant's Financial Statements
m. Recordation
n. Partial Invalidity
o. Binding Effect
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p. Entire Agreement
q. Good Standing
r. Terminology
s. Headings
t. Choice of Law
u. Effective Date
Section 30: SPECIAL CONDITIONS
Section 31: ADDENDA AND EXHIBITS
a. Lease Addendum Number One - Operating Expense Pass Through
b. Exhibit A - Premises
c. Exhibit B - Rules and Regulations
d. Exhibit C - Commencement Agreement
e. Exhibit D - Insurance Certificate
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OFFICE LEASE
THIS LEASE ("Lease"), made this 20th day of January, 2004, by and between
HIGHWOODS REALTY LIMITED PARTNERSHIP, a North Carolina limited partnership,
("Landlord") and CYBERLUX CORPORATION, a Nevada corporation ("Tenant"), provides
as follows:
1. BASIC DEFINITIONS AND PROVISIONS. The following basic definitions and
provisions apply to this Lease:
a. Premises. Rentable Square Feet: 2,405
Usable Square Feet: 2,128
Core Area Factor (R/U ratio) 1.13
Suite: 100
Building: Willow Oak
Street Address: 4625 Creekstone Drive
City/County: Durham, Durham
State/Zip Code: North Carolina 27703
b. Term. Number of Months: Thirty nine and one-half months
Commencement Date: January 19, 2004
Expiration Date: April 30, 2007
c. Permitted Use. General office
d. Occupancy Limitation. No more than 4.11 persons per one thousand
(1,000) rentable square feet.
e. Base Rent. The minimum base rent for the Term is $129,612.72,
payable in monthly installments on the 1st day of each month in
accordance with the following Base Rent Schedule:
----------------------------------------------------------------------
MONTHS MONTHLY RENT CUMULATIVE RENT
----------------------------------------------------------------------
1/19/04 - 4/18/04 $0.00 $0.00
----------------------------------------------------------------------
4/16/04 - 4/30/04 $1,382.88 $1,382.88
----------------------------------------------------------------------
5/01/04 - 4/30/05 $3,457.19 $41,486.28
----------------------------------------------------------------------
5/01/05 - 4/30/06 $3,560.90 $42,730.80
----------------------------------------------------------------------
5/01/06 - 4/30/07 $3,667.73 $44,012.76
----------------------------------------------------------------------
BASE RENT: $129,612.72
----------------------------------------------------------------------
f. Rent Payment Address. HIGHWOODS REALTY LIMITED PARTNERSHIP P.O. Box
409412 Atlanta, Georgia 30384
Tax ID #: 56-1869557
g. Security Deposit. $6,914.00
h. Business Hours. 8:00 A.M. to 6:00 P.M. Monday through Friday
(excluding
National and State Holidays).
i. Electrical Service. No more than 13 electrical circuits serving
convenience outlets for the Premises.
j. After Hours HVAC Rate. $25.00 per hour, per zone, with a minimum of
two
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(2) hours per occurrence.
k. Parking. Unreserved; not to exceed four spaces per 1000 rentable
square feet.
l. Notice Addresses.
LANDLORD: HIGHWOODS REALTY LIMITED PARTNERSHIP
c/o Highwoods Properties, Inc.
3100 Smoketree Court, Suite 600
Raleigh, North Carolina 27604
Attn: Manager, Lease Administration
Facsimile #: 919/876-2448
TENANT: CYBERLUX CORPORATION
4625 Creekstone Drive, Suite 100
Durham, North Carolina 27703
Attn: Mark Schmidt
Facsimile #: 877/347-0234
m. Broker. None.
2. LEASED PREMISES.
a. Premises. Landlord leases to Tenant and Tenant leases from Landlord the
Premises identified in Section 1a and as more particularly shown on EXHIBIT A,
attached hereto.
b. Rentable Square Foot Determination. The parties acknowledge that all
square foot measurements are approximate and agree that the square footage
figures in Section 1a shall be conclusive for all purposes with respect to this
Lease.
c. Common Areas. Tenant shall have non-exclusive access to the common
areas of the Building. The common areas generally include space that is not
included in portions of the building set aside for leasing to tenants or
reserved for Landlord's exclusive use, including entrances, hallways, lobbies,
elevators, restrooms, walkways and plazas ("Common Areas"). Landlord has the
exclusive right to (i) designate the Common Areas, (ii) change the designation
of any Common Area and otherwise modify the Common Areas, and (iii) permit
special use of the Common Areas, including temporary exclusive use for special
occasions. Tenant shall not interfere with the rights of others to use the
Common Areas. All use of the Common Areas shall be subject to any rules and
regulations promulgated by Landlord.
3. TERM.
a. Commencement and Expiration Dates. The Lease Term commences on the
Commencement Date and expires on the Expiration Date, as set forth in Section
1b.
b. Adjustments to Commencement Date. The Commencement Date shall be
adjusted as follows:
i. If Tenant requests possession of the Premises prior to the
Commencement Date, and Landlord consents, the Commencement Date
shall be the date of possession. All rent and other obligations
under this Lease shall begin on the date of possession, but the
Expiration Date shall remain the same.
ii. If Landlord, for any reason, cannot deliver possession of the
Premises to Tenant on the Commencement Date, then the Commencement
Date, Expiration Date, and all other dates that may be affected by
their change, shall be revised to conform to the date of Landlord's
delivery of possession of the Premises to Tenant. Any such delay
shall not relieve Tenant of its obligations under this Lease, and
neither Landlord nor Landlord's agents shall be liable to Tenant for
any loss or damage resulting from the delay in delivery of
possession.
c. Termination by Tenant for Failure to Deliver Possession. In the event
Landlord is unable to deliver possession of the Premises within ninety (90) days
after the original Commencement Date set forth in the first sentence of this
Section 2 (excluding any delays resulting from force majeure or caused by Tenant
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- - "Excused Delays"), then Tenant may terminate this Lease by giving notice to
Landlord within one hundred (100) days of the original Commencement Date
(excluding Excused Delays). Tenant may not terminate the Lease, however, if it
has taken possession of any part of the Premises.
d. Delivery of Possession. "Delivery of possession" of the Premises shall
mean the earlier of: (i) the date Landlord has the Premises ready for occupancy
by Tenant as evidenced by a permanent or temporary Certificate of Occupancy
issued by proper governmental authority, or (ii) the date Landlord could have
had the Premises ready had there been no Delays attributable to Tenant.
e. Adjustment of Expiration Date. If the Expiration Date does not occur on
the last day of a calendar month, then Landlord, at its option, may extend the
Term by the number of days necessary to cause the Expiration Date to occur on
the last day of the last calendar month of the Term. Tenant shall pay Base Rent
and Additional Rent for such additional days at the same rate payable for the
portion of the last calendar month immediately preceding such extension.
f. Right to Occupy. Tenant shall not occupy the Premises until Tenant has
complied with all of the following requirements to the extent applicable under
the terms of this Lease: (i) delivery of all certificates of insurance, (ii)
payment of Security Deposit, (iii) execution and delivery of any required
Guaranty of Lease, and (iv) if Tenant is an entity, receipt of a good standing
certificate from the State where it was organized and a certificate of authority
to do business in the State in which the Premises are located (if different).
Tenant's failure to comply with these (or any other conditions precedent to
occupancy under the terms of this Lease) shall not delay the Commencement Date.
g. Commencement Agreement. The Commencement Date, Term, and Expiration
Date may be set forth in a Commencement Agreement similar to EXHIBIT C, attached
hereto, to be prepared by Landlord and executed by the parties.
4. USE.
a. Permitted Use. The Premises may be used only for general office
purposes in connection with Tenant's Permitted Use as defined in Section 1c and
in accordance with the Occupancy Limitation as set forth in Section 1d.
b. Prohibited Uses. Tenant shall not use the Premises:
i. In violation of any restrictive covenants which apply to the
Premises;
ii. In any manner that constitutes a nuisance or trespass;
iii. In any manner which increases any insurance premiums, or makes such
insurance unavailable to Landlord on the Building; provided that, in
the event of an increase in Landlord's insurance premiums which
results from Tenant's use of the Premises, Landlord may elect to
permit the use and charge Tenant for the increase in premiums, and
Tenant's failure to pay Landlord, on demand, the amount of such
increase shall be an event of default;
iv. In any manner that creates unusual demands for electricity, heating
or air conditioning; or
v. For any purpose except the Permitted Use, unless consented to by
Landlord in writing.
c. Prohibited Equipment in Premises. Tenant shall not install any
equipment in the Premises that places unusual demands on the electrical, heating
or air conditioning systems ("High Demand Equipment") without Landlord's prior
written consent. No such consent will be given if Landlord determines, in its
opinion, that such equipment may not be safely used in the Premises or that
electrical service is not adequate to support the equipment. Landlord's consent
may be conditioned, without limitation, upon separate metering of the High
Demand Equipment and Tenant's payment of all engineering, equipment,
installation, maintenance, removal and restoration costs and utility charges
associated with the High Demand Equipment and the separate meter. If High Demand
Equipment used in the Premises by Tenant affect the temperature otherwise
maintained by the heating and air conditioning system, Landlord shall have the
right to install supplemental air conditioning units in the Premises with the
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cost of engineering, installation, operation and maintenance of the units to be
paid by Tenant. All costs and expenses relating to High Demand Equipment and
Landlord's administrative costs (such as reading meters and calculating
invoices) shall be Additional Rent, payable by Tenant upon demand.
5. RENT.
a. Payment Obligations. Tenant shall pay Base Rent and Additional Rent
(collectively, "Rent") on or before the first day of each calendar month during
the Term, as follows:
i. Rent payments shall be sent to the Rent Payment Address set forth in
Section 1f.
ii. Rent shall be paid without previous demand or notice and without set
off or deduction. Tenant's obligation to pay Rent under this Lease
is completely separate and independent from any of Landlord's
obligations under this Lease.
iii. If the Term commences on a day other than the first day of a
calendar month, then Rent for such month shall be (i) prorated for
the period between the Commencement Date and the last day of the
month in which the Commencement Date falls, and (ii) due and payable
on the Commencement Date.
iv. For each Rent payment Landlord receives five (5) days after the due
date, Landlord shall be entitled to all default remedies provided
under the terms of this Lease, and a late charge in the amount of
five percent (5%) of the Rent due . For each Rent payment Landlord
receives fifteen (15) days after the due date, Landlord shall be
entitled to all default remedies provided under the terms of this
Lease, and a late charge in the amount of fifteen percent (15%) of
the Rent due.
v. If Landlord presents Tenant's check to any bank and Tenant has
insufficient funds to pay for such check, then Landlord shall be
entitled to all default remedies provided under the terms of this
Lease and the maximum lawful bad check fee or five percent (5%) of
the amount of such check, whichever amount is less.
b. Base Rent. Tenant shall pay Base Rent as set forth in Section 1e.
c. Additional Rent. In addition to Base Rent, Tenant shall pay as rent all
sums and charges due and payable by Tenant under this Lease ("Additional Rent"),
including, but not limited to, the following:
i. Tenant's Proportionate Share of the increase in Landlord's Operating
Expenses as set forth in Lease Addendum Number One;
ii. Any sales or use tax imposed on rents collected by Landlord or any
tax on rents in lieu of ad valorem taxes on the Building, even
though laws imposing such taxes attempt to require Landlord to pay
the same; provided, however, if any such sales or use tax are
imposed on Landlord and Landlord is prohibited by applicable law
from collecting the amount of such tax from Tenant as Additional
Rent, then Landlord, upon sixty (60) days prior notice to Tenant,
may terminate this Lease; and
iii. Any construction supervision fees in connection with the
construction of Tenant Improvements or alterations to the Premises.
6. SECURITY DEPOSIT.
a. Amount of Deposit. Tenant shall deposit with Landlord a Security
Deposit in the amount set forth in Section 1g, which sum Landlord shall retain
as security for the performance by Tenant of each of its obligations hereunder.
The Security Deposit shall not bear interest.
b. Application of Deposit. If Tenant at any time fails to perform any of
its obligations under this Lease, including its Rent or other payment
obligations, its restoration obligations, or its insurance and indemnity
obligations, then Landlord may, at its option, apply the Security Deposit (or
any portion) to cure Tenant's default or to pay for damages caused by Tenant's
default. If the Lease has been terminated, then Landlord may apply the Security
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Deposit (or any portion) against the damages incurred as a consequence of
Tenant's breach. The application of the Security Deposit shall not limit
Landlord's remedies for default under the terms of this Lease. If Landlord
depletes the Security Deposit, in whole or in part, prior to the Expiration Date
or any termination of this Lease, then Tenant shall restore immediately the
amount so used by Landlord.
c. Refund of Deposit. Unless Landlord uses the Security Deposit to cure a
default of Tenant, to pay damages for Tenant's breach of the Lease, or to
restore the Premises to the condition to which Tenant is required to leave the
Premises upon the expiration or any termination of the Lease, then Landlord
shall, within thirty (30) days after the Expiration Date or any termination of
this Lease, refund to Tenant any funds remaining in the Security Deposit. Tenant
may not credit the Security Deposit against any month's Rent.
7. SERVICES BY LANDLORD.
a. Base Services. Provided that Tenant is not then in default,
Landlord shall cause to be furnished to the Building, or as
applicable, the Premises, in common with other tenants the
following services:
i. Water (if available from city mains) for drinking, lavatory and
toilet purposes.
ii. Electricity (if available from the utility supplier) for the
building standard fluorescent lighting and for the operation of
general office machines, such as electric typewriters, desk top
computers, dictating equipment, adding machines and calculators, and
general service non-production type office copy machines; provided
that Landlord shall have no obligation to provide more than the
amount of power for convenience outlets and the number of electrical
circuits as set forth in Section 1i.
iii. Operatorless elevator service.
iv. Building standard fluorescent lighting composed of 2' x 4' fixtures;
Tenant shall service, replace and maintain at its own expense any
incandescent fixtures, table lamps, or lighting other than the
building standard fluorescent light, and any dimmers or lighting
controls other than controls for the building standard fluorescent
lighting.
v. Heating and air conditioning for the reasonably comfortable use and
occupancy of the Premises during Business Hours as set forth in
Section 1h; provided that, heating and cooling conforming to any
governmental regulation prescribing limitations thereon shall be
deemed to comply with this service.
vi. After Business Hours, weekend and holiday heating and air
conditioning at the After Hours HVAC rate set forth in Section 1j,
with such charges subject to commercially reasonable annual
increases as determined by Landlord.
vii. Janitorial services five (5) days a week (excluding National and
State holidays) after Business Hours.
viii. A reasonable pro-rata share of the unreserved parking spaces of the
Building, not to exceed the Parking specified in Section 1k, for use
by Tenant's employees and visitors in common with the other tenants
and their employees and visitors.
b. Landlord's Maintenance. Landlord shall make all repairs and
replacements to the Building (including Building fixtures and equipment), Common
Areas and Building Standard Improvements in the Premises, except for repairs and
replacements that Tenant must make under Section 8. Landlord's maintenance shall
include the roof, foundation, exterior walls, interior structural walls, all
structural components, and all Building systems, such as mechanical, electrical,
HVAC, and plumbing. Repairs or replacements shall be made within a reasonable
time (depending on the nature of the repair or replacement needed) after
receiving notice from Tenant or Landlord having actual knowledge of the need for
a repair or replacement.
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c. No Abatement. There shall be no abatement or reduction of Rent by
reason of any of the foregoing services not being continuously provided to
Tenant. Landlord shall have the right to shut down the Building systems
(including electricity and HVAC systems) for required maintenance and safety
inspections, and in cases of emergency.
d. Tenant's Obligation to Report Defects. Tenant shall report to Landlord
immediately any defective condition in or about the Premises known to Tenant and
if such defect is not so reported and such failure to promptly report results in
other damage, Tenant shall be liable for same.
e. Limitation on Landlord's Liability. Landlord shall not be liable to
Tenant for any damage caused to Tenant and its property due to the Building or
any part or appurtenance thereof being improperly constructed or being or
becoming out of repair, or arising from the leaking of gas, water, sewer or
steam pipes, or from problems with electrical service.
8. TENANT'S ACCEPTANCE AND MAINTENANCE OF PREMISES.
a. Acceptance of Premises. Tenant's occupancy of the Premises is Tenant's
representation to Landlord that (i) Tenant has examined and inspected the
Premises, (ii) finds the Premises to be as represented by Landlord and
satisfactory for Tenant's intended use, and (iii) constitutes Tenant's
acceptance of the Premises "as is". Landlord makes no representation or warranty
as to the condition of the Premises.
b. Move-In Obligations. Tenant shall schedule its move-in with the
Landlord's Property Manager. Unless otherwise approved by Landlord's Property
Manager, move-in shall not take place during Business Hours. During Tenant's
move-in, a representative of Tenant must be on-site with Tenant's moving company
to insure proper treatment of the Building and the Premises. Elevators,
entrances, hallways and other Common Areas must remain in use for the general
public during business hours. Any specialized use of elevators or other Common
Areas must be coordinated with Landlord's Property Manager. Tenant must properly
dispose of all packing material and refuse in accordance with the Rules and
Regulations. Any damage or destruction to the Building or the Premises due to
moving will be the sole responsibility of Tenant.
c. Tenant's Maintenance. Tenant shall: (i) keep the Premises and fixtures
in good order; (ii) make repairs and replacements to the Premises or Building
needed because of Tenant's misuse or negligence; (iii) repair and replace
Non-Standard Improvements, including any special equipment or decorative
treatments, installed by or at Tenant's request that serve the Premises (unless
the Lease is ended because of casualty loss or condemnation); and (iv) not
commit waste.
d. Alterations to Premises. Tenant shall make no structural or interior
alterations to the Premises. If Tenant requests such alterations, then Tenant
shall provide Landlord's Property Manager with a complete set of construction
drawings. If Landlord consents to the alterations, then the Property Manager
shall determine the actual cost of the work to be done (to include a
construction supervision fee to be paid to Landlord in the amount of 10% of the
cost of the construction). Tenant may then either agree to pay Landlord to have
the work done or withdraw its request for alterations. All such alterations are
subject to the prior written approval of Landlord.
e. Restoration of Premises. At the expiration or earlier termination of
this Lease, Tenant shall (i) deliver each and every part of the Premises in good
repair and condition, ordinary wear and tear and damage by insured casualty
excepted, and (ii) restore the Premises at Tenant's sole expense to the same
condition as existed at the Commencement Date, ordinary wear and tear and damage
by insured casualty excepted. If Tenant has required or installed Non-Standard
Improvements, such improvements shall be removed as part of Tenant's restoration
obligation. Landlord, however, may elect to require Tenant to leave any
Non-Standard Improvements in the Premises unless at the time of such
Non-Standard Improvements were installed, Landlord agreed in writing that Tenant
could remove such improvements. Tenant shall repair any damage caused by the
removal of any Non-Standard Improvements. "Non-Standard Improvements" means such
items as (i) High Demand Equipment and separate meters, (ii) all wiring and
cabling from the point of origin to the termination point, (iii) raised floors
for computer or communications systems, (iv) telephone equipment, security
systems, and UPS systems, (iv) equipment racks, (v) alterations installed by or
at the request of Tenant after the Commencement Date, and (vi) any other
improvements that are not part of the Building Standard Improvements.
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f. Landlord's Performance of Tenant's Obligations. If Tenant does not
perform its maintenance or restoration obligations in a timely manner,
commencing the same within five (5) days after receipt of notice from Landlord
specifying the work needed, and thereafter diligently and continuously pursuing
the work until completion, then Landlord shall have the right, but not the
obligation, to perform such work. Any amounts expended by Landlord on such
maintenance or restoration shall be Additional Rent to be paid by Tenant to
Landlord within thirty (30) days after demand.
g. Construction Liens. Tenant shall have no power to do any act or make
any contract that may create or be the foundation of any lien, mortgage or other
encumbrance upon the reversionary or other estate of Landlord, or any interest
of Landlord in the Premises. NO CONSTRUCTION LIENS OR OTHER LIENS FOR ANY LABOR,
SERVICES OR MATERIALS FURNISHED TO THE PREMISES SHALL ATTACH TO OR AFFECT THE
INTEREST OF LANDLORD IN AND TO THE PREMISES OR THE BUILDING. Tenant shall keep
the Premises and the Building free from any liens arising out of any work
performed, materials furnished, or obligations incurred by or on behalf of
Tenant. Should any lien or claim of lien be filed against the Premises or the
Building by reason of any act or omission of Tenant or any of Tenant's agents,
employees, contractors or representatives, then Tenant shall cause the same to
be canceled and discharged of record by bond or otherwise within ten (10) days
after the filing thereof. Should Tenant fail to discharge the lien within ten
(10) days, then Landlord may discharge the lien. The amount paid by Landlord to
discharge the lien (whether directly or by bond), plus all administrative and
legal costs incurred by Landlord, shall be Additional Rent payable on demand.
The remedies provided herein shall be in addition to all other remedies
available to Landlord under this Lease or otherwise.
h. Communications Compliance. Tenant acknowledges and agrees that any and
all telephone and telecommunication services desired by Tenant shall be ordered
and utilized at the sole expense of Tenant. Unless Landlord requests otherwise
or consents in writing, all of Tenant's telecommunications equipment shall be
located and remain solely in the Premises. Landlord shall not have any
responsibility for the maintenance of Tenant's telecommunications equipment,
including wiring; nor for any wiring or other infrastructure to which Tenant's
telecommunications equipment may be connected. Tenant agrees that, to the extent
any telecommunications service is interrupted, curtailed or discontinued,
Landlord shall have no obligation or liability with respect thereto. Landlord
shall have the right, upon reasonable prior oral or written notice to Tenant, to
interrupt or turn off telecommunications facilities in the event of emergency or
as necessary in connection with repairs to the Building or installation of
telecommunications equipment for other tenants of the Building. In the event
that Tenant wishes at any time to utilize the services of a telephone or
telecommunications provider whose equipment is not then servicing the Building,
the provider shall not be permitted to install its lines or other equipment
within the Building without first securing the prior written approval of
Landlord. Landlord's approval may be conditioned in such a manner to as to
protect Landlord's financial interests, the interest of the Building, and the
other tenants therein. The refusal of Landlord to grant its approval to any
prospective telecommunications provider shall not be deemed a default or breach
by Landlord of its obligation under this Lease. The provision of this paragraph
may be enforced solely by Tenant and Landlord, are not for the benefit of any
other party, and specifically but without limitation, no telephone or
telecommunications provider shall be deemed a third party beneficiary of this
Lease. Tenant shall not utilize any wireless communications equipment (other
than usual and customary cellular telephones), including antennae and satellite
receiver dishes, within the Premises or the Building, without Landlord's prior
written consent. Landlord's consent may be conditioned in such a manner so as to
protect Landlord's financial interests, the interests of the Building, and the
other tenants therein. At Landlord's option, Tenant may be required to remove
any and all telecommunications equipment (including wireless equipment)
installed in the Premises or elsewhere in or on the Building by or on behalf of
Tenant, including wiring, or other facilities for telecommunications transmittal
prior to the expiration or termination of the Lease and at Tenant's sole cost.
9. PROPERTY OF TENANT.
a. Property Taxes. Tenant shall pay when due all taxes levied or assessed
upon Tenant's equipment, fixtures, furniture, leasehold improvements and
personal property located in the Premises.
b. Removal. Provided Tenant is not in default, Tenant may remove all
fixtures and equipment which it has placed in the Premises; provided, however,
Tenant must repair all damages caused by such removal. If Tenant does not remove
its property from the Premises upon the expiration or earlier termination (for
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whatever cause) of this Lease, such property shall be deemed abandoned by
Tenant, and Landlord may dispose of the same in whatever manner Landlord may
elect without any liability to Tenant.
10. SIGNS. Tenant may not erect, install or display any sign or
advertising material upon the exterior of the Building or Premises (including
any exterior doors, walls or windows) without the prior written consent of
Landlord, which consent may be withheld in Landlord's sole discretion. Door and
directory signage shall be provided and installed by the Landlord in accordance
with building standards at Landlord's expense.
11. ACCESS TO PREMISES.
a. Tenant's Access. Tenant, its agents, employees, invitees, and guests,
shall have access to the Premises and reasonable ingress and egress to common
and public areas of the Building twenty-four hours a day, seven days a week;
provided, however, Landlord by reasonable regulation may control such access for
the comfort, convenience, safety and protection of all tenants in the Building,
or as needed for making repairs and alterations. Tenant shall be responsible for
providing access to the Premises to its agents, employees, invitees and guests
after business hours and on weekends and holidays, but in no event shall
Tenant's use of and access to the Premises during non-business hours compromise
the security of the Building.
b. Landlord's Access. Landlord shall have the right, at all reasonable
times and upon reasonable oral notice, either itself or through its authorized
agents, to enter the Premises (i) to make repairs, alterations or changes as
Landlord deems necessary, (ii) to inspect the Premises, mechanical systems and
electrical devices, and (iii) to show the Premises to prospective mortgagees and
purchasers. Within one hundred eighty (180) days prior to the Expiration Date,
Landlord shall have the right, either itself or through its authorized agents,
to enter the Premises at all reasonable times to show prospective tenants.
c. Emergency Access. Landlord shall have the right to enter the Premises
at any time without notice in the event of an emergency.
12. TENANT'S COMPLIANCE.
a. Laws. Tenant shall comply with all applicable laws, ordinances and
regulations affecting the Premises, whether now existing or hereafter enacted.
b. Rules and Regulations. Tenant shall comply with the Rules and
Regulations attached as EXHIBIT B. The Rules and Regulations may be modified
from time to time by Landlord, effective as of the date delivered to Tenant or
posted on the Premises, provided such rules are uniformly applicable to all
tenants in the Building. Any conflict between this Lease and the Rules and
Regulations shall be governed by the terms of this Lease.
13. ADA COMPLIANCE.
a. Tenant's Compliance. Tenant, at Tenant's sole expense, shall comply
with all laws, rules, orders, ordinances, directions, regulations and
requirements of federal, state, county and municipal authorities now in force,
which shall impose any duty upon Landlord or Tenant with respect to the use or
occupation of the Premises or alteration of the Premises to accommodate persons
with special needs, including using all reasonable efforts to comply with The
Americans With Disabilities Act (the "ADA").
b. Landlord's Compliance. Landlord, at Landlord's sole expense, shall use
all reasonable efforts to meet the requirements of the ADA as it applies to the
Common Areas and restrooms of the Building; but Landlord shall have no
responsibility for ADA compliance with respect to the Premises. Landlord shall
not be required to make changes to the Common Areas or restrooms of the Building
to comply with ADA standards adopted after construction of the Building unless
specifically required to do so by law.
c. ADA Notices. If Tenant receives any notices alleging a violation of ADA
relating to any portion of the Building or Premises (including any governmental
or regulatory actions or investigations regarding non-compliance with ADA), then
Tenant shall notify Landlord in writing within ten (10) days of such notice and
provide Landlord with copies of any such notice.
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14. INSURANCE REQUIREMENTS.
a. Tenant's Liability Insurance. Throughout the Term, Tenant, at its sole
cost and expense, shall keep or cause to be kept for the mutual benefit of
Landlord, Landlord's Property Manager, and Tenant, Commercial General Liability
Insurance (1986 ISO Form or its equivalent) with a combined single limit, each
Occurrence and General Aggregate-per location of at least TWO MILLION DOLLARS
($2,000,000), which policy shall insure against liability of Tenant, arising out
of and in connection with Tenant's use of the Premises, and which shall insure
the indemnity provisions contained in this Lease. Not more frequently than once
every three (3) years, Landlord may require the limits to be increased if in its
reasonable judgment (or that of its mortgagee) the coverage is insufficient.
b. Tenant's Property Insurance. Tenant shall also carry the equivalent of
ISO Special Form Property Insurance on Tenant's Property for full replacement
value and with coinsurance waived. For purposes of this provision, "Tenant's
Property" shall mean Tenant's personal property and fixtures, and any
Non-Standard Improvements to the Premises. Tenant shall neither have, nor make,
any claim against Landlord for any loss or damage to the Tenant's Property,
regardless of the cause of the loss or damage.
c. Certificates of Insurance. Prior to occupying the Premises, and
annually thereafter, Tenant shall deliver to Landlord certificates similar to
that provided in Exhibit D attached to this Lease and incorporated here for
reference or other evidence of insurance satisfactory to Landlord. All such
policies shall be non-assessable and shall contain language to the extent
obtainable that: (i) any loss shall be payable notwithstanding any act or
negligence of Landlord or Tenant that might otherwise result in forfeiture of
the insurance, (ii) that the policies are primary and non-contributing with any
insurance that Landlord may carry, and (iii) that the policies cannot be
canceled, non-renewed, or coverage reduced except after thirty (30) days' prior
notice to Landlord. If Tenant fails to provide Landlord with such certificates
or other evidence of insurance coverage, Landlord may obtain such coverage and
the cost of such coverage shall be Additional Rent payable by Tenant upon
demand.
d. Insurance Policy Requirements. Tenant's insurance policies required by
this Lease shall: (i) be issued by insurance companies licensed to do business
in the state in which the Premises are located with a general policyholder's
ratings of at least A- and a financial rating of at least VI in the most current
Best's Insurance Reports available on the Commencement Date, or if the Best's
ratings are changed or discontinued, the parties shall agree to a comparable
method of rating insurance companies; (ii) name Landlord as an additional
insured as its interest may appear [other landlords or tenants may be added as
additional insureds in a blanket policy]; (iii) provide that the insurance not
be canceled, non-renewed or coverage materially reduced unless thirty (30) days
advance notice is given to Landlord; (iv) be primary policies; (v) provide that
any loss shall be payable notwithstanding any gross negligence of Landlord or
Tenant which might result in a forfeiture thereunder of such insurance or the
amount of proceeds payable; (vi) have no deductible exceeding TEN THOUSAND
DOLLARS ($10,000), unless approved in writing by Landlord; and (vii) be
maintained during the entire Term and any extension terms.
e. Landlord's Property Insurance. Landlord shall keep the Building,
including the improvements (but excluding Tenant's Property), insured against
damage and destruction by perils insured by the equivalent of ISO Special Form
Property Insurance in the amount of the full replacement value of the Building.
f. Mutual Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Landlord hereby releases and waives unto Tenant (including all
partners, stockholders, officers, directors, employees and agents thereof), its
successors and assigns, and Tenant hereby releases and waives unto Landlord
(including all partners, stockholders, officers, directors, employees and agents
thereof), its successors and assigns, all rights to claim damages for any
injury, loss, cost or damage to persons or to the Premises or any other
casualty, as long as the amount of such injury, loss, cost or damage has been
paid either to Landlord, Tenant, or any other person, firm or corporation, under
the terms of any Property, General Liability, or other policy of insurance, to
the extent such releases or waivers are permitted under applicable law. As
respects all policies of insurance carried or maintained pursuant to this Lease
and to the extent permitted under such policies, Tenant and Landlord each waive
the insurance carriers' rights of subrogation.
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15. INDEMNITY. Subject to the insurance requirements, releases and mutual
waivers of subrogation set forth in this Lease, Tenant agrees as follows:
a. Indemnity. Tenant shall indemnify and hold Landlord harmless from and
against any and all claims, damages, losses, liabilities, lawsuits, costs and
expenses (including attorneys' fees at all tribunal levels) arising out of or
related to (i) any activity, work, or other thing done, permitted or suffered by
Tenant in or about the Premises or the Building, (ii) any breach or default by
Tenant in the performance of any of its obligations under this Lease, or (iii)
any act or neglect of Tenant, or any officer, agent, employee, contractor,
servant, invitee or guest of Tenant.
b. Defense Obligation. If any such action is brought against Landlord,
then Tenant, upon notice from Landlord, shall defend the same through counsel
selected by Landlord's insurer, or other counsel acceptable to Landlord. The
provisions of this Section shall survive the termination of this Lease.
16. QUIET ENJOYMENT. Tenant shall have quiet enjoyment and possession of
the Premises provided Tenant promptly and fully complies with all of its
obligations under this Lease. No action of Landlord or other tenants working in
other space in the Building, or in repairing or restoring the Premises, shall be
deemed a breach of this covenant, nor shall such action give to Tenant any right
to modify this Lease either as to term, rent payables or other obligations to be
performed.
17. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE; AND ESTOPPEL CERTIFICATE.
a. Subordination and Attornment. Tenant agrees to execute within ten (10)
days after request to do so from Landlord or its mortgagee an agreement:
i. Making this Lease superior or subordinate to the interests of the
mortgagee;
ii. Agreeing to attorn to the mortgagee;
iii. Giving the mortgagee notice of, and a reasonable opportunity (which
shall in no event be less than thirty (30) days after notice thereof
is delivered to mortgagee) to cure any Landlord default and agreeing
to accept such cure if effected by the mortgagee;
iv. Permitting the mortgagee (or other purchaser at any foreclosure
sale), and its successors and assigns, on acquiring Landlord's
interest in the Premises and the Lease, to become substitute
Landlord hereunder, with liability only for such Landlord
obligations as accrue after Landlord's interest is so acquired;
v. Agreeing to attorn to any successor Landlord; and
vi. Containing such other agreements and covenants on Tenant's part as
Landlord's mortgagee may reasonably request.
b. Non-Disturbance. Tenant's obligation to subordinate its interests or
attorn to any mortgagee is conditioned upon the mortgagee's agreement not to
disturb Tenant's possession and quiet enjoyment of the Premises under this Lease
so long as Tenant is in compliance with the terms of the Lease.
c. Estoppel Certificates. Tenant agrees to execute within five (5)
business days after request, and as often as requested, estoppel certificates
confirming any factual matter requested by Landlord which is true and is within
Tenant's knowledge regarding this Lease, and the Premises, including but not
limited to: (i) the date of occupancy, (ii) Expiration Date, (iii) the amount of
Rent due and date to which Rent is paid, (iii) whether Tenant has any defense or
offsets to the enforcement of this Lease or the Rent payable, (iv) any default
or breach by Landlord, and (v) whether this Lease, together with any
modifications or amendments, is in full force and effect. Tenant shall attach to
such estoppel certificate copies of any modifications or amendments to the
Lease.
d. Foreclosure. IN the event of a foreclosure or transfer in lieu of a
foreclosure, Tenant agrees that the purchaser at the foreclosure, or transferree
("New Owner"):
(i) is relieved from the obligation to return any security deposit not
actually received by the Mortgagee of the New Owner;
(ii) shall not be bound by Rents paid more than one month in advance; and
(iii) shall not be bound by actions taken by Landlord with respect
to this Lease not permitted under the terms of the Mortgage.
e. Tenant Acknowledgment. Tenant acknowledges that (i) Landlord owns all
personal property affixed to the Real Property, other than trade fixtures,
office equipment or other personal property, the use of which is not provided by
Landlord to Tenant under the Lease, and (ii) Tenant is obligated to repair any
damages incidental to the removal of trade fixtures, office furniture or office
equipment owned by Tenant.
f. Notices. Any notice delivered to Tenant by the Mortgagee shall be valid
if delivered to the Premises demised by this Lease.
18. ASSIGNMENT - SUBLEASE.
a. Landlord Consent. Tenant may not assign or encumber this Lease or its
interest in the Premises arising under this Lease, and may not sublet all or any
part of the Premises without first obtaining the written consent of Landlord,
which consent shall not be withheld unreasonably. Landlord will not consent to
an assignment or sublease that might result in a use that conflicts with the
rights of any existing tenant. One consent shall not be the basis for any
further consent.
b. Definition of Assignment. For the purpose of this Section 18, the word
"assignment" shall be defined and deemed to include the following: (i) if Tenant
is a partnership, the withdrawal or change, whether voluntary, involuntary or by
operation of law, of partners owning thirty percent (30%) or more of the
partnership, or the dissolution of the partnership; (ii) if Tenant consists of
more than one person, an assignment, whether voluntary, involuntary, or by
operation of law, by one person to one of the other persons that is a Tenant;
(iii) if Tenant is a corporation, any dissolution or reorganization of Tenant,
or the sale or other transfer of a controlling percentage (hereafter defined) of
capital stock of Tenant other than to an affiliate or subsidiary or the sale of
fifty-one percent (51%) in value of the assets of Tenant; (iv) if Tenant is a
limited liability company, the change of members whose interest in the company
is fifty percent (50%) or more. The phrase "controlling percentage" means the
ownership of, and the right to vote, stock possessing at least fifty-one percent
(51%) of the total combined voting power of all classes of Tenant's capital
stock issued, outstanding and entitled to vote for the election of directors, or
such lesser percentage as is required to provide actual control over the affairs
of the corporation; except that, if the Tenant is a publicly traded company,
public trades or sales of the Tenant's stock on a national stock exchange shall
not be considered an assignment hereunder even if the aggregate of the trades of
sales exceeds fifty percent (50%) of the capital stock of the company.
c. Permitted Assignments/Subleases. Notwithstanding the foregoing, Tenant
may assign this Lease or sublease part or all of the Premises without Landlord's
consent to: (i) any corporation, limited liability company, or partnership that
controls, is controlled by, or is under common control with, Tenant at the
Commencement Date; or (ii) any corporation or limited liability company
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; provided however, the assignor remains liable under
the Lease and the assignee or sublessee is a bona fide entity and assumes the
obligations of Tenant, is as creditworthy as the Tenant, and continues the same
Permitted Use as provided under Section 4.
d. Notice to Landlord. Landlord must be given prior written notice of
every assignment or subletting, and failure to do so shall be a default
hereunder.
e. Prohibited Assignments/Subleases. In no event shall this Lease be
assignable by operation of any law, and Tenant's rights hereunder may not
become, and shall not be listed by Tenant as an asset under any bankruptcy,
insolvency or reorganization proceedings. Acceptance of Rent by Landlord after
any non-permitted assignment or sublease shall not constitute approval thereof
by Landlord.
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f. Limitation on Rights of Assignee/Sublessee. Any assignment or sublease
for which Landlord's consent is required shall not include the right to exercise
any options to renew the Lease Term, expand the Premises, or similar options,
unless specifically provided for in the consent.
g. Tenant Not Released. No assignment or sublease shall release Tenant of
any of its obligations under this Lease.
h. Landlord's Right to Collect Sublease Rents upon Tenant Default. If the
Premises (or any portion) is sublet and Tenant defaults under its obligations to
Landlord, then Landlord is authorized, at its option, to collect all sublease
rents directly from the Sublessee. Tenant hereby assigns the right to collect
the sublease rents to Landlord in the event of Tenant default. The collection of
sublease rents by Landlord shall not relieve Tenant of its obligations under
this Lease, nor shall it create a contractual relationship between Sublessee and
Landlord or give Sublessee any greater estate or right to the Premises than
contained in its Sublease.
i. Excess Rents. If Tenant assigns this Lease or subleases all or part
of the Premises at a rental rate that exceeds the rentals paid to
Landlord, then any such excess shall be paid over to Landlord by
Tenant.
j. Landlord's Fees. Tenant shall pay Landlord an administration fee of
$1,000.00 per assignment or sublease transaction for which consent is required.
If Landlord assists Tenant in finding an assignee or subtenant, Landlord shall
be paid a reasonable fee for such assistance.
k. Unauthorized Assignment or Sublease. Any unauthorized assignment or
sublease shall constitute a default under the terms of this Lease. In addition
to its other remedies for Default, Landlord may elect to increase Base Rent to
150% of the Base Rent reserved under the terms of this Lease.
19. DAMAGES TO PREMISES.
a. Landlord's Restoration Obligations. If the Building or Premises are
damaged by fire or other casualty ("Casualty"), then Landlord shall repair and
restore the Premises to substantially the same condition of the Premises
immediately prior to such Casualty, subject to the following terms and
conditions:
i. The casualty must be insured under Landlord's insurance policies,
and Landlord's obligation is limited to the extent of the insurance
proceeds received by Landlord. Landlord's duty to repair and restore
the Premises shall not begin until receipt of the insurance
proceeds.
ii. Landlord's lender(s) must permit the insurance proceeds to be used
for such repair and restoration.
iii. Landlord shall have no obligation to repair and restore Tenant's
trade fixtures, decorations, signs, contents, or any Non-Standard
Improvements to the Premises.
b. Termination of Lease by Landlord. Landlord shall have the option of
terminating the Lease if: (i) the Premises is rendered wholly untenantable; (ii)
the Premises is damaged in whole or in part as a result of a risk which is not
covered by Landlord's insurance policies; (iii) Landlord's lender does not
permit a sufficient amount of the insurance proceeds to be used for restoration
purposes; (iv) the Premises is damaged in whole or in part during the last two
years of the Term; or (v) the Building containing the Premises is damaged
(whether or not the Premises is damaged) to an extent of fifty percent (50%) or
more of the fair market value thereof. If Landlord elects to terminate this
Lease, then it shall give notice of the cancellation to Tenant within sixty (60)
days after the date of the Casualty. Tenant shall vacate and surrender the
Premises to Landlord within fifteen (15) days after receipt of the notice of
termination.
c. Termination of Lease by Tenant. Tenant shall have the option of
terminating the Lease if: (i) Landlord has failed to substantially restore the
damaged Building or Premises within one hundred eighty (180) days of the
Casualty ("Restoration Period"); (ii) the Restoration Period has not been
delayed by force majeure; and (iii) Tenant gives Landlord notice of the
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termination within fifteen 15 days after the end of the Restoration Period (as
extended by any force majeure delays). If Landlord is delayed by force majeure,
then Landlord must provide Tenant with notice of the delays within fifteen (15)
days of the force majeure event stating the reason for the delays and a good
faith estimate of the length of the delays.
d. Tenant's Restoration Obligations. Unless terminated, the Lease shall
remain in full force and effect, and Tenant shall promptly repair, restore, or
replace Tenant's trade fixtures, decorations, signs, contents, and any
Non-Standard Improvements to the Premises. All repair, restoration or
replacement shall be at least to the same condition as existed prior to the
Casualty. The proceeds of all insurance carried by Tenant on its property shall
be held in trust by Tenant for the purposes of such repair, restoration, or
replacement.
e. Rent Abatement. If Premises is rendered wholly untenantable by the
Casualty, then the Rent payable by Tenant shall be fully abated. If the Premises
is only partially damaged, then Tenant shall continue the operation of Tenant's
business in any part not damaged to the extent reasonably practicable from the
standpoint of prudent business management, and Rent and other charges shall be
abated proportionately to the portion of the Premises rendered untenantable. The
abatement shall be from the date of the Casualty until the Premises have been
substantially repaired and restored, or until Tenant's business operations are
restored in the entire Premises, whichever shall first occur. However, if the
Casualty is caused by the negligence or other wrongful conduct of Tenant or of
Tenant's subtenants, licensees, contractors, or invitees, or their respective
agents or employees, there shall be no abatement of Rent.
f. Waiver of Claims. The abatement of the Rent set forth above is Tenant's
exclusive remedy against Landlord in the event of a Casualty. Tenant hereby
waives all claims against Landlord for any compensation or damage for loss of
use of the whole or any part of the Premises and/or for any inconvenience or
annoyance occasioned by any Casualty and any resulting damage, destruction,
repair, or restoration.
20. EMINENT DOMAIN.
a. Effect on Lease. If all of the Premises are taken under the power of
eminent domain (or by conveyance in lieu thereof), then this Lease shall
terminate as of the date possession is taken by the condemnor, and Rent shall be
adjusted between Landlord and Tenant as of such date. If only a portion of the
Premises is taken and Tenant can continue use of the remainder, then this Lease
will not terminate, but Rent shall abate in a just and proportionate amount to
the loss of use occasioned by the taking.
b. Right to Condemnation Award. Landlord shall be entitled to receive and
retain the entire condemnation award for the taking of the Building and
Premises. Tenant shall have no right or claim against Landlord for any part of
any award received by Landlord for the taking. Tenant shall have no right or
claim for any alleged value of the unexpired portion of this Lease, or its
leasehold estate, or for costs of removal, relocation, business interruption
expense or any other damages arising out of such taking. Tenant, however, shall
not be prevented from making a claim against the condemning party (but not
against Landlord ) for any moving expenses, loss of profits, or taking of
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Tenant's personal property (other than its leasehold estate) to which Tenant may
be entitled; provided that any such award shall not reduce the amount of the
award otherwise payable to Landlord for the taking of the Building and Premises.
21. ENVIRONMENTAL COMPLIANCE.
a. Environmental Laws. The term " Environmental Laws" shall mean all now
existing or hereafter enacted or issued statutes, laws, rules, ordinances,
orders, permits and regulations of all state, federal, local and other
governmental and regulatory authorities, agencies and bodies applicable to the
Premises, pertaining to environmental matters or regulating, prohibiting or
otherwise having to do with asbestos and all other toxic, radioactive, or
hazardous wastes or materials including, but not limited to, the Federal Clean
Air Act, the Federal Water Pollution Control Act, and the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as from time to
time amended.
b. Tenant's Responsibility. Tenant covenants and agrees that it will keep
and maintain the Premises at all times in compliance with Environmental Laws.
Tenant shall not (either with or without negligence) cause or permit the escape,
disposal or release of any biologically active or other hazardous substances, or
materials on the Property. Tenant shall not allow the storage or use of such
substances or materials in any manner not sanctioned by law or in compliance
with the highest standards prevailing in the industry for the storage and use of
such substances or materials, nor allow to be brought onto the Property any such
materials or substances except to use in the ordinary course of Tenant's
business, and then only after notice is given to Landlord of the identity of
such substances or materials. No such notice shall be required, however, for
commercially reasonable amounts of ordinary office supplies and janitorial
supplies. Tenant shall execute affidavits, representations and the like, from
time to time, at Landlord's request, concerning Tenant's best knowledge and
belief regarding the presence of hazardous substances or materials on the
Premises.
c. Tenant's Liability. Tenant shall hold Landlord free, harmless, and
indemnified from any penalty, fine, claim, demand, liability, cost, or charge
whatsoever which Landlord shall incur, or which Landlord would otherwise incur,
by reason of Tenant's failure to comply with this Section 21 including, but not
limited to: (i) the cost of full remediation of any contamination to bring the
Property into the same condition as prior to the Commencement Date and into full
compliance with all Environmental Laws; (ii) the reasonable cost of all
appropriate tests and examinations of the Premises to confirm that the Premises
and any other contaminated areas have been remediated and brought into
compliance with all Environmental Laws; and (iii) the reasonable fees and
expenses of Landlord's attorneys, engineers, and consultants incurred by
Landlord in enforcing and confirming compliance with this Section 21.
d. Limitation on Tenant's Liability. Tenant's obligations under this
Section 21 shall not apply to any condition or matter constituting a violation
of any Environmental Laws: (i) which existed prior to the commencement of
Tenant's use or occupancy of the Premises; (ii) which was not caused, in whole
or in part, by Tenant or Tenant's agents, employees, officers, partners,
contractors or invitees; or (iii) to the extent such violation is caused by, or
results from the acts or neglects of Landlord or Landlord's agents, employees,
officers, partners, contractors, guests, or invitees.
e. Inspections by Landlord. Landlord and its engineers, technicians, and
consultants (collectively the "Auditors") may, from time to time as Landlord
deems appropriate, conduct periodic tests and examinations ("Audits") of the
Premises to confirm and monitor Tenant's compliance with this Section 21. Such
Audits shall be conducted in such a manner as to minimize the interference with
Tenant's Permitted Use; however in all cases, the Audits shall be of such nature
and scope as shall be reasonably required by then existing technology to confirm
Tenant's compliance with this Section 21. Tenant shall fully cooperate with
Landlord and its Auditors in the conduct of such Audits. The cost of such Audits
shall be paid by Landlord unless an Audit shall disclose a material failure of
Tenant to comply with this Section 21, in which case, the cost of such Audit,
and the cost of all subsequent Audits made during the Term and within thirty
(30) days thereafter (not to exceed two (2) such Audits per calendar year),
shall be paid for on demand by Tenant.
f. Landlord's Liability. Landlord represents and warrants that, to the
best of Landlord's knowledge, there are no hazardous materials on the Premises
as of the Commencement Date in violation of any Environmental Laws. Landlord
shall indemnify and hold Tenant harmless from any liability resulting from
Landlord's violation of this representation and warranty.
g. Property. For the purposes of this Section 21, the term "Property"
shall include the Premises, Building, all Common Areas, the real estate upon
which the Building is located; all personal property (including that owned by
Tenant); and the soil, ground water, and surface water of the real estate upon
which the Building is located.
h. Tenant's Liability After Termination of Lease. The covenants contained
in this Section 21 shall survive the expiration or termination of this Lease,
and shall continue for so long as Landlord and its successors and assigns may be
subject to any expense, liability, charge, penalty, or obligation against which
Tenant has agreed to indemnify Landlord under this Section 21.
22. DEFAULT.
a. Tenant's Default. Tenant shall be in default under this Lease if
Tenant:
i. Fails to pay when due any Base Rent, Additional rent, or any other
sum of money which Tenant is obligated to pay, as provided in this
Lease;
ii. Breaches any other agreement, covenant or obligation in this Lease
and such breach is not remedied within fifteen (15) days after
Landlord gives Tenant notice specifying the breach, or if such
breach cannot, with due diligence, be cured within fifteen (15)
days, Tenant does not commence curing within fifteen (15) days and
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with reasonable diligence completely cure the breach within a
reasonable period of time after the notice;
iii. Files any petition or action for relief under any creditor's law
(including bankruptcy, reorganization, or similar action), either in
state or federal court, or has such a petition or action filed
against it which is not stayed or vacated within sixty (60) days
after filing; or
iv. Makes any transfer in fraud of creditors as defined in Section 548
of the United States Bankruptcy Code (11 U.S.C. 548, as amended or
replaced), has a receiver appointed for its assets (and the
appointment is not stayed or vacated within thirty (30) days), or
makes an assignment for benefit of creditors.
b. Landlord's Remedies. In the event of a Tenant default, Landlord at its
option may do one or more of the following:
i. Terminate this Lease and recover all damages caused by Tenant's
breach, including consequential damages for lost future rent;
ii. Repossess the Premises, with or without terminating, and relet the
Premises at such amount as Landlord deems reasonable;
iii. Declare the entire remaining Base Rent and Additional Rent
immediately due and payable, such amount to be discounted to its
present value at a discount rate equal to the U.S. Treasury Bill or
Note rate with the closest maturity to the remaining term of the
Lease as selected by Landlord;
iv. Bring action for recovery of all amounts due from Tenant;
v. Seize and hold any personal property of Tenant located in the
Premises and assert against the same a lien for monies due Landlord;
vi. Lock the Premises and deny Tenant access thereto without obtaining
any court authorization; or
vii. Pursue any other remedy available in law or equity.
c. Landlord's Expenses; Attorneys Fees. All reasonable expenses of
Landlord in repairing, restoring, or altering the Premises for reletting as
general office space, together with leasing fees and all other expenses in
seeking and obtaining a new Tenant, shall be charged to and be a liability of
Tenant. Landlord's reasonable attorneys' fees in pursuing any of the foregoing
remedies, or in collecting any Rent or Additional Rent due by Tenant hereunder,
shall be paid by Tenant.
d. Remedies Cumulative. All rights and remedies of Landlord are
cumulative, and the exercise of any one shall not be an election excluding
Landlord at any other time from exercise of a different or inconsistent remedy.
No exercise by Landlord of any right or remedy granted herein shall constitute
or effect a termination of this Lease unless Landlord shall so elect by notice
delivered to Tenant. The failure of Landlord to exercise its rights in
connection with this Lease or any breach or violation of any term, or any
subsequent breach of the same or any other term, covenant or condition herein
contained shall not be a waiver of such term, covenant or condition or any
subsequent breach of the same or any other covenant or condition herein
contained.
e. No Accord and Satisfaction. No acceptance by Landlord of a lesser sum
than the Rent, Additional Rent and other sums then due shall be deemed to be
other than on account of the earliest installment of such payments due, nor
shall any endorsement or statement on any check or any letter accompanying any
check or payment be deemed as accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such installment or pursue any other remedy provided in this Lease.
f. No Reinstatement. No payment of money by Tenant to Landlord after the
expiration or termination of this Lease shall reinstate or extend the Term, or
make ineffective any notice of termination given to Tenant prior to the payment
of such money. After the service of notice or the commencement of a suit, or
after final judgment granting Landlord possession of the Premises, Landlord may
receive and collect any sums due under this Lease, and the payment thereof shall
14
not make ineffective any notice or in any manner affect any pending suit or any
judgment previously obtained.
g. Summary Ejectment. Tenant agrees that in addition to all other rights
and remedies Landlord may obtain an order for summary ejectment from any court
of competent jurisdiction without prejudice to Landlord's rights to otherwise
collect rents or breach of contract damages from Tenant.
23. MULTIPLE DEFAULTS.
a. Loss of Option Rights. Tenant acknowledges that any rights or options
of first refusal, or to extend the Term, to expand the size of the Premises, to
purchase the Premises or the Building, or other similar rights or options which
have been granted to Tenant under this Lease are conditioned upon the prompt and
diligent performance of the terms of this Lease by Tenant. Accordingly, should
Tenant default under this Lease on two (2) or more occasions during any twelve
(12) month period, in addition to all other remedies available to Landlord, all
such rights and options shall automatically, and without further action on the
part of any party, expire and be of no further force and effect.
b. Increased Security Deposit. Should Tenant default in the payment of
Base Rent, Additional Rent, or any other sums payable by Tenant under this Lease
on two (2) or more occasions during any twelve (12) month period, regardless of
whether Landlord permits such default to be cured, then, in addition to all
other remedies otherwise available to Landlord, Tenant shall, within ten (10)
days after demand by Landlord, post a Security Deposit in, or increase the
existing Security Deposit to, a sum equal to three (3) months' installments of
Base Rent. The Security Deposit shall be governed by the terms of this Lease.
c. Effect on Notice Rights and Cure Periods. Should Tenant default under
this Lease on two (2) or more occasions during any twelve (12) month period, in
addition to all other remedies available to Landlord, any notice requirements or
cure periods otherwise set forth in this Lease with respect to a default by
Tenant shall not apply.
24. BANKRUPTCY.
a. Trustee's Rights. Landlord and Tenant understand that, notwithstanding
contrary terms in this Lease, a trustee or debtor in possession under the United
States Bankruptcy Code, as amended, (the "Code") may have certain rights to
assume or assign this Lease. This Lease shall not be construed to give the
trustee or debtor in possession any rights greater than the minimum rights
granted under the Code.
b. Adequate Assurance. Landlord and Tenant acknowledge that, pursuant to
the Code, Landlord is entitled to adequate assurances of future performance of
the provisions of this Lease. The parties agree that the term "adequate
assurance" shall include at least the following:
i. In order to assure Landlord that any proposed assignee will have the
resources with which to pay all Rent payable pursuant to the
provisions of this Lease, any proposed assignee must have, as
demonstrated to Landlord's satisfaction, a net worth (as defined in
accordance with generally accepted accounting principles
consistently applied) of not less than the net worth of Tenant on
the Effective Date (as hereinafter defined), increased by seven
percent (7%), compounded annually, for each year from the Effective
Date through the date of the proposed assignment. It is understood
and agreed that the financial condition and resources of Tenant were
a material inducement to Landlord in entering into this Lease.
ii. Any proposed assignee must have been engaged in the conduct of
business for the five (5) years prior to any such proposed
assignment, which business does not violate the Use provisions under
Section 4 above, and such proposed assignee shall continue to engage
in the Permitted Use under Section 4. It is understood that
Landlord's asset will be substantially impaired if the trustee in
bankruptcy or any assignee of this Lease makes any use of the
Premises other than the Permitted Use.
c. Assumption of Lease Obligations. Any proposed assignee of this Lease
must assume and agree to be personally bound by the provisions of this Lease.
15
25. NOTICES.
a. Addresses. All notices, demands and requests by Landlord or Tenant
shall be sent to the Notice Addresses set forth in Section 1l, or to such other
address as a party may specify by duly given notice.
b. Form; Delivery; Receipt. ALL NOTICES, DEMANDS AND REQUESTS WHICH MAY BE
GIVEN OR WHICH ARE REQUIRED TO BE GIVEN BY EITHER PARTY TO THE OTHER MUST BE IN
WRITING UNLESS OTHERWISE SPECIFIED. Notices, demands or requests shall be deemed
to have been properly given for all purposes if (i) delivered against a written
receipt of delivery, (ii) mailed by express, registered or certified mail of the
United States Postal Service, return receipt requested, postage prepaid, or
(iii) delivered to a nationally recognized overnight courier service for next
business day delivery to the receiving party's address as set forth above or
(iv) delivered via telecopier or facsimile transmission to the facsimile number
listed above, with an original counterpart of such communication sent
concurrently as specified in subsection (ii) or (iii) above and with written
confirmation of receipt of transmission provided. Each such notice, demand or
request shall be deemed to have been received upon the earlier of the actual
receipt or refusal by the addressee or three (3) business days after deposit
thereof at any main or branch United States post office if sent in accordance
with subsection (ii) above, and the next business day after deposit thereof with
the courier if sent pursuant to subsection (iii) above.
c. Address Changes. The parties shall notify the other of any change in
address, which notification must be at least fifteen (15) days in advance of it
being effective.
d. Notice by Legal Counsel. Notices may be given on behalf of any party by
such party's legal counsel.
16
26. HOLDING OVER. If Tenant holds over after the Expiration Date or other
termination of this Lease, such holding over shall not be a renewal of this
Lease but shall create a tenancy-at-sufferance. Tenant shall continue to be
bound by all of the terms and conditions of this Lease, except that during such
tenancy-at-sufferance Tenant shall pay to Landlord (i) Base Rent at the rate
equal to two hundred percent (200%) of that provided for as of the expiration or
termination date, and (ii) any and all Operating Expenses and other forms of
Additional Rent payable under this Lease. The increased Rent during such holding
over is intended to compensate Landlord partially for losses, damages and
expenses, including frustrating and delaying Landlord's ability to secure a
replacement tenant. If Landlord loses a prospective tenant because Tenant fails
to vacate the Premises on the Expiration Date or any termination of the Lease
after notice to do so, then Tenant will be liable for such damages as Landlord
can prove because of Tenant's wrongful failure to vacate.
27. RIGHT TO RELOCATE.
a. Substitute Premises. Landlord, at its option, may substitute for the
Premises other space (hereafter called "Substitute Premises") owned by Landlord
in the same geographical vicinity before the Commencement Date or at any time
during the Term or any extension of this Lease. Insofar as reasonably possible,
the Substitute Premises shall be of comparable quality and shall have a
comparable square foot area and a configuration substantially similar to the
Premises.
b. Notice. Landlord shall give Tenant at least sixty (60) days notice of
its intention to relocate Tenant to the Substitute Premises. This notice will be
accompanied by a floor plan of the Substitute Premises. After such notice,
Tenant shall have ten (10) days within which to agree with Landlord on the
proposed Substitute Premises and unless such agreement is reached within such
period of time, Landlord may terminate this Lease at the end of the sixty (60)
day period of time following the notice.
c. Upfit of Substitute Premises. Landlord agrees to construct or alter, at
its own expense, the Substitute Premises as expeditiously as possible so that
they are in substantially the same condition that the Premises were in
immediately prior to the relocation. Landlord shall have the right to reuse the
fixtures, improvements and alterations used in the Premises. Tenant agrees to
occupy the Substitute Premises as soon as Landlord's work is substantially
completed.
d. Relocation Costs. If relocation occurs after the Commencement Date,
then Landlord shall pay Tenant's reasonable third-party costs of moving Tenant's
furnishings, telephone and computer wiring, and other property to the Substitute
Premises, and reasonable printing costs associated with the change of address.
e. Lease Terms. Except as provided herein, Tenant agrees that all of the
obligations of this Lease, including the payment of Rent (to be determined on a
per rentable square foot basis and applied to the Substitute Premises), will
continue despite Tenant's relocation to the Substitute Premises. Upon
substantial completion of the Substitute Premises, this Lease will apply to the
Substitute Premises as if the Substitute Premises had been the space originally
described in this Lease.
f. Limitation on Landlord's Liability. Except as provided above, Landlord
shall not be liable or responsible in any way for damages or injuries suffered
by Tenant pursuant to the relocation in accordance with this provision
including, but not limited to, the loss of goodwill, business, productivity or
profits.
17
28. BROKER'S COMMISSIONS.
a. Broker. Each party represents and warrants to the other that it has not
dealt with any real estate broker, finder or other person with respect to this
Lease in any manner, except the Broker identified in Section 1m.
b. Landlord's Obligation. Landlord shall pay any commissions or fees that
are payable to the Broker with respect to this Lease pursuant to Landlord's
separate agreement with the Broker.
c. Indemnity. Each party shall indemnify and hold the other party harmless
from any and all damages resulting from claims that may be asserted against the
other party by any other broker, finder or other person (including, without
limitation, any substitute or replacement broker claiming to have been engaged
by indemnifying party in the future), claiming to have dealt with the
indemnifying party in connection with this Lease or any amendment or extension
hereto, or which may result in Tenant leasing other or enlarged space from
Landlord. The provisions of this Section shall survive the termination of this
Lease.
29. MISCELLANEOUS.
a. No Agency. Tenant is not, may not become, and shall never represent
itself to be an agent of Landlord, and Tenant acknowledges that Landlord's title
to the Building is paramount, and that it can do nothing to affect or impair
Landlord's title.
b. Force Majeure. The term "force majeure" means: fire, flood, extreme
weather, labor disputes, strike, lock-out, riot, government interference
(including regulation, appropriation or rationing), unusual delay in
governmental permitting, unusual delay in deliveries or unavailability of
materials, unavoidable casualties, Act of God, or other causes beyond the
Landlord's reasonable control.
c. Building Standard Improvements. The term "Building Standard
Improvements" shall mean the standards for normal construction of general office
space within the Building as specified by Landlord, including design and
construction standards, electrical load factors, materials, fixtures and
finishes.
d. Limitation on Damages. Notwithstanding any other provisions in this
Lease, Landlord shall not be liable to Tenant for any special, consequential,
incidental or punitive damages.
e. Satisfaction of Judgments Against Landlord. If Landlord, or its
employees, officers, directors, stockholders or partners are ordered to pay
Tenant a money judgment because of Landlord's default under this Lease, said
money judgment may only be enforced against and satisfied out of: (i) Landlord's
interest in the Building in which the Premises are located including the rental
income and proceeds from sale; and (ii) any insurance or condemnation proceeds
received because of damage or condemnation to, or of, said Building that are
available for use by Landlord. No other assets of Landlord or said other parties
exculpated by the preceding sentence shall be liable for, or subject to, any
such money judgment.
f. Interest. Should Tenant fail to pay any amount due to Landlord within
30 days of the date such amount is due (whether Base Rent, Additional Rent, or
any other payment obligation), then the amount due shall begin accruing interest
at the rate of 18% per annum, compounded monthly, or the highest permissible
rate under applicable usury law, whichever is less, until paid.
18
g. Legal Costs. Should Landlord prevail in any legal proceedings against
the Tenant for breach of any provision in this Lease, then Tenant shall be
liable for the costs and expenses of the Landlord, including its reasonable
attorneys' fees (at all tribunal levels).
h. Sale of Premises or Building. Landlord may sell the Premises or the
Building without affecting the obligations of Tenant hereunder; upon the sale of
the Premises or the Building, Landlord shall be relieved of all responsibility
for the Premises and shall be released from any liability thereafter accruing
under this Lease.
i. Time of the Essence. Time is of the essence in the performance of all
obligations under the terms of this Lease.
j. Transfer of Security Deposit. If any Security Deposit or prepaid Rent
has been paid by Tenant, Landlord may transfer the Security Deposit or prepaid
Rent to Landlord's successor and upon such transfer, Landlord shall be released
from any liability for return of the Security Deposit or prepaid Rent.
k. Tender of Premises. The delivery of a key or other such tender of
possession of the Premises to Landlord or to an employee of Landlord shall not
operate as a termination of this Lease or a surrender of the Premises unless
requested in writing by Landlord.
l. Tenant's Financial Statements. Upon request of Landlord, Tenant agrees
to furnish to Landlord copies of Tenant's most recent annual, quarterly and
monthly financial statements, audited if available. The financial statements
shall be prepared in accordance with generally accepted accounting principles,
consistently applied. The financial statements shall include a balance sheet and
a statement of profit and loss, and the annual financial statement shall also
include a statement of changes in financial position and appropriate explanatory
notes. Landlord may deliver the financial statements to any prospective or
existing mortgagee or purchaser of the Building.
m. Recordation. This Lease may not be recorded without Landlord's prior
written consent, but Tenant and Landlord agree, upon the request of the other
party, to execute a memorandum hereof for recording purposes.
n. Partial Invalidity. The invalidity of any portion of this Lease shall
not invalidate the remaining portions of the Lease.
o. Binding Effect. This Lease shall be binding upon the respective parties
hereto, and upon their heirs, executors, successors and assigns.
p. Entire Agreement. This Lease supersedes and cancels all prior
negotiations between the parties, and no changes shall be effective unless in
writing signed by both parties. Tenant acknowledges and agrees that it has not
relied upon any statements, representations, agreements or warranties except
those expressed in this Lease, and that this Lease contains the entire agreement
of the parties hereto with respect to the subject matter hereof.
q. Good Standing. If requested by Landlord, Tenant shall furnish
appropriate legal documentation evidencing the valid existence in good standing
of Tenant, and the authority of any person signing this Lease to act for the
Tenant. If Tenant signs as a corporation, each of the persons executing this
Lease on behalf of Tenant does hereby covenant and warrant that Tenant is a duly
authorized and existing corporation, that Tenant has and is qualified to do
business in the State in which the Premises are located, that the corporation
has a full right and authority to enter into this Lease and that each of the
persons signing on behalf of the corporation is authorized to do so.
r. Terminology. The singular shall include the plural, and the masculine,
feminine or neuter includes the other.
s. Headings. Headings of sections are for convenience only and shall not
be considered in construing the meaning of the contents of such section.
t. Choice of Law. This Lease shall be interpreted and enforced in
accordance with the laws of the State in which the Premises are located.
19
u. Effective Date. The submission of this Lease to Tenant for review does
not constitute a reservation of or option for the Premises, and this Lease shall
become effective as a contract only upon the execution and delivery by both
Landlord and Tenant. The date of execution shall be entered on the top of the
first page of this Lease by Landlord, and shall be the date on which the last
party signed the Lease, or as otherwise may be specifically agreed by both
parties. Such date, once inserted, shall be established as the final day of
ratification by all parties to this Lease, and shall be the date for use
throughout this Lease as the "Effective Date".
30. SPECIAL CONDITIONS. The following special conditions, if any, shall
apply, and where in conflict with earlier provisions in this Lease shall
control:
a. Tenant Improvements. Tenant is taking the Premises "as is", as provided
in Section Eight of this Lease, except that Landlord agrees, at its own cost and
expense, to do the following prior to Tenant's occupancy: (i) thoroughly clean
the Premises, including vacuuming, mopping, cleaning windows and blinds, light
fixtures, and HVAC returns and diffuser; (ii) repair any existing damage; (iii)
refinish doors, as needed; and (iv) remove all debris. If Tenant wants
improvements or alterations to be made, in addition to the stated, the same
shall be made in accordance with Section Eight of the Lease and at Tenant's cost
and expense. Tenant shall pay for any improvements or alterations made at its
expense within ten days of the receipt of an invoice from Landlord for the same.
31. ADDENDA AND EXHIBITS. If any addenda are noted below, such addenda are
incorporated herein and made a part of this Lease.
a. LEASE ADDENDUM NUMBER ONE - OPERATING EXPENSE PASS THROUGHS
b. EXHIBIT A - PREMISES
c. EXHIBIT B - RULES AND REGULATIONS
d. EXHIBIT C - COMMENCEMENT AGREEMENT
e. EXHIBIT D - INSURANCE CERTIFICATE
20
IN WITNESS WHEREOF, Landlord and Tenant have executed this lease in four
originals, all as of the day and year first above written.
TENANT:
CYBERLUX CORPORATION
a Nevada corporation
By: /s/ Donald F. Evans
---------------------------------------------------
Name: Donald F. Evans
-------------------------------------------------
Title: Chairman and CEO
-----------------------------------------------
Date: 1/20/04
-----------------------------------------------
Attest: John W. Ringo, Esq.
----------------------------------------------
Cyberlux Corporate Secretary
Affix Corporate Seal:
LANDLORD:
HIGHWOODS REALTY LIMITED PARTNERSHIP
a North Carolina limited partnership
By: Highwoods Properties, Inc., its general partner
a Maryland corporation
By: /s/ Robert G. Cutlip
------------------------------------------------
Robert G. Cutlip, Vice President
Date: 1/20/04
Attest: /s/ Cynthia A. Morgan
---------------------------------------------
Cynthia A. Morgan, Assistant Secretary
Affix Corporate Seal:
21
ACKNOWLEDGMENT
STATE OF _______________________ (Corporation)
COUNTY OF _____________________
I, the undersigned Notary Public, certify that
____________________________________ personally came before me this day and
acknowledged that ____he is _____________________ Secretary of Cyberlux
Corporaiton, a Nevada corporation, and that by authority duly given and as the
act of the corporation, the foregoing instrument was signed in its name by
_______________________, as its _________________ President, attested by
________________________________ as its ____________________ Secretary, and
sealed with its common corporate seal.
WITNESS my hand and notarial seal, this ____ day of __________________,
20 ______.
Notary Public: ______________________________
Name: ____________________________________
My Commission Expires: _____________________
22
CORPORATE RESOLUTION
The undersigned hereby represent that the following is a complete and
exact copy of Resolutions adopted by Tenant's Board of Directors on
________________, 20__:
WHEREAS, Cyberlux Corporation (the "Corporation") wants to lease space
from Highwoods Realty Limited Partnership; and
WHEREAS, duly authorized personnel of the Corporation have negotiated the
terms and conditions of the lease of space, as set forth in a written lease; and
WHEREAS, the Corporation's board of directors has considered the lease of
space and reviewed the written lease and believe that it is in the best interest
of the Corporation to enter the lease for space;
NOW THEREFORE, BE IT RESOLVED, that the Board of Directors hereby approves
the written lease in the form presented to the Board of Directors on the date
that these resolutions are adopted and hereby authorizes, the Chairman of the
Board or the President or any Vice President and the Secretary or any Assistant
Secretary to sign and delivery the lease in substantially the same form as
presented; and
BE IT FURTHER RESOLVED, that the officers of Corporation are hereby
authorized and empowered to take any additional action as may be necessary or
appropriate to carry out the intent of these resolutions.
This the _______ day of __________________________, 20 __.
By: __________________________________
____________________ Secretary
23
LEASE ADDENDUM NUMBER ONE [BASE YEAR CALENDAR YEAR]
ADDITIONAL RENT - OPERATING EXPENSE PASS THROUGHS. For the calendar year
commencing on JANUARY 1, 2005 and for each calendar year thereafter, Tenant
shall pay to Landlord, as Additional Rent, Tenant's Proportionate Share of any
increase in Operating Expenses (as hereinafter defined) incurred by Landlord's
operation or maintenance of the Building above the Operating Expenses Landlord
incurred during the Base Year (as hereinafter defined).
For purposes of calculating Tenant's Proportionate Share of real and
personal property taxes, Landlord shall use the Base Year or the year in which
the Building and improvements are completed and are fully assessed, whichever
shall be later. Tenant's Proportionate Share shall be calculated by dividing the
approximately 2,405 rentable square feet of the Premises by the approximately
89,392 net rentable square feet of the Building, which equals 2.6904%. If during
any calendar year the occupancy of the rentable area of the Building is less
than 95% full, then Operating Expenses (as hereinafter defined) will be adjusted
for such calendar year at a rate of 95% occupancy.
For the calendar year commencing on JANUARY 1, 2005 and for each calendar
year thereafter during the Term, Landlord shall estimate the amount the
Operating Expenses shall increase for such calendar year above the Operating
Expenses incurred during the Base Year. Landlord shall send to Tenant a written
statement of the amount of Tenant's Proportionate Share of any estimated
increase in Operating Expenses and Tenant shall pay to Landlord, monthly,
Tenant's Proportionate Share of such increase in Operating Expenses. Within one
hundred and eighty (180) days after the end of each calendar year or as soon as
possible thereafter, Landlord shall send a copy of the Annual Statement to
Tenant. Pursuant to the Annual Statement, Tenant shall pay to Landlord
Additional Rent as owed or Landlord shall adjust Tenant's Rent payments if
Landlord owes Tenant a credit. After the Expiration Date, Landlord shall send
Tenant the final Annual Statement for the Term, and Tenant shall pay to Landlord
Additional Rent as owed or if Landlord owes Tenant a credit, then Landlord shall
pay Tenant a refund. If there is a decrease in Operating Expenses in any
subsequent year below Operating Expenses for the Base Year then no additional
rent shall be due on account of Operating Expenses, but Tenant shall not be
entitled to any credit, refund or other payment that would reduce the amount of
other additional rent or Base Rent owed. If this Lease expires or terminates on
a day other than December 31, then Additional Rent shall be prorated on a
365-day calendar year (or 366 if a leap year). All payments or adjustments for
Additional Rent shall be made within thirty (30) days after the applicable
Statement is sent to Tenant.
The term "Base Year" shall mean the twelve month period beginning on the
January 1, 2004 and ending on December 31, 2004.
The term "Operating Expenses" shall mean all direct costs incurred by
Landlord in the provision of services to tenants and in the operation, repair
and maintenance of the Building and Common Areas as determined by generally
accepted accounting principles, including, but not limited to ad valorem real
and personal property taxes, hazard and liability insurance premiums, utilities,
heat, air conditioning, janitorial service, labor, materials, supplies,
equipment and tools, permits, licenses, inspection fees, management fees, and
common area expenses; provided, however, the term "Operating Expenses" shall not
include depreciation on the Building or equipment therein, interest, executive
salaries, real estate brokers' commissions, or other expenses that do not relate
to the operation of the Building. The annual statement of Operating Expenses
shall be accounted for and reported in accordance with generally accepted
accounting principles (the "Annual Statement").
1
EXHIBIT A
PREMISES
2
EXHIBIT B
RULES AND REGULATIONS
1. ACCESS TO BUILDING. On Saturdays, Sundays, legal holidays and weekdays
between the hours of 6:00 P.M. and 8:00 A.M., access to the Building and/or
to the halls, corridors, elevators or stairways in the Building may be
restricted and access shall be gained by use of a key or electronic card to
the outside doors of the Buildings. Landlord may from time to time establish
security controls for the purpose of regulating access to the Building.
Tenant shall be responsible for providing access to the Premises for its
agents, employees, invitees and guests at times access is restricted, and
shall comply with all such security regulations so established.
2. PROTECTING PREMISES. The last member of Tenant to leave the Premises shall
close and securely lock all doors or other means of entry to the Premises and
shut off all lights and equipment in the Premises.
3. BUILDING DIRECTORIES. The directories for the Building in the form selected
by Landlord shall be used exclusively for the display of the name and
location of tenants. Any additional names and/or name change requested by
Tenant to be displayed in the directories must be approved by Landlord and,
if approved, will be provided at the sole expense of Tenant.
4. LARGE ARTICLES. Furniture, freight and other large or heavy articles may be
brought into the Building only at times and in the manner designated by
Landlord and always at Tenant's sole responsibility. All damage done to the
Building, its furnishings, fixtures or equipment by moving or maintaining
such furniture, freight or articles shall be repaired at Tenant's expense.
5. SIGNS. Tenant shall not paint, display, inscribe, maintain or affix any sign,
placard, picture, advertisement, name, notice, lettering or direction on any
part of the outside or inside of the Building, or on any part of the inside
of the Premises which can be seen from the outside of the Premises, including
windows and doors, without the written consent of Landlord, and then only
such name or names or matter and in such color, size, style, character and
material as shall be first approved by Landlord in writing. Landlord, without
notice to Tenant, reserves the right to remove, at Tenant's expense, all
matters other than that provided for above.
6. COMPLIANCE WITH LAWS. Tenant shall comply with all applicable laws,
ordinances, governmental orders or regulations and applicable orders or
directions from any public office or body having jurisdiction, whether now
existing or hereinafter enacted with respect to the Premises and the use or
occupancy thereof. Tenant shall not make or permit any use of the Premises
which directly or indirectly is forbidden by law, ordinance, governmental
regulations or order or direction of applicable public authority, which may
be dangerous to persons or property or which may constitute a nuisance to
other tenants.
7. HAZARDOUS MATERIALS. Tenant shall not use or permit to be brought into the
Premises or the Building any flammable oils or fluids, or any explosive or
other articles deemed hazardous to persons or property, or do or permit to be
done any act or thing which will invalidate, or which, if brought in, would
be in conflict with any insurance policy covering the Building or its
operation, or the Premises, or any part of either, and will not do or permit
to be done anything in or upon the Premises, or bring or keep anything
therein, which shall not comply with all rules, orders, regulations or
requirements of any organization, bureau, department or body having
jurisdiction with respect thereto (and Tenant shall at all times comply with
all such rules, orders, regulations or requirements), or which shall increase
the rate of insurance on the Building, its appurtenances, contents or
operation.
8. DEFACING PREMISES AND OVERLOADING. Tenant shall not place anything or allow
anything to be placed in the Premises near the glass of any door, partition,
wall or window that may be unsightly from outside the Premises. Tenant shall
not place or permit to be placed any article of any kind on any window ledge
or on the exterior walls; blinds, shades, awnings or other forms of inside or
outside window ventilators or similar devices shall not be placed in or about
the outside windows in the Premises except to the extent that the character,
shape, color, material and make thereof is approved by Landlord. Tenant shall
not do any painting or decorating in the Premises or install any floor
coverings in the Premises or make, paint, cut or drill into, or in any way
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deface any part of the Premises or Building without in each instance
obtaining the prior written consent of Landlord. Tenant shall not overload
any floor or part thereof in the Premises, or any facility in the Building or
any public corridors or elevators therein by bringing in or removing any
large or heavy articles and Landlord may direct and control the location of
safes, files, and all other heavy articles and, if considered necessary by
Landlord may require Tenant at its expense to supply whatever supplementary
supports necessary to properly distribute the weight.
9. OBSTRUCTION OF PUBLIC AREAS. Tenant shall not, whether temporarily,
accidentally or otherwise, allow anything to remain in, place or store
anything in, or obstruct in any way, any sidewalk, court, hall, passageway,
entrance, or shipping area. Tenant shall lend its full cooperation to keep
such areas free from all obstruction and in a clean and sightly condition,
and move all supplies, furniture and equipment as soon as received directly
to the Premises, and shall move all such items and waste (other than waste
customarily removed by Building employees) that are at any time being taken
from the Premises directly to the areas designated for disposal. All courts,
passageways, entrances, exits, elevators, escalators, stairways, corridors,
halls and roofs are not for the use of the general public and Landlord shall
in all cases retain the right to control and prevent access thereto by all
persons whose presence, in the judgment of Landlord, shall be prejudicial to
the safety, character, reputation and interest of the Building and its
tenants; provided, however, that nothing herein contained shall be construed
to prevent such access to persons with whom Tenant deals within the normal
course of Tenant's business so long as such persons are not engaged in
illegal activities.
10.ADDITIONAL LOCKS. Tenant shall not attach, or permit to be attached,
additional locks or similar devices to any door or window, change existing
locks or the mechanism thereof, or make or permit to be made any keys for any
door other than those provided by Landlord. Upon termination of this Lease or
of Tenant's possession, Tenant shall immediately surrender all keys to the
Premises.
11.COMMUNICATIONS OR UTILITY CONNECTIONS. If Tenant desires signal, alarm or
other utility or similar service connections installed or changed, then
Tenant shall not install or change the same without the approval of Landlord,
and then only under direction of Landlord and at Tenant's expense. Tenant
shall not install in the Premises any equipment which requires a greater than
normal amount of electrical current for the permitted use without the advance
written consent of Landlord. Tenant shall ascertain from Landlord the maximum
amount of load or demand for or use of electrical current which can safely be
permitted in the Premises, taking into account the capacity of the electric
wiring in the Building and the Premises and the needs of other tenants in the
Building, and Tenant shall not in any event connect a greater load than that
which is safe.
12.OFFICE OF THE BUILDING. Service requirements of Tenant will be attended to
only upon application at the office of Highwoods Properties, Inc. Employees
of Landlord shall not perform, and Tenant shall not engage them to do any
work outside of their duties unless specifically authorized by Landlord.
13.RESTROOMS. The restrooms, toilets, urinals, vanities and the other apparatus
shall not be used for any purpose other than that for which they were
constructed, and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the Tenant whom, or whose employees
or invitees, shall have caused it.
14.INTOXICATION. Landlord reserves the right to exclude or expel from the
Building any person who, in the judgment of Landlord, is intoxicated, or
under the influence of liquor or drugs, or who in any way violates any of the
Rules and Regulations of the Building.
15.NUISANCES AND CERTAIN OTHER PROHIBITED USES. Tenant shall not (a) install or
operate any internal combustion engine, boiler, machinery, refrigerating,
heating or air conditioning apparatus in or about the Premises; (b) engage in
any mechanical business, or in any service in or about the Premises or
Building, except those ordinarily embraced within the Permitted Use as
specified in Section 3 of the Lease; (c) use the Premises for housing,
lodging, or sleeping purposes; (d) prepare or warm food in the Premises or
permit food to be brought into the Premises for consumption therein (heating
coffee and individual lunches of employees excepted) except by express
permission of Landlord; (e) place any radio or television antennae on the
roof or on or in any part of the inside or outside of the Building other than
the inside of the Premises, or place a musical or sound producing instrument
or device inside or outside the Premises which may be heard outside the
Premises; (f) use any power source for the operation of any equipment or
device other than dry cell batteries or electricity; (g) operate any
electrical device from which may emanate waves that could interfere with or
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impair radio or television broadcasting or reception from or in the Building
or elsewhere; (h) bring or permit to be in the Building any bicycle, other
vehicle, dog (except in the company of a blind person), other animal or bird;
(i) make or permit any objectionable noise or odor to emanate from the
Premises; (j) disturb, harass, solicit or canvass any occupant of the
Building; (k) do anything in or about the Premises which could be a nuisance
or tend to injure the reputation of the Building; (i) allow any firearms in
the Building or the Premises except as approved by Landlord in writing.
16.SOLICITATION. Tenant shall not canvass other tenants in the Building to
solicit business or contributions and shall not exhibit, sell or offer to
sell, use, rent or exchange any products or services in or from the Premises
unless ordinarily embraced within the Tenant's Permitted Use as specified in
Section 3 of the Lease.
17.ENERGY CONSERVATION. Tenant shall not waste electricity, water, heat or air
conditioning and agrees to cooperate fully with Landlord to insure the most
effective operation of the Building's heating and air conditioning, and shall
not allow the adjustment (except by Landlord's authorized Building personnel)
of any controls.
18.BUILDING SECURITY. At all times other than normal business hours the
exterior Building doors and suite entry door(s) must be kept locked to assist
in security. Problems in Building and suite security should be directed to
Landlord at 919/872-4924.
19.PARKING. Parking is in designated parking areas only. There shall be no
vehicles in "no parking" zones or at curbs. Handicapped spaces are for
handicapped persons only and the Police Department will ticket unauthorized
(unidentified) cars in handicapped spaces. Landlord reserves the right to
remove vehicles that do not comply with the Lease or these Rules and
Regulations and Tenant shall indemnify and hold harmless Landlord from its
reasonable exercise of these rights with respect to the vehicles of Tenant
and its employees, agents and invitees.
20.JANITORIAL SERVICE. The janitorial staff will remove all trash from
trashcans. Any container or boxes left in hallways or apparently discarded
unless clearly and conspicuously labeled DO NOT REMOVE may be removed without
liability to Landlord. Any large volume of trash resulting from delivery of
furniture, equipment, etc., should be removed by the delivery company,
Tenant, or Landlord at Tenant's expense. Janitorial service will be provided
after hours five (5) days a week. All requests for trash removal other than
normal janitorial services should be directed to Landlord at 919/872-4924.
21.CONSTRUCTION. Tenant shall make no structural or interior alterations of the
Premises. All structural and nonstructural alterations and modifications to
the Premises shall be coordinated through Landlord as outlined in the Lease.
Completed construction drawings of the requested changes are to be submitted
to Landlord or its designated agent for pricing and construction supervision.
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EXHIBIT C
COMMENCEMENT AGREEMENT AND LEASE AMENDMENT NUMBER ONE
This COMMENCEMENT AGREEMENT AND LEASE AMENDMENT NUMBER ONE (the "First
Amendment"), made and entered into as of this _______ day of
________________, 2001, by and between HIGHWOODS REALTY LIMITED PARTNERSHIP,
a North Carolina limited partnership, with its principal office at 3100
Smoketree Court, Suite 600, Raleigh, North Carolina 27604 ("Landlord") and
_______________________, a _____________ corporation, with its principal
office at _____________________ ("Tenant");
W I T N E S S E T H :
WHEREAS, Tenant and Landlord entered into that certain Lease Agreement
dated _____________ (the "Lease"), for space designated as Suite ______,
comprising approximately __________ rentable square feet, in the
___________________ Building, located at
_______________________________________, City of ____________, County of
____________, State of ________________________; and
WHEREAS, the parties desire to amend the Rent Schedule and further alter
and modify said Lease in the manner set forth below,
NOW, THEREFORE, in consideration of the mutual and reciprocal promises
herein contained, Tenant and Landlord hereby agree that said Lease hereinafter
described be, and the same is hereby modified in the following particulars,
effective as of _____________________:
1. Lease Term. Section Three of the Lease, entitled "Term", is amended to
provide that the term of the Lease by and between Landlord and Tenant
actually commenced on ___________________ (the "Commencement Date"). The
initial term of said Lease shall terminate on ___________________ (the
"Expiration Date"). Section 3, entitled "Term", and all references to the
Commencement Date and Expiration Date are hereby amended.
2. Base Rent. Section Five of the Lease, entitled "Rent", and related
definitions are amended as follows:
A. Base Rent. Subsection 1(e) entitled "Base Rent" , is amended to provide that
the Base Rent for the Term shall be $ __________, instead of $______________.
B. Rent Schedule. The rent schedule provided in Subsection 1(e) shall be
replaced with the following rent schedule:
3. Miscellaneous. Unless otherwise defined herein, all capitalized terms used in
this First Amendment shall have the same definitions ascribed to them in the
Lease.
4. Lease Effectiveness. Except as modified and amended by this First Amendment,
the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to be
duly executed, as of the day and year first above written.
Tenant:
a corporation
By:___________________________________________
Name:_________________________________________
Title:________________________________________
Date:_________________________________________
Attest:_______________________________________
Secretary
Corporate Seal:
LANDLORD:
HIGHWOODS REALTY LIMITED PARTNERSHIP
a North Carolina limited partnership
By: Highwoods Properties, Inc., its general partner
a Maryland corporation
By:___________________________________________
Vice President
Date:_________________________________________
Attest:_______________________________________
, Assistant Secretary
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EXHIBIT D
EXAMPLE OF INSURANCE CERTIFICATE
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