EXHIBIT 10.117
LEASE AGREEMENT
PPD
ARTICLE I
FUNDAMENTAL LEASE PROVISIONS
1.1 SUBJECTS REFERRED TO.
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Section 1.1:
BUILDING PPD Building 2 to be constructed at the Building Address specified
below
BUILDING ADDRESS____________________________________________________________
TENANT PPD Pharmaco, Inc., a Texas corporation
TENANT'S REPRESENTATIVE ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
TENANT'S ADDRESS (NOTICE & BILLING) (same as above)
LANDLORD BBC FAMILY LIMITED PARTNERSHIP, a North Carolina limited partnership
LANDLORD'S REPRESENTATIVE ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
MANAGING AGENT BBC FAMILY LIMITED PARTNERSHIP
LANDLORD'S & MANAGING AGENT'S ADDRESS ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ 910/762-2676
TENANT'S RENTABLE SQUARE FEET ("RSF") 70,000
BUILDING TOTAL RSF 70,000
TERM COMMENCEMENT DATE see Section 2.2.1
TERM EXPIRATION DATE see Section 2.2
Annual
RENT Lease Year Base Rent
per RSF
1 $ 12.50
2 12.88
3 13.26
4 13.66
5 14.07
1
6 14.49
7 14.93
8 15.37
9 15.84
10 16.31
TENANT'S ALLOCABLE SHARE WHERE APPLICABLE 100.0%
PERMITTED USE General Office Use
INSURANCE REQ'TS: BODILY INJURY $5,000,000 PROPERTY DAMAGE $5,000,000
($1,000,000 base policy, with $4,000,000 umbrella)
1.2 EXHIBITS.
The exhibits listed below are incorporated into and form a part of this
Lease:
EXHIBIT A Legal Description of the Property....Page_________
EXHIBIT B Site Plan.............................Page_________
EXHIBIT C Plans and Specifications with
Project Budget .......................Page_________
EXHIBIT D Landlord's Services ..................Page_________
EXHIBIT E Rules and Regulations.................Page_________
EXHIBIT F Janitorial Services...................Page_________
1.3 SPECIAL PROVISIONS.
1.3.1 Renewal Options. As long as there has not been an uncured event of
default, Landlord will grant Tenant the right to renew this Lease for two
periods of five (5) years each under the following terms and conditions. Tenant
must notify Landlord at least two hundred forty (240) days in advance of the
Term Expiration Date of Tenant's desire to exercise its right to renew this
Lease for the first five-year renewal Term, and Tenant must notify Landlord at
least two hundred forty (240) days in advance of the last day of the first
five-year renewal Term of Tenant's desire to exercise its right to renew this
Lease for the second five-year renewal Term. Tenant and Landlord shall be bound
by all of the terms and conditions of this Lease during each renewal Term except
for Base Rent as hereinabove defined, which shall be increased at the beginning
of each renewal Term to an amount equal to ninety-five (95%) percent of the
market rent for the Premises at the beginning of such renewal Term, and
increased
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thereafter for each Lease Year of each renewal Term by an amount equal to three
percent (3%) of the Base Rent for the preceding Lease Year of the renewal Term.
As used in this Lease, "Lease Year" means each twelve-month period beginning on
the day of the calendar year on which the Term Commencement Date falls and
ending on the day of the calendar year preceding the date on which the Term
Commencement Date falls.
For the first thirty (30) days following Landlord's receipt of Tenant's
notice of exercise of one of the above options to renew, Landlord and Tenant
shall have the opportunity and option to mutually agree upon the fair market
rental for the Premises. If Landlord and Tenant are unable to agree upon such
fair market rental within the time period set forth above, then each party shall
within thirty (30) days after the expiration of said time period appoint an
appraiser and notify the other party of such appointment by identifying the
appraiser. Each party hereby agrees to select as its respective appraiser a
licensed real estate broker, who is an individual having at least five (5) years
experience with respect to office property ownership, management, and marketing
in the Wilmington, North Carolina area. Not later than ten (10) days after both
appraisers are appointed, each party shall separately, but simultaneously,
submit in a sealed envelope to each appraiser their suggested fair market rental
and shall provide a copy of such submission to the other party. The two selected
appraisers, after reviewing such submissions, shall each independently determine
the fair market rental of the Premises. If both appraisers agree on the fair
market rental for the Premises, they shall declare the same to be the fair
market rental for the Premises and their decision shall be final and binding
upon the parties, provided that such fair market rental shall not be outside of
the bounds established by Landlord's and Tenant's
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estimates furnished as set forth above. If the two selected appraisers are
unable to agree upon the fair market rental within thirty (30) days after
receipt of Landlord's and Tenant's submitted estimates, then the appraisers
shall inform the parties and the appraisers shall select a third appraiser, not
less than ten (10) days after the expiration of the thirty (30) day period. If
no appraiser is selected within such ten (10) day period, either party may
immediately petition a court of competent jurisdiction to appoint such third
appraiser. The third appraiser shall have the same qualifications as set forth
above. The third appraiser shall independently determine the fair market rental
of the Premises. The ultimate fair market rental of the Premises shall be the
arithmetic average of the two fair market rental values determined by two of the
three appraisers which are closest to each other, but in no event in outside the
bounds established by Landlord's and Tenant's estimates furnished as set forth
above. The appraisals or estimates of the fair market rental of the Premises
made under this paragraph shall be appraisals or estimates of such value as of
the commencement date of the renewal Term in question. The fair market rental
established under this paragraph shall be conclusive, unappealable, and binding
upon the parties hereto. Each party shall be responsible for the costs, charges,
and/or fees of its appraiser, and the parties shall equally share the costs,
charges, and/or fees of the third appraiser.
1.3.2. Base Rent Reduction or Increase.
1.3.2.1 Tenant's Annual Base Rent per RSF hereunder shall be reduced or
increased to the extent that the cost of the Project is less or more than the
cost set forth in the Project Budget set forth in Exhibit C attached hereto, or
as such Project Budget may be amended in writing by Landlord and Tenant, at the
rate of $0.10 per rentable square foot for every $100,000.00 in cost reduction
or cost increase.
1.3.2.2 Upon completion of the Building, the Rentable Square Feet in the
Building will be measured and calculated in accordance with current standards
defined by the Building Owners and Managers Association (BOMA), and such
measured and calculated Rentable Square Feet shall be used as the Rentable
Square Feet ("RSF") under this Lease.
ARTICLE II
PREMISES AND TERM
2.1 PREMISES.
Landlord does hereby lease to Tenant and Tenant hereby leases from
Landlord upon the terms and conditions herein stated that certain real property
(the "Property"), together with the improvements and the Building hereafter to
be erected thereon (the term "Premises" as hereinafter used, refers to such
Property, improvements and Building) as more specifically shown on:
EXHIBIT A Legal Description of the Property
EXHIBIT B Site Plan
EXHIBIT C Plans and Specifications with Project Budget
Landlord agrees to construct at Landlord's sole cost and expense and at no
expense whatsoever to Tenant, the Premises in substantial compliance with the
plans and specifications (the
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"Plans") identified and described in Exhibit C hereto. The construction of the
Building and related improvements on the Property is sometimes herein referred
to as the "Project." Any additional detail and value engineering to be performed
in connection with and pursuant to the Plans, shall be mutually agreed upon in
advance by Landlord and Tenant. Specifically, Landlord and Tenant shall work
cooperatively and in good faith with each other and the architect and the
general contractor, when the general contractor for the Project has been chosen
by the Landlord, in the design/build process to incorporate any Building Permit
("BP") requirements into Exhibit C without exceeding the budgeted construction
amounts of construction costs set forth in the Project Budget, including the
shell and interior upfit.
Construction shall be done in accordance with applicable building codes,
laws and regulations, and in a good, substantial and workmanlike manner, and all
materials used will be of appropriate grade and quality for the use for which
they are employed. Landlord guarantees for a period of one (1) year after the
Term Commencement Date that any details of construction of the Building found to
be deficient shall be promptly replaced or remedied without charge to Tenant.
Landlord also guarantees for a period of two (2) years after the Term
Commencement Date that any latent defects of initial construction of the
Building not reasonably discernible within the first year which become obvious
within such two-year period shall be promptly replaced or remedied without
charge to Tenant. Landlord shall have no further liability for patent defects
one year after the Term Commencement Date and no further liability for latent
defects two years after the Term Commencement Date, but such release from
liability for said patent and latent defects shall not be construed in any way
to diminish Tenant's liability for items included in Operating Expenses under
Section 4.2.1 hereof. Landlord shall assign to Tenant any equipment warranties
available to Landlord.
All of the fixtures, partitions, equipment (telephone, office, and
otherwise), and other personal property required by Tenant in the operation of
its business shall be supplied, constructed, and installed by Tenant at its sole
expense and shall be referred to hereinafter as "Tenant's Property". It is
agreed that Tenant's Property shall not be subject to the lien of any mortgage
or deed of trust of Landlord, and may be removed from the Premises by Tenant at
its option, on the termination of this Lease or up to thirty (30) days
thereafter, provided Tenant shall pay the cost of any repairs to the Premises
necessitated by any said removal.
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2.2 TERM.
2.2.1 The Term. The Term of this Lease shall commence upon the Term
Commencement Date, and shall continue for a period of ten (10) years. The Term
Expiration Date shall be ten (10) years (120 months) after the Term Commencement
Date, unless extended by Tenant's exercise of its renewal rights under Section
1.3.1. The Term Commencement Date shall be the date when the Premises have been
substantially completed and Tenant can take possession of the entire Premises
without violating any permits, ordinances or other laws applicable to the
construction and occupancy of the Premises. If Landlord and Tenant cannot agree
upon the Term Commencement Date, said determination shall be made by the
architect for the Project. Notwithstanding the foregoing, Tenant shall be
entitled to take possession of portions of the Building as same become available
for occupancy prior to the Term Commencement Date, provided such occupancy by
Tenant shall not be in violation of any applicable permits, ordinances or laws.
If Tenant shall take possession of a portion or portions of the Building prior
to the Term Commencement Date, Tenant shall pay as rent for any portion or
portions of the Building occupied by Tenant prior to the Term Commencement Date
the Base Rent for the portion or portions of the Building occupied based upon
the rentable square feet occupied as same bears to the Building Total RSF, plus
the Operating Expenses and the Separately Paid Expenses for the portion or
portions of the Building occupied by Tenant, all as hereinafter defined in
Article IV. Landlord agrees to use its best efforts to substantially complete
construction of the Building and other improvements on the Premises and to
deliver possession of the Premises to Tenant on or before September 1, 1999,
which date shall, however, be extended for a period equal to that of any delays
due to government relations, unusual scarcity of or inability to obtain labor or
materials, labor difficulties, casualty, loss or other causes reasonably beyond
the control of Landlord, its contractors and/or subcontractors, as well as any
time deemed necessary by the architect to incorporate changes in the Project
requested by Tenant and agreed to by Landlord. Notwithstanding any of the
foregoing provisions, if Landlord fails to substantially complete construction
and deliver possession of the Premises to Tenant on or before October 1, 1999
(Outside Delivery Date), Tenant, at its option, may terminate this Lease by
giving written notice to Landlord after this date unless Landlord, prior to
September 1, 1999 makes available to Tenant at Landlord's expense temporary
accommodations acceptable to Tenant which will permit Tenant to continue its
business in the normal course without disruption. In addition, if Landlord fails
to substantially complete
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construction and deliver possession of the Premises to Tenant on or before
September 1, 1999, then on September 1, 1999, and on each day thereafter
Landlord shall pay Tenant the sum of $5,000 until Landlord shall have
substantially completed construction and delivered possession of the Premises to
Tenant; provided, however, that nothing in this sentence shall be construed to
deprive Tenant of its option to terminate the Lease after October 1, 1999 as
provided in the immediately preceding sentence unless Landlord supplies the
accommodations acceptable to Tenant as described above.
2.2.2 Condition Precedent to Lease. Notwithstanding any of the foregoing
provisions of this Lease, it is acknowledged and agreed that the obligations of
Landlord and Tenant hereunder are expressly conditioned upon the issuance by the
City of Wilmington of a BP permitting the construction of the Premises as
contemplated hereunder, together with any additional permits, site plans and
other governmental approvals that may be required from time to time by the City
of Wilmington. In the event all such permits are not reasonably assured on or
before ninety (90) days from the date of execution of this Lease (or such
earlier date after execution of this Lease if it is reasonably certain that in
no event can the required governmental approval be obtained), either party may
so elect to terminate this Lease by giving written notice to the other party,
upon the occurrence of which this Lease shall be deemed to be of no further
force and effect, and the parties shall have no further obligations hereunder.
ARTICLE III
REPRESENTATION
3.1 REPRESENTATIVES.
Each party authorizes the other to rely in connection with their
respective rights and obligations under this Article III upon approval and other
actions on the party's behalf by Landlord's Representative in the case of
Landlord or Tenant's Representative in the case of Tenant or by any person
designated in substitution or addition by notice to the party relying.
3.2 LANDLORD AND TENANT RELATIONSHIP
This Lease shall create the relationship of lessor and lessee between
Landlord and Tenant; no estate shall pass out of Landlord and this Lease shall
not be subject to levy and/or sale and shall not be assignable by Tenant except
as provided in
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Section 6.1.4 hereof. Nothing herein contained shall be deemed to create any
relationship between the parties such as creating the relationship of principal
and agent or of partnership and joint venture between the parties other than the
relationship between Landlord and Tenant.
3.3 REPRESENTATIONS
Tenant acknowledges that neither Landlord nor Landlord's employees or
contractors have made any representations or promises with respect to the
Premises or this Lease except as expressly set forth herein and that Tenant
shall have no claim, right or cause of action based on or attributable to any
representation or promise allegedly made by Landlord, its agents, employees or
contractors which is not expressly set forth herein. Attached as Exhibits B and
C are the Site Plans and the Plans for the Project made by Landlord's architect.
Landlord and Tenant acknowledge the Plans are acceptable subject to adjustments
per final requirements of the BP or other governmental permits and subsequent
mutual agreement to amend same. Landlord and Tenant shall use their best efforts
and work cooperatively with each other, the architect and general contractor to
make construction of the Project conform as closely as possible with the Plans,
remain within the Project Budget, and meet all requirements of the BP.
3.4 LANDLORD'S LIABILITY
It is understood and agreed that there shall be no personal liability as
to Landlord or any partner of Landlord in respect to any of the covenants,
conditions, or provisions of this Lease. In the event of a breach or default by
Landlord of any of its obligations under this Lease, Tenant shall look solely to
the equity of the Premises.
ARTICLE IV
RENT
Tenant's rent obligations to Landlord herein are the sum of Base Rent
hereinabove defined and Additional Rent defined below.
4.1 PAYMENTS OF BASE RENT AND ADDITIONAL RENT.
Tenant agrees to pay to Landlord, in advance and without any notice,
demand, offset or reduction whatsoever, the Annual Base Rent per RSF and the
Operating Expenses per RSF for the Premises, in equal monthly installments,
adjusted pursuant to the terms hereof, on or before the first day of each
calendar month
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included in the Term, and a prorated portion thereof for any portion of a
calendar month at the beginning or end of the Term. Until Landlord shall notify
Tenant otherwise, Tenant shall pay Landlord for Operating Expenses an amount
equal to Two and 45/100 Dollars ($2.45) per RSF per Lease Year, in equal monthly
installments in advance. Said amount is an estimate of such charges, and it is
understood and agreed that at the end of each Lease Year, or more frequently,
Landlord shall make a determination concerning actual Operating Expenses for the
Premises and, if the estimated amount paid is greater than actual, the excess
shall be credited to rents and other charges thereafter coming due. If the
estimated amount paid is less than actual, the deficit shall be paid by Tenant
to Landlord, upon demand. When each such determination of the actual amount is
made, the monthly amount paid by Tenant for Operating Expenses shall be adjusted
to such actual amount, on an annual basis, and such adjusted amount shall be
paid by Tenant in equal monthly installments until the next determination of the
actual amount of Operating Expenses is made. Provided, however, in no event
shall the amount paid to Landlord as Operating Expenses by Tenant increase by
more than six percent (6%) per year. Tenant shall have the right to audit
Landlord's books and financial records regarding the Operating Expenses, at
Tenant's expense, once each Lease Year, upon seven days prior written notice to
Landlord.
In addition, Tenant agrees to pay all other sums required to be paid by Tenant
under the provisions of this Lease including but not limited to the Separately
Paid Expenses defined in Section 4.2.1 below, in accordance with the terms
hereof. All sums (other than the Base Rent) required to be paid by Tenant,
including but not limited to the Operating Expenses and the Separately Paid
Expenses defined in Sections 4.2 through 4.7, below, are included in the term
"Additional Rent" as used herein.
4.2 OPERATING EXPENSES AND SEPARATELY PAID EXPENSES
4.2.1 General. "Operating Expenses" are those costs associated with
operating the Building and Premises as described below.
The Operating Expenses paid by Tenant will include: (a) compensation and
all fringe benefits, worker's compensation insurance premiums and payroll taxes
paid by Landlord to, for or with respect to all persons engaged in operating,
managing, administering, supervising, maintaining, and/or cleaning the Premises,
and/or maintaining records (financial or otherwise) in connection with the
Premises; (b) water, sewer, electric, gas, telephone, and other utility charges
for the Premises not paid by
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the Tenant as Separately Paid Expenses, (c) costs of building and cleaning
supplies and equipment (including rental) for the Premises; (d) cost of
maintenance, exterior cleaning and repairs of the Premises; (e) cost of snow
plowing or removal, or both, and care of landscaping of the Premises; (f)
payments to independent contractors under service contracts for operating,
managing, maintaining and repairing the Premises (which payments may be to
affiliates of Landlord provided the same are at reasonable rates consistent with
the type of occupancy and the services rendered); (g) Tax Impositions as defined
in Section 4.3, below; (h) Insurance Costs as defined in Section 4.4, below; and
(i) all other reasonable and necessary expenses paid in connection with the
operation, cleaning, maintenance and repair of the Premises. Some of the
services to be provided by Landlord are more specifically set forth in Exhibit D
attached, but nothing in said Exhibit D shall be construed to limit the
obligations of Tenant to pay the Operating Expenses as set forth in this
Article.
Operating Expenses shall not include Utilities as defined in Section 4.5, below,
or Janitorial Services as defined in Section 4.6, below, both of which shall be
paid by Tenant, which Utilities and Janitorial Services are referred to as
"Separately Paid Expenses" in this Lease.
The following are also specifically excluded from the definition of Operating
Expenses: Costs (1) for capital improvements made to the Building, except for
items, which, though capital for accounting purposes, are properly considered
maintenance and repair items, such as painting of common areas, replacement of
carpet in elevator lobbies, and the like; (2) for repair, replacements and
general maintenance paid by proceeds of insurance, by Tenant, or by third
parties, and alterations attributable solely to tenants in the Building other
than Tenant; (3) for interest amortization or other payments on loans to
Landlord; (4) for depreciation on the Building; (5) for leasing commissions; (6)
for legal expenses, other than those incurred for the general benefit of the
Building's tenants (e.g., tax disputes); (7) for renovating or otherwise
improving space for occupants of the Building or vacant space in the Building;
(8) for correcting defects in the construction of the Building; (9) for overtime
or other expenses of Landlord in curing defaults or performing work expressly
provided for in this Lease to be borne at Landlord's expense; (10) for federal
income taxes imposed on or measured by the income of Landlord from the operation
of the Building; (11) any ground lease rental; (12) advertising and promotional
costs; (13) damages, fines, interest or penalties, including tax penalties
incurred by Landlord due to failure to
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timely comply with its contractual obligations or its obligations under the law,
except to the extent caused (directly or indirectly) by Tenant's failure to
perform its obligations hereunder (for example, without limitation, Tenant's
failure to timely pay Operating Expenses); (14) rentals and other related
expenses incurred in leasing HVAC equipment, elevator equipment, or other
equipment ordinarily considered to be of a capital nature in excess of that
amount which would be included in the cost of the Project under section 1.3.2;
(15) costs incurred in bringing the Building's structure, Building's systems,
and parking lot into compliance with any law in effect prior to the Term
Commencement Date; (16) cost of contract services provided by Landlord or its
affiliates and overhead and profit increments paid to affiliates of Landlord for
services to the extent that the costs of such services exceed market costs for
such services rendered by unrelated persons or entities of similar skill,
competence, and experience; (17) expenses resulting from the gross negligence or
willful misconduct of Landlord, its agents, employees, and contractors; (18) any
bad debt loss, rent loss, or reserves for bad debt or rent loss; (19) costs
associated with the operation of the business of the person or entity which
constitutes Landlord (as the same are distinguished from the costs of operation
of the Building); (20) costs incurred by Landlord for repairs or replacements to
the extent that the Landlord is reimbursed under warranties or guaranties; (21)
damage and repairs attributable to condemnation; and (22) any sale, syndication,
financing or refinancing costs.
Nothing herein shall be deemed to release Tenant from its obligations under
Section 6.1.14 below.
4.2.2 Accounting Period. Landlord shall have the right from time to time
to change the periods of accounting with respect to Landlord's pro-rated billing
of Separately Paid Expenses. In all Landlord's Statements, amounts for periods
partially within and partially without the accounting periods shall be
appropriately apportioned, and any items which are not determinable at the time
of a Landlord's Statement shall be included therein on the basis of Landlord's
reasonable estimate, and with respect thereto Landlord shall render promptly
after a determination a supplemental Landlord's Statement, and appropriate
adjustment shall be made according thereto. If the Lease expires or is
terminated as of a date other than the last day of a calendar year, then for
such fraction of a year at the end of the Term, Tenant's last payment to
Landlord under this Section 4.2 shall be made on the basis of Landlord's best
estimate of the items otherwise includable in Landlord's Statement and shall be
made on or before the later of (a) 10 days
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after Landlord delivers such estimate to Tenant or (b) the last day of the Term,
with an appropriate payment or refund to be made upon submission of Landlord's
Statement.
4.3 TAX IMPOSITIONS.
Landlord shall pay before they become delinquent all taxes and assessments
of any kind and nature whatsoever (collectively, the Tax Impositions) levied or
assessed against the Premises or any part thereof, and the same shall be
included in the Operating Expenses paid to Landlord by Tenant. The term Tax
Impositions shall mean and include all assessments or charges paid or incurred
by Landlord for public betterments or improvements, fire or water line taxes, ad
valorem real estate and/or personal property taxes, or any other tax on rents or
real estate as such (other than income taxes thereon) from time to time directly
or indirectly assessed or imposed upon the Premises and/or the property,
furniture, fixtures, and equipment used in the operation, maintenance or repair
of the Premises, including, when done at the request of Tenant, all costs and
fees paid or incurred by Landlord in contesting, or in negotiating with, the
public authorities as to the amount of such assessments, charges or taxes or the
basis upon which the same shall be assessed. If Landlord does not desire to
contest or negotiate such matters, Landlord may delegate such opportunity to do
so to Tenant. If the tax bills are sent to Tenant, Tenant shall promptly notify
Landlord of taxes due and shall provide Landlord with a copy of the ▇▇▇▇,
statement or invoices.
All taxes on the Premises shall be prorated between the Landlord and
Tenant on the basis of a 365 day year with respect to the tax years in which
this Lease commences or terminates. Tenant shall pay that part of the taxes
attributable to the portion of the tax year covered by this Lease. Tenant shall
also pay before delinquency all taxes, assessments, license fees and other
charges that are levied and assessed against Tenant's personal property
installed or located in or on the Premises.
The foregoing provisions to the contrary notwithstanding, it is understood
and agreed that any and all assessments or charges for public betterments or
improvements, ad valorem real estate taxes or other taxes on business or
personal property or any other tax on real estate or business or personal
property as such from time to time directly or indirectly assessed or imposed
upon or with respect to any alterations, additions or improvements made to the
Premises by Tenant or under its direction or at its request or with respect to
any property of Tenant therein shall be borne and paid entirely by Tenant and,
if any of said items or
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any portion thereof shall be paid by Landlord, Tenant shall reimburse Landlord
for the same as Additional Rent immediately upon receipt by Tenant of written
demand therefore from Landlord.
4.4 INSURANCE COSTS.
As part of the Operating Expenses, Tenant shall reimburse Landlord for all
insurance which the Mortgagee, hereinafter defined, may require be maintained by
Landlord from time to time on the Premises, or which Landlord may reasonably
maintain on the Premises if there is no Mortgagee including, but not limited to,
all risk, fire and extended coverage insurance, rental loss insurance, general
liability insurance as set forth in Section 6.1.6, workmen's compensation
insurance in the amount required in Section 6.1.7, and insurance against
liability for defamation and claims for false arrest.
4.5 UTILITIES.
Tenant shall have its direct electrical usage separately metered for all
types of use including but not limited to 277/408 volt and 120/208 volt services
and Tenant's mechanical or HVAC use. Such items will be metered separately from
other building services and shall be deemed to be "Direct Electric Use".
Landlord shall deliver to Tenant an accounting of the electrical usage for each
billing period which shall show the meter readings and the millage rate charged
Landlord by the utility for such usage. Tenant shall pay to Landlord as
Additional rent within ten (10) days of receipt of Landlord's notice the cost of
Tenant's Direct Electric Use. Landlord will not charge any fees or profits
associated with any such electrical usage. Tenant shall pay only its
proportionate share at the direct cost to Landlord from the providing utility.
To the extent reasonably possible, all items to be paid by Tenant under this
Section 4.5 will be billed directly to Tenant by the service provider.
4.6 JANITORIAL SERVICES
Tenant shall provide and pay for all Janitorial Services described in
Exhibit F.
4.7 AMOUNTS DUE UPON TERMINATION.
Notwithstanding any expiration or termination of this Lease (except in the
case of cancellation by mutual agreement or as otherwise stated herein),
Tenant's obligation to pay Base Rent, Separately Paid Expenses and all other
items of Additional Rent under this Lease shall continue and shall cover all
periods up to
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the Term Expiration Date. Tenant's obligation to pay any and all such amounts
under this Lease, and Landlord's and Tenant's obligations to make the
adjustments referred to above, shall survive any expiration or termination of
this Lease. Except in the case of cancellation by mutual agreement between
Landlord and Tenant, any and all sums due and owed to Landlord by Tenant under
this Section 4.7 shall be reduced by the amount(s) paid to Landlord by any
subsequent tenant(s) occupying the Premises, less Landlord's direct costs of
lease commissions, attorney fees, tenant improvements, and/or other direct costs
to enter into a lease agreement(s) with a subsequent tenant(s).
4.8 LATE CHARGES.
In the event that Tenant fails to pay any sum due under any provisions of
this Lease (including, without limitation, Base Rent, Additional Rent, or any
other costs, charges, or reimbursements provided for herein) when due as herein
provided, then, such sum shall bear interest at the highest legal rate not to
exceed eighteen (18%) percent per annum calculated from said due date. The
payment of such interest shall not excuse or cure any default by Tenant under
this Lease. Tenant shall, in addition, pay a late charge of 5% (five percent)
for processing of late payments. Such interest and late charges shall be
considered Additional Rent under the provisions hereof, the non-payment of which
shall be considered a default on the part of Tenant and shall entitle Landlord
to exercise all of its rights and privileges hereunder.
ARTICLE V
LANDLORD'S COVENANTS
5.1 LANDLORD'S COVENANTS DURING THE TERM.
5.1.1 Repairs and Maintenance by Landlord. Except as otherwise provided
herein, Landlord at its cost shall maintain in good condition the plumbing, the
elevators, the heating, ventilation and air conditioning compressors, fans,
heating units, and cooling units, the structural parts of the Premises,
including the roof, repair of roof leaks, foundations, and load bearing and
exterior walls. Upon written notice given by Tenant of the need for repairs of
which Landlord is responsible hereunder, Landlord shall promptly repair the
Premises in a good, workmanlike manner. Landlord shall have 30 days after notice
from Tenant to commence to perform its obligations hereunder, except that
Landlord shall perform its obligations immediately if the nature of the problem
presents a hazard or emergency. If
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Landlord fails to perform its obligations within the time limits herein
provided, or, if the repair requires a period of time greater than 30 days and
Landlord is not diligently pursuing repair, Tenant may perform the repair and
shall have the right to be reimbursed by Landlord within 30 days after written
demand for the sum Tenant reasonably expends in the performance thereof, or, at
Tenant's option, Tenant may deduct the actual incurred direct cost from Base
Rent hereunder.
5.1.2 Quiet Enjoyment. Landlord has the right to make this Lease and
Tenant, on paying its financial obligations and performing its contractual
obligations hereunder, shall peacefully and quietly have, hold and enjoy the
Premises throughout the Term without any manner of hindrance or molestation from
Landlord or anyone claiming under Landlord, subject however to all the terms and
provisions hereof.
5.1.3 Indemnity. Landlord shall defend, save harmless, and indemnify
Tenant from any liability for injury, loss or damage to any person or property
and from any claims, actions, proceedings and expenses and costs in connection
therewith (including, without limitation, reasonable counsel fees) arising out
of or connected with Tenant's occupancy or use of the Premises and (i) resulting
from the willful act or negligence of Landlord, or (ii) resulting from the
failure of Landlord to perform and discharge its covenants and obligations under
this Lease.
5.2 INTERRUPTIONS.
Landlord shall not be liable to Tenant for any compensation or reduction
of rent by reason of reasonable inconvenience or annoyance or for loss of
business arising from power losses or shortages or from the necessity of
Landlord's entering the Premises for any of the purposes authorized in this
Lease, or for repairing the Premises or any portion thereof.
ARTICLE VI
6.1 TENANT'S COVENANTS DURING THE TERM
6.1.1 Occupancv and Use. During the Term of this Lease, Tenant shall use
and occupy the Premises only for the Permitted Use, and not injure or deface the
exterior or interior of the Premises, nor permit in the Premises any nuisance or
the emission from the Premises of any objectionable noise or odor, nor any use
thereof which is improper, offensive, contrary to law or ordinances, or liable
to render necessary any alteration or addition to the Premises. Tenant shall
comply with all rules and
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regulations as noted by Landlord and as outlined in Exhibit E.
6.1.2. Repairs and Surrender by Tenant. Except as provided in Section
5.1.1 and Section 4.2, Tenant shall keep the Premises in good condition. Tenant
shall either notify Landlord or Landlord's management agent of needed repairs or
maintenance as provided in Section 5.1.1, or if Tenant does not so notify
Landlord, Tenant shall itself make all repairs to the interior of the Premises
including painting and other cosmetic repairs and replacements to the Building
interior partitions, doors, fixtures and equipment (including electrical,
lighting, heating, and air conditioning, and plumbing fixtures and windows).
Tenant shall notify Landlord or Landlord's management agent of all needed
exterior repairs and Landlord, at its option, may make the repairs as provided
in Section 6.1.12 herein. Upon written notice given by Landlord of the need of
repairs for which Tenant is responsible hereunder, which repairs are outside the
scope of Section 4.2, Tenant shall promptly repair the Premises in a good
workmanlike manner. Tenant shall have thirty (30) days after notice from
Landlord to commence performance of the obligations hereunder, except Tenant
shall perform its obligations immediately if the nature of the problem presents
a hazard or emergency. If Tenant fails to perform its obligations within the
time limits herein provided, or, if the repair requires a period of time greater
than thirty (30) days and Tenant is not diligently pursuing repair, Landlord may
perform the obligations and Landlord shall have the right to be reimbursed by
Tenant within thirty (30) days after written demand for the sum Landlord
reasonably expends for the performance thereof. At the expiration or termination
of this Lease, Tenant shall peaceably surrender the Premises and all changes or
additions therein in as good order, repair and condition as they were when
received, reasonable wear and tear excepted. Tenant shall leave the Premises
clean and neat, Landlord reserving the right to perform upon Tenant's failure to
do so and ▇▇▇▇ Tenant as Additional Rent for such cost. Nothing contained in
this Section shall be construed to be a general covenant on the part of Tenant
or to diminish Tenant's obligations under Section 4.2 hereof or Landlord's
obligations under Exhibit D attached.
6.1.3 Safety Appliances. Tenant shall keep the Premises equipped with all
safety appliances required by law or ordinance or any other regulation of any
public or private authority having jurisdiction over the Premises (including
insurance underwriters or rating bureaus) because of any use made by Tenant and
to procure all licenses and permits so required because of such use and, if
requested by Landlord, to do any work so required because of such use, it being
understood that the foregoing provisions
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shall not be construed to broaden in any way the Permitted Use.
6.1.4 Assignment and Subletting. Tenant shall not assign this Lease
without Landlord's prior written consent, which shall not be unreasonably
withheld. Tenant also shall not, without the prior written consent of Landlord
which shall not be unreasonably withheld or delayed, make any sublease, nor to
permit occupancy of the Premises or any part thereof by anyone other than Tenant
voluntarily or by operation of law, except in the case that such subletting is
to Tenant's subsidiaries, affiliates, and organizations directly associated with
Tenant, in which case Landlord's consent shall not be required. Tenant shall
reimburse Landlord promptly for reasonable legal and other expenses incurred by
Landlord in connection with any request by Tenant for consent to assignment or
subletting. No assignment or subletting, and no conduct or course of dealing by
Landlord, Tenant, or any such assignee or sublessee shall affect the continuing
primary liability of Tenant to perform and pay in accordance with the terms of
this Lease (which, following assignment, shall be joint and several with the
assignee) and no consent to any of the foregoing in a specific instance shall
operate as a waiver in any subsequent instance. Tenant and each assignee hereof,
upon such assignment, will sign an agreement reasonably acceptable to Landlord
which includes the terms of the foregoing sentence before such assignment shall
be effective.
6.1.5 Indemnity. Tenant shall defend save harmless, and indemnify Landlord
from any liability for injury, loss or damage to any person or property and from
any claims, actions, proceedings and expenses and costs in connection therewith
(including, without limitation, reasonable counsel fees) arising out of or
connected with Tenant's occupancy or use of the Premises, unless such injury,
loss or damage is due to the willful act or negligence of Landlord or results
from the failure of Landlord to perform and discharge its covenants and
obligations under this Lease.
6.1.6 Tenant's Liability Insurance. During the Term of this Lease, Tenant
shall maintain public liability insurance with respect to the Premises only in
amounts which initially shall be at least equal to the limits set forth in
Section 1.1 and from time to time during the Term shall be for such higher
limits, if any, as are customarily carried in the area in which the Premises are
located on property similar to the Premises and used for similar purposes. Such
insurance shall name Landlord and the Mortgagee, if any, as an additional
insured. Tenant shall furnish Landlord with the certificates thereof upon
request.
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6.1.7 Tenant's Worker's Compensation Insurance. Tenant shall keep all
Tenant's employees working in the Premises covered by worker's compensation
insurance in the required statutory amounts. Such insurance shall name Landlord
as an additional insured, if permitted by law, and Tenant shall furnish Landlord
with certificates thereof upon request.
6.1.8 Landlord's Right of Entry. Tenant shall permit Landlord and
Landlord's agents entry to examine the Premises at reasonable times and, if
Landlord shall so elect, to make repairs or replacements and/or remove, at
Tenant's expense, any changes, additions, signs, curtains, blinds, shades,
awnings, aerials, flagpoles, or the like not permitted by the Rules and
Regulations set forth in Exhibit E or not otherwise consented to in writing by
Landlord. Landlord may show the Premises to prospective tenants during the eight
(8) months preceding expiration of the Term or any renewal thereof and may show
the Premises to prospective purchasers and mortgagees at all reasonable times.
6.1.9 Loading. During the Term of this Lease, without Landlord's prior
written consent, Tenant shall not place any load upon the Premises which exceeds
eighty pounds per square foot, except the first floor, where Tenant shall not
place any load which exceeds one hundred pounds per square foot (provided,
however, there shall be an area on the first floor of two thousand five hundred
square feet where Tenant may place a load not exceeding one hundred ninety two
pounds per square foot), it being Tenant's responsibility to determine and to
notify Landlord of any intended use which may exceed the above load limits or
the Premises' designed capacity. Tenant shall not move any safe, vault or other
heavy equipment in, about or out of the Premises except in such manner as
Landlord shall in each instance approve; nor shall Tenant allow business
machines and mechanical equipment which create vibration or noise that may be
transmitted to the Building structure or to any other space in the Building to
operate in the Building unless said items are placed and maintained by Tenant in
settings of cork, rubber, spring, or other types of vibration and/or noise
eliminators sufficient to eliminate such vibration or noise in Landlord's
opinion.
6.1.10 Tenant's Property. Tenant shall solely assume the risk of loss of
all the furnishings, fixtures, equipment, effects and property of every kind,
nature and description of Tenant and of all persons claiming by, through, or
under Tenant, during the continuance of this Lease or any occupancy of the
Premises by Tenant or anyone claiming under Tenant, anywhere on the Premises. If
the whole or any part thereof shall be destroyed or damaged by fire, water or
otherwise, or by the leakage or bursting of
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water pipes, steam pipes or other pipes, by theft, or from any other cause,
Tenant shall hold Landlord harmless for the loss or damage thereto; provided,
however, that Tenant shall not be responsible nor does Tenant agree to hold
Landlord harmless under this Section 6.1.10 for the loss or damage to the
above-referenced items in the event such loss or damage is occasioned in whole
or in part by (i) intentional willful acts or (ii) grossly negligent acts or
omissions of Landlord, its agents, servants, assigns, and employees.
6.1.11 Labor or Materialmen's Liens. Tenant shall pay promptly when due
the entire cost of any work done on the Premises by Tenant or its agents,
employees, or independent contractors. Tenant shall not cause or permit any
liens for labor or materials performed or furnished in connection therewith to
attach to the Premises, and shall immediately discharge any such liens which may
so be attached.
6.1.12 Changes, Additions and/or Repairs by Tenant. During the Term of
this Lease, Tenant shall not make any structural or permanent changes or
additions to the Premises which would require a permit without Landlord's prior
written consent, which shall not be unreasonably withheld. Any repairs required
or desired to be made by Tenant must receive Landlord's prior written consent.
Tenant shall reimburse Landlord as Additional Rent for all reasonable costs
incurred in reviewing Tenant's proposed changes, additions and/or repairs. At
Landlord's option, any changes, additions or repairs to the exterior of the
Building required or desired to be made by Tenant may be made by Landlord, at
Tenant's expense, provided that Landlord shall obtain at least three bids from
independent contractors selected by Landlord for such work. Tenant shall
reimburse Landlord for the cost of such changes, additions or repairs as
Additional Rent.
6.1.13 Holdover. Tenant shall pay to Landlord one and one-half (1 1/2)
times the total of the Base Rent, as adjusted, and the Additional Rent then
applicable for each month or portion thereof Tenant shall retain possession of
the Premises or any part thereof after the Term Expiration Date, including
extension thereof by renewal of the Term as provided in Section 1.3.1, of this
Lease, whether by lapse of time or otherwise, and shall also pay all damages
sustained by Landlord on account thereof. The provisions of this subsection
shall not operate as a waiver by Landlord of any rights or remedies provided in
this Lease.
6.1.14 Repairs and maintenance by Tenant. Tenant shall promptly repair all
damage or injury to the Premises, caused by
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any act or negligence of Tenant, its agents, employees, licensees, invitees or
visitors. Such repairs must be approved by Landlord in writing in advance, and
repairs to the exterior of the Building may be made by Landlord, at its option,
at Tenant's expense as provided in Section 6.1.12.
6.1.15 Tenant's Obligation for Timely Response. During the period from the
execution of this Lease to Tenant's occupancy in the Premises and specifically
during the period of the general contractor's construction of the Premises,
Tenant shall have ten (10) business days to provide any documentation, input, or
decision Landlord requires from Tenant. If Tenant does not deliver such
documentation, input, or decision within this ten (10) business day period,
Landlord may unilaterally make such determination as is required to keep
delivery of the Premises on schedule. This Section is intended to ensure on-time
delivery of the Premises and that Tenant by virtue of delaying any decision
required on its part, such as but not limited to interior floor plans, selection
of materials such as carpet and paint, and other detail construction items and
finishes, does not delay delivery of the Premises. This Section does not apply
to extension of the Term Commencement Date and the Outside Delivery Date due to
changes in the Project requested by Tenant, which are governed by Section
2.2.1., but if any such changes are agreed to, this Section shall apply to any
such documentation, input, or decision by Tenant Landlord requires to implement
such change after such change has been agreed upon.
ARTICLE VII
CASUALTY AND TAKING
7.1 CASUALTY TO PREMISES.
If the Premises are damaged by fire or other casualty, but are not
rendered untenable for Tenant's business, either in whole or in part, Landlord
shall cause such damage to be repaired without unreasonable delay and neither
the Base Rent, as adjusted, nor any Additional Rent shall be abated or reduced.
If, by reason of such casualty, the Premises are rendered untenable, either in
whole or in part, as determined by Landlord for the Permitted Use, Landlord
shall cause the damage to the Premises to be repaired or replaced without
unreasonable delay, and, in the interim, the Base Rent, as adjusted, and any
Additional Rent shall be proportionately reduced in the same ratio as the
portion of the Premises which are rendered untenable. Any such abatement of rent
shall not, however, create an extension of the Term; provided, however, if, by
reason of such casualty, the Premises are rendered untenable in some
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material portion as determined by Landlord acting in good faith and the amount
of time required to repair the damage using due diligence is in excess of one
hundred twenty (120) days, then either party shall have the right to terminate
this Lease by giving written notice of termination within thirty (30) days after
the date of casualty, and the Base Rent, as adjusted, and all Additional Rent
shall ▇▇▇▇▇ as of the date of such casualty in proportion to the portion of the
Premises rendered untenable.
Except as provided in this section, there shall be no obligation of Landlord to
rebuild or repair in case of fire or other casualty and no termination under
this section shall affect any rights of Landlord or Tenant hereunder because of
prior default of the other party. Tenant shall give Landlord immediate notice of
any fire or other casualty occurring in the Premises.
7.2 CONDEMNATION
7.2.1. As used in this Section 7.2:
(a) "Condemnation" shall mean the (i) exercise of any governmental power,
whether by legal proceedings or otherwise, by a Condemnor under a power of
eminent domain or (ii) a voluntary sale or transfer by Landlord to any
Condemnor, either under threat of condemnation or while legal proceedings for
Condemnation are pending;
(b) "Date of Taking" shall mean the date the Condemnor acquires any
interest or right in and to the Premises;
(c) "Award" shall mean all compensation, sums, or anything of value
awarded, paid or received on a total or partial Condemnation;
(d) "Condemnor" shall mean any public or quasi-public authority, or
private corporation or individual, having the power of Condemnation; and
(e) "Taking" shall mean any acquisition by a Condemnor of any right
appurtenant or interest in and to the Premises by virtue of a condemnation.
7.2.2 Total Taking. If the Premises are totally taken by Condemnation,
this Lease shall terminate on the Date of Taking.
7.2.3 Partial Taking. If any portion of the Premises is taken by
Condemnation, this Lease shall remain in effect, except
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that either Landlord or Tenant may elect to terminate this Lease if twenty five
percent (25%) or more of the Building is taken and such Taking shall materially
impair the normal operation of the Premises or Tenant's business.
If the parking area adjacent to the Building is taken by Condemnation,
this Lease shall remain in full force and effect, except that if forty percent
(40%) or more of the parking area adjacent to the Building is taken and such
Taking causes Tenant's use of the Premises to become a non-conforming use under
the zoning ordinances of Wilmington, either party shall have the election to
terminate this Lease.
If either party elects to terminate this Lease pursuant to this Section
7.2.3, then the party exercising such election shall give written notice to the
other within thirty (30) days after the Date of Taking. The date of termination
of the Lease under this election shall be the Date of Taking. If either party
does not elect to terminate this Lease within the thirty (30) day period, this
Lease shall continue in full force and effect except that in the case of a
partial Taking of the Premises, the Base Rent, as adjusted, and Additional Rent
shall be proportionately and equitably adjusted.
7.2.4 Landlord's Election to Prevent Lease Termination. If Tenant elects
to terminate this Lease pursuant to Section 7.2.3, Landlord may elect to restore
the remaining Premises or parking area so that the area and approximate layout
thereof will be substantially equivalent after the Date of Taking as they were
before the Date of Taking. Landlord shall give notice of such election within
sixty (60) days after the Date of Taking, and such notice shall cause Tenant's
election to terminate this Lease pursuant to Section 7.2.3 to become null and
void; provided, Landlord must commence such restoration as soon as practicable
and diligently pursue completion thereof. In such case, this Lease shall
continue in full force and effect without any reduction in Base Rent, as
adjusted, and Additional rent, except that during such restoration, said rent
shall be proportionately and equitably adjusted.
7.2.5 Restoration of Premises. If there is a partial Taking of the
Premises, and neither party elects to terminate this Lease pursuant to Section
7.2.3, then Landlord shall repair and restore the Premises to the best possible
tenantable condition and the Base Rent, as adjusted, and Additional Rent shall
be proportionately and equitably adjusted. Any rent adjustment shall be based
upon the extent to which the restoration interferes with Tenant's use of the
Premises for its
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Permitted Use.
7.2.6 Award. All compensation awarded for any Taking effected during the
period of this Lease shall be the property of Landlord, whether such Award is
for compensation for damages to Landlord's or Tenant's interest, and Tenant
hereby assigns all of its interest in any Award to Landlord; however, Landlord
shall not have any interest in any separate award made to Tenant for loss of
business, moving expense or the taking of Tenant's trade fixtures or equipment
which shall be recoverable by Tenant from the Condemnor in a separate action. No
claim by Tenant may diminish Landlord's Award.
7.2.7 Temporary Taking. The Taking of the Premises or any part thereof by
military or other public authority shall constitute a Taking of the Premises
only when the use and occupancy by the Taking authority has continued for longer
than one hundred eighty (180) consecutive days. During the one hundred eighty
(180) day period, all provisions of this Lease shall remain in full force and
effect, except that Base Rent, as adjusted, and Additional Rent shall be
proportionately and equitably adjusted during such period of Taking based on the
extent to which the Taking interferes with Tenant's use of the Premises.
Landlord shall be solely entitled to any Award that may be paid for the use and
occupation of the Premises for the period involved as provided in Section 7.2.6.
ARTICLE VIII
RIGHTS OF MORTGAGEE
8.1 PRIORITY OF LEASE.
Landlord shall have the option to subordinate this Lease to any mortgage
or deed of trust (the "Mortgage") on the Premises (the "Mortgaged Property"),
provided that the holder thereof (the "Mortgagee") enters into an agreement with
Tenant by the terms of which the Mortgagee (or anyone purchasing Mortgagee's
interest at foreclosure sale) will agree to recognize the rights of Tenant under
this Lease and to accept Tenant as a tenant of the Premises under the terms and
conditions of this Lease in the event of acquisition of title by such Mortgagee
through foreclosure proceedings or otherwise and Tenant will agree to recognize
the Mortgagee as the landlord hereunder in such event, which agreement shall be
made to expressly bind and inure to the benefit of the successors and assigns of
Tenant and such Mortgagee and anyone purchasing the Mortgaged Property at any
foreclosure sale.
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Within fifteen (15) days of Landlord's prior written request, Tenant
agrees to execute and deliver from time to time a written agreement and any
other documents in order to accomplish the purposes of this Section 8.1 which
are required by any Mortgagee or issuer of any commitment to make a Mortgage,
provided, however, any such agreement will only be executed in exchange for a
non-disturbance agreement executed by such Mortgagee or issuer of a commitment
to make a mortgage. Failure of Tenant to so execute and deliver said documents)
within ten (10) days of Landlord's written demand notice subsequent to Landlord'
s initial fifteen (15) day prior written request shall constitute a default
under this Lease. Any Mortgage to which this Lease shall be subordinated may
contain such terms, provisions and conditions as the Mortgagee reasonably deems
usual or customary; provided, however, that any term or condition therein which
is intended to amend this Lease or lessen Tenant's rights hereunder shall not be
deemed usual or customary. Unless Landlord exercises such option, this Lease
shall be superior to and shall not be subordinate to any Mortgage or other
voluntary lien or other encumbrance on the Mortgaged Property. Said written
agreement and other documents shall accurately reflect the Lease terms and
conditions in effect at that time.
8.2 LIMITATION ON MORTGAGEE'S LIABILITY.
Upon entry and taking possession of the Mortgaged Property for any purpose
other than foreclosure, the Mortgagee shall have all rights of Landlord and,
during the period of such possession, the duty to perform all Landlord's
obligations hereunder. Except during such period of possession, no Mortgagee
shall be liable, either as mortgagee or as holder of a collateral assignment of
this Lease, to perform, or be liable in damages for failure to perform, any of
the obligations of Landlord unless and until such Mortgagee shall enter and take
possession of the Mortgaged Property for the purpose of foreclosing a Mortgage.
Upon entry for the purpose of foreclosing a mortgage, such Mortgagee shall be
liable to perform all of the obligations of Landlord, provided that a
discontinuance of any foreclosure proceeding shall be deemed a conveyance to the
owner of the equity of the Mortgaged Property.
8.3 NO PREPAYMENT OR MODIFICATION, ETC.
Neither Base Rent, as adjusted, Operating Expenses, nor any other charge
shall be paid more than ten (10) days prior to the due dates thereof, and
payments made in violation of this provision shall (except to the extent that
such payments are
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actually received by a Mortgagee in possession or in the process of foreclosing
its Mortgage) be a nullity as against such Mortgagee, and Tenant shall be liable
for the amount of such payments to such Mortgagee. No assignment of this Lease
and no agreement to make or accept any surrender, termination or cancellation of
this Lease and no agreement to modify so as to reduce the rent, change the Term,
or otherwise materially change the rights of Landlord under this Lease, or to
relieve Tenant of any obligations or liability under this Lease, shall be valid
as against Mortgagee unless consented to in writing by Landlord's Mortgagees of
record which Mortgagees have given Tenant written notice of their intent to
exercise such authority, if any, such consent not to be unreasonably withheld or
delayed.
ARTICLE IX
DEFAULT
9.1 DEFAULT BY TENANT.
If one or more of the following Events of Default shall occur and shall
continue for such time after any required notice is given as hereinafter
provided:
(i) If Tenant shall fail to pay any rent and/or any other sum due
hereunder when due in accordance with the terms of this Lease and such default
shall continue for a period of five (5) days after written notice to Tenant
thereof; or
(ii) If Tenant shall fail to keep or perform or abide by any other term,
condition, covenant or agreement in this Lease or of the Rules and Regulations
now or hereafter in effect and such default shall continue for a period of
fifteen (15) days after written notice to Tenant thereof; or
(iii) If Tenant, or if Tenant is a partnership, if any partner of Tenant,
shall file a petition in bankruptcy or take 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 any court of competent jurisdiction shall enter a
decree or order adjudicating it bankrupt or insolvent, or if any trustee or
receiver for Tenant or for any substantial part of its property be appointed, 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 sixty
(60) days of entry thereof; or
(iv) If Tenant's interest in this Lease or the Premises
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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
(v) If Landlord, on four (4) or more occasions in any twelve (12) month
period, gives notice to Tenant of default under the first and third
subparagraphs above, notwithstanding Tenant's cure of such noticed defaults
within the allowable periods;
Then and in any such event Landlord without declaring a termination of
this Lease (which right is, however, unconditionally and absolutely reserved)
may at its election exercise one or more of the remedies in Section 9.2 in
addition to any other remedies available to Landlord in law, in equity, or
pursuant to the terms of this Lease.
Notwithstanding anything contained in this Section 9.1 to the contrary,
Tenant may cease operations, vacate or abandon the Premises or fail to operate
its business continuously in the Premises so long as Tenant continues to (i) pay
Base Rent, Additional Rent, and other charges, if any, to Tenant hereunder,
including costs incurred by Landlord in the ordinary course of operating and
maintaining the Premises and collecting all sums due and owed Landlord under
this Lease, and (ii) perform all other obligations and duties assigned to Tenant
hereunder, and such vacating or abandonment shall not be deemed a default
hereunder.
9.2 REMEDIES TO LANDLORD UPON DEFAULT BY TENANT.
Upon the occurrence of any Event of Default as set forth above, Landlord,
with or without terminating this Lease, immediately or at any time thereafter,
shall have the right, at its option, to utilize any one or more of the following
rights:
(i) Landlord may make any payment required of Tenant and/or re-enter the
Premises and correct or repair any condition which shall constitute a failure on
Tenant's part to keep or perform. Tenant shall reimburse and compensate Landlord
for any expenditures made by Landlord in making such payment and/or corrections
or repairs within fifteen (15) days after delivery of a statement to Tenant;
(ii) Landlord may demand in writing that Tenant vacate the Premises.
Tenant shall vacate the Premises and remove all its property thereon within
thirty (30) days of Tenant's receipt of such notice, whereupon Landlord shall
have the right to re-enter
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and take possession of the Premises;
(iii) Landlord may accelerate and collect all rent and all other charges
which are due or may become due it under the Lease for the balance of the Term;
(iv) Landlord may re-enter the Premises and remove Tenant therefrom and
all property belonging to or placed on the Premises by, at the direction of, or
with the consent of Tenant;
(v) Landlord may re-let the Premises or any part thereof for such time and
at such rent and upon such other terms and conditions as Landlord, in its sole
discretion, may deem advisable. Landlord may make any alterations or repairs to
the Premises which it may deem necessary or proper to facilitate such
re-letting. Tenant shall pay all costs of such re-letting including the cost of
any repairs to the Premises. If this Lease shall have not been terminated,
Tenant shall continue to pay all rent due under this Lease up to and including
the date of beginning of payment of rent by any subsequent tenant of part or all
of the Premises, and thereafter Tenant shall pay monthly during the remainder of
the Term of this Lease the difference, if any, between the rent collected from
any such subsequent tenant or tenants and the rent reserved in this Lease, but
Tenant shall not be entitled to receive any excess of any such rents collected
over the rents reserved herein;
(vi) Landlord, immediately or at any time thereafter, may terminate this
Lease without notice or demand to vacate the Premises. This Lease shall be
deemed to have been terminated upon receipt by Tenant of written notice of such
termination and upon such termination Landlord shall have and recover from
Tenant all damages Landlord may suffer by reason of such termination including
without limitation the cost (including legal expenses and reasonable attorneys'
fees) of recovering possession of the Premises, and the cost of any repairs to
the Premises which are necessary or proper to prepare the same for reletting. In
addition thereto, Landlord, at its election, shall have and recover from Tenant
either (i) an amount equal to the excess, if any, of the total amount of all
rents to be paid by Tenant for the remainder of the Term of this Lease over the
then reasonable rental value of the Premises for the remainder of the Term of
this Lease or (ii) the rents which Landlord would be entitled to receive from
Tenant pursuant to the provisions of subparagraph (v) above if the Lease were
not terminated. Such election shall be made by Landlord's giving Tenant written
notice thereof within thirty (30) days of the notice of termination.
27
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 except such claims as arise
from the negligence of Landlord. 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 and storage of Tenant's
property, if any. No such re-entry shall be considered or construed to be a
forcible entry.
Upon any breach of this Lease, regardless of whether such breach is, or
becomes, an Event of Default, Landlord shall be reimbursed for any and all
expenses incurred by Landlord, including legal expenses, and reasonable
attorneys' fees, in enforcement of the terms and provisions of this Lease.
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. 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.
Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove and obtain in proceedings for bankruptcy or
insolvency by reason of the Tenant's default under this Lease, an amount equal
to the maximum allowed by any statute or rule of law in effect at the time.
9.3 DEFAULT BY LANDLORD; TENANT'S REMEDIES.
In the event of any default hereunder by Landlord, except as otherwise
specifically provided herein (including as provided in Sections 2.2.1 and 2.2.2
hereof), Tenant shall not be entitled to terminate this Lease, but shall have
the right to pursue any other legal or equitable remedy available under law or
in equity, including money damages and setoff.
ARTICLE X
MISCELLANEOUS
10.1 TITLES, HEADINGS, CAPTIONS, AND REFERENCES.
The article and section captions contained in this Lease are for
convenience only and do not in any way limit or amplify any term or provision
hereof. The terms "Landlord" and "Tenant" as
28
used herein shall include the plural as well as the singular, the neuter shall
include the masculine and feminine genders and, if there be more than one
tenant, the obligations herein imposed upon Tenant shall be joint and several.
10.2 NOTICE OF LEASE.
Upon request of either party both parties shall execute and deliver, after
the Term begins, a short form memorandum of this Lease in form appropriate for
recording or registration, the costs of recording to be paid by Tenant, and if
this Lease is terminated before the Term expires, an instrument in such form
acknowledging the fact and date of termination.
10.3 NOTICE.
No notice, approval, consent requested or election required or permitted
to be given or made pursuant to this Lease shall be effective unless the same is
in writing. Communications shall be addressed, if to Landlord, at
BBC Family Limited Partnership
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
or at such other address as may have been specified by prior notice to Tenant
and, if to Tenant, at
PPD Pharmaco, Inc.
Corporate Administration
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or at such other place as may have been specified by prior notice to Landlord.
Unless this Lease specifically provides to the contrary, any communication so
addressed shall be deemed duly served and received if mailed by registered or
certified mail, return receipt requested.
10.4 BIND AND INURE.
The obligations of this Lease shall run with the land, and this Lease
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Landlord named herein and
each successive owner
29
of the Premises shall be liable only for the obligations accruing during the
period of its ownership. Whenever the Premises are owned by a trustee or
trustees, the obligations of Landlord shall be binding upon Landlord's trust
estate, but not upon any trustee, beneficiary or shareholder of the trust
individually.
10.5 NO SURRENDER.
The delivery of keys or other such tender of possession of the Premises to
any employee of Landlord or to Landlord's agent or any employee thereof shall
not operate as a termination of this Lease or a surrender of the Premises.
10.6 NO WAIVER.
The failure of Landlord or of Tenant to seek redress for violation of, or
to insist upon the strict performance of any covenant or condition of this Lease
or, with respect to such failure of Landlord, any of the Rules and Regulations
referred to herein, whether heretofore or hereafter adopted by Landlord, shall
not be deemed a waiver of such violation nor prevent a subsequent act, which
would have originally constituted a violation, from having all the force and
effect of an original violation, nor shall the failure of Landlord to enforce
any of said Rules and Regulations against any other tenant in the Building be
deemed a waiver of any such Rules or Regulations. The receipt by Landlord of all
or a portion of Base Rent, as adjusted, or Additional Rent with knowledge of the
breach of any covenant of this Lease shall not be deemed a waiver of such breach
by Landlord, unless such waiver be in writing signed by Landlord or Landlord's
Representative. No consent or waiver, express or implied, by Landlord or Tenant
to or of any breach of any agreement or duty shall be construed as a waiver or
consent to or of any other breach of the same or any other agreement or duty.
10.7 NO ACCORD AND SATISFACTION.
No acceptance by Landlord of a lesser sum than the Base Rent, as adjusted,
Additional Rent and other sums then due from Tenant shall be deemed to be other
than on account of the earliest installment of such payments due, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment be deemed as accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of such
installment or pursue any other remedy in this Lease provided.
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10.8 QUIET ENJOYMENT.
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, providing that no action of Landlord in work in other
space in the building, or in repairing or restoring the Premises, 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. However,
Landlord shall not be responsible or liable to Tenant for injury or damage
resulting from acts or omissions of persons occupying property adjacent to the
Premises or any part of the building in which the Premises are a part, or for
injury or damage resulting to Tenant or its property from bursting, stoppage or
leaking of water, gas, sewer or steam pipes, except where such loss or damage
arises from the willful misconduct of Landlord.
10.9 ATTORNMENT.
Tenant shall attorn (recognize) and be bound to any of Landlord's assigns
or successors under this Lease in accordance with all of the Lease terms,
covenants and conditions. The term "Landlord" as used herein shall be deemed to
include any successor to Landlord's interest hereunder.
10.10 CUMULATIVE REMEDIES.
The specific remedies to which a party may resort under the terms of this
Lease are cumulative and are not intended to be exclusive of any other remedies
or means of redress to which it may be lawfully entitled in case of any breach
or threatened breach of any provisions of this Lease. In addition to the other
remedies provided in this Lease, both Landlord and Tenant, if so ordered by a
court of competent jurisdiction, shall be entitled to the restraint by
injunction of the violation or attempted or threatened violation of any of the
covenants, conditions or provisions of this Lease or to a decree compelling
specific performance of any such covenants, conditions or provisions.
10.11 PARTIAL INVALIDITY.
If any term of this Lease, or the application thereof to any person or
circumstances, shall to any extent be invalid or unenforceable, the remainder of
this Lease, or the application of such term to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each term of this Lease shall be valid and
31
enforceable to the fullest extent permitted by law.
10.12 LANDLORD'S AND TENANT'S RIGHT TO CURE.
If Tenant shall at any time default in the performance of any obligation
under this Lease, Landlord shall have the right, but shall not be obligated, to
enter upon the Premises and to perform such obligation, notwithstanding the fact
that no specific provision for such substituted performance by Landlord is made
in this Lease with respect to such default. In performing such obligation,
Landlord may make any payment of money or perform any other act. All sums so
paid by Landlord (together with late charges and interest as specified in
Section 4.8), and all necessary incidental documented costs and expenses in
connection with the performance of any such act by Landlord, shall be deemed to
be Additional Rent under this Lease and shall be payable to Landlord immediately
on demand. Landlord may exercise the foregoing rights without waiving any other
of its rights or releasing Tenant from any of its obligations under this Lease.
If Landlord shall at any time default in the performance of any obligation under
this Lease, Tenant shall have the right, but shall not be obligated, to perform
such obligation, notwithstanding the fact that no specific provision for such
substituted performance by Tenant is made in this Lease with respect to such
default. In performing such obligation, Tenant may make any payment of money or
perform any other act. Tenant shall be reimbursed by Landlord for any such sums
paid by Tenant (together with interest at the rate of one percent per annum
above the prime rate as charged by NationsBank, N.A., from time to time), and
all necessary incidental costs and expenses in connection with the performance
of any such act by Tenant. Tenant may exercise the foregoing rights without
waiving any of its other rights or releasing Landlord from any of its
obligations under this Lease.
10.13 ESTOPPEL CERTIFICATES.
Tenant agrees on the Term Commencement Date, and from time to time
thereafter upon not less than fifteen (15) days prior written request by
Landlord, to execute, acknowledge and deliver to Landlord a statement in
writing, certifying that to the best of its knowledge this Lease is unmodified
and in full force and effect; that Tenant has no defenses, offsets or
counterclaims against its obligations to pay the Base Rent, as adjusted, and
Additional Rent and to perform its other covenants under this Lease; that there
are no uncured defaults of Landlord or Tenant
32
under this Lease (or, if there have been any modifications, that this Lease is
in full force and effect as modified and stating the modifications, and if there
are any defenses, offsets, counterclaims, or defaults, setting them forth in
reasonable detail); and the dates to which the Base Rent, as adjusted,
Additional Rent and other charges have been paid. Not withstanding anything
contained herein, Tenant shall only execute and deliver such statement that in
its form and content is true and accurate as of the date of delivery thereof.
Failure of Tenant to so execute and deliver said documents within ten (10) days
of Landlord's written demand notice subsequent to Landlord's initial fifteen
(15) day prior written request shall constitute a default under this Lease.
Any such statement delivered pursuant to this Section 10.13 may be relied
upon by any prospective purchaser or mortgagee of property which include the
Premises or any prospective assignee of any such mortgagee. Likewise, Landlord
agrees from time to time upon not less than fifteen (15) days prior written
notice by Tenant, to execute, acknowledge and deliver to Tenant a similar
statement in writing to serve as an estoppel certificate covering such matters
as are reasonably required by Tenant in its business operations.
10.14 WAIVER OF SUBROGATION.
Any insurance carried by either party with respect to the Premises and
property therein or occurrences thereon shall, if the other party so requests
and it can be so written without additional premium or with an additional
premium which the other party agrees to pay and without otherwise adversely
affecting coverage, include a clause or endorsement denying to the insurer
rights of subrogation against the other party to the extent rights have been
waived by the insured prior to occurrence of injury or loss. Each party,
notwithstanding any provisions of this Lease to the contrary, hereby waives any
rights of recovery against the other for injury or loss due to hazards covered
by insurance containing such clause or endorsement to the extent of the
indemnification received thereunder.
10.15 BROKERAGE.
Tenant represents and warrants that it has identified to Landlord
Corporate Realty Advisors, and that no other broker is involved in connection
with Tenant's representation in this transaction. Tenant agrees to defend,
indemnify and save Landlord and Managing Agent harmless from and against any and
all claims and damages (including reasonable attorneys' fees) for a
33
commission arising out of this Lease made by anyone, except that Landlord shall
be solely responsible for the commissions due Corporate Realty Advisors and such
commission agreement shall be attached to this Lease and included in the Project
Budget in Exhibit C.
10.16 EVIDENCE OF AUTHORITY.
If requested by Landlord, Tenant shall furnish appropriate legal
documentation evidencing the valid existence and good standing of Tenant and the
authority of any parties signing this Lease to act for Tenant. If Tenant signs
as a corporation, each of the persons executing this Lease on behalf of Tenant
does hereby covenant and warrant that Tenant is a duly authorized and existing
corporation, that Tenant has and is qualified to do business in North Carolina,
that the corporation has full right and authority to enter into this Lease and
that the person(s) signing on behalf of the corporation are authorized to do so.
10.17 LEASE REVIEW; DATE OF EXECUTION.
The submission of this Lease to Tenant for review does not constitute a
reservation of or option for the Premises, and this Lease shall become effective
as a contract only upon execution and delivery by both Landlord and Tenant. The
date of execution shall be inserted on the execution signature page of this
Lease, and shall be the date on which the last party signed the Lease, or as
otherwise may be specifically agreed by both parties. Such date, once inserted,
shall be established as the final date of ratification by all parties to this
Lease, and shall be the date for use throughout this Lease as the Date of
Execution or Execution Date.
10.18 PARKING.
The Premises shall throughout the term of this Lease, including any
extensions or renewals, include (i) three hundred fifty parking spaces, or (ii)
the maximum number of parking spaces allowable at the time under the then
applicable laws, governmental regulations, and governmental rules, whichever is
less. Said parking spaces shall insofar as possible be constructed in accordance
with the Site Plan and Plans and Specifications set forth in Exhibits B and C.
10.19 SIGNAGE.
Tenant shall have the right to place, construct and maintain an exclusive
exterior sign on the Building or other portion of
34
the Premises identifying Tenant and/or advertising its business. Said sign, to
the extent the cost of same exceeds the allowance therefor in the Project
Budget, shall be constructed at Tenant's sole expense. Landlord shall have the
right to approve such sign, which approval shall not be unreasonably withheld.
In requesting such approval, Tenant shall submit information showing the size
and location of such sign, elevations showing all dimensions, materials, colors,
and method of illumination, and photographs of identical or similar signs from
other projects, if available. It is the intent of the parties that the Building
located on the Premises shall be known as the PPD Building and that Tenant, to
the extent permitted by local municipal codes, rules and regulations, shall be
entitled to place a sign on the Building designating it as such. Any sign Tenant
has the right to place, construct and maintain shall comply with all applicable
laws, ordinances, and restrictive covenants. Upon termination of this Lease,
Tenant shall remove any signs, and replace and repair any damage or injury to
the Premises caused thereby.
10.20 HAZARDOUS SUBSTANCES.
Tenant agrees that no storage tanks or facilities shall be installed or
placed on the Premises without Landlord's prior written consent. Tenant shall be
solely responsible for any storage tanks and facilities which Tenant places upon
the Premises. Tenant shall have no responsibility or liability for any storage
tanks, facilities, or hazardous substances (as herein defined) which Tenant did
not introduce or authorize to be introduced, either directly or indirectly, onto
or into the Premises.
Tenant agrees to indemnify and hold harmless Landlord for any and all
claims, fines, damages, judgments, penalties, costs, liabilities or loss,
including without limitation any and all sums to pay for settlement claims,
attorney's fees, consultants or expert fees, from or in connection with presence
or suspected presence of Hazardous Substances in or on the Premises, unless the
Hazardous Substances are present or enter onto or into the Premises as the
result of negligence, willfulness misconduct, or other acts of Landlord or
Landlord's agents or invitees. To the extent that such substances are present or
enter onto or into the Premises due to such acts of Landlord or Landlord's
agents or invitees, Landlord indemnifies Tenant to the same extent as Tenant
indemnifies Landlord herein. Without limitation of the forgoing, this
indemnification shall include any and all cost incurred due to any investigation
of the Premises, or any clean-up, removal or restoration mandated by a federal,
state or local agency, unless the Hazardous Substances are present as a result
35
of negligence, willful misconduct or other acts of Landlord, Landlord's agents
or invitees. This indemnification shall include any and all costs due to the
flowing, leaching, defusing, migrating, or percolating of Hazardous Substances
into or onto Premises after the date of this Lease.
For purposes of the provision, the term "Hazardous Substances" shall be
interpreted broadly to include, but not be limited to, substances designated as
hazardous under the Resource Conservation and Recovery Act, Federal Water
Pollution Control Act, the Clean Air Act, or the Comprehensive Environmental
Response Compensation Liability Act of 1980 and oil and petroleum base
derivatives. The terms shall also be interpreted to include, but not be limited
to, any substances which after release into the environment and upon exposure,
ingestion, inhalation, or assimilation, will or may reasonably be anticipated to
cause death, disease, behavior abnormalities, cancer and/or genetic
abnormalities.
10.21 PUNCH LIST.
Landlord, Landlord's contractor and Tenant shall jointly conduct a visual
inspection of the Premises and agree upon a written punch list of defects in
construction prior to occupancy and the Term Commencement Date. Landlord and
Tenant hereby agree that failure to include a latent defect or defects on such
punch list does not constitute a waiver by Tenant of any rights under this Lease
or under applicable law with respect to such defects. Within thirty (30) days of
compiling said punch list, Landlord will use its best efforts to immediately
commence and diligently complete any work required to correct punch list items
and defects noted by Tenant.
10.22 MODIFICATION FOR BENEFIT OF LANDLORD'S MORTGAGEE.
Tenant may enter into any certificates, lease memoranda, or modifications
of this Lease, when so requested by any institutional lender providing financing
to Landlord for the construction of improvements to Premises, provided execution
of such certificates, modifications or other instruments is reasonable and any
Lease modifications are acceptable to Tenant acting in good faith.
10.23 ENTIRE AGREEMENT AND NO OFFER.
This Lease constitutes the entire agreement, intent and understanding
between the parties hereto with respect to the subject matter hereof, and no
prior or contemporaneous agreement or understanding with regard to any matter
shall be effective for
36
any purpose unless reduced to writing herein. No provision of this Lease may be
amended or added to except by an agreement in writing signed by the parties
hereto or their respective successor in interest. The submission of this Lease
for examination or consideration by Tenant shall not constitute an offer to
lease by Landlord nor a reservation of space and this Lease shall be effective
only upon execution and delivery hereof by both Landlord and Tenant.
10.24 REPRESENTATIONS.
Tenant acknowledges that neither Landlord nor Landlord's employees or
contractors have made any representations or promises with respect to the
Premises, or this Lease except as expressly set forth herein and that Tenant
shall have no claim, right or cause of action based on or attributable to any
representation or promise allegedly made by Landlord, its agents, employees or
contractors which is not expressly set forth herein.
10.25 JURISDICTION.
The laws of the State of North Carolina shall govern the interpretation,
validity, performance, and enforcement of this Lease.
EXECUTED in two or more counterparts on the day and year written below.
(Signatures on the following page.)
37
LANDLORD: BBC FAMILY LIMITED TENANT: PPD PHARMACO, INC.
PARTNERSHIP
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------- ---------------------------
(Signature) (Signature)
Its: General Partner Its:CFO
---------------------------
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (Title)
---------------------------
(Signature)
Its: General Partner
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------
(Signature)
Its: General Partner
----------------------
Execution Date_15 September, 1998.
38
EXHIBIT A
Legal Description of the Property
39
40
EXHIBIT B
Site Plan
41
EXHIBIT C
Plans and Specifications
1. Description of Plans and Specification.
The plans and specifications are those plans and specifications prepared
by Boney Architects, Inc. et al which are hereby incorporated by reference into
this Lease and made a part hereof.
2. Project Budget
PPD II Budget
70,000 Square Foot
Office Building
Description Amount
Boney Architects, Land
Architectural and Engineering Design, et al. $300,000.00
Building Shell, Site Work
and other costs 70,000 Sq. Ft. @ $60 $4,200,000.00
Impact Fees $75,000.00
Tenant Fit-Up 70,000 Sq. Ft. @ $18 $1,260,000.00
Financial $250,000.00
General and Administrative $125,000.00
Corporate Realty Advisors
Marketing Commission $400,000.00
Legal Fees $30,000.00
Land 6 acres @ $200,000 $1,200,000.00
Contingencies $152,000.00
------------------------------------------------------------------------------
Total $7,992,000.00
------------------------------------------------------------------------------
------------------------------------------------------------------------------
42
Landlord's Services
1.0 General
Landlord shall perform all services included in Operating Expenses as set
forth in Section 4.2.1 of this Lease, unless and except otherwise provided
in Section 4.2.1 or elsewhere in this lease, which services shall include
but not be limited to those items described in Sections 2.0 through 8.0
below.
2.0 Heating, Ventilating and Air Conditioning
2.1 Maintenance and Repair or Replacement
Landlord will maintain heating, ventilating and air conditioning systems as
required to provide inside temperatures between 70 degrees and 74 degrees
Fahrenheit for such hours as Tenant is conducting business on the Premises.
These systems shall be kept in good working order with scheduled
replacement of filters and service as needed.
2.2 Maintenance and repair or replacement of any additional or special air
conditioning equipment including units for the Computer/Telephone Room and
Drug Rooms, will be at Tenant's expense.
3.0 Plumbing and Water Service
3.1 Building Services
Landlord will provide hot water for shower and lavatory purposes and cold
water for drinking, shower, lavatory and toilet purposes. Maintenance and
repair or replacement of said items and plumbing, hot water heaters,
garbage disposal, dishwasher, sinks, facets, and toilets, shall be
Landlord's responsibility, except as provided in Section 6.1.15 of the
Lease. Vending machines shall be Tenant's responsibility.
3.2 Irrigation System
Landlord will maintain landscaping of the Premises.
43
Landlord will prune, weed, mow, and replace plantings as necessary.
Landlord will provide and maintain an irrigation system to water the
Premises as needed. The irrigation water will be separately metered and its
cost will be paid by Landlord.
4.0 Lighting
Maintenance, repair and replacement of light fixtures shall be Landlord's
responsibility. Tenant will reimburse Landlord for the cost of lamp's
ballasts, and starters, and the cost of replacing same within the Premises,
Lights will be checked and replaced, as needed, monthly.
5.0 Breakroom and Vending Installation
5.1 Maintenance, repair and replacement of plumbing, plumbing fixtures, sinks,
faucets, garbage disposals, and dishwasher shall be Landlord's
responsibility. Tenant shall keep such areas clean and sanitary.
5.2 Vending machines or refreshment service installation by Tenant must be
approved by Landlord in writing and shall be restricted in use to employees
and business callers. All cleaning necessitated by such installations shall
be Tenant's expense.
6.0 Electricity
6.1 Landlord shall maintain, repair or replace the Building distribution system
in conformance with local codes and in good working order. Landlord will be
responsible for electrical utility company wiring and entrance to the
Building.
6.2 Tenant shall not, without prior written notice to Landlord in each
instance, connect to the Building electric distribution system and
fixtures, appliances or equipment other that normal office machines such as
personal computers, fax machines, desk-top calculators and standard
typewriters, or any fixtures, appliances or equipment which Tenant on a
regular basis operates beyond normal building operating hours.
6.3 Tenant's use of electrical energy on the Premises shall not at any time
exceed the capacity of any of the electrical conductors or equipment in or
otherwise serving the Premises. In order to insure that such capacity is
not
44
exceeded and to avert possible adverse effect upon the Building electrical
service. Tenant shall not, without prior written notice to Landlord in each
instance, connect to the Building electrical distribution system any
fixtures, appliances or equipment which operates on a voltage in excess of
120 volts nominal or make an alteration or addition to the electrical
system of the Building or Premises. Unless Landlord shall reasonably object
to the connection of any such fixtures, appliances or equipment, all
additional risers or other equipment thereof shall be provided by Landlord,
and the cost thereof shall be paid by Tenant upon Landlord's demand.
7.0 Telephone Service
7.1 Landlord shall be responsible for maintenance of Telephone Service to the
Southern ▇▇▇▇ - PPD interface. Tenant shall be responsible for all wiring
and equipment beyond that point.
8.0 Grounds and Outside Building Maintenance
8.1 Landlord shall be responsible for maintenance of the Building exterior
surface. Landlord will wash windows as needed (weather permitting) and
perform any other required maintenance.
8.2 Landlord will maintain exterior walks and parking lot. Landlord will
replace and patch paving as required.
8.3 Landlord will be responsible for snow and ice removal, said service to be
provided on a demand basis.
8.4 All repairs to the Building roof will be Landlord's responsibility. Tenant
shall obtain Landlord's permission before erecting any structure on the
roof or before making any roof penetration.
45
EXHIBIT E
Rules and Regulations
1.0 Freight. The moving in or out of the Premises of all safes, freight,
furniture or bulky matter of any description must take place during the hours
which Landlord may determine from time to time. Landlord reserves the right to
inspect all freight and bulky matter to be brought into the Building and to
exclude from the Building all freight and bulky matter which violates any of
these Rules and Regulations or the Lease of which the Rules and Regulations are
a part.
2.0 Signs; Window or Door Hangings. No curtains, blinds, shades,screens or signs
other than those furnished by Landlord shall be attached to, hung in or used in
connection with any window or door of the Premises without the prior written
consent of Landlord. Interior signs on doors shall be painted or affixed for
Tenant by Landlord or by sign painters first approved by Landlord at the expense
of Tenant and shall be of a size, color, and style acceptable to Landlord.
3.0 Locks and Keys. Tenant shall, upon the termination of its tenancy, hand over
to Landlord all keys of stores, shops, booths, stands, offices and toilet rooms,
either furnished
46
to or otherwise procured by Tenant.
4.0 Solicitations on Premises. Canvassing, soliciting and peddling in the
Building are prohibited and Tenant shall cooperate to prevent the same.
5.0 Smoking Policy. If Tenant elects a controlled smoking policy, Tenant must
also arrange for designated smoking areas within its Premises and may not allow
its employees to monopolize common areas of the building for the purposes of
smoking. The responsibility for enforcement of this will remain with Tenant for
its respective employees. Tenant remains responsible for enforcing all
applicable codes and regulations related to smoking.
EXHIBIT F
Janitorial Services
A. Daily Duties
1. Office Areas
* Empty trash and reline containers as needed
* Clean waste containers as needed
* Vacuum all rugs and carpeted areas
2. Lavatories
* Sweep and mop floors with disinfectant
* Wash both sides of toilet seats with disinfectant
* Spot clean toilet partitions
* Wash all mirror, basins, bowls, urinals
* Empty and disinfect sanitary napkin disposal receptacles
47
* Refill toilet tissue, towel, soap and sanitary napkin dispensers
3. Lobby Area, Conference Rooms, Halls, Elevators
* Wipe down doors, clean glass (interior and exterior)
* Vacuum elevator carpets and wipe down doors and walls
* Vacuum hall carpets
* Wet mop/buff lobby tile
* Clean receptionist counter, straighten magazines, etc.
* Clean water coolers
4. Loading dock
* Clean glass
* Sweep loading dock and stairs
* Sweep and keep area around dumpsters neat
* Mop tile floor nightly
5. Breakroom
* Wipe down table and chairs
* Wet mop tile floors each night
* Wipe front of refrigerator, dishwasher, and vending
machines
* Clean inside and outside of microwave nightly
* Empty dishwasher of all clean dishes and place in the cupboard
* Place containers, dirty dishes in dishwasher. Run
dishwasher nightly
* Keep toaster and other appliances clean
* Maintain neat appearance of breakroom
* Refill towel dispensers
* Empty and clean aluminum can and glass recyclable
containers
B. As Needed Duties
1. Resilient Tile
* Buff all resilient tile
2. Carpet
*Spot clean
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C. Weekly Duties
* Hand dust and wipe clean all horizontal surfaces with treated
cloths. Includes:
furniture
clean workstations (work areas to be cleared by PPD Employees)
office equipment
window ▇▇▇▇▇
door ledges
chair rails
baseboards
* Remove finger marks from entrance doors, light switches and
doorways
* Sweep all stairways
D. Monthly Duties
* Buff and wax tile floors (strip and wax yearly)
* Vacuum seat cushions on chairs
* Dust blinds
* Clean inside of windows
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