EX-10.114
Lease Agreement Dated 6/26/98
LEASE AGREEMENT BY AND BETWEEN
PPD PHARMACO, INC., as tenant
AND
WEEKS REALTY, L.P., as landlord
at
Perimeter Park West, Morrisville, NC
TABLE OF CONTENTS
1. PREMISES AND TERM.
2. BASE RENT, OPERATING EXPENSES, AND SECURITY DEPOSIT.
3. COMPLIANCE WITH LAWS AND USE.
4. REPAIR AND MAINTENANCE.
5. ALTERATIONS.
6. SIGNS.
7. INSPECTION.
8. UTILITIES.
9. ASSIGNMENT AND SUBLETTING.
10. FIRE AND CASUALTY DAMAGE.
11. LIABILITY.
12. CONDEMNATION.
13. HOLDING OVER AND TERMINATION.
14. QUIET ENJOYMENT.
15. EVENTS OF DEFAULT.
16. REMEDIES.
17. LANDLORD'S LIEN.
18. MORTGAGES.
19. MECHANIC'S LIENS.
20. NOTICES.
21. BROKER'S CLAUSE.
22. LANDLORD'S LIABILITY.
23. RULES AND REGULATIONS.
24. HAZARDOUS MATERIALS.
25. LANDLORD'S RIGHT TO SUBSTITUTE THE PREMISES.
26. COVENANT OF TENANT.
27. MISCELLANEOUS.
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EXHIBITS
EXHIBIT A- THE LAND
EXHIBIT B- FLOOR PLAN
EXHIBIT C- PLANS AND SPECIFICATIONS
EXHIBIT C-1- SHELL BUILDING DESIGN SCHEDULE
EXHIBIT C-2- BASE BUILDING SPECIFICATIONS
EXHIBIT D- RULES AND REGULATIONS
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), is made and entered into as of the 26th
day of June, 1998, by and between WEEKS REALTY, L.P., a Georgia limited
partnership authorized to do business in North Carolina as WEEKS REALTY LIMITED
PARTNERSHIP (the "Landlord"), and PPD PHARMACO, INC., a Texas corporation (the
"Tenant").
W I T N E S S E T H:
1.PREMISES AND TERM.
(a) PREMISES. In consideration of the obligation of Tenant to pay rent as
herein provided, and in consideration of the other terms, provisions and
covenants hereof, Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, certain premises to be comprised of approximately 35,353 rentable
square feet (the "Premises") encompassing the third and fourths floor of a
building consisting of approximately 118,825 rentable square feet to be
constructed by Landlord consisting of four floors in Perimeter Park West (the
"Building") situated on certain land (the "Land") in Morrisville, the County of
Wake, State of North Carolina, more particularly described on Exhibit A,
attached hereto and incorporated herein by reference, together with all rights,
privileges, easements, appurtenances and immunities belonging to or in any way
pertaining to the Premises.
The Building shall be connected to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇,
a building owned by Landlord and located adjacent to the Building, and currently
occupied by Tenant, by a covered walkway (the "Walkway") over which shall be
located a portion of the Premises, all of which shall be in accordance with the
Plans (as hereinafter defined). Tenant has leased approximately 100,987 rentable
square feet at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to that certain Lease Agreement
with Landlord dated July 9, 1997 (the "Prior Lease"). A floor plan of the
Building and the Premises shall be attached hereto and made a part hereof as
Exhibit B.
The measurement of the Premises shall be conducted in accordance with BOMA
standards, 1996 edition, currently applicable for a Class A office building
comparable to the Building. Any upfit performed by Landlord to prepare the
Premises for occupancy by Tenant shall be conducted in a good and workmanlike
manner, and Landlord shall warrant the construction of the improvements for a
period of one year from the Commencement Date. The taking of possession by
Tenant shall be deemed conclusively to establish that each portion of the
Premises and any improvements thereto are in good and satisfactory condition as
of the date Tenant commenced occupancy of that portion of the Premises, except
for latent defects and punchlist items. Tenant and Landlord shall complete a
punchlist of items requiring repair that are the responsibility of Landlord
within thirty (30) days of the Commencement Date. Tenant further acknowledges
that no representations as to the repair of the Premises, nor promises to alter,
remodel or improve the Premises have been made by Landlord unless such
representations or promises are expressly set forth in this Lease. Within five
days of the Commencement Date, Tenant shall, upon demand of Landlord, execute
and deliver to Landlord a letter of acceptance of delivery of the Premises,
acknowledging the Commencement Date.
All upfit of the Premises shall be performed by Landlord in accordance with
the final plans and specifications for the Premises (the "Plans") which are
subject to the approval of Landlord and Tenant, a copy of which are attached
hereto and made a part hereof as Exhibit C. Landlord shall conduct the
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upfit of the Premises in accordance with the Plans which have been mutually and
reasonably approved by Landlord and Tenant. Construction of the Premises shall
proceed in accordance with the Shell Building Design Schedule which shall be
attached hereto and made a part hereof as Exhibit C-1. Landlord shall provide an
upfit allowance for such purposes in an amount up to $20.00 per rentable square
foot of the Premises below the finished ceiling (the "Upfit Allowance"). The
components of the base building, including, the finished ceiling shall be as set
forth on Exhibit C-2, attached hereto and made a part hereof. Tenant shall
review the Plans to provide its input with respect to all aspects of the Plans,
including, but not limited to, the specific needs of Tenant with respect to
HVAC, and Landlord shall act reasonably to accommodate the specific needs of
Tenant with respect to the HVAC and electrical systems in the Building. Any
amounts incurred in the upfit of the Premises in excess of the Upfit Allowance
(the "Excess") due to modifications requested by Tenant to the Plans after their
mutual approval by Landlord and Tenant shall be borne by Tenant and paid by
Tenant to Landlord within thirty days of demand made by Landlord. Failure by
Tenant to pay the Excess upon demand as aforesaid is an event of default
hereunder, and in addition, to all other remedies available to Landlord at law,
or in equity for such event of default, Landlord may recover from Tenant the
cost it incurs in preparing the Premises for another tenant.
Landlord shall act reasonably to allow Tenant reasonable access to the
Premises at least fifteen days prior to the Commencement Date to install its
furniture, and telephone and computer systems. Tenant covenants and agrees to
conduct its actions in such a manner to not disturb the preparation by Landlord
of the Premises for occupancy by Tenant. Upon the entry by Tenant onto the
Premises, this Lease shall be deemed to apply with respect to the requirements
that Tenant carry the insurance policies required under this Lease, and that
Tenant shall indemnify, defend and hold harmless Landlord in accordance with the
provisions of this Lease, as provided in Sections 10 and 11 hereof.
(b) TERM.
TO HAVE AND TO HOLD the same for a term of one hundred and twenty (120)
months commencing upon the date the Premises are delivered by Landlord to Tenant
as substantially complete as evidenced by the issuance of a temporary
certificate of occupancy by the Town of Morrisville, NC (the "Commencement
Date"), and ending 120 months thereafter, unless sooner terminated pursuant to
the provisions hereof (the "Termination Date"); provided, however, that
notwithstanding anything herein to the contrary, the term of this Lease,
including, any renewals hereof, shall be coterminous with the current term,
including renewals of the Prior Lease. The Commencement Date and Termination
Date shall be extended due to delays beyond the control of Landlord, including,
but not limited to, acts or omissions of Tenant, force majeure, delays in
obtaining permits, licenses or other approvals, acts of God, delays caused by
Tenant, and/or inclement weather, including site conditions or winter weather
that prohibit or adversely affect construction (the "Excused Delays"). In the
event the Commencement Date has not occurred by June 1, 1999 (with such date
being extended for any Excused Delays), Landlord shall credit against the first
installment(s) of base rent due hereunder from Tenant an amount equal to one
day's base rent for each day the Commencement Date is delayed. The aforesaid
monetary amounts shall act as a full and complete remedy to Tenant for the delay
by Landlord in delivering the Premises. Landlord shall act reasonably to provide
Tenant at least sixty days prior written notice of the Commencement Date.
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(c) Option to Renew.
Tenant shall have the option to renew the term of the Lease for two renewal
periods (the "Renewal Term(s)") each a Renewal Term of five lease years in
duration, provided that Tenant shall not be in default under the Lease on the
date such rights are exercised, or on the date either Renewal Term shall
commence. The date of the commencement of each Renewal Term shall be the day
after the expiration of the then current term of the Lease, as renewed (unless
sooner terminated as provided herein).
All terms and conditions of this Lease shall be in effect during a Renewal
Term (including the right of Landlord to increase base rent as provided in
paragraph 2 of the Lease), except that (i) the base rent paid by Tenant during a
Renewal Term shall be the then market rental rate (the "Market Rent") in
buildings in the Research Triangle Park, North Carolina area of similar size,
age, construction, with similar amenities and landscaping, and similar occupancy
levels to the Building, and (ii) upon each exercise of the right for a Renewal
Term, a right to renew shall lapse. In the event that Landlord and Tenant cannot
agree upon the Market Rent, this Lease shall terminate and the options to renew
provided to Tenant hereunder shall be null and void and of no further force and
effect. Tenant shall deliver Landlord written notice of its election to exercise
its option to renew no less than nine (9) months prior to the expiration of the
initial term of the Lease; failing which Tenant's right to renew for the
applicable Renewal Term shall be null and void.
(d) EXPANSION RIGHTS.
(1) At any time prior to October 31, 1998, and provided that (i) there shall
be no default or event of default hereunder by Tenant, and (ii) Tenant shall
provide written notice to Landlord of its desire to lease the First Expansion
Space on or prior to October 31, 1998 (the "First Notice"), Tenant shall have
the option to lease not less than 20,000 rentable square feet in the Building
and no more than the remainder of the Building (the "First Expansion Space"). In
leasing the First Expansion Space, Tenant shall first lease the space in the
Building that is directly adjacent to and contiguous with the Premises, and
shall then lease space in the Building on the floor adjacent to the Premises
proceeding downward in the Building to the first floor, leasing all space
available on each floor before proceeding to the next floor down. Should Tenant
lease less than a full floor of the Building, the space leased by Tenant shall
be configured in a manner and shall include an amount of square footage that
would allow Landlord to lease the remainder of the applicable floor in the
Building to other tenant(s), as reasonably approved by Landlord. Base rent,
Additional Rent, and operating expenses shall be due and payable for the First
Expansion Space as provided herein, and payment by Tenant shall commence upon
the Commencement Date as provided herein. Tenant shall be provided an upfit
allowance in an amount not to exceed $20.00 per rentable square foot of the
First Expansion Space. Tenant must execute an amendment to this Lease within
fifteen days of the receipt by Landlord of the First Notice evidencing the
provisions of this subparagraph, and in form and substance approved by Landlord.
Failure of Tenant to comply strictly with the provisions of this subparagraph
shall render the rights of Tenant hereunder null and void.
(2) At any time prior to October 31, 1998, and provided that (i) there shall
be no default or event of default hereunder by Tenant, (ii) Tenant has exercised
its rights under subparagraph (1) above for the First Expansion Space by
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October 31, 1998, and (iii) Tenant shall provide written notice to Landlord of
its desire to lease the Second Expansion Space on or prior to December 31, 1998
(the "Second Notice"), Tenant shall have the option to lease not less than (i)
12,500 rentable square feet, and (ii) no more than 24,938 rentable square feet
in the Building but not on the first floor of the Building (the "Second
Expansion Space"). In leasing the Second Expansion Space, Tenant shall first
lease the space in the Building that is directly adjacent to and contiguous with
the Premises, and shall then lease space in the Building on the floor adjacent
to the Premises proceeding downward in the Building to the first floor, leasing
all space available on each floor before proceeding to the next floor down.
Should Tenant lease less than a full floor of the Building, the space leased by
Tenant shall be configured in a manner and shall include an amount of square
footage that would allow Landlord to lease the remainder of the applicable floor
in the Building to other tenant(s), as reasonably approved by Landlord. For six
months following the completion of the Building shell per Exhibit C-1 hereof
(the "Completion Date"), Tenant shall reimburse Landlord for its costs with
respect to the Building in the amount of $7.41 per rentable square foot of the
Building. The term of this Lease for the Second Expansion Space shall commence
upon the earlier of (i) six months following the Completion Date, or (ii) the
completion by Tenant of its upfit of the Premises, as reasonably determined by
Landlord. Tenant shall pay base rent for the Second Expansion Space, (i)
commencing upon the seventh month following the Completion Date and continuing
thereafter until the end of the twelfth month, in an amount equal to $14.45 per
rentable square foot, and thereafter (ii) in an amount equal to $17.85 per
rentable square foot. Notwithstanding the foregoing, upon the date that Tenant
has completed its upfit of the Second Expansion Space in accordance with plans
and specifications that have been mutually approved by Landlord and Tenant, as
reasonably determined by Landlord, base rent shall increase to $17.85 per
rentable square feet. Thereafter, base rent shall increase in accordance with
the provisions of this Lease. Additional Rent and operating expenses shall be
due and payable for the Second Expansion Space in accordance with this Lease.
Tenant shall be provided an upfit allowance in an amount not to exceed $20.00
per rentable square foot of the Second Expansion Space which must be used in
full by Tenant prior to the end of twelfth month after the Completion Date.
Tenant must execute an amendment to this Lease within fifteen days of the
receipt by Landlord of the Second Notice evidencing the provisions of this
subparagraph, and in form and substance approved by Landlord. Failure of Tenant
to comply strictly with the provisions of this subparagraph shall render the
rights of Tenant hereunder null and void.
(e) RIGHT OF FIRST REFUSAL.
(i) Provided there is no default or event of default under the Lease on the
date such right is exercised, or on the date Tenant shall enter into occupancy
of any or all of the unleased space in the Building (the "Leasable Space"),
Tenant shall have a continuous right of first refusal to lease the Leasable
Space any time such space is offered for lease, subject to provisions of this
subparagraph (e).
(ii) Upon the receipt by Landlord of notice from a third party of interest
in any or all of the Leasable Space, Landlord shall notify Tenant in writing of
such interest (the "Third Party Notice") specifying the terms under which Tenant
may lease the Leasable Space in which the third party has expressed an interest.
Tenant shall respond to the Landlord in writing within five business days of the
receipt of the Third Party Notice indicating its intent or lack of intent to
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exercise the rights under this Paragraph. Tenant's failure to notify Landlord
within the five business day period set forth above will entitle Landlord to
lease such space to such third party substantially in accordance with the terms
and conditions of the Third Party Notice without liability to Tenant.
(iii) If Tenant exercises its right of first refusal pursuant to this
subparagraph (e), Tenant shall lease the space with respect to which it
exercised its right of first refusal hereunder substantially in accordance with
the terms and conditions of the Third Party Notice, as reasonably determined by
Landlord, including, the amount of Leasable Space in which the third party was
interested, i.e., Tenant may not lease less than the amount of space in which
the third party was interested.
(iv) An amendment to this Lease providing for the lease of such space shall
be executed by Tenant within ten business days of the receipt by Tenant from
Landlord of a draft Lease amendment.
2.BASE RENT, OPERATING EXPENSES, AND SECURITY DEPOSIT.
(a) BASE RENT.
Tenant agrees to make monthly payments of base rent to Landlord for the
Premises ("base rent"), in advance, without demand, deduction or offset, in
lawful money of the United States, at the annual rate of Sixteen and 30/100
Dollars ($16.30) per rentable square foot of the Premises, commencing on the
Commencement Date, and continuing on the first day of each and every month
thereafter until the Termination Date. Rent payments for any fractional calendar
month at the end, or the beginning of the term of the Lease, shall be prorated.
Base rent is comprised of two components, (i) rent for each year, plus (ii)
operating expenses (but not Additional Rent amounts), as described below. In
addition, as described below, Landlord shall advise Tenant each year in
accordance with the Lease of amounts due under the Lease as Additional Rent
(amounts in excess of the estimate of operating expenses), and a revised
estimate of operating expenses for each year.
Base rent per rentable square foot, net of operating expenses, shall be
increased on each anniversary of the Commencement Date under the Prior Lease
during the term of this Lease by three percent over the base rent paid per
rentable square foot the previous lease year.
(b) ADDITIONAL RENT. Tenant shall pay as Additional Rent, Tenant's pro rata
share of the following items:
(i) any sales or use tax imposed on rents collected by Landlord (other
than City, State or Federal Income Tax), or any tax on rents in lieu of ad
valorem taxes on the Building, even though laws imposing such taxes attempt
to require Landlord to pay the same; and
(ii) the amount of operating expenses (as defined below) for the
Building to the extent operating expenses exceed the actual amount of
operating expenses for the first twelve months of occupancy of any portion
of the Building per rentable square foot of the Building in any lease year
during the term of this Lease; provided, however, an amount equal to $1.25
per rentable square foot shall be used as the expense stop for the Tenant
for utilities for the first lease year of the Lease.
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Notwithstanding the foregoing, the increased cost to Tenant for operating
expenses (exclusive of the costs for utilities which cost is not capped) shall
not exceed per rentable square foot of the Premises, in any lease year, an
amount greater than a five percent increase over the amount paid the previous
lease year per rentable square foot of the Premises.
Tenant's pro rata share of the items set forth in subparagraph (b) above
shall be calculated by dividing the rentable square footage of the Premises by
the rentable square footage of the Building. Tenant's pro rata share of the
items to be billed to all tenants of the Building as Additional Rent shall be
determined by calculating the total amount to be billed tenants of the Building
for Additional Rent, and multiplying this amount by Tenant's pro rata share. Ad
valorem taxes included as operating expenses shall be included on a fully
assessed basis, and operating expenses shall be grossed up to reflect 100
percent occupancy.
(c) OPERATING EXPENSES. The term "operating expenses" as used herein shall
include all of the costs and expenses of the operation, repair and maintenance
of the Premises, the Land, the Building, and its interior and exterior common
areas, and shall include by way of illustration, but is not limited to, all
taxes, assessments and governmental charges of any kind or nature whatsoever
levied or assessed against the Land and the Building by any municipality,
county, or other governmental agency, all insurance premiums for commercial
general liability, fire and extended coverage on the Building and the Land,
utilities for the Premises and the common areas of the Building, including,
electricity, gas, and water and sewer, all lawn, interior common area, and
driveway and paved parking area maintenance related to the Land upon which the
Premises are located, and for the streets and roadways providing access to the
Building and the Land, management and supervisory fees, exterior lighting
maintenance, snow removal, waste removal, repair and maintenance of paved areas,
cleaning supplies, miscellaneous building supplies, sweeper brushes, supplies
for materials used in common by all tenants of the complex in which the Premises
are located, external paint for the Building, exterior and interior common area
maintenance, elevator repair and maintenance, external plumbing for the
Building, exterior lighting in common areas, insect and pest extermination,
security guards for the complex in which the Premises are located, signs for the
complex in which the Premises are located, fuel for vehicles and street sweepers
used by Landlord in the complex in which the Premises are located and
miscellaneous maintenance expenses, heat, air conditioning, labor, materials,
supplies, equipment and tools, permits, licenses, inspection fees, window glass
replacement and repair, compensation (including employment taxes and fringe
benefits) of all persons who perform duties in connection with the operation
and/or maintenance of the Building, and costs for janitorial expense and trash
removal at the Premises.
In the event the Building is one of several buildings located on the Land
for tax assessment purposes, the amount of tax assessed against the Land and the
buildings thereon shall be allocated amongst the buildings in proportion to the
square footage of each building to the total amount of tax assessed, as
reasonably determined by Landlord. For example, if the ad valorem taxes assessed
for the Land and the buildings for a calendar year is $100,000.00, and two
buildings occupy the Land with one building of 100,000 rentable square feet
("building A") and the other building of 70,000 rentable square feet ("building
B"), the proportionate share for building A would be $58,823.53, and the
proportionate share for building B would be $41,176.44. During the time that the
Building is the only building located on the Land, the amount
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of ad valorem taxes assessed shall be allocated as follows: all taxes due for
improvements to the Land shall be allocated to and paid by Tenant and all taxes
due for the Land shall be shared by the Tenant and the Landlord based upon each
party's proportionate share of the Land.
Utilities for the Premises included as part of operating expenses shall not
include utility charges and HVAC beyond the hours of 8:00 AM to 6:00 PM, Monday
- Friday, and 8:00 AM to 1:00 PM, Saturday. Any usage by Tenant of HVAC and
utilities at times other than the aforesaid hours shall be at the sole cost and
expense of Tenant. Landlord shall ▇▇▇▇ Tenant directly for all such actual costs
as a separate item of Additional Rent, and Tenant shall pay such amounts within
fifteen days of receipt of demand for payment from Landlord, and the failure by
Tenant to pay such costs in accordance with the demand made by Landlord shall be
treated in the same manner under this Lease as a non-payment of base rent by
Tenant with Landlord being afforded the same rights and remedies for such
non-payment.
(d) ESTIMATE OF ADDITIONAL RENT. Upon the completion of each lease year
during the term of this Lease, Landlord shall provide Tenant with an estimate of
its prorata share of operating expenses for the following year. Tenant shall
remit with each monthly payment of base rent hereunder one-twelfth of this
estimated amount as a payment of Additional Rent.
Failure by Tenant to pay Landlord any payment of Additional Rent shall
constitute a non-payment of rent by Tenant and a default of Tenant's obligation
under the Lease, and Landlord shall be entitled to all remedies provided for in
this Lease upon default in payment of rent.
(e) RECONCILIATION OF EXPENSES. Landlord shall promptly notify Tenant of the
total actual operating expenses for the Premises and the excess, if any, of
Tenant's pro rata share over Landlord's estimation for such lease year. Tenant
shall pay the excess amount so specified to Landlord within thirty (30) days
following receipt by Tenant of Landlord's letter. Failure by Tenant to pay
Landlord such amount within the period designated shall constitute a non-payment
of rent by Tenant and a default of Tenant's obligation under the Lease, and
Landlord shall be entitled to all remedies provided for in this Lease upon
default in payment of rent. If the first year for which Tenant's pro rata share
of operating expenses are due or the final year of the term hereof do not
coincide with the calendar year, Tenant's pro rata share of operating expenses
for the portion of that year shall be prorated according to the number of months
during which Tenant was in possession of the Premises. In the event Landlord's
estimation of operating expenses shall exceed the actual amount of operating
expenses, the amount paid by Tenant for such year shall be adjusted between
Landlord and Tenant and Tenant shall receive a credit against the next due
installment of rent hereunder in such excess amount unless this Lease has
expired or been otherwise terminated, in which event Landlord shall pay to
Tenant such excess amount within thirty (30) days following receipt by Tenant of
Landlord's letter.
In the event Tenant shall dispute the amount set forth in any statement
provided by Landlord under this subparagraph (e), Tenant shall have the right,
not later than thirty days following the receipt of such statement and upon
condition that Tenant shall first deposit with Landlord the undisputed portion,
if any, to elect to have Landlord's books and records with respect to such
calendar year to be audited by auditors selected by Tenant and subject to
Landlord's reasonable approval. Such audit must be completed no later than 60
days
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after receipt of Landlord's letter, with such time limit to be extended due to
delays caused by Landlord. All costs for the audit shall be borne by Tenant
unless the audit disclosed an overcharge of ten percent or more, in which case
the costs of the audit not to exceed $1,000 shall be borne by Landlord. If
Tenant shall not request an audit in accordance with the provisions of this
paragraph within thirty days of receipt of Landlord's statement provided
pursuant to this subparagraph (e), such statement shall be final and binding for
all purposes hereof.
(f) SECURITY DEPOSIT. [INTENTIONALLY DELETED.]
(g) PROVISIONS TO SURVIVE LEASE TERMINATION.
Any unperformed obligations of Tenant under this Section 2 shall survive the
termination of the Lease, for whatever reason, or any extension or renewal
hereof.
3.COMPLIANCE WITH LAWS AND USE.
(a) The Premises shall be used only for the following purposes: general
office purposes, and the entry, management, and analysis of clinical trial data
using computer software. Tenant shall conduct no activity that will result in
the discharge of harmful gases, affluents or other wastes or toxic substances.
Outside storage, including, without limitation, trucks and other vehicles, is
prohibited without Landlord's prior written consent. Tenant shall at its sole
cost and expense obtain any and all licenses and permits necessary for its use
of the Premises. Tenant shall comply with all governmental laws, ordinances and
regulations relating to the use of the Premises, and shall promptly comply with
all governmental orders and directives for the correction, prevention and
abatement of nuisances in or upon, or connected with, the Premises, all at
Tenant's sole expense. Tenant shall not permit any objectionable or unpleasant
odors, smoke, dust, gas, noise or vibrations to permeate in or emanate from the
Premises, nor take any other action which would constitute a nuisance or would
disturb or endanger any other tenants of the Building or unreasonably interfere
with their respective premises. Without Landlord's prior written consent, Tenant
shall not receive, store or otherwise handle any product, material or
merchandise which is explosive, inflammable, combustible, corrosive, caustic or
poisonous. Tenant will not permit the Premises to be used for any purpose or in
any manner (including, without limitation, any method of storage) which would
render the insurance thereon void or the insurance risk more hazardous or cause
the State Board of Insurance or other insurance authority to disallow any
sprinkler credits. Tenant shall give notice to Landlord immediately upon the
occurrence of any accident in the Premises or upon Tenant's discovery of any
defects thereon or in any fixtures or equipment located therein or upon the
occurrence of any emergency in the Premises or the Building.
(b) Any costs or expenses for alterations, additions or improvements
required to modify the common areas of the Building to comply with the Americans
with Disabilities Act, as amended (the "ADA") shall be paid by Landlord
throughout the term of this Lease. Such alterations, additions or improvements
shall be made or not made in the sole discretion of Landlord, and Landlord shall
be solely liable for failure to make the required alterations, additions or
improvements. All alterations, additions or improvements to the Premises
required by the ADA on the Commencement Date of this Lease, and after the
Commencement Date if the initial construction to be performed by Landlord has
not been completed prior to the Commencement Date, shall be made and paid for by
Landlord, and Landlord shall be solely liable for failure to make such
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required alterations, additions or improvements. Except as provided above, any
alterations, additions or improvements to the Premises required by any
modification or supplement to the ADA promulgated after the Commencement Date,
shall be made and paid for by Tenant, and Tenant shall be solely liable for
failure to make such required alterations, additions or improvements. In the
event either party hereto shall fail to make any required alterations, additions
or improvements pursuant to the ADA, after thirty (30) days written notice to
the other party hereto, accompanied by evidence in support of its position
regarding the needed alterations, shall have the right but not the obligation to
make such alterations, additions or improvements at the expense of the other
party and demand reimbursement of its expenses.
For purposes of this Lease, the common areas for the Building shall consist
of the entranceways and private roadways to the Building, landscape areas on the
Land, and the driveways and parking areas located on the Land (hereinafter
collectively, the "Common Areas") but no third party shall have rights thereto
unless specifically granted. These common areas may be expanded by Landlord for
the benefit of all occupants of the Building.
(c) To the best of Landlord's knowledge, the Premises shall, as of the
Commencement Date, comply with the ADA.
4.REPAIRS AND MAINTENANCE.
(a) Landlord shall at its expense maintain, repair and replace only the
roof, downspouts, gutters, foundation, utility lines located outside the
Premises, heating and air conditioning systems, dock boards, truck doors, dock
bumpers, plumbing work and fixtures, elevators, and the structural soundness of
the exterior walls of the Building in good repair, reasonable wear and tear
excepted. Tenant shall repair, replace and pay for, any damage to the foregoing
caused by the negligence of Tenant or Tenant's employees, agents or invitees, or
caused by Tenant's default hereunder. The term "walls" as used herein shall not
include windows, glass or plate glass, doors, special store fronts or office
entries. Tenant shall immediately give Landlord written notice of defect or need
for repairs, after which Landlord shall have reasonable opportunity to repair
same or cure such defect. Landlord's liability with respect to any defects,
repairs or maintenance for which Landlord is responsible under any of the
provisions of this Lease shall be limited to the cost of such repairs or
maintenance or the curing of such defect.
(b) Tenant shall at its own cost and expense maintain, repair and replace
all parts of the Premises (except those for which Landlord is expressly
responsible under the terms of this Lease) in good condition, promptly making
all necessary repairs and replacements, including, but not limited to, windows,
glass and plate glass, doors, any special office entry, interior walls, finish
work, and floors and floor coverings, normal wear and tear excepted. Tenant
shall not be obligated to repair any casualty covered by the insurance to be
maintained by Landlord pursuant to subparagraph 10(a) below.
(c) If either party hereto shall fail to fulfill its obligations under this
paragraph, the other party hereto may enter upon the area of the Building or the
Premises as required to conduct the obligations of the defaulting party, and
shall be entitled to reimbursement from the defaulting party for its actual
costs and expenses in conducting such obligations. The defaulting party shall
reimburse the other party hereto for its actual costs and expense promptly upon
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demand made by the other party hereto. The provisions of this subparagraph shall
not be interpreted to obligate either party hereto to conduct obligations of the
other party hereto.
(d) Landlord shall conduct periodic maintenance of all hot water, heating
and air conditioning systems and units in the Premises, remove and replace
filters therein, and provide for janitorial service for the Premises.
Temperature levels in the Building shall be maintained at levels customary for
Class A office buildings comparable to the Building in the Research Triangle
Park, North Carolina area.
(e) Tenant shall not damage any demising wall of the Building, or disturb
the integrity and support provided by any demising wall and shall, at its sole
cost and expense, promptly repair any damage or injury to any demising wall
caused by Tenant or its employees, agents or invitees.
(f) Tenant and its employees, customers and licensees shall have the
non-exclusive right to use the parking areas on the Land as may be designated by
Landlord in writing, subject to reasonable rules and regulations as Landlord may
from time to time prescribe and subject to rights of ingress and egress of other
tenants. Tenant shall not park on streets, rights of ways, driveways, or
roadways adjacent to the Building or the Land, nor allow its employees, agents,
invitees, or licensees to do so. No vehicles other than passenger vehicles shall
be parking on the Land, without the prior written consent of the Landlord. Any
vehicles, including, tractors, trailers, or tractor trailers parked at the
Building in violation of any provision of this Lease, or abandoned on the Land,
as reasonably determined by Landlord, are subject to removal by Landlord, at the
cost and expense of Tenant, and Tenant shall indemnify, defend, and hold
harmless Landlord of and from all loss, cost and expense incurred by Landlord in
the enforcement of the provisions of this Section. Tenant shall be considerate
of the parking needs of other tenants of the Building, and shall not violate the
rights of other tenants of the Building. The parking ratio provided to Tenant
and its employees for the non-exclusive parking of cars at the Building shall be
3.44 spaces per 1,000 rentable square feet of the Premises and Tenant shall not
exceed this ratio; provided, however, in the event any improvements, or
equipment located by Tenant on the Land consume any portion of the parking area
located on the Land, the parking spaces affected shall be counted against the
parking ratio available for use by Tenant at the Premises. Landlord shall not be
responsible for enforcing Tenant's parking rights against any third parties.
Landlord may require, at its option, in its sole discretion, that Tenant, its
employees, invitees, and visitors use certain numbered spaces to be designated
by Landlord.
5.ALTERATIONS.
(a) Tenant shall not make any alterations, additions or improvements to the
Premises (including, but not limited to, roof and wall penetrations) without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld. Tenant may, without the consent of Landlord, but at its own cost and
expense and in a good workmanlike manner, erect such shelves, bins, machinery
and trade fixtures as it may deem advisable, without altering the basic
character or structure of the Premises or improvements and without overloading
or damaging the Premises or improvements, and in each case complying with all
applicable governmental laws, ordinances, regulations and other requirements.
Tenant shall not make any alterations, additions or improvements to the Premises
which will contravene Landlord's policies insuring against loss or damage by
fire or other hazards, including but not limited to commercial general
liability, or which will prevent Landlord
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from securing such policies in companies acceptable to Landlord. If any such
alterations, additions or improvements cause the rate of fire or other insurance
on the Premises by companies acceptable to Landlord to be increased beyond the
minimum rate from time to time applicable to the Premises for permitted uses
thereof, Tenant shall pay as additional rent the amount of any such increase
promptly upon demand by Landlord.
(b) Any and all alterations, additions, improvements, partitions and
fixtures erected by Tenant shall be the property of Landlord and shall remain at
the Premises upon termination of the Lease or upon earlier vacating of the
Premises. All shelves, bins, machinery and trade fixtures installed by Tenant
may be removed by Tenant prior to the termination of this Lease provided such
removal may be accomplished without damage to the Premises or to the primary
structure or structural qualities of the Building and other improvements
situated on the Premises. Tenant shall repair any damage to the Premises, or to
the Building as a result of any alteration, addition, improvement, or repair to
the Premises, or the removal of personal property or trade fixtures by Tenant,
its employees, agents, invitees, or contractors to the Premises. Should Tenant
fail to conduct any such repair within ten days of written notice from Landlord,
Landlord may, at its option, perform same, and Tenant shall remit payment to
Landlord for the actual cost and expense incurred by Landlord in effecting such
repair immediately upon demand.
6.SIGNS.
(a) As part of the upfit of the Premises, Landlord shall install a monument
sign on the Land containing the name of Tenant. In addition, Landlord shall
include the name of Tenant on the Building directory. All signs for the Premises
shall be in form and substance, location, color, shape, and configuration,
mutually and reasonably approved by Landlord.
(b) Tenant shall have the right to install signs upon the Premises only when
first approved in writing by Landlord and subject to any applicable governmental
laws, ordinances, regulations and other requirements. Tenant shall remove all
such signs upon the termination of this Lease. Such installations and removals
shall be made in such manner as to avoid injury or defacement of the Premises,
and Tenant shall repair any injury or defacement, including, without limitation,
discoloration of the Building caused by such installation and/or removal.
7.INSPECTION. Landlord and Landlord's agents and representatives shall have
the right to enter and inspect the Premises at any reasonable time during
business hours, for the purpose of ascertaining the condition of the Premises or
in order to make such repairs as may be required or permitted to be made by
Landlord under the terms of this Lease or in order to show the Premises to any
prospective purchaser or lender. During the period that is six (6) months prior
to the end of the term hereof, Landlord and Landlord's agents and
representatives shall have the right to enter the Premises at any reasonable
time during business hours for the purpose of showing the Premises to any
prospective tenant and shall have the right to erect on the Premises a suitable
sign indicating the Premises are available. Tenant shall schedule with Landlord
at least sixty (60) days prior to vacating the Premises a time mutually
agreeable to the parties hereto for a joint inspection of the Premises prior to
vacating. In the event of Tenant's failure to give notice or arrange such joint
inspection, Landlord's inspection at or after Tenant's vacating the Premises
shall be conclusively deemed correct for purposes of determining Tenant's
responsibilities for repairs and restoration.
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8.UTILITIES. Landlord agrees to provide at its cost, all utility line
connections into the Premises. In the event any utilities for the Premises are
not paid by Tenant directly to those providers or included as part of the
operating expense charge to Tenant, Tenant shall pay a reasonable proportion as
determined by Landlord of all charges jointly metered with other tenants of the
Building. Landlord shall not be liable for any interruption or failure of
utility services on the Premises.
9.ASSIGNMENT AND SUBLETTING. Tenant shall not sublet the Premises or the
interest of Tenant therein in whole or in part, or assign this Lease or the
interest of Tenant therein in whole or in part, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed; provided, however, Tenant may not sublease or assign, in any twelve
month period, cumulatively, more than 25 percent of its then current rentable
square feet in total in the Building and/or in the building leased under the
Prior Lease. Further, Tenant may not sell, lien, or encumber its interest in
this Lease, or assign or delegate the management or permit the use or occupancy
of the Premises in whole or in part by anyone other than Tenant without the
prior written consent of Landlord, which consent Landlord may withhold in its
sole discretion. Landlord and Tenant acknowledge and agree that the foregoing
provisions have been freely negotiated by the parties hereto and that Landlord
would not have entered into this Lease without Tenant's consent to the terms of
this Paragraph 9.
In no event shall this Lease be assignable by operation of any law, without
the prior written consent of Landlord which consent shall not be unreasonably
withheld, and Tenant's rights hereunder may not become, and shall not be listed
by Tenant as an asset under any bankruptcy, insolvency, or reorganization
proceedings. No assignment, transfer, mortgage, sublease or other encumbrance,
whether or not approved, and no indulgence granted by Landlord to any assignee
or subtenant, shall in any way impair the continuing primary liability (which
after an assignment shall be joint and several with the assignee) of Tenant
hereunder, and no approval in a particular instance shall be deemed to be a
waiver of the obligation to obtain Landlord's approval in any other case.
If for any approved assignment or sublease Tenant receives rent or other
consideration, either initially or over the term of the assignment or sublease,
in excess of the base rent hereunder, or in case of a sublease of part of the
Premises, in excess of the portion of such rent fairly allocable to such part,
after appropriate adjustments to assure that all other payments called for
hereunder are appropriately taken into account, Tenant shall pay to Landlord as
additional rent one-half of the full excess of each such payment of rent or
other consideration received by Tenant promptly after its receipt.
Notwithstanding the foregoing, if Tenant shall offer any sublease or assignment
of space in the Premises for less than the current asking price of Landlord for
space comparable in size (which asking price Landlord shall provide to Tenant
upon request made therefor), then Landlord shall be entitled to receive all of
the full excess of each such payment of rent or other consideration received by
Tenant promptly after its receipt.
Notwithstanding any provision of this Lease to the contrary, should Tenant
receive consent from Landlord to sublease or assign its interest in the Premises
and seek to sublease or assign its interest in the Premises in accordance with
this paragraph, Tenant shall not use the name of Landlord, any insignia of
Landlord, or any likeness of the Building in any of its advertising for such
sublease or assignment.
10. FIRE AND CASUALTY DAMAGE.
(a) Landlord agrees to maintain standard fire and extended coverage
insurance for the Building in an amount not
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less than full replacement cost as such term is defined in the Replacement Cost
Endorsement to be attached thereto, insuring against special causes of loss,
including, the perils of fire, and lightning, such coverages and endorsements to
be as defined, provided and limited in the standard bureau forms prescribed by
the insurance regulatory authority for the State of North Carolina. Subject to
the provisions of subparagraphs 10(c), 10(d) and 10(e) below, such insurance
shall be for the sole benefit of Landlord and under its sole control.
(b) If the Premises should be damaged or destroyed by any peril covered by
the insurance to be provided by Landlord under subparagraph 10(a) above, Tenant
shall give immediate written notice thereof to Landlord.
(c) If the Premises should be totally destroyed by any peril covered by the
insurance to be provided by Landlord under subparagraph 10(a) above, or if they
should be so damaged thereby that rebuilding or repairs cannot in Landlord's
estimation be completed within one hundred and eighty (180) days after the date
upon which Landlord is notified by Tenant of such damage, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective upon the date of the occurrence of such damage.
(d) If the Premises should be damaged by any peril covered by the insurance
to be provided by Landlord under subparagraph 10(a) above, but only to such
extent that rebuilding or repairs can, in Landlord's estimation, be completed
within one hundred and eighty (180) days after the date upon which Landlord is
notified by Tenant of such damage, this Lease shall not terminate, and Landlord
shall, at its sole cost and expense, thereupon proceed with reasonable diligence
to rebuild and repair the Premises to substantially the condition in which they
existed prior to such damage, except that Landlord shall not be required to
rebuild, repair or replace any part of the partitions, fixtures, additions and
other improvements which may have been placed in, on or about the Premises by
Tenant. If the Premises are untenantable in whole or in part following such
damage, the rent payable hereunder during the period in which they are
untenantable shall be abated as may be fair and reasonable under all of the
circumstances, as reasonably determined by Landlord and Tenant.
(e) Notwithstanding anything herein to the contrary, in the event the holder
of any indebtedness secured by a mortgage or deed of trust covering the Premises
requires that the insurance proceeds be applied to such indebtedness, then
Landlord shall have the right to terminate this Lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon all rights and obligations hereunder
thereafter accruing shall cease and terminate.
(f) Each of Landlord and Tenant hereby waives all rights to recover
against each other or against any other tenant or occupant of the Building, or
against the officers, directors, shareholders, partners, joint venturers,
employees, agents, customers, invitees, or business visitors of each other or of
any other tenant or occupant of the Building, for any loss or damage arising
from any cause covered by any insurance required to be carried by each of them
pursuant to this Lease, or any other insurance actually carried by either of
them. Landlord and Tenant shall cause their respective insurers to issue waiver
of subrogation rights endorsements to all policies of insurance carried in
connection with the Building or the Premises or the contents of either of them,
and any
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cost for the issuance of such endorsements shall be borne by the original
insured under such policies.
(g) The obligation of Landlord in this paragraph 10 to repair and restore
the Premises and the Building as provided herein, does not include an obligation
of Landlord to repair the fixtures, equipment, or personal property of Tenant,
which Tenant shall insure for its benefit, and Tenant shall have the obligation
to repair and restore in the event of a casualty or other loss.
(h) The period of time within which repair and restoration of the Premises
must be completed shall be extended due to delays occasioned by force majeure;
provided, however, all repair and restoration must be completed by Landlord
within 360 days after the date of the casualty.
11. LIABILITY. Landlord shall not be liable to Tenant or Tenant's employees,
agents, officers, partners, licensees or invitees, or to any other person
whomsoever, for any damage to property on or about the Premises belonging to
Tenant or any other person, due to any cause whatsoever, unless caused by the
gross negligence, or willful or intentional misconduct of Landlord.
Tenant hereby covenants and agrees that it will at all times indemnify,
defend (with counsel approved by Landlord) and hold safe and harmless Landlord
(including, without limitation, its trustees and beneficiaries if Landlord is a
trust), and Landlord's agents, employees, patrons and visitors from any loss,
liability, claims, suits, costs, expenses, including without limitation
attorney's fees and damages, both real and alleged, incurred by Landlord, its
agents, employees, officers, partners, invitees, or licensees arising out of or
resulting from of the occupancy by Tenant of the Premises, a breach by Tenant of
any provision of this Lease, or the conduct by Tenant of its business in the
Building.
Landlord hereby covenants and agrees that it will at all times indemnify,
defend (with counsel reasonably approved by Tenant) and hold safe and harmless
Tenant (including, without limitation, its trustees and beneficiaries if Tenant
is a trust), and Tenant's agents, employees, patrons and visitors from any loss,
liability, claims, suits, costs, expenses, including without limitation
attorney's fees and damages, both real and alleged, incurred by Tenant, its
agents, employees, officers, partners, invitees, or licensees arising out of or
resulting from a breach by Landlord of any provision of this Lease.
Tenant shall procure and maintain throughout the term of this Lease a policy
or policies of insurance, at its sole cost and expense, naming Landlord as an
additional insured, and insuring both Landlord and Tenant against all claims,
demands or actions arising out of or in connection with: (i) the Premises; (ii)
the condition of the Premises; (iii) Tenant's operations in and maintenance and
use of the Premises; (iv) the equipment, personal property and fixtures of
Tenant located on the Premises; (v) any interruption in the conduct of the
business of Tenant on the Premises; (v) Tenant's liability assumed under this
Lease, and such other kinds of insurance as Landlord shall reasonably request.
The limits of coverage maintained by Tenant for (i) commercial general liability
shall be not less than $5,000,000.00 with respect to each occurrence, not less
than $5,000,000.00 with respect to personal injury or death of a single person,
not less than $5,000,000 general aggregate, and not less than $5,000,000.00 with
respect to products completed operations aggregate, (ii) for business
interruption insurance shall be not less than coverage for actual loss, and
(iii) for replacement of the equipment, personal property and fixtures of Tenant
shall be not less than full replacement value.
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Tenant shall procure and maintain throughout the term of this Lease a policy
or policies of insurance, at its sole cost and expense, naming Landlord as an
additional insured, and insuring both Landlord and Tenant against all claims,
demands or actions arising out of or in connection with: (i) the Premises; (ii)
the condition of the Premises; (iii) Tenant's operations in and maintenance and
use of the Premises; (iv) the equipment, personal property and fixtures of
Tenant located on the Premises; (v) any interruption in the conduct of the
business of Tenant on the Premises; (v) Tenant's liability assumed under this
Lease, and such other kinds of insurance as Landlord shall reasonably request.
The limits of coverage maintained by Tenant for (i) commercial general liability
shall be not less than $5,000,000.00 with respect to each occurrence, not less
than $5,000,000.00 with respect to personal injury or death of a single person,
not less than $5,000,000 general aggregate, and not less than $5,000,000.00 with
respect to products completed operations aggregate, (ii) for business
interruption insurance shall be not less than coverage for actual loss, and
(iii) for replacement of the equipment, personal property and fixtures of Tenant
shall be not less than full replacement value.
All such policies shall be procured by Tenant from responsible insurance
companies satisfactory to Landlord. Certified copies of such policies, together
with receipt evidencing payments of premiums thereof, shall be delivered to
Landlord prior to the Commencement Date. Not less than fifteen (15) days prior
to the expiration date of any such policies, certified copies of the renewals
thereof (bearing notations evidencing the payment of renewal premiums) shall be
delivered to Landlord. Such policies shall further provide that not less than
thirty (30) days prior written notice shall be given to Landlord before such
policy may be canceled or changed to reduce insurance provided thereby.
12. CONDEMNATION.
(a) If the whole or any substantial portion of the Premises should be taken
for any public or quasi-public use under governmental law, ordinance, or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and the taking would prevent or materially interfere with the use of
the Premises by Tenant for the purposes provided herein, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective when the physical taking of the Premises shall occur.
(b) If a portion of the Premises shall be taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and the use by
Tenant of the Premises is not materially interfered with, this Lease shall not
terminate but the rent payable hereunder during the unexpired portion of this
Lease shall be reduced in an amount that shall be reasonable under all of the
circumstances.
(c) In the event of any such taking or private purchase in lieu thereof,
Landlord shall be entitled to receive and retain all awards as may be awarded in
any condemnation proceedings other than those specifically awarded Tenant for a
taking of Tenant's personal property, loss of business and moving expenses.
13. HOLDING OVER AND TERMINATION.
(a) Tenant shall upon the termination of this Lease by lapse of time or
otherwise, yield up immediate possession to Landlord without the requirement of
notice by Landlord to Tenant of the termination of this Lease, nor any grace or
cure period should Tenant fail to yield up immediate possession to Landlord.
Unless the parties hereto shall otherwise agree in
15
writing, if Landlord agrees in writing that Tenant may hold over after the
expiration or termination of this Lease, the hold over tenancy shall be subject
to termination by Landlord at any time upon not less than five (5) days advance
written notice, or by Tenant at any time upon not less than thirty (30) days
advance written notice, and all of the other terms and provisions of this Lease
shall be applicable during that period, except that Tenant shall pay Landlord
from time to time upon demand, as rental for the period of any hold over, an
amount equal to one and 35/100 (1-35/100) the rent in effect on the termination
date, computed on a daily basis for each day of the hold over period. No holding
over by Tenant, whether with or without consent of Landlord, shall operate to
extend this Lease except as otherwise expressly provided. The preceding
provisions of this Paragraph 13 shall not be construed as Landlord's consent for
Tenant to hold over.
(b) Upon the termination of this Lease for whatever reason, Tenant shall
quit and immediately surrender the Premises to Landlord, broom clean, in good
order and condition with all repairs and maintenance required by Tenant
hereunder having been performed, ordinary wear and tear excepted, and Tenant
shall remove its personal property from the Premises in accordance with this
Lease. Should any of the personal property or trade fixtures of Tenant remain
upon the Premises after the Termination Date, all such property shall be deemed
abandoned by Tenant, and Landlord may remove same at the cost and expense of
Tenant with no liability to Tenant therefore, and Tenant hereby releases
Landlord from all liability therefor.
14. QUIET ENJOYMENT. Landlord covenants that it now has, or will acquire
before Tenant takes possession of the Premises, good title to the Premises, free
and clear of all liens and encumbrances, excepting only the lien for current
taxes not yet due, deed of trust(s), or mortgage(s) of record, zoning ordinances
and other building and fire ordinances and governmental regulations relating to
the use of such property, and easements, restrictions and other conditions of
record. In the event this Lease is a sublease, then Tenant agrees to take the
Premises subject to the provisions of the prior leases. Landlord represents and
warrants that it has full right and authority to enter into this Lease and that
Tenant, upon paying the rental herein set forth and performing its other
covenants and agreements herein set forth, shall peaceably and quietly have,
hold and enjoy the Premises for the term hereof without hindrance or molestation
from Landlord, subject to the terms and provisions of this Lease.
15. EVENTS OF DEFAULT. The following events shall be deemed to be events of
default by Tenant under this Lease:
(a) Tenant shall fail to pay any installment of the rent herein reserved, or
payment with respect to taxes hereunder, or any other payment or reimbursement
to Landlord required herein, within five (5) days of when due; provided,
however, the aforesaid five day period shall be extended to ten days for any one
instance in a twelve month period in which Tenant shall make a payment after the
five day period.
(b) Tenant shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
(c) Tenant shall file a petition under any section or chapter of the
Bankruptcy Reform Act, as amended or under any similar law or statute of the
United States or any state thereof; or Tenant shall be adjudged bankrupt or
insolvent in proceedings filed against Tenant thereunder.
16
(d) A receiver or trustee shall be appointed for all or substantially all of
the assets of Tenant.
(e) Tenant shall desert or vacate all or a portion of the Premises.
(f) Tenant shall fail to yield up immediate possession of the Premises to
Landlord upon termination of this Lease.
(g) Tenant shall fail to comply with any term, provision or covenant of this
Lease (other than the provisions of subparagraphs (a), (b), (c), (d), (e) and
(f) of this Paragraph 15), and shall not cure such failure within twenty (20)
days after written notice thereof to Tenant.
16. REMEDIES. Upon the occurrence of any event of default in Paragraph 15
hereof, Landlord shall have the option to pursue any remedy at law or in equity,
including, but not limited to, one or more of the following remedies without any
notice or demand whatsoever:
(a) Terminate this Lease, in which event Tenant shall immediately surrender
the Premises to Landlord, and if Tenant fails to do so, Landlord may, without
prejudice to any other remedy which it may have for possession or arrearage in
rent, enter upon and take possession of the Premises and expel and remove Tenant
and any other person who may be occupying the Premises or any part thereof, with
or without judicial approval, by any legal means necessary, without being liable
for prosecution or any claim of damages therefor; secure the Premises against
unauthorized entry; and Tenant agrees to pay to Landlord on demand the amount of
all loss and damage which Landlord may suffer by reason of such termination,
whether through inability to relet the Premises on satisfactory terms or
otherwise.
(b) Enter upon and take possession of the Premises and expel or remove
Tenant and any other person who may be occupying such Premises or any part
thereof, with or without judicial approval, by any legal means necessary,
without being liable for prosecution and receive the rent thereof; secure the
Premises against unauthorized entry; store any property located on the Premises
at the expense of the owner thereof and Tenant agrees to pay to Landlord on
demand any deficiency that may arise by reason of such reletting. In the event
Landlord is successful in reletting the Premises at a rental in excess of that
agreed to be paid by Tenant pursuant to the terms of this Lease, Landlord and
Tenant each mutually agree that Tenant shall not be entitled, under any
circumstances, to such excess rental, and Tenant does hereby specifically waive
any claim to such excess rental.
(c) Enter upon the Premises, with or without judicial approval, by any legal
means necessary, without being liable for prosecution or any claim for damages
therefor, secure the Premises against unauthorized entry, remove all property of
Tenant from the Premises and store it at the cost and expense of Tenant, and do
whatever Tenant is obligated to do under the terms of this Lease; and Tenant
agrees to reimburse Landlord on demand for any expenses which Landlord may incur
in thus effecting compliance with Tenant's obligations under this Lease, and
Tenant further agrees that Landlord shall not be liable for any damages
resulting to Tenant from such action, whether caused by the negligence of
Landlord or otherwise.
(d) Accelerate and demand the payment of all base rent and other charges due
and payable hereunder over the term of this Lease which amount shall be reduced
by any amounts received by Landlord from any new tenant that enters into
occupancy of the Premises.
17
In the event Tenant fails to pay any installment of base rent or additional
rent hereunder within fifteen days of the due date of such installment, Tenant
shall pay to Landlord on demand a late charge in an amount equal to four percent
(4%) of such installment to help defray the additional cost to Landlord for
processing such late payment. The provision for such late charge shall be in
addition to all of Landlord's other rights and remedies hereunder or at law and
shall not be construed as liquidated damages or as limiting Landlord's remedies
in any manner. If, on account of any breach or default by Tenant in Tenant's
obligations under the terms and conditions of this Lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney
concerning or to enforce or defend any of Landlord's rights or remedies
hereunder, Tenant agrees to pay any and all reasonable attorneys' fees so
incurred.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law or
equity, nor shall pursuit of any remedy herein provided constitute a forfeiture
or waiver of any rent due to Landlord hereunder or of any damages accruing to
Landlord by reason of the violation of any of the terms, provisions and
covenants herein contained. No act or thing done by Landlord or its agents
during the term hereby granted shall be deemed a termination of this Lease or an
acceptance of the surrender of the Premises, and no agreement to terminate this
Lease or accept a surrender of the Premises shall be valid unless in writing
signed by Landlord. No waiver by Landlord of any violation or breach of any of
the terms, provisions and covenants herein contained shall be deemed or
construed to constitute a waiver of any other violation or breach of any of the
terms, provisions and covenants herein contained. Landlord's acceptance of the
payment of rental or other payments hereunder after the occurrence of an event
of default shall not be construed as a waiver of such default, unless Landlord
so notifies Tenant in writing, and no receipt of money by Landlord from Tenant
after the termination of this Lease or after service of any notice or after the
commencement of any suit or after final judgment for possession of the Premises
shall reinstate, continue or extend the term of this Lease or affect any such
termination, notice, suit or judgment, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to constitute
waiver of such default or of Landlord's right to enforce any such remedies with
respect to such default or any subsequent default.
17. LANDLORD'S LIEN. [INTENTIONALLY DELETED.]
18. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
mortgage(s) and/or deed(s) of trust now or at any time hereafter constituting a
lien or charge upon the Premises or the improvements situated thereon; provided,
however, that if the mortgagee, trustee, or holder of any such mortgage or deed
of trust elects to have Tenant's interest in this Lease superior to any such
instrument, then by notice to Tenant from such mortgagee, trustee or holder,
this Lease shall be deemed superior to such lien, whether this Lease was
executed before or after said mortgage or deed of trust. Tenant shall at any
time hereafter on demand execute any instruments, releases or other documents
which may be required by any mortgagee or trustee for the purpose of further
subjecting and subordinating this Lease to the lien of any such mortgage or deed
to trust, and shall forward same to Landlord within five days of a request
therefor; provided, that any current or future mortgagee, trustee, or deed of
trust beneficiary, as the case may be, shall provide Tenant with a
nondisturbance agreement in form reasonably satisfactory to Tenant which shall
grant Tenant the right to continue to occupy the Premises under the terms hereof
so long as Tenant is not in default under this Lease.
18
19. MECHANIC'S LIENS. Tenant shall have no authority, express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind, the interest of Landlord in the Premises or to charge
the rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
construction or repairs, and each such claim shall affect and each such lien
shall attach to, if at all, only the leasehold interest granted to Tenant by
this instrument. Tenant covenants and agrees that it will pay or cause to be
paid all sums legally due and payable by it on account of any labor performed or
materials furnished in connection with any work performed on the Premises on
which any lien is or can be validly and legally asserted against its leasehold
interest in the Premises or the improvements thereon and that it will save and
hold Landlord harmless from any and all loss, cost or expense based on or
arising out of asserted claims or liens against the leasehold estate or against
the right, title and interest of Landlord in the Premises or under the terms of
this Lease.
20. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations, or other requirements with reference
to the sending, mailing, or delivery of any notice by Landlord to Tenant or with
reference to the sending, mailing, or delivery of any notice or the making of
any payment by Tenant to Landlord shall be deemed to be complied with when and
if the following steps are taken:
(a) All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address hereinbelow set forth or
at such other address as Landlord may specify from time to time by written
notice delivered in accordance herewith. Tenant's obligations to pay rent and
any other amounts to Landlord under the terms and of this Lease shall not be
deemed satisfied until such rent and other amounts have been actually received
by Landlord.
(b) Any notice or document required or permitted to be delivered hereunder
shall be deemed to be delivered whether actually received or not when:
(i) deposited in the United States Mail, postage prepaid;
(ii) sent by federal express or other nationally recognized overnight
courier, charges prepaid; or
(iii) sent by Certified or Registered Mail, return receipt requested,
postage prepaid,
and addressed to the parties hereto at the respective addresses set out
below, or at other such addresses as they have heretofore specified by written
notice delivered in accordance therewith.
LANDLORD:
Weeks Realty, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇
Weeks Realty, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
19
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TENANT:
PPD Pharmaco, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Director of Administration
With a copy to:
General Counsel
PPD Pharmaco, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If and when included within the term "Landlord", as used in this instrument,
there is more than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of such a notice specifying some
individual at some specific address for the receipt of notices and payments to
Landlord; if and when included within the term "Tenant, as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices to Tenant. All parties included within
the terms "Landlord" and "Tenant", respectively, shall be deemed to have
received notices in accordance with the provisions of this paragraph with the
same effect as if each had received such notice.
21. BROKER'S CLAUSE. Tenant warrants and represents to Landlord that it has
had no dealings with any real estate broker or agent in connection with this
Lease other than Corporate Realty Advisors, and Weeks/Lichtin, and Tenant
covenants to pay, hold harmless, and indemnify Landlord from and against any and
all costs, expenses, liabilities (including reasonable attorneys' fees), causes
of action, claims or suits in connection with any compensation, commission, fee,
or charges claimed by any other real estate broker or agent with respect to this
Lease or the negotiation thereof, arising out of any act of Tenant. Landlord
warrants and represents to Tenant that it has had no dealings with any real
estate broker or agent in connection with this Lease other than Corporate Realty
Advisors, and Weeks/Lichtin, and Landlord covenants to pay, hold harmless, and
indemnify Tenant from and against any and all costs, expenses, liabilities
(including reasonable attorneys' fees), causes of action, claims or suits in
connection with any compensation, commission, fee, or charges claimed by any
other real estate broker or agent with respect to this Lease or the negotiation
thereof, arising out of any act of Landlord.
22. LANDLORD'S LIABILITY. Notwithstanding anything to contrary contained in
this Lease, Tenant agrees and understands that Tenant shall look solely to the
estate and property of Landlord in the Building for the enforcement of a
judgment (or other judicial decree) requiring the payment of money by Landlord
to Tenant by reason of default or breach of Landlord in performance of its
obligations under this Lease, it being intended that there will be absolutely no
personal liability on the part of Landlord, its successors and assigns with
respect to any of the terms, covenants, and conditions of this Lease, and no
other assets of Landlord or of Landlord's partners, if any, shall be subject to
levy, execution, attachment or any other legal process for the enforcement or
satisfaction of the remedies pursued by Tenant in the event of such default or
breach, this exculpation of liability to be absolute and without exception
whatsoever.
20
23. RULES AND REGULATIONS. Tenant shall fully comply with the Rules and
Regulations attached hereto as Exhibit D and made a part hereof and any and all
modifications thereof, or amendments thereto with respect to which Landlord
notifies Tenant.
24. HAZARDOUS MATERIALS.
(a) Tenant agrees that it will not release, discharge, place, hold, or
dispose of any Hazardous Material (as hereinafter defined) on, under or at the
Premises, in the Building, or on the Land, and that it will not use the
Premises, the Building, the Land, or any other portion thereof as a site for the
treatment, storage, or disposal (whether permanent or temporary) of any
Hazardous Material, other than materials used in the ordinary course of the
business of Tenant in accordance with all Applicable Laws. Tenant further agrees
that it will not cause or allow any asbestos to be incorporated into any
improvements or alterations which Tenant makes or causes to be made to the
Premises, or the Building.
(b) Tenant hereby agrees to indemnify, defend (with counsel reasonably
approved by Landlord) and hold harmless Landlord of from and against any and all
losses, liabilities, damages, injuries, costs, expenses and claims of any and
every kind whatsoever (including without limitation, court costs and attorneys'
fees at all tribunal levels) which at any time or from time to time may be paid,
incurred or suffered by, or asserted against Landlord for, with respect to, or
as a direct or indirect result of (i) any breach by Tenant of the provisions of
this Paragraph, or (ii) as a direct or indirect result of the acts or omissions
of Tenant or any agent, employee, invitee, licensee, or independent contractor
of Tenant, the presence on or under, or the escape, seepage, leakage, spillage,
discharge, emission, or release from, onto, or into the Premises, the Building,
the Land, the atmosphere, or any watercourse, body of water, or groundwater, of
any Hazardous Material (including, without limitation, any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or arising under the
Comprehensive Environmental Response, Compensation and Liability Act, any
so-called "Superfund" or "Superlien" law, or any other Federal, state, local or
other statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to or imposing liability or standards of conduct concerning
any Hazardous Material); and the provisions of and undertakings and
indemnification set forth in this paragraph shall survive the termination or
expiration of this Lease, for any reason, and shall continue to be the
liability, obligation and indemnification of Tenant, binding upon Tenant
forever. The provisions of the preceding sentence shall govern and control over
any inconsistent provision of this Lease.
(c) For purposes of this Lease, "Hazardous Material" means and includes any
hazardous or toxic substance, pollutant, contaminant, gas, or petroleum product
defined as such in (or for purposes of) the Comprehensive Environmental
Response, Compensation, and Liability Act, as amended, any so-called "Superfund"
or "Superlien", law, the Toxic Substances Control Act, as amended, or any other
Federal, state or local statute, law, ordinance, code, rule, regulation, order
or decree regulating, relating to, or imposing liability or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or material, as
now or at any time hereafter in effect, or any other hazardous, toxic or
dangerous, waste, substance or material, gas or petroleum product, and
"Applicable Laws" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended, any so-called "Superfund" or
21
"Superlien", law, the Toxic Substances Control Act, as amended, or any other
Federal, state or local statute, law, ordinance, code, rule, regulation, order
or decree regulating, relating to, or imposing liability or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or material, as
now or at any time hereafter in effect, or any other hazardous, toxic or
dangerous, waste, substance or material, gas or petroleum product.
(d) Tenant shall provide Landlord with a list of any and all Hazardous
Materials released, discharged, placed, held, or disposed of on the Premises,
and certification to Landlord of compliance by Tenant with all Applicable Laws,
within ten days of a request therefor by Landlord.
25. [INTENTIONALLY DELETED.]
26. COVENANT OF TENANT. If Landlord encounters difficulties in negotiating
permanent or construction financing for the Building, and after using its best
efforts is unable to resolve those difficulties without obtaining minor
modifications to this Lease, Tenant will act in good faith to execute an
amendment to this Lease, but this agreement on the part of Tenant will not
require Tenant to make any changes that in Tenant's reasonable judgment alter
the term hereof, or adversely affect any substantive right of Tenant, whether
legal or economic.
27. MISCELLANEOUS.
(a) Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
(b) The terms, provisions and covenants and conditions contained in this
Lease shall apply to, inure to the benefit of, and be binding upon the parties
hereto and upon their respective heirs, legal representatives, successors and
permitted assigns, except as otherwise herein expressly provided. Landlord shall
have the right to assign any of its rights and obligations under this Lease.
Each party agrees to furnish to the other, promptly upon demand, a resolution,
or other appropriate documentation evidencing the due authorization of such
party to enter into this Lease.
(c) The captions inserted in this Lease are for convenience only and in no
way define, limit or otherwise describe the scope or intent of this Lease, or
any provision hereof, or in any way affect the interpretation of this Lease.
(d) Tenant agrees from time to time, within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating that this Lease is in full force and effect, the date to
which rent has been paid, the unexpired term of this Lease and such other
matters pertaining to this Lease as may be requested by Landlord. It is
understood and agreed that Tenant's obligation to furnish such estoppel
certificates in a timely fashion is a material inducement for Landlord's
execution of this Lease.
(e) This Lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
(f) All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term hereof, including, without
limitation,
22
all payment obligations concerning the condition of the Premises.
(g) In the event of a transfer by Landlord of its interest in the Premises,
Landlord shall be released from all obligations and liabilities under the terms
of this Lease subsequent to the date of such transfer. In the event a transferee
shall agree to assume the obligations and liabilities of Landlord under the
Lease prior to the date of the transfer, Landlord shall be released from all
obligations and liabilities under the Lease.
(h) If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added as a
part of this Lease contract a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
(i) Because the Premises are on the open market and are presently being
shown, this Lease shall be treated as an offer with the Premises being subject
to prior lease and such offer subject to the withdrawal or non-acceptance by
Landlord or to other use of the Premises without notice, and this Lease shall
not be valid or binding unless and until accepted by Landlord in writing and a
fully executed copy delivered to both parties hereto.
(j) All references in this Lease to "the date hereof" or similar references
shall be deemed to refer to the last date, in point of time, on which all
parties hereto have executed this Lease.
(k) Time is of the essence of this Lease.
(l) (i) If Landlord (1) breaches any agreement or obligation in this Lease
and such breach continues for a period of thirty (30) days after written notice
to Landlord by Tenant, or (2) through Landlord's gross negligence or willful
act, Landlord fails to provide (where Landlord is obligated to provide the
Landlord Essential Service), or Landlord fails to act reasonably to cause a cure
(but only to the extent that Landlord is responsible for the cure and such cure
is within Landlord's control to effect) or Landlord otherwise affirmatively acts
to stop, interrupt or materially reduce a Landlord Essential Service (as
hereinafter defined) so that Tenant is not able to carry on its business at the
Premises for five (5) consecutive business days and such interruption continues
for a period of five (5) business days after written notice to Landlord, then
upon the occurrence of (l) and/or (2) above, if Landlord shall not in good faith
have commenced the curing of such breach specified in (1) or (2) above within
such thirty (30) or five (5) business day period after written notice, as the
case may be and thereafter, shall have not diligently and continuously proceeded
to cure such breach completely, the Landlord shall be in default hereunder, and
Tenant shall have all rights and remedies available at law or in equity for such
default.
(ii) In addition, Tenant shall have the right but not the obligation, to
effect a cure on behalf of Landlord and to demand the actual and reasonable
costs of cure from Landlord.
(iii) For purposes of this Lease, a "Landlord Essential Service" does not
mean a service to be provided by Landlord
23
under this Lease per se, but rather a facility or system within the Building
controlled, operated or maintained by Landlord (but not a third party, e.g.,
Carolina Power & Light Company, to the extent that such third party is
responsible) that provides electricity, elevator service, telecommunications
(including data transmission), and heating, air conditioning and ventilation and
are necessary for the purpose of Tenant's conduct of its business at the
Premises.
(iv) Landlord shall have no liability for any incidental or consequential
damages of Tenant, or anyone claiming by, through or under Tenant, for any
reason whatsoever.
(m) In the event that Landlord shall default in the performance of
Landlord's obligations hereunder, the holder of a mortgage or the beneficiary of
a deed of trust which includes the Premises shall have the right, but not the
obligation, to perform or comply with any covenants, agreements and provisions
violated in connection with such default. Further, if such holder or beneficiary
notifies Tenant that such holder or beneficiary has taken over Landlord's right
under this Lease, Tenant shall not assert any right to deduct the cost of
repairs or any monetary claims against Landlord theretofore accrued from rent
thereafter due and payable, but shall look solely to Landlord and not such
holder or beneficiary for satisfaction of such claim.
(n) This Lease does not create the relationship of partner or joint venturer
between Landlord and Tenant.
(o) The laws of the State of North Carolina shall govern the
interpretation, the validity, performance and enforcement of this Lease.
(p) The undersigned officer of Tenant does hereby warrant and certify to
Landlord that Tenant is a corporation in good standing and duly organized under
the laws of the State of Texas and is authorized to do business in the State of
North Carolina. The undersigned officer of Tenant hereby further warrants and
certifies to Landlord that such officer is authorized and empowered to bind the
corporation to the terms of this Lease by such officer's signature hereto.
Tenant shall provide Landlord a consent of its officers and directors to enter
into this Lease, and the person authorized to sign this Lease on behalf of
Tenant concurrently with the execution of this Lease.
(q) This Lease shall be executed in duplicate, each of which shall be deemed
an original and complete of itself and may be introduced into evidence or used
for any purpose without the production of any other copy. If Tenant is a
corporation, two authorized corporate officers must execute this Lease in their
appropriate capacity for Tenant and affix the corporate seal.
(r) The provisions contained in the Rider attached hereto, if any, are
incorporated herein by reference and made a part of this Lease. In the event of
any conflict between the printed portion of this Lease and the Rider, the
provisions of the Rider shall govern and control.
(s) Although the printed provisions of this Lease were drafted by Landlord,
such fact shall not cause this Lease to be construed either for or against
Landlord or Tenant.
(t) This Lease may not be recorded. Upon the request and at the expense of
Tenant, Landlord shall execute a memorandum of this Lease suitable for recording
which shall omit the financial terms herein but which shall identify the
Premises and the term of this Lease. Upon the expiration of
24
this Lease, a recorded memorandum of this Lease may be canceled of record by a
document executed by Landlord, or its successor in interest for such purpose.
(u) Within five days of the request by Landlord upon the occurrence of a
default or event of default hereunder by Tenant, Tenant shall provide to
Landlord, financial statements of Tenant certified by the chief financial
officer of Tenant.
(v) No remedy conferred herein is intended to be exclusive of any other
remedy and each and every remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or thereunder or now or hereafter existing at
law or in equity or by statute or otherwise.
(w) No provision of this Lease shall be deemed to waive any statutory (as
provided in Chapter 44A of the North Carolina General Statutes), or common law
rights of Landlord to assert a lien upon property of Tenant.
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK.]
25
IN WITNESS WHEREOF, the parties hereto have executed this Lease under seal
as of the day and year first above written.
LANDLORD:
WEEKS REALTY, L.P. (SEAL), a Georgia
limited partnership authorized to do
business in the State of North
Carolina as Weeks Realty Limited Partnership
BY: WEEKS GP HOLDINGS, INC., a
Georgia corporation, its sole
general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Senior Vice President
TENANT:
PPD PHARMACO, INC., a Texas corporation
Date of execution: By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------
7/9/98 Print Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------
Title:Chief Executive Officer
--------------------------
Witness/Attest:
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------
Print Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------
Title:Exec. Dir., Corp. Admin
------------------------
[CORPORATE SEAL]
26
EXHIBIT A
THE LAND
TO BE ATTACHED UPON COMPLETION OF SITE PREPARATION FOR THE BUILDING.
EXHIBIT B
FLOOR PLAN OF BUILDING AND PREMISES
EXHIBIT C
PLANS AND SPECIFICATIONS
[TO BE ATTACHED UPON THE MUTUAL APPROVAL OF LANDLORD AND TENANT.]
EXHIBIT C-1
SHELL BUILDING DESIGN SCHEDULE
[TO BE ATTACHED UPON THE MUTUAL APPROVAL OF LANDLORD AND TENANT.]
EXHIBIT C-2
COMPONENTS OF BASE BUILDING
[TO BE ATTACHED UPON THE MUTUAL APPROVAL OF LANDLORD AND TENANT.]
EXHIBIT D
RULES AND REGULATIONS
1.The sidewalks, common areas, and public portions of the Building, such as
entrances, passages, courts, elevators, vestibules, stairways, corridors or
halls, and the streets, alleys or ways surrounding or in the vicinity of the
Building shall not be obstructed by Tenant, even temporarily, or encumbered by
Tenant or used for any purpose other than ingress to and egress from the
Premises.
▇.▇▇ awnings or other projections shall be attached to the outside walls of
the Building.
▇.▇▇ sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of the
Premises or Building unless approved by Landlord. Signs on entrance doors shall,
at Tenant's expense, be inscribed, painted or affixed for each tenant by sign
makers approved by Landlord. In the event of the violation of the foregoing by
Tenant, Landlord may remove same without notice to Tenant or any liability
therefor, and may charge the expense incurred by such removal to Tenant.
4.The sashes, sash doors, skylights, windows, heating, ventilating and air
conditioning vents and doors that reflect or admit light and air into the halls,
passageways or other public places in the Building shall not be covered or
obstructed by Tenant.
▇.▇▇ show cases or other articles shall be put in front of or affixed to any
part of the exterior of the Building, nor placed in the public halls, corridors,
or vestibules without the prior written consent of Landlord.
6.The bathrooms and plumbing fixtures shall not be used for any purposes
other than those for which they were designed, and no sweepings, rubbish, rags,
or other substances shall be thrown therein. All damages resulting from any
misuse of the bathrooms or fixtures shall be the responsibility of Tenant.
7.Tenant shall not in any way deface any part of the Premises or the
Building.
▇.▇▇ bicycles, vehicles, or animals of any kind shall be brought into or
kept in or about the Premises, or in the Building. No cooking shall be done or
permitted by Tenant on the Premises except in conformity with all applicable
laws, statutes, regulations and ordinances and then only in the area designated
as a kitchen, if any, on the Premises of Tenant, which is to be primarily used
by Tenant's employees for heating beverages and light snacks. Tenant shall not
cause or permit any unusual or objectionable odors to be produced upon or
permeate from the Premises.
40
9.[INTENTIONALLY DELETED.]
10. No space in the Building shall be used for the sale of merchandise,
goods, or property of any kind at auction.
11. Tenant shall not make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of the Building or neighboring
buildings or premises or those having business with them, whether by the use of
any musical instrument, radio, talking machine, unmusical noise, whistling,
singing, or in any other way. Tenant shall not throw anything out of the doors,
windows or skylights or down the passageways.
12. Neither Tenant, nor any of Tenant's servants, employees, agents,
visitors, or licensees, shall at any time bring or keep upon the Premises any
inflammable, combustible or explosive fluid, or chemical substance, other than
reasonable amounts of cleaning fluids or solvents required in the normal
operation of Tenant's business offices.
13. No additional locks or bolts of any kind shall be placed upon any of the
doors, walls, accessways, or windows by Tenant, nor shall any changes be made in
existing locks or the mechanism thereof, without the prior written approval of
Landlord and unless and until a duplicate key or access card, as applicable, is
delivered to Landlord. Tenant shall, upon the termination of its tenancy (i)
return to Landlord all keys for the Premises and for any area of the Building,
or common areas, either furnished to, or otherwise procured by Tenant, (ii)
restore the locks, walls, accessways, windows, and doors to their original
condition on the date of this Lease by removing any security measures installed
by Tenant, repairing any damage to the Premises or to the Building as a result
of the restoration and removal, and (iii) in the event of the loss of any keys
furnished to Tenant by Landlord, Tenant shall pay to Landlord the cost thereof.
14. Tenant shall not overload any floor.
15. Tenant shall not occupy or permit any portion of the Premises to be used
for the possession, storage, manufacture or sale of liquor, narcotics, or
tobacco in any form.
16. Tenant shall be responsible for all persons for whom it issues passes
and/or keys and shall be liable to Landlord for all acts of such persons.
17. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
18. The requirements of Tenant will be attended to only by Landlord or the
property manager of the Premises.
19. Canvassing, soliciting, and peddling in the Building are prohibited and
Tenant shall cooperate to prevent the same.
20. All paneling, grounds or other wood products not
41
considered furniture shall be of fire retardant materials.
21. No smoking is permitted in the Premises, or in the Building. Smoking is
permitted outside the Building in designated smoking areas. All cigarette butts
and other refuse should be placed in designated containers.
22. No weapons concealed or visible are permitted in the Premises, in the
Building, or on the Land.
23. Landlord shall not be responsible to Tenant or liable for the
non-observance or violation of any of these Rules and Regulations by any other
tenant.
Whenever the above rules conflict with any of the rights or obligations of
Tenant pursuant to the provisions of the Lease, the provisions of the Lease
shall govern.
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