AMENDED AND RESTATED LEASE AGREEMENT
NORTH CAROLINA
COUNTY OF WAKE
THIS AMENDED AND RESTATED LEASE AGREEMENT dated the 31st day of March,
1997, and entered into between REGENCY PARK CORPORATION, INCORPORATED, a North
Carolina corporation, doing business as REGENCY PARK CORPORATION, and having
its principal place of business in Cary, North Carolina (the "Landlord"), and
SEER TECHNOLOGIES, INC., a Delaware corporation having its principal place of
business in Cary, North Carolina (the "Tenant").
RECITALS:
1. The Landlord and the Tenant have previously entered into that certain
Lease Agreement, dated July 30, 1991, as amended by various addenda thereafter
executed by the parties hereto (the "Old Lease"). The Old Lease provides that
the Tenant leased from the Landlord the Premises (herein defined), specifically
including the Vacant Premises (as herein defined), for a term
through March 31, 1999.
2. The Tenant has never occupied the Vacant Premises under the Old Lease
and has requested that the Landlord grant certain concessions with respect to
the Vacant Premises, including a shortening of the term of the Old Lease with
respect to the Vacant Premises and, in addition, a right to reduced rent if
the Landlord can relet the Vacant Premises.
3. The Landlord is willing to grant the concessions and make the
amendments described herein, provided that the Tenant agrees to extend the
term of the lease with respect to the Occupied Premises as herein set out.
4. The Landlord and the Tenant have determined that, for simplicity and
mutual convenience of the parties, a replacement lease should be executed,
rather than an amendment, so that all of the terms and conditions of the lease
would be detailed in a single document.
NOW, THEREFORE, the Landlord and the Tenant, for good and valuable
consideration, do hereby agree as follows:
AGREEMENT
DEFINITIONS:
The following definitions shall be deemed to control herein.
ADDITIONAL RENT: Any adjustments to Annual Rental and other sums due
Landlord from Tenant.
BASE OPERATING EXPENSES: Means Operating Expenses for the Operating Year
ending November 30, 1991, which amount shall be as certified by Landlord's
auditors.
BASE REAL ESTATE TAXES: Means the lesser of:
a. the real estate taxes levied or imposed for the tax year ending
December 31, 1991, which amount shall be as certified by Landlord's auditors;
or
b. such lesser amount as may be fixed, settled, and compromised,
consented to, or determined as a result of contestation or otherwise.
BUILDING: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ located in Cary, North Carolina.
LEASE: This Lease Agreement with all Exhibits and Riders attached
thereto.
LEASE YEAR: As used herein (i) shall mean each and every 12-month period
during the term of this Lease, or (ii) (in the event of Lease expiration or
termination) shall mean the period between the last 12-month period and said
expiration or termination. The first such 12-month period shall commence on
the 1st day of April, 1997, and end on the 31st day of March, 1998.
OPERATING EXPENSES: The Landlord's cost of operating the Building and
Property as more particularly described in Exhibit E attached hereto and made
a part hereof by this reference.
OPERATING YEAR: Means a year commencing on December 1, and terminating
on November 30, provided that Landlord shall be permitted at any time and from
time to time to change the commencement and termination dates of any operating
year of the Landlord.
PREMISES: The space as outlined on the floor plans which are attached
hereto as Exhibit A and made a part hereof by this reference. The Premises
constitutes One Hundred Six Thousand Four Hundred Eighty Five (106,485)
rentable square feet located on the first, second, third, fourth, and fifth
floors of the Building, and more specifically described below:
First Floor 19,289 rentable square feet
Second Floor 13,378 rentable square feet
Third Floor 24,606 rentable square feet
Fourth Floor 24,606 rentable square feet
Fifth Floor 24,606 rentable square feet
The portion of the Premises on the first floor, second floor, third floor and
that portion of the fourth floor presently occupied by the Tenant is
hereinafter referred to collectively as the "Occupied Premises" (the Occupied
Premises constitutes 58,617 square feet on such floors, all as shown on
Exhibit A-1 attached hereto). The portion of the Premises on the fourth floor
not occupied by the Tenant and the fifth floor are hereinafter referred to
collectively as the "Vacant Premises."
PROPERTY: The land upon which the Building is located, which land is
more particularly described in Exhibit B attached hereto and made a part
hereof by this reference.
RENTABLE AREA: One hundred forty-four thousand eight hundred seventy-
six (144,876) square feet located within the Building.
REAL ESTATE TAXES: Includes (i) personal property taxes (attributable
to the year in which assessed) imposed upon the furniture, fixtures,
machinery, equipment, apparatus, systems, and appurtenances used in
connection with the Building and the Property for the operating thereof; and
(ii) real estate taxes, assessments, sewer charges, taxes based upon the
receipt of rent and any other federal, state, or local governmental charge,
general, special, ordinary, or extraordinary taxes (but not including income
or franchise taxes or any other taxes imposed upon or measured by Landlord's
income or profits, unless the same shall be imposed in lieu of real estate
taxes) or any other tax which may now or hereafter be levied or assessed
against the Property, the Building, any other improvements hereinafter
constructed on the Property, or the rents derived from the Property, the
Building and such other improvements. (In the case of special taxes or
assessments which may be payable in installment, only the amount of each
installment paid during a calendar year shall be included in the taxes for
that year.)
Real Estate Taxes shall not include (1) income tax, tax on rents or
rentals, excess profits or revenue tax, excise tax or inheritance tax, gift
tax, gains tax, franchise tax, corporation tax, capital levy transfer, estate,
succession or other similar tax or charge that may be payable by or chargeable
to the Landlord under any presently or future laws; and (2) interest or
penalties imposed upon Landlord for late payment of Real Estate Taxes.
REAL ESTATE TAX YEAR: Means each successive 12-month period following
and corresponding to the period in respect of which the base real estate taxes
are established irrespective of the period or periods which may from time to
time in the future be established by competent authority for the purposes of
levying or imposing real estate taxes.
PREMISES
Landlord, for and in consideration of the rents, covenants, agreements,
and stipulations herein contained, to be paid, kept and performed by the
Tenant, has leased and by these presents leases unto the Tenant, and Tenant
hereby agrees to lease upon the terms and conditions herein contained, the
Premises located in the Building situate upon the Property.
1.0 TERM
The term of this Lease shall be for a period of seven (7) years
commencing on the 1st day of April, 1997, (hereinafter referred to as the
"Commencement Date"), and ending on the 31st day of March, 2004, inclusive
(the "Term"). The Term is comprised of two sub-terms: (i) that period
commencing on the Commencement Date and ending on March 31, 1998, inclusive
(the "First Term"), and (ii) that period commencing on April 1, 1998, and
ending on March 31, 2004, inclusive (the "Second Term") (the phase "Term"
refers to either the First Term, the Second Term, and both terms, as the case
may be).
2.0 ANNUAL RENTAL AND ADJUSTMENTS THEREOF
2.01 ANNUAL RENTAL: Tenant agrees to pay Landlord, at Landlord's
address above, or at such other place as Landlord may designate in writing,
without demand, deduction, credit or setoff and in lawful money of the United
States of America:
A. From April 1, 1997, up to and including March 31, 1998, an Annual
Rental of One Million Seven Hundred Eighty-Six Thousand Seven Hundred Sixteen
and No/100 Dollars ($1,786,716.00) per year ("Annual Rent"), payable in equal
monthly installments of One Hundred Forty-Eight Thousand Eight Hundred Ninety-
Three and No/100 Dollars ($148,893.00), in advance, on or before the first day
of each calendar month during the First Term.
Tenant shall be entitled to a "dollar-for-dollar" credit toward the
Annual Rent from April 1, 1997, through March 31, 1998, from the rent in fact
received (including any Additional Rent received) from any tenants leasing all
or any portion of the Vacant Premises during such period. The Tenant,
however, shall be liable for all rent due as hereinabove described less the
credit hereinabove described.
B. From April 1, 1998, up to and including March 31, 1999, the Annual
Rental shall be Nine Hundred Forty-Nine Thousand Twenty-Six and No/100 Dollars
($949,026.00) payable in equal monthly installments, due on the first day of
each month, of Seventy-Nine Thousand Eighty-Five and 50/100 Dollars
($79,085.50).
In addition, Supplemental Rent (as described in Section 2.02) shall also
be due and payable during such period of the Term.
C. From April 1, 1999, up to and including March 31, 2001, the Annual
Rental shall be One Million Six Thousand Two Hundred Ninety-Eight and 10/100
Dollars ($1,006,298.10) payable in equal monthly installments, due on the
first day of each month, of Eighty-Three Thousand Eight Hundred Fifty-Eight
and 18/100 Dollars ($83,858.18).
D. From April 1, 2001, up to and including March 31, 2004, the Annual
Rent shall be One Million Sixty-Four Thousand Nine Hundred Fifteen and 10/100
Dollars ($1,064,915.10) payable in equal monthly installments, due on the
first day of each month, of Eighty-Eight Thousand Seven Hundred Forty-Two and
93/100 Dollars ($88,742.93).
The Tenant is also obligated to pay to the Landlord Additional Rent and
certain other sums as provided for herein.
2.02 ADDITIONAL RENT; SUPPLEMENTAL RENT:
A. Additional Rent: Any adjustment to Annual Rent (including
Supplemental Rent described below) and other sums due Landlord from Tenant
shall be referred to collectively as "Additional Rent."
B. Supplemental Rent: In addition to Annual Rent described above, the
Tenant shall be obligated to pay (but only during the period of April 1, 1998,
to March 31, 1999) as supplemental rent for the Occupied Premises, an amount
per annum equal to the difference between (i) $17.50 per rentable square foot
multiplied by that portion of the rentable square footage of the Vacant
Premises that is in fact leased by the Landlord for such period, and (ii) the
stated annual rent for such period under each replacement lease entered into
by the Landlord with respect to the Vacant Premises (hereinafter referred to
as a "Replacement Lease") (such sum being hereinafter referred to as
"Supplemental Rent"). In no event shall the stated annual rent under such a
Replacement Lease be less than $14.50 per rentable square foot without the
Tenant's consent, which consent shall be either granted or denied within two
(2) business days following the Tenant's receipt of written notice to Tenant
of such a proposed rental rate. If the Tenant does not consent to such
Replacement Lease, the Landlord may nevertheless enter into such Replacement
Lease but the Tenant shall not be liable for the difference between (i) $14.50
per rentable square foot, and (ii) the stated annual rent per rentable square
foot under the Replacement Lease. Failure of the Tenant to respond in writing
to such a proposed rental rate shall be deemed to be consent to such a lower
rental rate for any particular proposed Replacement Lease. The Tenant,
however, shall not be otherwise liable to pay any sum with respect to rentable
square footage of the Vacant Premises that has not been leased for such
period. Such analysis shall be done on a lease-by-lease basis.
By way of example, if the Landlord enters into two leases with respect to the
48,000 rentable square feet in the Vacant Premises, one for 10,000 square feet
at $16.50 per rentable square foot, and a second for 20,000 rentable square
feet at $18.00 per rentable square foot, the Tenant would owe the following
sums under this provision:
$0.00 for any unleased space in the Vacant Premises (48,000 -
30,000 = 18,000).
$0.00 for the 20,000 rentable square feet leased at $18.00 per
rentable square foot.
$10,000 for the 10,000 rentable square feet leased at $16.50 per
rentable square foot (10,000 x $1.00, the difference
between $17.50 and $16.50).
Such sums shall only be due for Vacant Space in fact leased by the
Landlord, for which the rental term has commenced, but without regard to
whether the replacement tenant is in occupancy.
Supplemental Rent due under the foregoing provisions shall be calculated
each month by the Landlord and shall be payable in arrears on the first day of
each month by the Tenant. If a Replacement Lease term commences on a day
other than the first day of a month, the amount of Supplemental Rent for such
lease shall be prorated on the basis of the number of days for which the
Replacement Lease was effective.
2.02.01 OPERATING EXPENSES: Prior to commencement of each Operating
Year or as soon thereafter as is reasonably possible, Landlord will furnish to
Tenant an estimate of the Operating Expenses for such Operating Year and if
the same shall be in excess of the Base Operating Expenses, the installments
of rent payable hereunder in respect of each month of such Operating Year
shall be increased by way of Additional Rent by an amount equal to one-
twelfth (1/12) of seventy-three and five one hundredths percent (73.5%)
(during the First Term) or forty and five one hundredths percent (40.5%)
(during the Second Term) of such excess (the "Tenant's Estimated Share"), and
Tenant shall make payment thereof to Landlord accordingly.
After the end of each Operating Year, the Landlord shall furnish to
Tenant a statement of Landlord's actual Operating Expenses for such Operating
Year, and Tenant shall pay to Landlord an amount equal to seventy-three and
five one hundredths percent (73.5%) (during the First Term) or forty and five
one hundredths percent (40.5%) (during the Second Term) of the excess of such
Operating Expenses over the Base Operating Expenses ("Tenant's Actual Share").
If Tenant's Actual Share is greater than the amount paid by Tenant to Landlord
as Tenant's Estimated Share, then Tenant shall pay this difference to Landlord
within fourteen (14) days after delivery of such statement. If Tenant's
Actual Share is less than the amount paid by Tenant to Landlord as Tenant's
Estimated Share, then Landlord shall refund the excess to Tenant within
fourteen (14) days after delivery of such statement. Tenant shall have the
right to examine, at its expense, the Landlord's records with respect thereto
in the Landlord's office for a period of sixty (60) days from the Tenant's
receipt of such statement. Tenant shall not have the right to examine such
records thereafter.
Nothing contained in this Article shall be construed at any time so as to
reduce the monthly installments of rent payable hereunder below the amount
stipulated in Article 2.01.
If this Lease shall terminate other than on the expiry of an Operating
Year in any Operating Year, then in computing the amount payable by Tenant
under this Article for the period from the commencement of the Operating Year
in which the Lease terminates until the date of termination, the Base
Operating Expenses shall be deducted from the Operating Expenses for such
Operating Year and Tenant shall pay one-three hundred sixty-fifth (1/365) of
seventy-three and five one hundredths percent (73.5%) for each day of such
Operating Year during which this Lease shall have been in full force and
effect during the First Term and one-three hundred sixty-fifth (1/365) of
forty and five one hundredths percent (40.5%) of such sum during the Second
Term.
The obligations of the parties hereto to adjust sums owed pursuant to
this Article shall survive the expiration of the term of this Lease
Failure of Landlord to furnish a statement of actual Operating Expenses
or to give notice of an adjustment to Annual Rent under this Article in a
timely manner shall not prejudice or act as a waiver of Landlord's right to
furnish such statement or give such notice at a subsequent time or to collect
any adjustments to the Base Rent for any preceding period, provided, however,
that Landlord agrees to give any such statement no later than 12 months from
the expiration of any Lease Year.
2.02.02 REAL ESTATE TAXES: If at any time or from time to time during
the term of this Lease, the Real Estate Taxes for or attributable to any Real
Estate Tax Year shall be in excess of the Base Real Estate Taxes, and/or if
any new tax or increase of the effective rate of present taxes shall become
effective after the date hereof but before the normal tax escalation provision
shall take effect, the rent payable hereunder in respect of such year shall be
increased by an amount equal to seventy-three and five one hundredths percent
(73.5%) of such excess and/or such new tax or increase during the First Term
and forty and five one hundredths percent (40.5%) during the Second Term (the
"Tenant's Tax Share"). Tenant shall pay to Landlord, not later than the sixty
(60) days prior to the tax due date, or such other date as may be specified in
writing to Tenant by Landlord, the Tenant's Tax Share for such year. Where at
any time such amount has become payable to Landlord hereunder, in addition to
such amount, subsequent monthly installments of rent shall be increased by an
amount equal to one-twelfth (1/12) of the Tenant's Tax Share, and such monthly
amounts when paid to Landlord shall be available (without interest) as a
credit against subsequent obligations of Tenant to Landlord under this
Article. Landlord shall furnish to Tenant upon the specific written request
of Tenant copies of all notices of valuation and assessment and all tax bills
received by Landlord.
Tenant shall pay to Landlord as Additional Rent seventy-three and five
one hundredths percent (73.5%) of any expenses incurred by Landlord in
obtaining or attempting to obtain a reduction of any Real Estate Taxes during
the First Term and forty and five one hundredths percent (40.5%) of such sum
during the Second Term. Real Estate Taxes which are being contested by
Landlord shall nevertheless be included for purposes of the computation of the
liability of Tenant under this Article; provided, however, that in the event
that Tenant shall have paid any amount of increased rent pursuant to this
Article and Landlord shall thereafter receive a refund of any portion of the
Real Estate Taxes on which such payment shall have been based, Landlord shall
pay to Tenant the appropriate portion of such refund after deduction of the
aforementioned expenses.
Notwithstanding the year for which any such Real Estate Taxes or
assessments were levied, (i) in the case of taxes or assessments which may be
payable in installments over more than one (1) year, the amount of each
installment (other than interest and penalties for delinquent payments), paid
during a calendar year shall be included in Real Estate Taxes for that year,
and (ii) if any taxes or assessments payable during any calendar year shall be
computed with respect to a period in excess of twelve (12) calendar months,
then taxes or assessments applicable to the excess period shall be included in
Real Estate Taxes for the year in which paid only if due and payable in that
year. Except as hereinabove provided, all references to Taxes "for" a
particular year shall be deemed to refer to taxes levied, assessed or
otherwise imposed for each year without regard to when such taxes are payable.
Landlord shall take such steps and actions as are taken by owners of
similar office buildings to minimize Real Estate Taxes.
In the event of any tax or assessment refund on account of the Building
or the Property applicable to Real Estate Taxes paid by Tenant, Tenant shall
be entitled to and Landlord agrees to pay Tenant's proportionate share thereof
to Tenant within 60 days of receipt of the refund; provided that Landlord
shall be entitled, after giving notice thereof to Tenant, to set-off against
Tenant's proportionate share of such refund any amount then due and owing by
Tenant under the terms hereof. Tenant's right to such share of any such
refund as set forth above shall survive the termination of this Lease.
Except as set forth in the next succeeding sentence, Landlord shall have
no obligation to contest, object to or to litigate the levying or imposition
of any Real Estate Taxes and may settle, compromise, consent to, waive or
otherwise determine in its discretion any Real Estate Taxes without notice to,
consent or approval of Tenant. If tenants occupying more than forty percent
(40%) of the Building request that the Landlord contest the Real Estate Taxes
for any year, the Landlord shall either (i) contest such taxes in its own name
with the costs of such to be deemed to be Operating Expenses to be shared by
all tenants, or (ii) if permitted by applicable law allow the Tenant to
contest such taxes in its own name.
Nothing contained in this Article shall be construed at any time so as to
reduce the monthly installments of rent payable hereunder below the amount
stipulated in Article 2.01.
If the termination date of the Lease shall not coincide with the end of a
Real Estate Tax Year, then in computing the amount payable under this Article
for the period between the commencement of the applicable Real Estate Tax Year
in question and the termination date of this Lease, the Base Real Estate Taxes
shall be deducted from the Real Estate Taxes for the applicable Real Estate
Tax Year and, if such Real Estate Taxes exceed the Base Real Estate Taxes, the
Tenant shall pay one-three hundred sixty-fifth (1/365) of seventy-three and
five one hundredths percent (73.5%) for each day of such Real Estate Tax Year
during which the Lease shall have been in full force and effect during the
First Term and forty and five one hundredths percent (40.5%) during the Second
Term.
Tenant's obligation to pay under this Article for the final period of the
Lease shall survive the expiration of the term of this Lease.
Failure of Landlord to furnish a statement of actual Tax Expenses or to
give notice of an adjustment to Annual Rent under this Article in a timely
manner shall not prejudice or act as a waiver of Landlord's right to furnish
such statement or give such notice as a subsequent time or to collect any
adjustments to the Annual Rent for any preceding period provided such
statements are provided no later than twelve (12) months from the expiration
of any applicable Real Estate Tax Year.
2.02.03 INTEREST FOR LATE PAYMENT: Any payment provided for herein
to be made by the Tenant and not received by Landlord on the due date
specified in this Lease shall accrue interest from the due date at the rate of
one and one-half percent (1.5%) above the published prime rate of First Union
National Bank of North Carolina in effect from time to time (the "Prime
Rate"). For purposes of computing interest hereunder, changes in the Prime
Rate shall be effective on the date of each change.
The Tenant's failure to pay, within fifteen (15) days from the date such
payment is due, any amounts payable pursuant to the provision of Section 2.0
shall be deemed a default of the Tenant's covenant to pay rent and shall
entitle the Landlord to avail itself of all remedies provided herein and at
law or in equity on account of such default.
3.0 USE
The Premises shall be used and occupied only for general office use
(including the training of personnel with respect to any operating of
computers and related activities and any related development activities) and
shall not be used or occupied for any other purpose without the prior written
consent of Landlord which shall not be unreasonably withheld. Tenant shall
not display any signs on the Property without prior written consent of
Landlord. Tenant shall not conduct, or allow to be conducted, on the Premises
any business, or permit any act, (i) which constitutes a nuisance, (ii) which
is contrary to or in violation of the laws, statutes, or ordinances of the
United States, or the State or City in which the Premises are located, or
(iii) which is dangerous to persons or property or which may invalidate (or
increase the premium for) any policy of insurance carried on the Building or
the Premises. Tenant will comply with all police, fire, sanitary and all
other laws and regulations imposed by any governmental or municipal authority
or body or by Landlord's fire insurance underwriters. Any violation of this
provision by the Tenant which remains uncured under the terms of this Lease
shall be an Event of Default entitling Landlord to exercise any rights or
remedies contained herein or provided by law.
4.0 SERVICES OF LANDLORD
The Landlord shall provide, at the Landlord's expense except as otherwise
provided, the following services:
A. Access to the Premises 24 hours a day, 7 days a week.
B. Janitorial service in and about the Premises each day, Saturdays,
Sundays and holidays excepted, including but not limited to, the removal of
refuse and rubbish and installation of wash room supplies.
C. Heat and air-conditioning, daily from 7:00 a.m. to 7:00 p.m., and
8:00 a.m. to 1:00 p.m. on Saturdays (if not a holiday), Sundays and holidays
excepted, sufficient to maintain comfortable temperature on the basis of one
person per 100 square feet of space reasonably subdivided. This paragraph
shall conform to any government regulations preserving limitations thereon and
such conformity shall be deemed to satisfy this Landlord obligation.
Whenever heat generating machines or equipment which affect the
temperature otherwise maintained by the air-conditioning system are used in
the Premises, Landlord reserves the right, at its option, either to require
Tenant to discontinue the use of such heat generating machines or equipment or
to install supplementary air-conditioning equipment in the Premises. The cost
of such installation shall be paid by Tenant to Landlord promptly on being
billed therefor, and the cost of operation and maintenance of said
supplementary equipment shall be paid by Tenant to Landlord promptly on the
monthly rent payment dates at such rates as may be agreed on, but in no event
at a rate less than Landlord's actual cost therefor of labor, materials and
utilities.
D. Water for drinking, break rooms (where plumbing has been already
installed), lavatory and toilet purposes.
E. Passenger elevator service at all times. Any or all elevator service
may be automatic.
F. Window washing of all exterior windows, both inside and out, weather
permitting.
G. Provision, installation and replacement of ballasts and tubes for
lighting purposes.
H. Removal of ice and snow from walks, drives and parking facilities.
I. Landlord will cause an electric check meter to be installed in the
Premises or Landlord shall have the right to cause a reputable independent
electrical engineering or consulting firm to survey and determine the cost of
the electric service furnished for such electric current. Tenant agrees to
pay to Landlord, promptly upon demand therefor, for all such electric current
consumed as shown by said meters or by said survey at the rates charged for
such services by the city, or the local public utility, as the case may be,
furnishing the same.
If Tenant shall require electric current in excess of that usually
furnished or supplied for use of the Premises as general office space, Tenant
shall first procure the consent of Landlord (which Landlord may refuse in its
sole discretion) to the use thereof. Landlord may cause an electric check
meter to be installed in the Premises. Landlord shall also have the right to
cause a reputable independent electrical engineering or consulting firm to
survey and determine the value of the electric service furnished for such
excess electric current. The cost of any such survey or meters and of
installation, maintenance and repair thereof shall be paid for by Tenant.
Tenant agrees to pay to Landlord, promptly upon demand therefor, for all such
electric current consumed as shown by said meters or by said survey at the
rates charged for such services by the city, or the local public utility, as
the case may be, furnishing the same, plus any additional expense incurred in
monitoring the electric current so consumed.
Tenant covenants and agrees that at all times its use of electric current
shall never exceed Tenant's proportionate share of the capacity of existing
feeders to the Building or the risers of wiring installation. Any riser or
risers or wiring to meet Tenant's excess electrical requirements, upon written
request of Tenant, will be installed by Landlord, at the sole cost and expense
of Tenant if, in Landlord's sole judgment, the same are necessary and will not
cause permanent damage or injury to Building or Premises or cause or create a
dangerous or hazardous condition or entail excessive or unreasonable
alteration, repairs or expense or interfere with or disturb other tenants or
occupants.
Should Tenant require any additional work or service, including but not
limited to the additional work or service described above or service furnished
outside the stipulated hours, Landlord may, on terms to be agreed, upon
reasonable advance notice by Tenant, furnish such additional service. Tenant
agrees to pay the Landlord such charges as may be agreed on, but in no event
at a charge less than Landlord's actual cost plus overhead for the additional
services provided, it being agreed that the cost to the Landlord of such
additional services shall be excluded from Operating Expenses.
J. Building security sign-in guard services after normal business hours
is presently being provided (but the Landlord reserves the right to adopt a
different security system).
K. Exterior maintenance of the building, landscaping, parking area and
walkways.
Landlord does not warrant that any of the services referred to above, or
any other services which Landlord may supply, will be free from interruption.
Tenant acknowledges that any one or more of such services may be suspended by
reason of accident or of repairs, alterations or improvements necessary to be
made, or by strikes or lockouts, or by reason of operation of law, or causes
beyond the reasonable control of Landlord. Any such interruption or
discontinuance of service shall not constitute an eviction or disturbance of
Tenant's use and possession of the Premises, or any part thereof, or render
Landlord liable to Tenant for damages by abatement of rent or otherwise, or
relieve Tenant from performance of Tenant's obligations under this Lease. If
the interruption of occupancy by such events continues for more than three (3)
consecutive days, Tenant shall be entitled to ▇▇▇▇▇ rent as to the portion of
the Premises that cannot be occupied. Tenant may cure such interruption of
discontinuance of service and the cost of such cure shall be deducted from
Tenant's subsequently accruing monthly rental obligations until such amount is
fully recovered.
5.0 TENANT'S ACCEPTANCE AND MAINTENANCE OF PREMISES
Tenant, on occupancy of the Premises, represents to the Landlord that it
has examined and inspected the same, finds them to be as represented by the
Landlord and satisfactory for Tenant's intended use, and such occupancy
evidences Tenant's acceptance "AS IS." Landlord makes no representation or
warranty as to the condition of said Premises. Tenant shall maintain (and so
deliver at the end of the Lease) each and every part of the Premises in good
repair and condition, and shall make, at Tenant's sole cost and expense, such
replacements, restorations, renewals or repairs, in quality equivalent or
better than the original work, as may be required to so maintain the same,
ordinary wear and tear only excepted. Tenant, however, shall make no
structural or interior alterations, additions or improvements to the Premises
without Landlord's prior written consent, and any such work shall be performed
by Landlord at the Tenant's sole expense, and shall not disturb or
inconvenience other tenants in the Building. Tenant shall not at any time
perform any work on the Premises or permit any work to be performed on the
Premises unless the Landlord has permitted the Tenant to perform such work
directly. Any work so performed by the Tenant shall be performed by duly
licensed contractors or artisans, each of whom must carry general public
liability insurance in form and content satisfactory to the Landlord,
certificates of which shall be furnished Landlord. At no time may Tenant do
any work that results in a claim of lien against Landlord. All alterations,
additions or improvements (including, but not limited to, floor covering, wall
covering, wall and ceiling lighting fixtures, carpet, drapes and drapery
hardware) but specifically excluding the Liebert Unit made or installed by
Tenant or by Landlord for Tenant's benefit to the Premises, shall become the
property of Landlord upon the termination or earlier expiration of this Lease.
Landlord reserves the right to require Tenant, at Tenant's expense, (i) to
remove any improvements or additions made to the Premises by Tenant, or by
Landlord for Tenant's benefit, upon the expiration or earlier termination of
this Lease unless the Landlord has in fact consented in writing to the
installation of such improvements (and the Landlord may require, as a
condition of granting any such consent, that the Tenant agree to remove such
improvements upon termination or earlier expiration of the Lease); and (ii) to
repair all damage done by or in connection with installation or removal of
said improvements or additions. Tenant further agrees to do so prior to the
expiration date of this Lease, or within thirty (30) days after notice from
Landlord, whichever shall be later, provided that Landlord gives such notice
no later than thirty (30) days prior to the expiration date of this Lease.
If the sprinkler system as installed in the Building or any of its
appliances shall be damaged or injured or not in proper working order by
reason of any act or omission of the Tenant, Tenant's agents, servants,
employees, licensees or visitors, the Tenant shall forthwith restore the same
to good working conditions at its own expense. If the Board of Fire
Underwriters of Fire Insurance Exchange or any bureau, department or official
of the state, county or city government, requires or recommends that any
changes, modifications, alterations or additional sprinkler heads or other
equipment be made or supplied by reason of the Tenant's business, or the
location of partitions, trade fixtures, or other contents of the Premises, or
if any such changes, modifications, alterations, additional sprinkler heads or
other equipment become necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system in the fire insurance
rate as fixed by said Exchange, or by any fire insurance company, Tenant
shall, at the Tenant's expense, promptly make and supply such changes,
modifications, alterations, additional sprinkler heads or other equipment.
Tenant shall not overload the floors, nor shall Tenant install any heavy
business machines or any safes or heavy equipment of any kind without prior
written consent of Landlord, which if granted, may be conditioned upon moving
by skilled licensed handlers, and installation and maintenance at Tenant's
expense of special reinforcings and settings adequate to carry the additional
weight and to absorb and prevent noise and vibration.
6.0 REPAIRS BY LANDLORD
Landlord shall have no duty to Tenant to make any repairs or improvements
to the Premises except such repairs as may be deemed necessary by Landlord for
normal maintenance operations of the Building's plumbing, lighting, heating
and air-conditioning and electrical systems, Building parking lots and
grounds, and such structural repairs necessary for safety and tenantability
and then only if not brought about by any act or neglect of Tenant, its
agents, employees or visitors. Notwithstanding the foregoing, Landlord agrees
to maintain the Building and the Property as a first class office building and
grounds consistent with a first class office park in Cary, North Carolina.
Tenant agrees to report immediately in writing to Landlord any defective
condition in or about the Premises in fact known to Tenant, and a failure to
so report any such condition caused by Tenant shall make Tenant liable to
Landlord for any expense or damage to Landlord resulting from such defective
condition. Landlord shall have the right of full access to the Premises
(including entry by use of master key) to make repairs without reduction or
abatement of rent.
7.0 INSURANCE AND INSURANCE RATES
Landlord shall carry fire, casualty and liability insurance insuring its
interest in the Building and the Premises. Tenant shall carry fire, casualty
and liability insurance insuring its interest, if any, in improvements to or
in the Premises and its interest in its office furniture, equipment, supplies
and other property. Tenant hereby waives any claim or right of action which
it may have against Landlord for loss or damage covered by such insurance, and
Tenant covenants and agrees that it will obtain a waiver from the carrier of
such insurance releasing such carrier's subrogation rights as against
Landlord. Tenant shall maintain a comprehensive liability policy covering
loss to person or property (a) in the amount of One Million and No/100 Dollars
($1,000,000) bodily injury per person, and One Hundred Thousand and No/100
Dollars ($100,000) property damage, or (b) in the amount of Three Million and
No/100 Dollars ($3,000,000) single limit for bodily injury and property
damage. Such policies shall name Landlord as an insured. Tenant shall
furnish Landlord a certificate of insurance indicating (a) current coverage
during the term of this Lease, and (b) a provision requiring a thirty (30) day
prior notice to the Landlord of cancellation.
Tenant shall not do or cause to be done or permit on the Premises or in
the Building anything deemed extrahazardous on account of fire, and Tenant
shall not use the Premises or the Building in any manner which will cause an
increase in the premium rate for any insurance in effect on the Building or a
part thereof. If, because of anything done by Tenant, the premium rate for
any kind of insurance in effect on the Building or any part thereof shall be
raised, Tenant shall pay Landlord the amount of any such increase in premium
in accordance with the provisions of this Lease. If Landlord shall demand
that Tenant remedy the condition which caused any such increase in an
insurance premium rate, Tenant shall remedy such condition as quickly as
practicable after receipt of such demand.
8.0 FIRE OR OTHER CASUALTY
In the event that before or during the term of this Lease, the
Premises shall be damaged by fire or other casualty which in the opinion of
Landlord does not render the Premises or a part thereof untenantable Landlord
will, at its option (subject to the other provisions of this Section 8.0),
repair the same with reasonable dispatch upon receipt of written notice of the
damage from Tenant, and there shall be no abatement of the rent.
In the event that before or during the term of this Lease the Premises
or the Building shall be damaged by fire or other casualty which in the
opinion of the Landlord renders the Building, the Premises or any part of the
Building or Premises untenantable, Landlord within twenty (20) days of notice
of such fire or casualty or of receipt of written notice from Tenant of such
damage (whichever shall last occur) shall have the right to and shall either
(i) serve written notice upon Tenant of Landlord's intent to repair said
damage or (ii) if in Landlord's opinion said damage renders so much of either
of the Premises or of the Building untenantable that repair would not be
advisable, serve written notice upon Tenant that this Lease is terminated. If
Landlord shall elect to terminate this Lease aforesaid, such termination shall
be effective immediately upon service of such notice by Landlord upon Tenant
if the term shall not have commenced or on the date specified in such notice
if during the term. In the event of such termination the rent shall be
apportioned and paid up to the time of such fire or other casualty if the
Premises are rendered wholly untenantable as aforesaid by such fire or other
casualty or up to the specified date of termination if the Premises are not
rendered wholly untenantable by such fire or other casualty. Any obligation
of Tenant to Landlord for any sum of money due under any provisions of this
Lease shall survive any such termination of this Lease by Landlord. If, on
the other hand, Landlord shall elect to repair such damage, such repairs shall
be commenced within forty-five (45) days of notice to Tenant of such election
and the Landlord shall diligently proceed with such restoration. Landlord's
obligation to repair or rebuild shall be limited to the availability of
insurance proceeds. Landlord covenants to maintain sufficient insurance to
repair the Building in case such event occurs. During the period of repair
the total amount of the rent provided for in Article 2.0 of this Lease shall
be reduced to an amount which in Landlord's opinion bears the same ratio to
the rent provided for in said Article 2.0 as the portion of the Premises then
available for use bears to the entire Premises. Upon completion of such
repair, rental payments shall resume in an manner as if no fire or other
casualty had occurred.
Notwithstanding the foregoing, in the event that before or during the
term of this Lease the Premises or the Building shall be damaged by fire or
other casualty which shall have been occasioned by the act of Tenant or of its
servants, agents, visitors, invitees or licensees, (i) there shall be no
apportionment or abatement of the rent, (ii) Landlord shall have the right but
shall have no obligation to repair the Premises or the Building, and (iii)
Tenant shall reimburse and compensate Landlord within five (5) days of
rendition of any statements to Tenant by Landlord for any expenditures made by
Landlord in making any such repairs. Any such actions shall be without
prejudice to any other rights and remedies of Landlord and without prejudice
to any rights of subrogation of any insurer of Landlord.
The other provisions of this Article 8.0 notwithstanding, except for
matters caused by the negligent act or omission or willful misconduct of
Landlord or its agents, Landlord shall have no obligation to replace or repair
any property in the Building or on the Premises belonging to Tenant or to
anyone claiming through or under Tenant, nor shall Landlord have any
obligation hereunder to replace or repair any property on the Premises which
Landlord may require Tenant to remove from the Premises.
9.0 WAIVER OF CERTAIN CLAIMS
The Tenant, to the extent permitted by law, waives all claims it may
have against the Landlord, and against the Landlord's agents and employees for
damage to person or property sustained by the Tenant or by any occupant of the
Premises or by any other person, resulting from any part of the Property or
any equipment or appurtenances becoming out of repair, or resulting from any
accident in or about the Property or resulting directly or indirectly from any
act or neglect of any tenant or occupant of any part of the Property or of any
other person, unless such damage is a result of the negligence or contributory
negligence of Landlord, or Landlord's agents or employees. If any damage
results from any act or neglect of the Tenant, the Landlord may, at the
Landlord's option, repair such damage and the Tenant shall thereupon pay to
the Landlord the total cost of such repair. All personal property belonging
to the Tenant or any occupant of the Premises that is in or on any part of the
Property shall be there at the risk of the Tenant or of such other person
only, and the Landlord, its agents and employees shall not be liable for any
damage thereto or for the theft or misappropriation thereof unless such
damage, theft or misappropriation is a result of the negligence or
contributory negligence of Landlord or Landlord's agents or employees. The
Tenant agrees to hold the Landlord harmless and to indemnify the Landlord
against claims and liability for injuries to all persons and for damage to or
loss of property occurring in or about the Property, due to any act of
negligence or default under this Lease by the Tenant, its agents or employees.
To the extent that the Tenant carries hazard insurance on any of its
property in the Premises and to the extent that the Landlord carries hazard
insurance on the Property, each policy of insurance shall contain (if
obtainable from the insurer selected by the Tenant or the Landlord, as the
case may be, without additional expense) a provision waiving subrogation
against the other party to this Lease. If such provision can be obtained only
at additional expense, the obligation to obtain such provision shall be
effective only if the other party, on notice, shall pay the amount of such
additional expense. Each of the parties hereto releases the other with
respect to any liability which the other may have for any damage by fire or
other casualty with respect to which the party against whom such release is
claimed shall be insured under a policy or policies of insurance containing
such provision waiving subrogation.
10.0 PARKING
Landlord shall have the right to change the area, level, location and
arrangement of and number of parking areas, as well as the number of parking
spaces, and to restrict parking areas with a view toward improving the
convenience and use thereof by the Tenant and other tenants, their customers
and employees. The Landlord presently provides a total of five hundred
seventy-five (575) parking spaces for this Building. Based on the Tenant's
proportionate share of space in the Building of seventy-three and five one
hundredth's percent (73.5%) during the First Term and forty and five one
hundredths percent (40.5%) during the Second Term (the same proportionate
share as found in Article 2.02.01 OPERATING EXPENSES and Article 2.02.02 REAL
ESTATE TAXES), the Tenant is entitled to seventy-three and five one hundredths
percent (73.5%) of the parking spaces during the First Term and forty and five
one hundredths percent (40.5%) of the parking spaces during the Second Term.
Where a Replacement Lease has been executed for the Vacant Premises during the
First Term, this percentage of nonexclusive parking to which the Tenant is
entitled shall be adjusted accordingly.
Subject to the other provisions of this Lease, Tenant shall have free
non-exclusive use of parking facilities, driveways and islands for Tenant,
Tenant's employees, Tenant's business invitees and Tenant's agents. Such
areas for non-exclusive parking spaces shall serve all tenants, their
employees, business invitees and agents. (Tenant shall, upon written notice
from Landlord, within five (5) days, furnish Landlord, or its authorized
agent, the state motor vehicle license number assigned to each of its motor
vehicles to be parked on the Property and the motor vehicle of all of its
employees to be employed on the Premises). Tenant shall not at any time park
any truck or delivery vehicles in any parking areas or driveways, except as
specifically designated by Landlord from time to time, and shall confine all
truck parking, loading and unloading to times and locations specifically
designated by Landlord from time to time. Tenant shall require all trucks
servicing Tenant to be promptly loaded or unloaded and removed from the
Property. Tenant covenants and agrees to enforce the provisions of this Lease
against Tenant's employees and business invitees. Landlord shall have the
right, but not the obligation: (a) to police said parking facilities, (b) to
provide parking attendants, (c) to change the area, level, location and
arrangement of parking areas, but not decrease the number of spaces by more
than five percent (5%), (d) to cause unauthorized motor vehicles to be towed
away at the sole risk and expense of the owner of such motor vehicles, (e) to
provide for such exclusive use as Landlord may determine, from time to time,
for the exclusive use of the handicapped and/or for the exclusive use of
visitors, (f) to use any portion of the parking facilities from time to time
and/or to deny access to the same temporarily to repair, maintain or restore
such facilities or to construct improvements under, over, along, across and
upon the same for the benefit of the Property and to grant easements therein
to public and quasi-public authorities, and (g) to adopt and modify from time
to time rules and regulations for parking and ingress, egress, speed, no
parking, no standing, and for times and places for move in, move out and
deliveries.
11.0 RIGHT OF ENTRY
Landlord with the Tenant's prior consent, which consent will not be
unreasonably withheld, shall have the right to enter and to grant licenses to
enter the Premises at any time and for such lengths of time as Landlord shall
deem reasonable without reduction or abatement of rent (a) to inspect the
Premises, (b) to exhibit the Premises to prospective tenants or purchasers of
the Building, (c) to make alterations or repairs to the Premises or the
Building and to temporarily store materials, tools and equipment for such
alterations or repairs for any purpose which Landlord shall deem necessary for
the operation and maintenance of the Building and the general welfare and
comfort of its tenants.
Landlord shall have the right to enter and to grant licenses to enter the
Premises at any time and for such lengths of time as Landlord shall deem
reasonable without reduction or abatement of rent for the purposes (a) of
removing from the Premises any placards, signs, fixtures, alterations or
additions not permitted by this agreement or by the Rules and Regulations, (b)
of abating any condition which constitutes a violation of any covenant or
condition of this Lease or of the Rules and Regulations, and (c) of an
emergency. No such entry by Landlord shall in any manner affect Tenant's
obligations and covenants under this Lease, and no such entry shall of itself
render Landlord liable for any loss of or damage to the property of Tenant.
12.0 QUIET ENJOYMENT; SUBORDINATION AND ATTORNMENT
If Tenant promptly and punctually complies with each of its obligations
hereunder, it shall peacefully have and enjoy the possession of the Premises
during the term hereof. No action of Landlord in other space in the Building,
or in repairing or restoring the leased space, however, shall be deemed a
breach of this covenant, or give Tenant any right to modify this Lease either
as to term, rent payable, or other obligations to perform.
This Lease is and shall continue to be subject and subordinate to any
mortgages or deeds of trust which may now or hereafter cover or affect the
land on which the Building is constructed or the Building, and to all
renewals, modifications, consolidations, replacements and extensions of any
such mortgages or deeds of trust. This clause shall be self-operative and no
further instrument of subordination shall be required. At any time and from
time to time, however, Tenant shall execute within ten (10) days after receipt
any certificate in confirmation of such subordination that Landlord may
request.
If any such mortgage or deed of trust is terminated or foreclosed, or if
title to the Property is transferred by deed in lieu of foreclosure, this
Lease (at the option of the purchaser at such foreclosure sale) shall not
terminate, nor be terminable by Tenant by reason of such foreclosure, and
Tenant shall, if requested, attorn to the purchaser at such foreclosure sale.
Notwithstanding anything herein to the contrary, the Landlord agrees to use
its best efforts to obtain a nondisturbance agreement in form satisfactory to
Tenant from any existing mortgagees. Landlord agrees that Tenant shall not be
required to subordinate its interest in the Premises to the right of any
future mortgagee unless and until Landlord delivers a non-disturbance
agreement from such mortgagee in form and in substance reasonably acceptable
to Tenant.
13.0 DEFAULT
13.01 Any one of the following events shall constitute an "Event of
Default:"
1. if Tenant shall fail to pay any monthly installment of Annual Rent,
any Additional Rent or any other sum payable by the Tenant within fifteen (15)
days after such sum is due in accordance with the terms of this Lease; or
2. if Tenant shall fail to keep or perform or abide by any other term,
condition, covenant or agreement of this Lease (whether or not specified
herein as an Event of Default) or of the Rules and Regulations now in effect
or hereafter adopted and such default shall continue for a period of thirty
(30) days after notice to Tenant of such default; or
3. if (a) Tenant (or, if Tenant is a partnership, if any partner in
Tenant) shall file a petition in bankruptcy or consent to any other action
seeking any such judicial decree or shall make any assignment for the benefit
of its creditors or shall admit in writing its inability to pay its debts
generally as they become due or if (b) any court of competent jurisdiction
shall enter a decree or order approving a petition filed against it or
appointing any trustee or receiver for Tenant or if any person shall file a
petition for involuntary bankruptcy against Tenant and such appointment or
petition shall not be stayed or vacated within ninety (90) days or entry
thereof; or
4. if Tenant's interest in this lease or the Premises shall be subjected
to any attachment, levy or sale pursuant to any order or decree entered
against Tenant in any legal proceeding and such order or decree shall not be
vacated within thirty (30) days of entry thereof; or
5. the Premises are deserted, vacated, or not used regularly or
consistently as would normally be expected for similar premises put to the
same or similar purposes, even though the Tenant continues to pay all rental
and charges provided for herein.
13.02 If there is an "Event of Default," Landlord, without declaring a
termination of the Lease (which right is, however, unconditionally and
absolutely reserved), may at its sole election exercise any one or more or all
of the following remedies, in addition to any other remedies Landlord may have
under this Lease or at law or in equity:
1. Landlord may re-enter the Premises and correct or repair any
condition which shall constitute a failure on Tenant's part to keep or perform
any covenant of this Lease or the Rules and Regulations, and Tenant shall
reimburse Landlord any expenditure made to make such correction or repair.
2. Landlord may, without terminating this Lease, demand that Tenant
vacate the Premises and remove all property belonging to Tenant, and Landlord
shall have the right to re-enter and take possession of the Premises without
such entry and possession relieving the Tenant, in whole or in part, from the
Tenant's obligation to pay the rent due hereunder for the full term of the
Lease. Any and all property which may be removed from the Premises by
Landlord pursuant to this section or at law, to which Tenant is or may be
entitled, may be handled, removed or stored by Landlord at risk, cost and
expense of Tenant, and Landlord shall in no event be responsible for the
value, preservation or safekeeping thereof. Tenant shall pay to Landlord upon
demand any and all expenses incurred in such removal and all storage charges
against such properties so long as the same shall be in Landlord's possession
or under Landlord's control. Tenant agrees that to the fullest extent
permitted by law any such property of Tenant not retaken from storage by
Tenant within thirty (30) days after the end of the term, however terminated,
may be disposed of by Landlord in any manner whatsoever, including without
limitation, the sale, scrapping of and/or destruction thereof without any
further obligation to Tenant, and Tenant shall pay to Landlord promptly on
demand reasonable expenses of such disposal.
3. Landlord without terminating this Lease may re-let the Premises at
any rental as the Landlord in its sole discretion deems advisable and Tenant
shall pay all costs of such re-letting, including but not limited to, any
necessary alterations, repairs, and the difference, if any, between the rent
collected from any subsequent tenant and the rental provided under this Lease.
4. The Landlord may elect to terminate this Lease. In such event,
Tenant shall remain liable to Landlord for damages, due and payable monthly on
the day rent would have been payable hereunder, and in the amount equal to the
rent and any other amounts which would have been owing by Tenant for the
balance of the term of the Lease, had this Lease not been terminated, less the
net proceeds, if any, of any re-letting of the Premises by Landlord, after
deducting all of the Landlord's costs associated with the termination of the
Lease (including but not limited to legal expenses and attorneys' fees), and
the cost to repair or alter the Premises incurred in connection or in any way
related to the termination of this Lease, eviction of Tenant and such re-
letting.
5. Landlord may recover from Tenant all costs associated with the
termination of this Lease or other remedial measures herein provided or
provided by law, including but not limited to, legal expenses and attorneys'
fees, the cost to repair or alter the Premises for re-letting, and all loss of
rents the Landlord may incur by reason of such termination.
6. With or without terminating the Lease, but in lieu of collecting rent
as such rent accrues under paragraphs 3 or 4 hereof, Landlord may declare the
entire amount of rent calculated on current rent being paid by Tenant and
Additional Rent which in Landlord's reasonable determination would become due
and payable during the remainder of the term of the Lease, discounted to
present value by using a reasonable discount rate selected by Landlord, to be
due and payable immediately. Upon acceleration of such amounts, Tenant agrees
to pay the same at once, together with all rent and other amounts theretofore
due, at Landlord's address as provided herein. Such payment shall not
constitute a penalty or forfeiture but shall constitute liquidated damages for
Tenant's failure to comply with the terms and provisions of this Lease
(Landlord and Tenant agreeing that Landlord's actual damages in such an event
are impossible to ascertain and that the amount set forth above is a
reasonable estimate thereof).
13.03 In the event of any re-entry of the Premises by Landlord pursuant
to any of the provisions of this Lease, Tenant hereby waives all claims for
damages which may be caused by such re-entry by Landlord, and Tenant shall
save Landlord harmless from any loss, cost (including legal expenses and
reasonable attorneys' fees) or damages suffered by Landlord by reason of such
re-entry. No such re-entry shall be considered or construed to be a forcible
entry.
13.04 No course of dealing between Landlord and Tenant or any delay on
the part of Landlord in exercising any rights it may have under this Lease
shall operate as a waiver of any of the rights of Landlord hereunder, nor
shall any waiver of a prior default operate as a waiver of any subsequent
default or defaults. No express waiver shall affect any condition, covenant,
rule or regulation other than the one specified in such waiver and that one
only for the time and in the manner specifically stated.
13.05 The exercise by Landlord of any one or more of the remedies
provided in this Lease shall not prevent the subsequent exercise by Landlord
of any one or more of the other remedies herein provided or provided by law.
All remedies provided for in this Lease are cumulative and may, at the
election of Landlord, be exercised alternatively, successively or in any other
manner and are in addition to any other rights provided by law.
13.06 Landlord, to the fullest extent permitted by law but subject to
the security interest of any lender providing financing to the Tenant, shall
have a lien on and the Tenant hereby grants Landlord a security interest in
all of the equipment, wares, chattels, fixtures, furniture and other property
of Tenant which may be in or upon the Premises, the Building or the Property.
Tenant hereby specifically, to the fullest extent permitted by law, waives any
and all exemptions allowed by law, and such lien and security interest may be
enforced upon the nonpayment of any installment of rent, Additional Rent or
other moneys due and payable hereunder by the taking and selling of such
property subject to at least fifteen (15) days advance written notice, or such
lien may be enforced in any lawful manner at the option of Landlord.
13.07 Tenant shall pay upon demand all Landlord's costs, charges and
expenses, including the fees of counsel, agents and others retained by
Landlord, incurred in enforcing its obligations hereunder or incurred by
Landlord in any litigation, negotiation or transaction in which Tenant causes
Landlord, without Landlord's fault to become involved or concerned.
14.0 NO ESTATE IN LAND
This Lease shall create only the relationship of landlord and tenant
between Landlord and Tenant.
15.0 INVALIDITY OF PARTICULAR PROVISIONS
If any clause or provision of this Lease is or becomes illegal, invalid,
or unenforceable because of present or future laws or any rule or regulation
of any governmental body or entity, effective during its term, the intention
of the parties hereto is that the remaining parts of this Lease shall not be
affected thereby unless such invalidity is, in the sole determination of
Landlord, essential to the rights of both parties, in which event Landlord has
the right to terminate this Lease on written notice to Tenant.
16.0 SUBSTITUTE PREMISES
[INTENTIONALLY DELETED]
17.0 TENANT'S PERSONAL PROPERTY TAXES
Tenant shall pay prior to the delinquency all taxes assessed against or
levied upon its occupancy of the Premises, or upon the fixtures, furnishings,
equipment and all other personal property of Tenant located in the Premises.
Tenant shall cause said fixtures, furnishings, equipment and other personal
property to be assessed and billed separately from the property of Landlord.
In the event any or all of Tenant's fixtures, furnishings, equipment and other
personal property, shall be assessed and taxed as the property of Landlord,
Tenant shall pay to Landlord its share of such taxes within ten (10) days
after delivery to Tenant by Landlord of a statement in writing setting forth
the amount of such taxes applicable to Tenant's fixtures, furnishings,
equipment or personal property.
18.0 NOTICES AND CONSENTS
All notices, demands, requests, consents or approvals which may or are
required to be given by either party to the other shall be in writing and
shall be deemed given when sent by United States Certified or Registered Mail,
Return Receipt Requested, postage prepaid, (a) if for the Tenant, addressed to
the Tenant at the Building (Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President and
General Counsel), or at such other place as the Tenant may from time to time
designate by written notice to the Landlord, or (b) if the Landlord, addressed
to the office of the Landlord at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to Landlord's attorney addressed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC, Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P. O. ▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as the Landlord
may from time to time designate by written notice to the Tenant.
Alternatively, notices may be given by telecopy provided notice is also sent
by the other authorized method of notice, such notice being effective when
sent by telecopy. The Tenant's telecopy number is (▇▇▇) ▇▇▇-▇▇▇▇; the
Landlord's telecopy number is _________. Either party may from time to time
change by written notice to the other party the telecopy number to which
notices should be sent. All consents and approvals provided for herein must
be in writing to be valid. If the term "Tenant" as used in this Lease refers
to more than one person, any notice, consent, approval, requests, ▇▇▇▇, demand
or statement, given as aforesaid to any one of such persons shall be deemed to
have been duly given to Tenant.
Except as specifically provided in this Lease, Tenant hereby expressly
waives the service of intention to terminate this Lease or to re-enter the
Premises and waives the service of any demand for payment of rent or for
possession and waives the services of any other notice or demand prescribed by
any statute or other law.
19.0 CONDEMNATION
19.01 If the whole or any portion of the Building shall be taken by
condemnation, which renders any material portion of the Premises unusable, or
(ii) any portion of the Premises shall be taken, then at the option of the
Tenant or the Landlord this Lease may be terminated on the date possession of
the Building is required to be surrendered to the condemnor, and rent payable
hereunder shall be prorated through such date.
19.02 If any portion of the Premises is taken or any other portion of
the Building is taken which renders any material portion of the Premises
unusable, but this Lease is not terminated as set forth in Section 19.01, this
Lease shall, at the option of the Landlord, terminate only as to the part of
the Premises so taken, but shall continue in full force as to the part of the
Premises not taken. In the event of such partial taking and the continuance
of this Lease for the part not so taken, then Landlord shall, at its cost and
expense, forthwith repair and restore the Building to as nearly as possible
its condition immediately prior to such taking. Notwithstanding the above,
Landlord's obligation to restore shall be limited to the availability of any
condemnation awards. From the date of the surrender of possession to the
condemnor to the date of the completion of the repairs and restoration of the
portion of the Building not so taken, there shall be no abatement of the rent,
except for the portion of the Premises, if any, that shall not be usable for
Tenant's business.
19.03 After the repairs and restoration have been completed following
the partial taking, the rent for the unexpired term shall not be reduced
unless the particular taking includes a part of the Premises and, in such
event, the rent for the unexpired term shall be reduced by that portion which
the area so taken shall bear to the entire area of the Premises immediately
prior to such taking.
19.04 Tenant agrees that if the Premises or any part thereof shall be
taken by condemnation, Tenant shall have no claim against the Landlord and
shall not have any claim or right to any portion of the amount that may be
awarded as damages or paid as a result of such condemnation.
20.0 ASSIGNMENT-SUBLEASE
Tenant shall not, without the prior written consent of Landlord (which
shall not be unreasonably withheld) assign, hypothecate, encumber or otherwise
transfer this Lease or any interest hereunder, or sublet the Premises or any
part thereof, or permit the use of the Premises by any party other than
Tenant. Tenant shall be allowed to assign, or sublet to an "Affiliate"
without consent of Landlord, providing the Tenant remains jointly and
severally responsible for all the terms and conditions of this Lease. The
term "Affiliate" shall mean any corporation or entity which controls, is
controlled by, or is under common control with Tenant.
If Tenant desires to sublease the Premises or any part thereof, Tenant
shall submit to Landlord a written request for the consent of Landlord to such
subletting, which request shall be accompanied by the name and address of the
proposed subtenant, a description identifying the space to be sublet, a copy
of the fully executed sublease conditioned only upon approval of Landlord, the
nature and character of the business of the proposed subtenant, and its
proposed use of the Premises, current financial information on the proposed
subtenant and such other information as Landlord may request.
Consent to any assignment or sublease shall not be unreasonably withheld.
The Tenant acknowledges that Landlord is entitled to withhold its consent in
the event the nature and character of the business of the proposed tenant, its
proposed use of the Premises or the financial condition of the proposed tenant
is objectionable or unsatisfactory to Landlord. Any Landlord consent to an
assignment or sublease shall not nullify this provision, and all later
assignments or subleases shall be made likewise only after the prior written
consent of Landlord is obtained in each instance. Unless otherwise expressly
agreed to by Landlord in writing, no sublease or assignment by Tenant shall
relieve Tenant of any liability hereunder. Tenant acknowledges and agrees
that Landlord may condition its consent to any proposed assignment or sublease
upon the agreement of Tenant to pay to Landlord the excess, if any, of the
rentals and other charges to be paid by Tenant's assignee or sublessee under
the terms and provisions of such proposed assignment or sublease over the
Annual Rent and Additional Rent and other charges to be paid by Tenant to
Landlord hereunder. The occupancy of the Premises by any successor firm of
the Tenant or by any firm into which or with which the Tenant may become
merged or consolidated shall be deemed an assignment of this Lease requiring
the prior written consent of Landlord. Notwithstanding the giving by Landlord
of its consent to any assignment or sublease with respect to the Premises, no
such assignee or sublessee may exercise any expansion option, right of first
refusal option, or renewal option under this Lease except in accordance with a
separate written agreement entered into directly between such assignee of
sublessee and Landlord.
In no event shall Tenant (1) advertise or publicize in any way the
availability of all or part of the Premises without the prior written consent
of the Landlord which shall not be unreasonably withheld, or (2) advertise or
publicize the Premises for subletting whether through a broker, agent,
representative or otherwise at a rental rate less than that for which space in
the Building is being offered for rent by Landlord. Tenant agrees to pay to
Landlord, on demand, all reasonable costs (including attorneys' fees) incurred
by Landlord in connection with any request by Tenant for Landlord's consent to
any assignment or subletting.
Landlord may assign this Lease to any construction or permanent mortgagee
("Mortgagee") of the Property as additional security for the payment of any
loan thereby secured. If the Tenant shall have received notice from Landlord
or Mortgagee of any such assignment, Tenant shall thereafter give written
notice of any breach or failure of performance by Landlord under this Lease to
Mortgagee and allow Mortgagee a reasonable period of time to remedy the same.
Any breach or failure of performance by Landlord hereunder shall not
constitute a default as between Landlord and Tenant until such notice shall
have been given.
Landlord, or its successors and assigns, may assign this Lease to a
subsequent purchaser of the Property without the consent or approval of the
Tenant, assignee or sublessee.
21.0 HOLDING OVER
In the event Tenant remains in possession of the Premises subsequent to
the expiration or other termination of this Lease and without regard to
Landlord's acquiescence or consent, Tenant shall pay as liquidated damages a
monthly rent double the monthly rent payable immediately prior to such
expiration or termination of the Lease for the duration of such period. No
such payment (or the acceptance thereof) shall in any way constitute a waiver
of the right of the Landlord to dispossess the Tenant and recover possession
or exercise any other remedy herein provided. If such holding over is with
the Landlord's consent, the Tenant shall be a tenant on a month-to-month basis
which tenancy shall be terminated absolutely and without remedy upon thirty
(30) days written notice of such intent by either party. There shall be no
renewal of this Lease by operation of law.
22.0 RULES AND REGULATIONS
The Rules and Regulations in regard to the Building attached hereto as
Exhibit F and all rules and regulations which Landlord may hereafter from time
to time adopt and promulgate for the government and management of said
Building (provided all such rules and regulations are applicable to all
tenants) are hereby made a part of this Lease and shall during the said Term
be in all things observed and performed by the Tenant and by the Tenant's
clerks, employees, servants and agents. Tenant does hereby accept and agree
to abide by and uphold the Rules and Regulations as shown in Exhibit F.
Insofar as the attached standard Rules and Regulations conflict with any of
the terms and provisions of this Lease Agreement, the terms and provisions of
the Lease shall control.
23.0 TIME IS OF THE ESSENCE
Time is of the essence of this Agreement.
24.0 ESTOPPEL CERTIFICATES
Within ten (10) days after request therefor by Landlord or any
mortgagee of the Property or any prospective purchaser of the Premises, Tenant
agrees to execute and deliver, in recordable form, at any time or from time to
time, an estoppel certificate addressed to any mortgagee or proposed mortgagee
or purchaser, of the Building, or addressed to the Landlord, certifying (if
such be the case) that this Lease is unmodified and in full force and effect
(and if there have been any modifications that the same is in full force and
effect as modified and stating said modifications); stating that there are no
defenses, defaults, or offsets against the enforcement of this Lease or
stating those claimed by Tenant; stating that rent has commenced to accrue,
and that Tenant has accepted and is occupying the Premises; stating the date
to which rentals and other charges are paid; and as to mortgagees or
prospective mortgagees, agreeing that in the event the mortgagee becomes owner
of the Premises or exercises an assignment of rents granted mortgagee by the
Landlord, the Tenant will accept and attorn to the mortgagee or to a party
designated by said mortgagee as its direct tenant, and that the mortgagee will
not be bound by or responsible for any rents paid in advance to Landlord or
offsets against Tenant or any prior defaults of the Tenant and that thereafter
all notices required or permitted under the Lease be given to Landlord shall
thereafter be given to said mortgagee. Such certificates shall also include
such other information as may be reasonably required by any mortgagee.
25.0 EVENTS BEYOND CONTROL OF LANDLORD AND TENANT
Landlord and/or Tenant shall be excused for the period of any delay and
shall not be deemed in default with respect to the performance of any of the
terms, covenants, and conditions of this Lease when prevented from so doing by
a cause or causes beyond the Landlord and/or Tenant's control, which shall
include, without limitation, all labor disputes, governmental regulations or
controls, fire or other casualty, inability to obtain any material or
services, acts of God, or any other cause, except the obligation of the Tenant
under this Lease to make prompt payment to Landlord of the rental payments and
all other charges due hereunder.
26.0 SIGNS
Tenant may not erect, install or display any sign or advertising material
upon the Premises and Building, the walls thereof, or in any window therein,
without prior written consent of Landlord. Landlord shall furnish, install
and maintain a building directory at a convenient location in the lobby
listing the name of Tenant and the room number of Tenant's entrance office and
shall furnish and install any approved sign for Tenant, the cost of which
shall be charged to the Tenant.
The Tenant shall not use the name "REGENCY PARK" or its logo unless the
Landlord should grant its prior written consent thereto.
27.0 BROKERAGE
Tenant represents and warrants that it has dealt with no broker, agent or
other person in connection with this transaction other than ▇▇▇▇▇▇▇ & Company
and/or ▇▇▇▇▇ & ▇▇▇▇▇ and that no other broker, agent or other person brought
about this transaction. Only the Tenant is liable for any commission payable
to ▇▇▇▇▇▇▇ & Company or ▇▇▇▇▇ and ▇▇▇▇▇. Tenant agrees to indemnify and hold
Landlord harmless from and against any claims by any other broker, agent or
other person claiming a commission or other form of compensation by virtue of
having dealt with Tenant (specifically including, but not limited to, ▇▇▇▇▇▇▇
& Company and ▇▇▇▇▇ & ▇▇▇▇▇) with regard to this leasing transaction. The
provisions of this section shall survive the termination of this Lease.
28.0 RECORDATION OF LEASE
The Tenant will not record this Lease. Upon the request of either party
hereto, the other party will join in the execution of a Memorandum of Lease
for the purposes of recordation in the Office of the Register of Deeds, Wake
County, North Carolina. The Memorandum will be approved as to form by the
Landlord and will describe only the parties, the Premises, the term and any
options to renew the term.
29.0 GOVERNMENTAL COMPLIANCE
A. Tenant covenants and agrees to make use of the Premises in accordance
with all municipal, county, state and federal laws, rules and regulations,
including, but not limited to environmental laws, rules and regulations, and
all permitting, licensing and other governmental approvals now or hereafter
implemented. Tenant further covenants and agrees neither to cause nor permit
any hazardous or toxic waste or materials (as defined by state and federal
laws, rules and regulations) to be stored at or upon the Premises, the
Building and Property nor to cause nor permit any such material or waste to be
disposed of at the Premises or under or within the Building and Property.
Tenant will hold Landlord harmless for all costs, expenses, fines, charges
(including attorneys' and engineers' fees and charges) incurred by Landlord as
a direct or indirect expense caused by the breach of this Article by Tenant,
its employees, agents and invitees, and further covenants and agrees to, at
all times, include specific coverage to such effect as a part of Tenant's
public liability insurance coverage.
B. The Landlord represents and warrants to the Tenant that as of the
Commencement Date (and during the term hereof as to the Building and
Property), the Building, Property, and Premises will comply with applicable
municipal, county, state and federal laws, rules and regulations, including
but not limited to environmental laws, rules and regulations (collectively
"Laws"). Landlord further represents that the Building and Premises contain
no asbestos or asbestos containing materials. Landlord agrees for itself and
its successors and assigns to comply with applicable laws affecting the
Building and Property at its sole cost and expense. Landlord represents and
warrants that a Certificate of Occupancy has been issued with respect to the
Premises. Landlord shall and hereby does indemnify Tenant for all loss, cost,
and expenses incurred by Tenant as a result of Landlord's breach of the
foregoing representations.
30.0 HAZARDOUS MATERIALS
[INTENTIONALLY DELETED]
31.0 COMMON AREAS
Tenant shall have the right, together with other tenants and occupants
and invitees, to the non-exclusive use of the sidewalks, driveways, stairways,
halls, lobbies, elevators and passages in the Building and on the Property for
reasonable ingress to and egress from the Premises and for no other purpose
subject to the other provisions of this Lease, including, without limitation,
the Rules and Regulations set for on Exhibit F.
32.0 POSSESSION
On the expiration or other termination of the term of this Lease, Tenant
shall quit and surrender to Landlord the Premises, broom clean, in good order
and condition, ordinary wear and tear excepted, and Tenant shall remove all of
its property except as provided in Article 5. Tenant's obligation to observe
and perform this covenant shall survive the expiration and other termination
of the term of this Lease.
33.0 VACANT PREMISES
33.01 TENANT'S OBLIGATIONS: Tenant agrees to pay its proportionate
share of all brokerage commissions due any broker or agent in connection with
the procurement of any new tenant leases for the Vacant Premises (each such
new lease of the Vacant Premises being hereinabove defined as a "Replacement
Lease"). In addition, Tenant agrees to pay its proportionate share of all
costs and expenses related to tenant upfit of the Vacant Premises following
the procurement of each Replacement Lease. An amount of $2.00 per rentable
square foot on any tenant upfit performed by the Landlord directly shall be
deducted from the sum otherwise payable by the Tenant for such tenant upfit
before the Landlord determines the Tenant's proportionate share of such tenant
upfit costs. The Tenant's proportionate share for such brokerage commissions
and tenant upfit shall be determined as follows: the number of months from the
commencement date of the Replacement Lease to March 31, 1999, shall be divided
by the number of months in the term of the Replacement Lease. The Landlord
shall be responsible for all tenant upfit and brokerage commissions with
respect to the Landlord's leasing of the Vacant Premises other than the
Tenant's proportionate share of such expenses as described above.
Tenant agrees that it will not enter into any brokerage agreements or
contracts with any broker, agent, or other person in connection with any lease
or sublease of the Vacant Premises. Tenant also agrees to refer any
prospective tenant of the Vacant Premises to the Landlord with respect to any
leasing transactions involving the Vacant Premises. All leasing for the
Vacant Premises and the Premises shall be the responsibility of the Landlord,
and the Tenant shall not have any further right to sublease the Vacant
Premises.
The Tenant's obligations to pay for upfit and leasing commissions apply
to any such expense incurred by the Landlord with respect to Replacement
Leases from the date hereof through and including March 31, 1999. The Tenant
shall have no obligation for tenant upfit or leasing commissions incurred
following March 31, 1999, even if a Replacement Lease was executed before such
date.
33.02 TENANT CONDITIONAL CREDIT: Commencing on March 31, 2000, and
continuing on each March 31 in the years 2001, 2002, 2003, and 2004, provided
the Conditions for Reimbursement (hereafter described) have been satisfied,
the Landlord shall pay to the Tenant, as a reimbursement for payments of
tenant upfit and leasing commissions, a sum equal to one-fifth of all sums in
fact paid by the Tenant to the Landlord pursuant to Section 33.01 (with the
$2.00 credit described in Section 33.01 already having been deducted from such
sum). As a condition precedent to such obligation of the Landlord to the
Tenant, each of the following criteria (the "Conditions for Reimbursement")
must have been satisfied:
A. The Tenant has paid monthly installments of Annual Rental throughout
the term of this Lease when and as such sums have been due (specifically not
including the fifteen day grace period existing before such failure becomes an
Event of Default hereunder).
B. The Tenant is not in default of any of its other obligations under
this Lease (irrespective of any notice or grace periods provided for herein).
C. The Tenant remains in occupancy of the Occupied Premises.
The foregoing reimbursement is owed only to Seer Technologies, Inc. and
is not owed to any assignee, subtenant, or Affiliate of Seer Technologies,
Inc., even if the Landlord has consented to such sublease or assignment. If
Seer Technologies, Inc. remains in possession of only a portion of the
Occupied Premises and has subleased or assigned the balance of the Occupied
Premises with the Landlord's consent, any sum to be paid hereunder shall be
prorated on the basis of the percentage of the Occupied Premises occupied by
Seer Technologies, Inc., at such time. The remaining portion of the credit
shall be deemed to have been forfeited.
34.0 RESTAURANT PROVISIONS
The Premises outlined in red on Exhibit A-1 attached hereto may be used
and occupied only for a family style restaurant provided the Tenant obtains
all necessary permits and licenses from all local, state, or other regulatory
bodies, and shall not be used or occupied for any other purpose without the
written consent of Landlord. Tenant shall not display any signs on the
Property without prior written consent of Landlord. During the Term of the
lease, the Tenant shall be required to operate these Premises described in
Exhibit A-1 as a restaurant facility.
Notwithstanding the foregoing, if during the Term of the Lease the Tenant
shall want to cease to operate the Premises outlined in Exhibit A-1 as a
restaurant; the Tenant shall request permission from the Landlord, which
permission shall not be unreasonably withheld. The Landlord shall have ninety
(90) days from granting the permission to find another operator for the eating
facility. If the Landlord is successful in so doing, the Tenant, upon
occupancy of the Premises by the new operator of the restaurant, shall be
relieved of its obligations for that area shown on Exhibit A-1 attached
hereto. If within this ninety (90) day period, the Landlord does not find a
suitable restaurant operator (one suitable to the Landlord, in its sole
discretion), then the Tenant may convert the seating area only into office use
at the sole cost of the Tenant. At no time may the existing kitchen area be
utilized for any other purpose without the express written consent of the
Landlord, in its sole discretion, and all furniture, fixtures and equipment
must be returned to the Landlord in its original condition, reasonable wear
and tear excepted. Should the Tenant convert this seating area to office
space, the Tenant's Annual Rental shall increase by the following schedule of
rental:
Date Annual Rental Monthly Rental
April 1, 1998 - March 31, 1999 $31,086.00 $2,590.50
April 1, 1999 - March 31, 2001 $32,970.00 $2,747.50
April 1, 2001 - March 31, 2004 $34,854.00 $2,904.50
Tenant represents to the Landlord that it has examined and inspected the
Premises, including the restaurant Equipment, finds it to be as represented by
the Landlord and satisfactory for Tenant's intended use, and evidences
Tenant's acceptance "as is." Landlord makes no representation or warranty as
to the condition of the Premises, including said Equipment. Tenant shall
maintain (and so deliver at the end of the Lease) each and every part of the
Premises in good repair and condition, and shall make, at Tenant's sole cost
and expense, such replacements, restorations, renewals or repairs, in quality
equivalent or better than the original work, as may be required to so maintain
the same, ordinary wear and tear only expected.
35.0 MISCELLANEOUS
A. The words "Landlord" and "Tenant" wherever used in the Lease shall be
construed to mean plural where necessary, and the necessary grammatical
changes required to make the provisions hereof apply either to corporations or
individuals, either men or women, shall in all cases be assumed as though in
each case fully expressed.
B. Each provision hereof shall extend to and shall bind and inure to the
benefit of Landlord and Tenant and their respective heirs, legal
representatives, assessors and assigns.
C. Submission of this instrument for examination does not constitute a
reservation of or option for the Premises. The instrument does not become
effective as a Lease or otherwise until executed and delivered by both
Landlord and Tenant.
D. The headings of sections are for convenience only and do not limit or
construe the contents of the sections.
E. Should any mortgagee require a modification or modifications of this
Lease, which modification or modifications will not bring about any increased
cost or expense to Tenant or in any way substantially change the rights and
obligations of Tenant hereunder, then in such event, Tenant agrees to execute
such an amendment.
F. The laws of the State of North Carolina shall govern the validity,
performance and enforcement of this Lease.
G. Other than a letter agreement signed by both the Landlord and Tenant,
dated the date hereof, this Lease contains the entire agreement of the parties
in regard to the Premises. There are no oral agreements existing between
them, and there shall be no oral changes. Neither Landlord nor any agent of
Landlord has made any representations, warranties or promises with respect to
the Premises, the Building or the Property, or the use of any amenities or
facilities except as expressly set forth herein. Any agreement hereafter made
shall be ineffective to change, waive, modify, discharge or terminate the
Lease in whole or in part unless such agreement is in writing and signed by
the party against whom enforcement of the change, waiver, modification,
discharge or termination is sought.
H. This Lease amends and restates the Old Lease in its entirety as of
the Commencement Date, and the Old Lease as of such date is superseded and
replaced by the terms hereof.
I. The shareholders, directors and officers of Landlord (collectively
the "Parties") shall not be liable for the performance of Landlord's
obligations under this Lease. Tenant shall look solely to Landlord to enforce
Landlord's obligations hereunder and shall not seek any damages against the
rest of the parties. A liability of Landlord for Landlord's obligations of
this Lease shall not exceed and shall be limited to a value of Landlord's
interest in the Property, and Tenant shall not look to the property or assets
of any of the Parties in seeking either to enforce Landlord's obligations
under the Lease or to satisfy a judgment for Landlord's failure to perform as
such obligation.
Exhibits A, B, A-1, E, and F consisting of thirteen (13) pages are
attached hereto and become part of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed
this Lease in duplicate as the day and year first above written.
REGENCY PARK CORPORATION, INCORPORATED,
doing business as REGENCY PARK CORPORATION
Landlord
(CORPORATE SEAL) By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Vice President/Treasurer
ATTEST:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Secretary
SEER TECHNOLOGIES, INC.
Tenant
(CORPORATE SEAL) By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
ATTEST:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary
Exhibit A - Floor Plans
Exhibit A-1 - Floor Plan for Occupied Premises
Exhibit B - Property Description
Exhibit C - [Intentionally Deleted]
Exhibit D - [Intentionally Deleted]
Exhibit E - Operating Expenses
Exhibit F - Rules and Regulations
EXHIBIT A
[FLOOR PLANS FOR 1ST - 5TH FLOORS OF ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇]
EXHIBIT A-1
[FLOOR PLANS FOR OCCUPIED SPACE ON 1ST - 5TH FLOORS OF ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇]
EXHIBIT B
[MAP OF PROPERTY AROUND ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇]
EXHIBIT E
OPERATING EXPENSES
"Operating Expenses" shall mean those items of cost and expense paid or
incurred by, or on behalf of, Landlord for ownership security, maintenance,
repair, management or operation of the Building, adjacent sidewalks, the land
upon which the Building is located, and the personal property of Landlord used
in the operation of the Building as determined in accordance with generally
accepted principles of sound management consistently applied, which are
properly chargeable to the operation of the Building, including but not
limited to:
1. Landscaping and grounds maintenance costs and expenses, including
those attributable to the care and upkeep of the common areas of Regency Park
required or Property owners;
2. costs and expenses of redecorating, painting, and carpeting the
common areas of the Building and Property; provided, however, that, except as
specified in item 6 hereof, the cost of structural changes to the Building
which should be capitalized in accordance with sound accounting principles
shall not be allocated or charged to the Premises without Tenant's approval;
3. costs of all repairs, alterations, additions, changes, replacements,
and other items required by any law or governmental regulation imposed after
the date of this Lease, regardless of whether such costs, when incurred, are
classified as capital expenditures;
4. costs of wages and salaries of all persons engaged in the operation,
maintenance, repair, and security of the Building and the Property, and so-
called fringe benefits, including social security taxes, unemployment
insurance taxes, costs for providing coverage for disability benefits , cost
of any pensions, hospitalization, welfare or retirement plans, or any other
similar or like expenses incurred under the provisions of any collective
bargaining agreement, costs of uniforms, and all other cost or expenses that
the Landlord pays to or on behalf of employees engaged in the operation,
maintenance, repair, and security of the Building and the Property;
5. legal and accounting expenses, including, but not limited to, such
expenses as relate to seeking or obtaining reductions in and/or refunds of
real estate taxes;
6. amortization, with interest, of capital expenditures for capital
improvements made by Landlord after completion of the Building where such
capital improvements are for the purpose of, or result in, reducing Operating
Expenses; provided, however, that payments by Landlord of interest and
principal on any mortgage or similar instrument secured by the Property or the
Building shall not be included in Operating Expenses;
7. Landlord's insurance costs and expense for all types of insurance
carried by Landlord with respect to the Building and Property;
8. such other expenses paid by landlord, from time to time, in
connection with the operation and maintenance of the Building and the Property
as would be expected to be paid by a reasonable and prudent operator and
manager of a building and site comparable to the Building and the Property;
9. all costs of special services rendered to particular tenants to the
Building, which are paid by such tenants, shall not be included in Operating
Expenses;
10. the operating costs for the Regency Park Fitness Center. This
Fitness Center is for the benefit of all tenants of the Landlord and the
operating costs shall be proportionately shared by tenants of the Landlord.
EXHIBIT F
RULES AND REGULATIONS
1. The sidewalks, entry passages, corridors, halls, elevators, and
stairways shall not be obstructed by Tenants, or used by them for any purpose
other than those of ingress and egrees. The floors and skylights and windows
that reflect or admit light into any place in said Building shall not be
covered or obstructed by Tenants. The water closets and other water apparatus
shall not be used for any other purpose than those for which they were
constructed and no sweepings, rubbish, or other obstructing substances shall
be thrown therein. Any damage resulting to them or to associated systems,
from misuse, shall be borne by Tenants who, or whose clerks, agents, or
servants shall cause it.
2. No Tenant shall do or permit to be done in said Premises, or bring or
keep anything therein, which shall in any way increase the rate of fire
insurance on said Building, or on property kept therein, or obstruct or
interfere with the rights of other tenants or in any way injure or annoy them,
or conflict with the laws relating to fires, or with the regulations of the
Fire Department, or any part thereof, or conflict with any of the rules and
ordinances of the Board of Health. Tenants, their clerks and servants shall
maintain order in the Building, shall not make or permit any improper noise in
the Building or interfere in any way with other Tenants of those having
business with them. Nothing shall be thrown by Tenants, their clerks or
servants out of the windows or doors, or down the passages or skylights of the
Building. No rooms shall be occupied or used as sleeping or lodging
apartments at any time. No part of the Building shall be used or in any way
appropriated for gambling, immoral or other unlawful practices, and no
intoxicating liquor or liquors shall be sold in said Building.
3. Tenants shall not employ and persons other than the janitors of the
Landlord (who will be provided with pass keys into the offices) for the
purpose of cleaning or taking charge of said Premises. It is understood and
agreed that the Landlord shall not be responsible to any Tenant for any loss
of property from rental premises, however occurring, or for any damage done to
the furniture or other effects of any Tenant by the janitor or any of its
employees.
4. No animals, birds, bicycles or other vehicles, or other obstructions,
shall be allowed in the offices, halls, corridors, elevators or elsewhere in
the Building.
5. No painting shall be done, nor shall any alterations be made, to any
part of the Building by putting up or changing any partitions, doors or
windows, nor shall there be any nailing, boring or screwing into the woodwork
or plastering, nor shall any connection be made electric wires or gas or
electric fixtures, without the consent in writing on each occasion of the
Landlord or its agent. All glass, locks and trimmings in or upon the doors
and windows of the Building shall be kept whole and, when any part thereof
shall be broken, the same shall be immediately replaced or repaired and put
in order under the direction and to the satisfaction of Landlord, or its
agents, and shall be left whole and in good repair. Tenants shall not injure,
overload or deface the Building and Premises, woodwork or walls of the
Premises and Building, nor carry on upon the Premises or
in the Building any noisome, noxious, noisy, or offensive business.
6. Not more than two keys for each office will be furnished without
charge. No additional locks or latches shall be put upon any door without
consent of Landlord. Tenants, at termination of their lease of the Premises,
shall return to Landlord all keys to doors and entry to Building.
7. Landlord in all cases retains the power to prescribe the weight and
position of iron safes or other heavy articles. Tenants must make
arrangements with the Superintendent of the Building when the elevator
is required for the purpose of the carrying of any kind of freight.
8. Tenants shall not (without the Landlord's written consent) put up
or operate any steam engine, boiler, machinery or stove upon the Premises,
or carry on any mechanical business thereon, or do any cooking thereon, or
use or allow to be used in the demised Premises oil, burning fluids,
camphene, gasoline or kerosene for heating, warming, or lighting.
No article deemed extrahazardous on account of fire and no explosives shall
be brought into said Premises. No offensive gases or liquids will be
permitted.
9. If Tenants desire blinds or window covering of any kind over the
windows, other than what may be provided by Landlord, they must be of such
shape, color, and materials as may be prescribed by Landlord, and shall be
erected with Landlord's consent and at the expense of said Tenants. No
awnings shall be placed on said Building.
10. If Tenants require for a business machine, or a ▇▇▇▇ or buzz
system, such wiring shall be done by the Electrician of the Building only,
and no outside wiring men shall be allowed to do work of this kind unless by
the written permission of Landlord or its representatives. If telegraphic
or telephonic service is desired, the wiring for same shall be done as
directed by the Electrician of the Building or by some other employee of
Landlord who may be instructed by the Superintendent of the Building
to supervise same, and no boring or cutting for wiring shall be done
unless approved by Landlord or its representatives as stated.
The electric current shall not be used for
power or heating unless written permission to do so shall first have been
obtained from Landlord, or its representatives in writing and at an agreed
cost to Tenants.
11. Landlord will post on the directory of its Building one name to
be designated by the Tenant at no charge. All additional names which Tenant
shall desire put upon said directory must be first consented to by Landlord,
and if so approved, a charge will be made for each additional listing as
prescribed by Landlord to be paid to Landlord by Tenant.
12. The elevators in the Premises are not to be used by Tenants
or their agents for moving furniture into the Premises, incident to the
initial occupancy, or moving furniture out, incident to vacating, except
during the hours from 5:30 p.m. to 7:00 a.m. or on Saturdays after the
hour of 1:30 p.m. unless approved by Manager of the Building.
13. Landlord reserves all vending rights. Request for such service
will be made to Landlord.
14. Landlord shall have the right to make such other and further
reasonable rules and regulations as in its judgment may from time to time
be needful for the safety, care, and cleanliness of the Premises, and
for the preservation of good order therein and the same shall be kept
and observed by the Tenants, their agents, clerks, servants or employees.
15. All Public Areas of the Building are "No Smoking" areas. Public
Areas are defined as the corridors, ground floor lobby, elevator lobbies,
elevators, mens and ladies restrooms, stairwells, and entry vestibule.
Anyone wishing to smoke must do so either on their own Premises or outside
the Building. We will provide an ash urn at the delivery entrance of the
Building and would ask that special care be taken by those who wish to
smoke in keeping these areas clean.
16. The Tenant agrees to the foregoing Rules and Regulations which
are hereby made a part of the Lease, and each of them, and agrees that
for such persistent infraction of them, or any of them, as may in the
opinion of the Landlord be calculated to annoy or disturb the quiet
enjoyment of any other Tenant, or interfere with the proper operation of
the Building, the Landlord may declare a forfeiture and cancellation of
the accompanying Lease and may demand possession of the demised Premises
upon one week's notice.
17. The Landlord reserves the right to close the Building after
regular working hours and on legal holidays subject, however, to Tenant's
right of admittance, under such reasonable regulations as Landlord may
prescribe from time to time, which may include by way of example, but
not to limitation, that persons entering or leaving the Building identify
themselves to a watchman by registration or otherwise and that such
persons establish the right to enter or leave the Building.