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Sample Business ContractsHome: Sample Business Contracts:
LEASE AGREEMENT FOR 401 NORTH TRYON
BANK OF AMERICA, NATIONAL ASSOCIATION,
A NATIONAL BANKING ASSOCIATION, AS LANDLORD,
AND
EXULT, INC.,
A DELAWARE CORPORATION, AS TENANT
NOVEMBER 21, 2000
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TABLE OF CONTENTS
PAGE
----
LEASE DEFINITIONS......................................................... 1
CONSIDERATION............................................................. 4
I. LEASE OF PREMISES................................................... 4
1.1 PREMISES..................................................... 4
1.2 OPTION TO EXPAND............................................. 4
1.3 INTENTIONALLY OMITTED........................................ 4
1.4 DELIVERY OF SPACE............................................ 4
1.5 COMMON AREAS................................................. 4
II. TERM; RENT.......................................................... 5
2.1 TERM......................................................... 5
2.2 USE.......................................................... 5
2.3 BASE RENT.................................................... 5
2.4 INTENTIONALLY OMITTED........................................ 5
2.5 ADDITIONAL SERVICES.......................................... 5
2.6 HOLDING OVER................................................. 5
2.7 LATE CHARGES................................................. 6
III. GENERAL MATTERS..................................................... 6
3.1 CONDITION OF PREMISES........................................ 6
3.2 SERVICES TO BE FURNISHED BY LANDLORD......................... 6
3.3 KEYS......................................................... 6
3.4 GRAPHICS..................................................... 6
3.5 REPAIRS BY LANDLORD.......................................... 6
3.6 PEACEFUL ENJOYMENT........................................... 7
3.7 LANDLORD'S ADDITIONAL REPRESENTATIONS AND WARRANTIES......... 7
IV. TENANT'S OCCUPANCY OF PREMISES...................................... 8
4.1 CARE AND SURRENDER OF THE PREMISES........................... 8
4.2 LEGAL USE AND VIOLATION OF INSURANCE COVERAGE................ 8
4.3 HAZARDOUS MATERIALS.......................................... 8
4.4 NUISANCE..................................................... 9
4.5 RULES OF THE BUILDING........................................ 9
4.6 REPAIRS BY TENANT............................................ 9
4.7 ALTERATIONS, ADDITIONS, IMPROVEMENTS......................... 9
4.8 ENTRY FOR REPAIRS AND INSPECTION............................. 10
4.9 ASSIGNMENT OR SUBLEASE....................................... 10
4.10 SUBORDINATION TO MORTGAGE.................................... 12
4.11 ESTOPPEL CERTIFICATE......................................... 12
4.12 DEFAULTS BY LANDLORD......................................... 12
V. INSURANCE........................................................... 13
5.1 CASUALTY INSURANCE........................................... 13
5.2 LIABILITY INSURANCE.......................................... 13
5.3 INSURANCE STANDARDS; WAIVER OF SUBROGATION................... 13
5.4 OTHER TENANTS; PARKING GARAGE................................ 13
5.5 NON-LIABILITY FOR CERTAIN CONDITIONS AND OCCURRENCES......... 14
5.6 NO RELEASE................................................... 14
5.7 CASUALTY DAMAGE.............................................. 14
5.8 SELF-INSURANCE. ............................................. 14
VI. CONDEMNATION........................................................ 15
6.1 EFFECT OF CONDEMNATION....................................... 15
6.2 PROCEEDINGS IN CONDEMNATION.................................. 15
6.3 NOTICE OF EXECUTION.......................................... 15
VII. TENANT'S DEFAULT.................................................... 15
7.1 DEFAULT BY TENANT............................................ 15
7.2 LANDLORD'S REMEDIES.......................................... 16
7.3 REMEDIES CUMULATIVE.......................................... 16
7.4 CURE RIGHTS.................................................. 16
7.5 RIGHTS UPON POSSESSION....................................... 17
7.6 PREVAILING PARTY; VENUE...................................... 17
i
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TABLE OF CONTENTS (Continued)
PAGE
----
VIII. MISCELLANEOUS PROVISIONS............................................ 17
8.1 FORCE MAJEURE................................................ 17
8.2 SALE OF THE BUILDING......................................... 17
8.3 NAME OF BUILDING............................................. 17
8.4 NOTICES...................................................... 18
8.5 NO WAIVER.................................................... 18
8.6 COMMISSIONS.................................................. 18
8.7 RIGHTS OF LIGHT, VIEW OR AIR................................. 18
8.8 SEVERABILITY................................................. 18
8.9 RECORDATION.................................................. 18
8.10 BINDING EFFECT............................................... 18
8.11 ENTIRE AGREEMENT............................................. 19
8.12 AMENDMENTS................................................... 19
8.13 COUNTERPARTS................................................. 19
8.14 GOVERNING LAW................................................ 19
8.15 INITIAL REPOSITIONING OF EMPLOYEES; SUBSEQUENT MOVES......... 19
8.16 INTENTIONALLY OMITTED........................................ 19
8.17 SHARED USE OF COMPUTER ROOM.................................. 19
8.18 EQUIPMENT ACCESS............................................. 20
8.19 LIMITS ON CERTAIN LIABILITIES................................ 20
8.20 STATUS AS SUBLEASE........................................... 20
8.21 RELOCATION................................................... 20
8.22 SURVIVAL..................................................... 21
8.23 DRAFTING..................................................... 21
8.24 RIGHT OF EARLY TERMINATION................................... 21
8.25 NEW LEASE.................................................... 21
8.26 BASE BUILDING PLANS AND SPECIFICATIONS....................... 21
8.27 TENANT'S TERMINATION FEE..................................... 22
LIST OF EXHIBITS
Exhibit A - Floor Plan of the Premises
Exhibit B - Work Letter Agreement
Schedule 1 - Tenant's Plans
Exhibit C - Cleaning Specifications
Exhibit D - Rules and Regulations
Exhibit E - Option to Expand
Exhibit F - Services to be Provided by Landlord
Exhibit G - Tenant's Parking Rights and Charges
Exhibit H - Memorandum of Sublease
Exhibit I - Extension of Term
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into on this the
21st day of November, 2000 between BANK OF AMERICA, NATIONAL ASSOCIATION, a
national banking association ("Landlord"), whose address for purposes hereof is,
c/o Corporate Real Estate, Attn: Headquarters Real Estate Asset Manager,
NC1-023-04-03, 525 North Tryon Street, Charlotte, North Carolina, 28255, and
EXULT, INC., a Delaware corporation ("Tenant"). Tenant's address is as set forth
in Section 8.4.
LEASE DEFINITIONS
As used in this Lease, the following specified terms shall have the
meanings ascribed below, unless the context clearly requires otherwise:
ADA. The Americans With Disabilities Act Of 1990.
Additional Rent. As set forth in Section 2.5.
Alterations. As defined in Section 4.7.
Bank of America Corporate Center. The sixty (60) story office
tower located on the northeastern corner of North Tryon Street and East
Trade Street, having an address of 100 North Tryon Street, Charlotte,
North Carolina.
Base Building. The Building as constructed by Landlord
pursuant to the Base Building Plans as defined in Section 8.26.
Base Rent. As defined in Section 2.3.
Block. The city block located in Charlotte, North Carolina and
bounded by North Tryon Street, East Sixth Street, North Church Street
and East Seventh Street.
Building. The office building located at 401 North Tryon
Street, Charlotte, North Carolina, as more particularly described in
the Memorandum of Sublease attached hereto as Exhibit H.
Building Complex. Any adjacent property belonging to or under
control of Landlord which has been affirmatively integrated into the
Building including but not limited to the adjoining parking facility,
office space and plaza areas (but not including the adjoining
residential condominium or parking areas dedicated exclusively to the
residential condominium building).
Certificate of Occupancy. A certificate of occupancy or a
temporary certificate of occupancy issued by the Building Standards
Department or other appropriate Governmental Authority of Mecklenburg
County, North Carolina.
Commencement Date. As set forth in Section 2.1.
Common Areas. Common Areas shall be located on the Block and
shall include the lobby of the Building, outdoor plazas within the
Building Complex (including outdoor plazas owned by any other third
party but shared in whole or in part, for one or any number of
purposes, with the owner of the Building), driveways, loading docks,
corridors, communication shafts, building manager's offices,
escalators, elevators, elevator shafts and elevator foyers, stairwells,
entrances, lobbies, public restrooms, mechanical rooms, water holding
areas, janitorial closets, vending rooms, telephone rooms, mail rooms,
electrical rooms, elevator mechanical rooms located above the elevator
shafts, and other similar areas of the Building provided for Building
systems or for the common use or benefit of all tenants primarily or
the public generally; provided, however, that the identity and location
of such Common Areas is subject to the terms of Section 1.5.
Comparable Space. Comparable office space of similar floor
height, and located in first-class, mid-rise office buildings
(including, without limitation, the Building) with similar attendant
parking facilities, with consummated leases achieved in the central
business district of Uptown Charlotte, North Carolina. Comparable space
shall include space with comparable amenities, build-out, floor plan,
computer room and available parking and, to the extent Tenant has not
already exercised its right to Expansion Space, Comparable Space shall
also include available expansion space. For purposes of any provisions
in this Lease relating to a Relocation (as defined in Section 8.21) of
Tenant, Comparable Space shall be contained within a single building
but is not required to be located on contiguous floors within such
single building, however Landlord shall attempt to provide space within
the same elevator bank or reasonably proximate by stair access.
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Contract Rate. A rate of interest equal to two percent (2%)
above the rate of interest announced from time to time as the "prime
rate" by Bank of America, N.A. or its successors at its home office in
Charlotte, North Carolina or the maximum rate permitted by applicable
law, whichever shall be less.
Delivery Date. As set forth in Section 2.1.1.
Environmental Laws. Any applicable current or future federal,
state, or local law, regulation, ordinance, order, guidance document,
policy document, or ruling applicable to health or environmental
conditions on, under or about the Building, including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act, the Hazardous Materials Transportation Act, the Resource
Conservation and Recovery Act, the Toxic Substances Control Act, the
Water Pollution Control Act, the Clean Air Act, the Federal
Insecticide, Fungicide and Rodenticide Act, and analogous state and
local laws.
Expansion Space. Any additions to the Premises pursuant to the
provisions of Exhibit E.
Force Majeure. As defined in Section 8.1.
Governmental Authority. The government of the United States of
America, the State of North Carolina and any political subdivision
thereof, or any local, state or national public authority, agency,
department, commission, board, bureau or instrumentality with authority
over the Building or the Building Complex. With respect to matters
pertaining to insurance, boards of fire underwriters shall be a
Governmental Authority to the extent they have power to impose
conditions on the issuance of policies or the coverage thereof.
Hazardous Materials. Polychlorinated biphenyls, petroleum and
any fraction thereof, radioactive materials, urea formaldehyde,
asbestos, and any waste, pollutant, contaminate, chemical compound,
substance or material defined or regulated as "hazardous" "extremely
hazardous" or "toxic" under any Environmental Law or by any federal,
state, or local governmental agency or authority.
Holidays. New Year's Day, Memorial Day (observed),
Independence Day (observed), Labor Day, Thanksgiving Day and Christmas
Day, and such other holidays, not to exceed eight (8) days per Calendar
Year, that are recognized by national banks.
HVAC. As defined in Exhibit F.
Initial Premises. The premises described in Section 1.1.1
hereof.
Intent Notice. As defined in Section 4.9.
Landlord. As defined on Page 1.
Landlord's Architect. Any reputable architectural firm
licensed in the State of North Carolina as shall be selected by
Landlord from time to time.
Lease. As defined on Page 1.
Market Rate. As defined and determined in Exhibit E.
Master Lease. A special purpose entity has been formed to own
the Building and the entire Building is subject to a lease between
Landlord and such special purpose entity, said lease being deemed the
"Master Lease" for purposes hereunder.
Master Services Agreement. That certain agreement of even date
herewith between Bank of America Corporation and Exult, Inc., relating
to provision of certain payroll and accounting services by Exult, Inc.
to Bank of America Corporation.
New Lease. As defined in Section 8.25.
Normal Business Hours. As defined in Exhibit F.
Owner. That entity which owns the Building as of the
Commencement Date of this Lease.
2
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Parking Garage. The parking areas associated with the Building
Complex on the Block, including, without limitation, any walkway
connecting the Parking Garage to the Building, stairways, elevators and
mechanical systems. The Parking Garage and the Building may be owned or
managed separately.
Parking Rights and Charges. If Tenant is granted any rights to
parking in the Parking Garage, such rights and all charges to Tenant
for same are described in Exhibit G attached hereto and incorporated
herein by this reference.
Premises. That portion of the Building shown or described in
Exhibit A and further designated in Section 1.1.1 together with any
changes made thereto in accordance with this Lease.
Rent. The Base Rent payable under Section 2.3 plus all
Additional Rent described in Section 2.5, parking charges, if any,
described in Exhibit G, and any other sums owed by Tenant to Landlord
under this Lease including but not limited to Base Rent which may
become payable pursuant to Section 8.27 or Exhibit E.
Rentable Area. The rentable portion of any leasable premises
in the Building expressed in square feet or fractions thereof, whether
or not such premises are to be used for office, retail or
service-related uses.
Rentable Area in the Building. The aggregate Rentable Area in
the Building irrespective of the designated use of such Rentable Area
for office, retail or service related uses. Landlord and Tenant agree
that as of the Commencement Date of this Lease, the Rentable Area in
the Building is stipulated to be Four Hundred Thirty-Two Thousand Six
Hundred Fifty-Nine (432,659) square feet.
Rules and Regulations. Attached as Exhibit D.
Standard Building Capacity. As defined in Exhibit F.
Stated Expiration Date. The date which is ten (10) years
following the Commencement Date.
Tenant. As defined on Page 1.
Tenant Affiliate. As set forth in Section 4.9.
Tenant's Architect. Any reputable architectural firm licensed
in the State of North Carolina as selected by Tenant.
Term. As set forth in Section 2.1.2.
Third Party Development. Any office, retail or condominium
development (other than the Building, the Plaza, and the Parking
Garage) which may be located from time to time on the Block and which
is not owned by Landlord.
Transamerica Square. The name by which the Building Complex is
known on the date of this Lease.
Year, Calendar Year, Lease Year. A year shall be any period of
365/366 consecutive days. Calendar year shall mean the period from
January 1 to December 31. Lease Year shall refer to each year beginning
on the Commencement Date.
3
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CONSIDERATION
In consideration of the mutual promises and agreements set forth
herein, the legal sufficiency of which the parties hereto expressly acknowledge,
Landlord and Tenant agree as follows:
I.
LEASE OF PREMISES
1.1 PREMISES.
1.1.1 DEMISE OF PREMISES. Subject to and upon the terms,
provisions and conditions hereinafter set forth, and each in consideration of
and conditioned upon the duties, covenants and obligations of the other
hereunder, Landlord does hereby lease, demise and let to Tenant, and Tenant does
hereby lease from Landlord, the Premises more particularly described as the
third (3rd) floor of the Building, consisting of approximately forty-six
thousand five hundred seven (46,507) square feet of Rentable Area and the fifth
(5th) floor of the Building, consisting of approximately forty-nine thousand,
six hundred seventy (49,670) square feet of Rentable Area (sometimes referred to
herein as the "Initial Premises"), containing in the aggregate approximately
ninety-six thousand one hundred seventy-seven (96,177) square feet of Rentable
Area as reflected on the floor plans attached hereto as Exhibit A and
incorporated herein by reference.
1.1.2 WARRANTY OF TITLE. Landlord warrants and represents to
Tenant that Landlord has the right, power, authority and ability to lease all of
the Premises and to undertake all other obligations of Landlord set forth
herein.
1.2 OPTION TO EXPAND. The option to expand, if any, to be granted by
Landlord to Tenant under this Lease shall be set forth in Exhibit E hereto.
1.3 INTENTIONALLY OMITTED.
1.4 DELIVERY OF SPACE. Landlord shall deliver the Initial Premises and
any Expansion Space to Tenant in its "as is" condition and shall not be
obligated to perform any demolition or improvements.
1.5 COMMON AREAS. Tenant, its employees and invitees shall have the
non-exclusive right to use the Common Areas as constituted for general use of
the occupants of the Building from time to time (except for mechanical rooms and
janitorial closets), such use to be in common with Landlord, other tenants of
the Building Complex and other persons and subject to the Rules and Regulations
set forth in Exhibit D attached hereto and by this reference made a part hereof,
as such Rules and Regulations may be amended from time to time provided such
amendments are nondiscriminatory in nature. Subject to the limitations set forth
in the next sentence, Landlord reserves the right from time to time to undertake
any or all of the activities described below, provided such reservation of
rights shall not: (i) materially affect Tenant's use or enjoyment of or access
to the Premises, the Parking Garage or Tenant's other rights under this Lease,
or increase or materially decrease the amount of Rentable Area in the Premises;
(ii) increase Tenant's Rent; or (iii) reduce the number of Tenant's parking
privileges set forth herein. In connection therewith, Landlord reserves the
following rights: to add to, or subtract from, or change from time to time, the
dimensions and location of the Common Areas, it being understood that Landlord
may, at its option, add any areas located within the Block to the Common Areas;
to create any additional improvements in the Common Areas or to alter or remove
any improvements in the Common Areas; to convert areas previously designated by
Landlord as part of the Common Areas to an area leased to one or more tenants or
to designate previously leased space as part of the Common Areas provided
equitable adjustments are made to the Rentable Area in the Building and the
Rentable Area in the Premises; to make alterations or additions to the Building
and to any other buildings or improvements within the Building Complex; to
operate and/or maintain such Common Areas in conjunction with other parties; and
to construct, or permit others to construct, other buildings or improvements
within the Building Complex. Landlord is not obligated to construct or provide
for Tenant any improvements outside the Building except as expressly provided in
this Lease.
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II.
TERM; RENT
2.1 TERM.
2.1.1 DELIVERY OF PREMISES. Landlord shall deliver the Initial
Premises to Tenant on the effective date of the Master Services Agreement (the
"Delivery Date"), subject to the provisions of Sections 8.15, 8.16 and 8.17
hereof.
2.1.2 COMMENCEMENT DATE. Subject to and upon the terms and
conditions set forth herein, or in any exhibit or addendum hereto, this Lease
shall continue in force for a Term commencing on the Delivery Date and ending
September 28, 2007, subject to Landlord's obligation to extend the Term of this
Lease upon relocation as set forth in Section 8.21 or enter into a New Lease as
set forth in Section 8.25.
2.2 USE. The Premises are to be used and occupied by Tenant solely for
general office purposes and such other lawful purposes as are consistent with
uses of office space in first class office buildings in Uptown Charlotte, North
Carolina, and for no other purposes, except that Tenant may install and/or
maintain a telephone call center provided that the maximum density of the
Premises shall not exceed the structural load capacity of the Building or the
capacity of the Building systems. No use by Tenant shall, in Landlord's opinion
reasonably exercised (i) be in conflict with any exclusive use clauses which
Landlord has granted to other tenants of the Building Complex prior to the date
Tenant first notifies Landlord in writing of its intent to conduct such use in
the Premises; (ii) be in direct competition with Landlord in any of its core
banking, securities, trust or insurance businesses; or (iii) tend to damage or
injure the reputation of the Building or the Building Complex.
2.3 BASE RENT. Landlord acknowledges that, with respect to the Initial
Premises only, Tenant's Base Rent for the initial Term of this Lease and any
extended term or term under the New Lease (pursuant to Section 8.21) to bring
the full term of Tenant's occupancy to one hundred twenty (120) months from the
Delivery Date, has been prepaid at market rates. Base Rent for the Expansion
Space, if exercised, shall be at the rates determined by application of Exhibit
E hereto.
2.4 INTENTIONALLY OMITTED.
2.5 ADDITIONAL SERVICES. Any services provided to Tenant including,
without limitation, utilities in excess of the Standard Building Capacity, or
furnished after Normal Business Hours, as such terms are defined in Exhibit F
hereto, shall be billed to Tenant on a monthly basis as additional rent (the
"Additional Rent") at Landlord's then standard hourly rates, if applicable, or
otherwise, at the actual cost incurred by Landlord, including third party
management services, to provide such services to Tenant. If Tenant requests
services other than utilities ("Other Services") in excess of the Other Services
enumerated in Exhibit F, Landlord shall also provide such Other Services to
Tenant, which shall be billed to Tenant as Additional Rent at Landlord's actual
cost plus an administrative fee equal to ten percent (10%) of the actual cost
thereof. Provided, however, that Other Services which are regularly or
repetitively incurred (as, for example, Other Services which are incurred on a
daily basis because Tenant has elected to add a second shift of employees) shall
be billed at Landlord's actual cost without an additional administrative fee.
All Additional Rent shall be payable on or before the fifteenth (15th) day
following receipt of Landlord's invoice therefore.
2.6 HOLDING OVER. In the event of holding over by Tenant after
expiration or termination of this Lease without the written consent of Landlord,
Tenant shall (i) pay Landlord, within thirty (30) days after Landlord's written
demand therefor, all damages caused by Tenant's holding over (including, without
limitation, all claims for damages by any other tenant to whom Landlord may have
leased all or any part of the Premises and all losses suffered by Landlord
arising out of other agreements concerning the Premises which Landlord is unable
to honor, in whole or in part, as a result of Tenant's holding over) and all
attorneys' fees incurred by Landlord as a result of Tenant's holding over and
(ii) pay to Landlord one hundred and fifty percent (150%) of the fair market
rental value of the Premises during such holdover period, such fair market
rental value to be equal to the rent at which Comparable Space is then being
offered as determined in accordance with Exhibit E hereto. Any holding over with
Landlord's written consent shall constitute a lease from month to month under
all the terms and provisions of this Lease, and unless otherwise agreed in
writing, either Landlord or Tenant may terminate such month-to-month lease upon
at least thirty (30) days prior written notice to the other. If Tenant elects to
holdover for a period not to exceed six (6) months in accordance with Section
8.24 hereof, such holdover shall be treated as a holdover with the written
consent of Landlord pursuant to this paragraph and, in such event only the
holdover beyond the initial six (6) month period shall be subject to the
aforestated penalties.
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2.7 LATE CHARGES. If at any time any Rent is not received by the fifth
(5th) day following the date on which or period within which any monetary
obligation of Tenant under this Lease becomes due (including dishonored checks),
then in addition to the amount owed, Tenant shall pay to Landlord a late charge
equal to five percent (5%) of the past due obligation. This provision shall not
be deemed to condone the late payment of any monetary obligation, and shall not
be construed as giving Tenant an option to pay late by paying the late charge.
Instead, all funds are due at the times specified in this Lease without any
grace period. Failure to pay shall subject Tenant to all applicable default
provisions provided hereunder or by law, and Landlord's remedies shall not be
abridged by claiming or collecting a late charge.
III.
GENERAL MATTERS
3.1 CONDITION OF THE PREMISES. Landlord shall deliver the Initial
Premises to Tenant in its "as is" condition and shall not be obligated to
perform any demolition or improvements therein. Provided, however, that the
Building systems which serve the Premises including sewer, water, electrical and
HVAC shall be in good working order.
3.2 SERVICES TO BE FURNISHED BY LANDLORD. During the Term, as the same
may be extended, Landlord shall manage the Building Complex, operate the
Building, and provide supervision, janitorial and other services comparable in
service and quality to those provided for Comparable Space. Landlord shall cause
public utilities to furnish electricity and water to the Building and the
Premises and shall furnish Tenant with the other services described in Exhibit F
during the Term.
3.3 KEYS. Landlord shall furnish Tenant at no cost up to one (1) key
(or the functional equivalent thereof) for each one hundred and fifty (150)
square feet of Rentable Area in the Initial Premises and in the Premises as it
may be expanded from time to time for entering the Building and the Premises,
and additional keys at a charge not to exceed Landlord's cost for each such key
without markup on an order signed by Tenant. All keys shall remain the property
of Landlord. No additional locks shall be allowed on any door of the Premises
without Landlord's written permission. If Tenant receives Landlord's permission
and installs locks requiring keys other than the keys provided by Landlord,
Tenant shall immediately provide Landlord with copies of such keys. Tenant shall
not make, or permit to be made, any duplicate keys except those furnished by
Landlord. Landlord shall have the right to maintain master keys and pass keys to
all doors to and within the Premises. Upon termination of this Lease, Tenant
shall surrender to Landlord all keys related to the Premises, and give to
Landlord the combination of all locks for safes, safe cabinets and vault doors,
if any, to remain in the Premises.
3.4 GRAPHICS. Landlord shall provide and install Tenant's name and
suite numerals of the Premises in Building standard graphics at the main
entrance doors to the Premises. All graphics of Tenant visible in or from public
corridors or the exterior of the Premises shall be subject to Landlord's
approval; provided, however, Tenant may not display any signs or graphics of
Tenant visible from the exterior of the Building, except that Tenant shall be
allowed, for so long as the Premises are in Transamerica Square, one sign, of a
font size and appearance (i.e., stainless steel lettering with no larger font
size than existing, and color to be silver, gold or bronze) as the sign
currently displayed by Landlord above the exterior entrance doors in the arcade
on the south side of the Building, such sign to be centered in a panel above one
of the exterior entrance doors. The size and color of the sign shall be subject
to Landlord's reasonable approval. Landlord, at Landlord's expense, will also
identify Tenant in the directory located in the main lobby of the Building and
on any other appropriate directory which may be part of the Building Complex.
The space to be made available to Tenant in such directories shall be reasonably
proportionate to the space allotted other tenants with similar size Rentable
Area in the Building. If Landlord relocates Tenant to Comparable Space, Tenant
shall be entitled to comparable exterior signage, which may differ from the
exterior signage description set forth above based upon Landlord's signage
criteria for such Comparable Space and any restrictions contained in existing
leases or title documents for the Building in which the Comparable Space is
located.
3.5 REPAIRS BY LANDLORD. Landlord shall make all repairs necessary to
maintain the Building, the Common Areas, the plumbing, HVAC and electrical
systems installed or furnished by Landlord (excluding any special electrical
equipment or other fixtures installed or furnished by Landlord at Tenant's
request and not as part of the Base Building unless the maintenance and repair
was necessitated by the misrepresentation, negligence or misconduct of Landlord
or caused by the act, omission, accident or negligence of Landlord, its agents,
employees, invitees, licensees, subtenants or contractors, in which case such
maintenance or repairs shall be made at Landlord's sole cost and expense if not
otherwise reimbursed to Tenant by insurance carried by Landlord or Tenant), the
glass curtain walls, windows, flooring installed or furnished by Landlord, and
all other structural elements of
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the Premises installed or furnished by Landlord. Tenant shall promptly notify
Landlord of any condition which requires repair. Landlord shall undertake such
repairs with due diligence within a reasonable time after written notice from
Tenant that such repair is needed. In no event shall Landlord be obligated to
repair any nonstructural system damage or any damage to systems not provided in
Base Building plans unless such damage is caused by the act, omission, accident
or negligence of Landlord or its employees, agents, invitees, licensees,
tenants, subtenants or contractors in such capacity. Tenant shall not be
required to make structural repairs or repairs to the systems of the Building,
but such repairs shall be made by Landlord, and the costs of such repairs shall
be Expenses to the extent permitted in this Lease, unless the repairs were
necessitated by the act, omission, accident, negligence or misconduct of Tenant
or its employees, agents, invitees, licensees, subtenants or contractors, in
which case such repairs shall be at Tenant's sole cost and expense. Tenant shall
not be required to maintain or repair Building standard finishes within
restrooms, drinking fountains and other Building systems, all of which shall be
maintained by Landlord and the cost thereof shall be included in Expenses to the
extent permitted in this Lease. Any special leasehold improvements may, at
Tenant's written request and at Landlord's option, be maintained by Landlord at
Tenant's expense which shall be an amount equal to Landlord's actual cost plus
an additional charge of ten percent (10%) of such cost. Landlord shall not be
liable to Tenant, except as expressly provided in this Lease, for any damage or
inconvenience, and Tenant shall not be entitled to any damages nor to any
abatement or reduction of Rent by reason of any maintenance, repairs,
replacements, alterations or additions made by Landlord under this Lease.
3.6 PEACEFUL ENJOYMENT. Landlord warrants and represents to Tenant that
Tenant shall and may peacefully have, hold and enjoy the Premises, subject to
the other terms hereof. The parties hereto agree that said letting and hiring is
upon and subject to the terms, covenants and conditions herein set forth, and
each party covenants as a material part of the consideration for this Lease to
keep and perform each and all of the terms, covenants and conditions required to
be kept and performed by it, and that this Lease is made upon the condition of
such performance.
3.7 LANDLORD'S ADDITIONAL REPRESENTATIONS AND WARRANTIES. In addition
to Landlord's other representations and warranties set forth in this Lease,
Landlord hereby represents, warrants and covenants to Tenant as follows:
(a) Landlord has full and lawful authority to enter into this
Lease.
(b) The Building Complex has been constructed in accordance
with all applicable laws, codes, ordinances, rules and regulations in
effect as of the time of obtaining the applicable building permits.
Landlord shall be responsible for correcting any violation of the
foregoing, at Landlord's expense (which expense shall not be included
in Expenses as defined in Exhibit E hereto).
(c) On the date of delivery of possession of the Premises to
Tenant and throughout the Term of this Lease, the Building (excluding
any Alterations in the Premises) will be in substantial compliance with
all applicable federal, state and local laws, ordinances, orders,
rules, regulations and other requirements of Governmental Authorities
relating to the use, condition and occupancy of the Building and all
applicable rules, orders, regulations and requirements of any board of
fire underwriters or insurance service office or any similar body
having jurisdiction over the Building; provided, however, Landlord has
informed Tenant that the Building may not comply in some immaterial
respects with ADA or other applicable laws, but not to the extent which
would materially impair Tenant's use and occupancy of the Premises or
the health or safety of Tenant's employees or invitees.
(d) Landlord shall maintain, repair, operate, manage and lease
the Building at a standard consistent with the maintenance, repair,
operation, management and leasing of Comparable Space.
(e) Landlord represents that the current configuration of the
Initial Premises, as depicted in the floor plans attached hereto as
Exhibit A, complies with the load-bearing capacity requirements of
Section 4.1.1. To the extent that a review of the current
configuration, which is currently underway, reveals any inconsistency
with such load-bearing requirements, Landlord shall correct the same at
Landlord's cost.
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IV.
TENANT'S OCCUPANCY OF PREMISES
4.1 CARE AND SURRENDER OF THE PREMISES.
4.1.1 DAMAGE; LOAD CAPACITY. Tenant shall not commit any waste
or damage, or allow any waste or damage, on any portion of the Premises or the
Building Complex. Tenant also agrees that Tenant will not place upon or load any
floor of the Building with a load exceeding its design capacity. Landlord
certifies that the floors of the Initial Premises are each designed generally to
bear fifty (50) pounds live load and fifty (50) pounds for partitions, per
square foot of floor space, or such other loads as may be specified on the floor
plans attached hereto as Exhibit A. Tenant shall take into account such
load-bearing capacities when locating all safes and heavy installations which
Tenant wishes to place in the Premises.
4.1.2 CONDITION OF PREMISES AT END OF TERM. At the end of the
Term, by lapse of time or otherwise, Tenant shall deliver the Premises to
Landlord in its Base Building condition except for those alterations, additions
and improvements thereto which Landlord agrees to accept, normal wear and tear,
insured casualty losses and acts of God. Tenant shall deliver the Premises to
Landlord broom clean and in good order and repair except for ordinary wear and
tear. If Tenant does not so deliver the Premises, Landlord may restore the
Premises to such condition following Tenant's surrender of possession and Tenant
shall pay the cost thereof, plus an administrative fee equal to fifteen percent
(15%) of the cost thereof. Unless the same may be removed by Tenant without
damage to the Premises (in which event Tenant may, at its option, so remove
them), all installations, alterations, additions and improvements, including
partitions which may have been installed by either Landlord or Tenant, shall
remain upon the Premises and shall become Landlord's property, all without
compensation, allowance or credit. Tenant's movable office equipment, furniture,
furnishings and artwork shall remain Tenant's property, and Tenant shall have
the right prior to the end of the Term to remove the same, if no uncured event
of default then exists. Tenant's goods, effects, personal property, business and
trade fixtures, machinery and equipment not removed at the end of the Term (or
within one (1) week after entry of a final unappealable order of possession of
the Premises to Landlord by a court of competent jurisdiction, and provided that
during such time Landlord has not hindered or impeded Tenant's efforts to remove
such property from the Premises by reason of Tenant's default) shall be
considered abandoned, and Landlord may dispose of the same in such commercially
reasonable manner as Landlord deems expedient after ten (10) days' prior written
notice to Tenant.
4.2 LEGAL USE AND VIOLATION OF INSURANCE COVERAGE. Tenant shall comply
with all applicable laws, ordinances, orders, rules and regulations of any
Governmental Authority relating to the use, condition or occupancy of the
Premises. Landlord shall comply with all applicable laws, ordinances, rules and
regulations of any Governmental Authority relating to the construction,
ownership, leasing and management of the Building; provided, however, Tenant
agrees that the scope of Landlord's compliance with laws, ordinances, orders,
rules and regulations of any Governmental Authority applicable to construction
of the Building is limited to those in effect when approvals, permits and
licenses for construction of the Building were obtained or issued or to the
extent needed to not materially impair Tenant's use and occupancy of the
Premises or the health or safety of Tenant's employees or invitees. Tenant shall
not occupy or use, or permit any portion of the Premises to be occupied or used,
for any business or purpose which is unlawful, disreputable or deemed to be
extra-hazardous on account of fire. Tenant shall not permit anything to be done
in the Premises which would increase the rate of fire insurance coverage on the
Building.
4.3 HAZARDOUS MATERIALS.
4.3.1 NO STORAGE. For the purposes of this Section 4.3,
"Premises" shall include the Premises and all space over which Tenant has the
right to exclusive use and control. Except for general office and cleaning
supplies typically used in the ordinary course of Tenant's business, without
Landlord's prior written consent, Tenant shall not knowingly use, release,
generate, store or dispose of on, under or about the Building Complex or
transport to or from the same any Hazardous Materials or permit or allow any
third party to do so.
4.3.2 COMPLIANCE; CITATION. All of Tenant's activities on the
Building Complex shall comply with Environmental Laws. As soon as practical
after receipt of same, Tenant shall furnish Landlord with a copy of any and all
citations, orders, notices, reports, subpoenas or requests concerning or having
an impact on the environmental condition of the Premises from any federal, state
or local governmental authority and a copy of any and all information, documents
or reports submitted to any Governmental Authority by or on behalf of Tenant
regarding the environmental condition of the Premises. Tenant shall provide
Landlord with written notice of any environmental
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condition affecting the Premises which must be reported to any Governmental
Authority no later than twenty-four (24) hours after occurrence of the event
which triggers the reporting obligation.
4.4 NUISANCE. Tenant shall conduct its business and shall use its best
efforts to control its officers, managers, agents, employees, invitees and
visitors in such manner as not to create any nuisance, or interfere with any
other tenant of the Building or with Landlord in its operation of the Building
Complex.
4.5 RULES OF THE BUILDING. Tenant and its officers, managers,
employees, agents, visitors, contractors, assigns and licensees shall comply
with the Rules and Regulations of the Building Complex attached as Exhibit D, as
the same may be reasonably amended from time to time.
4.6 REPAIRS BY TENANT. At Tenant's own cost and expense, Tenant shall
repair or replace any damage or injury done to the Building Complex or any part
thereof caused by Tenant or its contractors, subcontractors, officers, managers,
agents, employees, invitees or visitors (other than Landlord or its contractors,
subcontractors, agents, employees, invitees or visitors) to the extent such
damage or injury is not covered by insurance. If Tenant has not undertaken such
repairs or otherwise diligently pursued all actions preparatory to such repairs
within thirty (30) days after notice from Landlord of Tenant's obligation to do
so or if Tenant is not diligently pursuing completion of any repair undertaken
within the thirty (30) day period, Landlord may, at its option, make such
repairs or replacements, and Tenant shall repay to Landlord the cost thereof,
plus an administrative cost of ten percent (10%) to Landlord on demand.
4.7 ALTERATIONS, ADDITIONS, IMPROVEMENTS.
4.7.1 RIGHT TO MAKE ALTERATIONS. Tenant shall have no right to
make changes, additions, material repairs, improvements or other alterations
(collectively, "Alterations") in or to the Premises without the prior written
consent of Landlord. For Alterations that would reasonably be expected to cost
Twenty Five Thousand Dollars ($25,000) or more, such consent shall be
conditioned upon Tenant entering into a Work Letter Agreement with Landlord in
the form attached hereto as Exhibit B. Notwithstanding the foregoing, Landlord's
prior written consent shall not be required for Alterations of a purely
decorative nature (such as painting or wallpapering), provided such Alterations
do not affect the structure, safety, efficiency or security of the Premises or
Building or the appearance of the Premises from any common or public areas or
the exterior of the Building, or place additional loads on Building systems, and
so long as prior written notice of such Alterations is given to Landlord. If
Tenant elects to make Alterations without first obtaining Landlord's prior
written consent, or if Landlord's written consent so specifies, Tenant shall
restore the portions of the Premises affected by such Alterations to Building
standard if Landlord so requests upon the termination or expiration of this
Lease.
4.7.2 AGREEMENTS; PERMITS. Tenant shall enter into an
agreement for the performance of such approved Alterations with such contractors
and subcontractors selected by Tenant and approved by Landlord. Tenant's
contractors shall obtain, on behalf of Tenant and at Tenant's sole cost and
expense, all necessary governmental permits and approvals for the commencement
and completion of such Alterations and Tenant shall provide true copies of same
to Landlord prior to commencement of such Alterations.
4.7.3 REVIEW BY LANDLORD; COMPLETION. Tenant shall pay to
Landlord, as Additional Rent, the reasonable actual costs of Landlord's review
of Tenant's proposed Alterations, except for those Alterations for which
Landlord's consent is not required as provided in Section 4.7.1. Such payment
shall be made within thirty (30) days after Tenant's receipt of invoices from
Landlord, or at Landlord's option, prior to the commencement of the Alterations.
All Alterations shall be performed: (i) in accordance with the approved plans,
specifications and working drawings; (ii) lien-free and in a good and
workmanlike manner; (iii) in compliance with all laws, ordinances, rules and
regulations of all Governmental Authorities; and (iv) in such a manner so as not
to materially interfere with the use or occupancy of the Building by any other
tenant in the Building or its employees or invitees, nor impose any additional
expenses upon, nor delay Landlord in, the maintenance and operation of the
Building, nor endanger the health or safety of any party in the Building.
4.7.4 COMPLIANCE WITH LAWS. All work and materials installed
in the Premises by Tenant or at Tenant's request shall comply with all Rules and
Regulations of the Building Complex, all insurance requirements, and with all
laws, ordinances, rules and regulations of all Governmental Authorities. Tenant
agrees to hold Landlord forever harmless from any and all claims and liabilities
of every kind and description which may arise out of or be connected in any way
with Alterations to the extent such claims and liabilities are not covered by
insurance, including Landlord's attorneys' fees.
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4.7.5 INSURANCE REQUIREMENTS. In the event Tenant shall employ
any contractor to do any work in the Premises, Tenant shall provide Landlord
with certificates naming Landlord and such other parties as Landlord may
designate as additional insured under policies of builder's risk and general
liability insurance in amounts and with insurers reasonably satisfactory to
Landlord. Tenant shall also provide evidence of satisfactory worker's
compensation coverage in accordance with statutory requirements.
4.7.6 LIEN WAIVERS; LIENS. Upon completion of such
Alterations, Tenant shall arrange to have its contractor deliver to Landlord a
lien waiver sufficient to assure Landlord that no statutory lien could be filed
against the Building relating to such Alterations. Notwithstanding the
foregoing, if any statutory lien shall be filed against the Premises or the
Building Complex purporting to be for labor or materials furnished or to be
furnished at the request of Tenant, then Tenant shall at its expense cause such
lien to be discharged by payment, by posting of a cash or surety bond reasonably
satisfactory to Landlord or by other assurances reasonably satisfactory to
Landlord, within ten (10) days after the filing thereof. If Tenant shall fail to
take such action within such ten (10) day period, upon written notice to Tenant,
Landlord may cause such lien to be discharged by payment, bond or otherwise.
Tenant shall indemnify and hold harmless Landlord against any and all claims,
costs, damages, liabilities and expenses (including attorneys' fees) incurred by
Landlord by reason of any such lien or its discharge, and all such sums properly
paid by Landlord as permitted in this Section 4.7 shall be deemed to be
Additional Rent due and payable upon demand. No part of this Lease shall be
deemed or construed in any way as constituting the consent of or request by
Landlord to any contractor, subcontractor, laborer or materialman for the
performance of any labor or the furnishing of any materials to the Premises or
the Building Complex, or any part thereof, or against the estates of Landlord or
Tenant.
4.8 ENTRY FOR REPAIRS AND INSPECTION. Tenant shall permit Landlord or
Landlord's agents or representatives to enter into and upon any part of the
Premises at all reasonable hours with such advance notice (oral or written) to
Tenant as is reasonable under the circumstances to inspect same, make repairs,
alterations or additions thereto in accordance with the terms of this Lease or
to exhibit the Premises to (a) prospective tenants during the last six (6)
months of the Term or (b) upon reasonable advance notice, to prospective
purchasers or to others, or for other reasonable purposes. In the event of
emergencies, Landlord shall use commercially reasonable efforts to provide
Tenant notice (oral or written) thereof prior to entering the Premises. Except
as otherwise expressly provided in this Lease, Tenant shall not be entitled to
any abatement or reduction of Rent or any other sums due under this Lease by
reason of such access afforded to Landlord. If representatives of Tenant shall
not be present to open and permit entry into the Premises at any time when such
entry by Landlord is necessary or permitted hereunder, Landlord, its employees,
contractors and agents may enter by means of a master key or key card (or
forcibly in the event of an emergency) without such entry constituting an
eviction of Tenant or termination of this Lease. No advance notice shall be
required for Landlord, its agents and employees providing routine services to
the Premises such as but not limited to janitorial services, routine maintenance
during Normal Business Hours, and security services.
4.9 ASSIGNMENT OR SUBLEASE.
4.9.1 RIGHTS OF ASSIGNMENT AND SUBLEASE. Except with respect
to an assignment to a Tenant Affiliate as hereinafter provided, which shall not
require Landlord's consent, and except with the prior notice of at least ten
(10) business days and the written consent of Landlord, which consent Landlord
shall not unreasonably or arbitrarily withhold, condition or delay, Tenant shall
not voluntarily (i) assign or in any manner transfer this Lease or any estate or
interest therein, (ii) permit any assignment of this Lease or any estate or
interest therein by operation of law or otherwise, (iii) sublet the Premises or
any part thereof, (iv) grant any license, concession or other right of occupancy
of any portion of the Premises other than for services which are incidental to
office work (e.g., copying, vending machines, etc.), or (v) permit the use of
the Premises by any parties other than Tenant, its managers, agents, employees,
officers, licensees or invitees. Tenant shall not mortgage, pledge or otherwise
encumber its interest in this Lease or in the Premises. Consent by Landlord to
one or more assignments or sublettings shall not be a waiver of Landlord's
rights as to any subsequent assignments and sublettings. Tenant shall have the
right to assign this Lease to any parent, subsidiary or affiliated corporation
of Tenant or to a corporation or other entity acquiring all or substantially all
of Tenant's assets or stock whether by merger, consolidation or purchase between
Tenant and any other entity (each such permissible assignee to be referred to
herein as a "Tenant Affiliate") for any of the then remaining portion of the
unexpired Term, including the extension thereof as provided in this Lease, at
any time. Assignment of this Lease or subletting of all or any part of the
Premises to a Tenant Affiliate will require that at least ten (10) business days
notice, as hereinafter described, be given to Landlord, but consent or approval
of Landlord shall not be required.
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4.9.2 MATTERS AFFECTING TRANSFER. Any approved transfer shall
be expressly subject to the terms and conditions of this Lease. In the event of
an assignment or subletting, Tenant shall remain fully responsible and liable
for the payment of Additional Rent and for compliance with all of Tenant's other
obligations under this Lease. If an event of default occurs following any
approved transfer, Landlord, in addition to any other available remedies, may
collect directly from Tenant's assignee or sublessee all rents becoming due to
Tenant and apply such amount against any sums due to Landlord by Tenant. Tenant
authorizes and directs any assignee or sublessee to pay rent directly to
Landlord upon receipt of notice of default from Landlord. No direct collection
by Landlord from any assignee or sublessee shall constitute a novation or a
release of Tenant from the further performance of its remaining obligations
under this Lease, nor shall receipt by Landlord of Rent from any assignee,
sublessee or occupant of the Premises be a waiver of the covenant in this Lease
prohibiting assignment and subletting.
4.9.3 CONSENT TO ASSIGNMENT OR SUBLEASE. If Tenant requests
Landlord's consent to an assignment of this Lease or subletting of all or a part
of the Premises, Tenant shall submit to Landlord, in writing, (i) the name of
the proposed assignee or sublessee, (ii) current financial statements, if any,
available to Tenant disclosing the financial condition of the proposed assignee
or subtenant, (iii) the nature of the business of the proposed assignee or
sublessee, and its proposed use of the Premises (any assignment or subletting
being subject to restrictions on use contained in this Lease or in other leases
of space served by the same elevator bank in the Building as the Premises,
violation of such restrictions by the proposed assignee or sublessee
constituting absolute grounds for Landlord's denial of the requested assignment
or subletting, such grounds not being the exclusive grounds for denial under
clause (iii)), and (iv) the proposed commencement date of the assignment or
subletting, together with a copy of the proposed assignment or sublease. Within
fifteen (15) days after its receipt of such notice, Landlord shall either
approve or disapprove such proposed assignment or sublease in writing.
4.9.4 ADDITIONAL LIMITATIONS RELATIVE TO ASSIGNMENT AND
SUBLETTING. Notwithstanding anything in this Lease to the contrary, Tenant
further agrees that any assignment or sublet shall be subject to the following
additional limitations: (i) In no event may Tenant assign this Lease or sublet
all or any portion of the Premises to an existing tenant of the Building, the
IJL Financial Center, the Odell Building, the Hearst Tower or the Bank of
America Corporate Center (collectively, the "Landlord Controlled Buildings"), or
any subtenant or assignee of such existing tenant; (ii) In no event shall the
proposed subtenant or assignee be a person or entity with whom Landlord or its
agent is negotiating and to or from whom Landlord, or its agent, has given or
received any written or oral proposal within the past six (6) months regarding a
lease of space in the Landlord Controlled Buildings; and (iii) Tenant shall not
publicly advertise the rate for which Tenant is willing to sublet the space; and
all public advertisements of the assignment of the Lease or sublet of the
Premises, or any portion thereof, shall be subject to prior approval in writing
by Landlord, such approval not to be unreasonably withheld or delayed. Said
public advertisements shall include, but not be limited to, the placement or
display of any signs or lettering on the exterior of the Premises, or on the
glass or any window or door of the Premises, or in the interior of the Premises
if it is visible from the exterior. The above and foregoing restrictions
relative to tenants of the Landlord Controlled Buildings shall apply to the
tenants of each such building (by whatever name such building is then known)
only for so long as Landlord maintains a controlling interest in each such
building, whether as owner or as tenant .
4.9.5 EFFECT OF ASSIGNMENT OR SUBLEASE. If Landlord consents
to any subletting by Tenant and subsequently any rents received by Tenant under
such sublease are in excess of the Rent payable by Tenant under this Lease (or,
in the case of the Initial Premises at any time prior to the Stated Expiration
Date), in excess of [***]* per square foot of Rentable Area), or any additional
consideration is paid to Tenant by the assignee under the assignment, then
Landlord and Tenant shall each be entitled to fifty percent (50%) of such
excess.
4.9.6 ASSUMPTION BY ASSIGNEE. Each permitted assignee shall
assume, and be deemed to have assumed, this Lease and be and remain liable
jointly and severally with Tenant for all payments and for the due performance
of all its terms, covenants and conditions. No approved assignment shall be
binding upon Landlord unless Landlord shall receive an instrument in recordable
form containing a covenant of assumption by the assignee, but the failure or
refusal of an assignee to execute the same shall not release it from its
liability as set forth herein. In the event that the proposed assignee or
sublessee is an existing tenant of the Building, Landlord, at its option and its
sole discretion, shall have the right to cancel this Lease and lease the
Premises or any portion of the Premises to be assigned or sublet to the proposed
assignee or sublessee under the terms of its existing lease with Landlord.
4.9.7 TERMINATION OF RIGHTS. At all times during the Term,
Landlord shall have a right of recapture of the Premises, or any portion thereof
which Tenant proposes to offer for sublease
--------------
* Confidential information has been omitted.
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or assignment to parties other than Tenant Affiliates. Landlord shall have a
period of thirty (30) days following receipt of a written notice (the "Intent
Notice") from Tenant of its intent to sublet or assign the Premises or portion
thereof, to exercise its right of recapture as to the Premises or such portion
of the Premises, for the entire length of time that Tenant proposes to sublet or
assign same. The Intent Notice shall contain at a minimum the following proposed
terms: length of lease term, size and location of proposed premises, and
proposed alterations to the premises. Such exercise shall be effective as of the
date, not less than thirty (30) days following Landlord's receipt of the Intent
Notice, which Tenant's Intent Notice proposes to be the effective date of the
sublease or assignment. In the event Landlord does not elect to exercise such
rights within the notice period, Tenant may offer same to any other party on
such terms and conditions as Tenant shall elect, but only as to the portion of
the Premises and the term proposed in its notice to Landlord (subject to
Landlord's consent and other requirements of this Section 4.9). However, if the
material terms and conditions are subsequently altered (e.g., the effective
rental rate [taking into consideration any concessions which might be offered],
the portion of the Premises to be assigned or sublet, or the term of the
proposed sublet, is different from that originally proposed to Landlord),
Landlord shall again have a right of recapture, but Landlord's time to respond
shall be reduced to ten (10) days following receipt of the Intent Notice. Upon
Landlord's exercise of its recapture right hereunder, the Lease shall be amended
such that the Rentable Area of the Premises for the remainder of the Term, or
such portion thereof as Tenant has proposed to sublet, shall be deleted from the
Rentable Area of the Premises, effective as of the effective date of such
recapture. If the Term for which any sublet is proposed is less than the
remaining Term of this Lease, then immediately upon the expiration of the
proposed sublet term, the Rentable Area of the Premises shall again be adjusted
to reflect that the sublet portion has been reincorporated into the Premises,
and such adjustment shall occur automatically without need for a formal Lease
amendment.
4.10 SUBORDINATION TO MORTGAGE. This Lease shall be subject and
subordinate to any mortgage or deed of trust which may now or hereafter encumber
the Building and to all renewals, modifications, consolidations, replacements
and extensions thereof. In confirmation of such subordination, however, Tenant
shall at Landlord's request execute and deliver promptly any appropriate and
commercially reasonable certificate or instrument that Landlord may request,
including a Subordination Agreement. In the event of the enforcement by the
mortgagee, trustee or the beneficiary under any such mortgage or deed of trust
of the remedies provided by law or by such mortgage or deed of trust, Landlord
shall, at Landlord's sole cost and expense, relocate Tenant to Comparable Space
as provided in Section 8.21.
4.11 ESTOPPEL CERTIFICATE. Tenant shall, at any time and from time to
time, within ten (10) days following written request from Landlord, execute,
acknowledge and deliver a written statement certifying, if true, that this Lease
is in full force and effect and unmodified (or, if modified, stating the nature
of such modification), certifying the date to which Rent has been paid,
certifying whether or not, to Tenant's best knowledge, there are any uncured
defaults by Landlord or specifying such defaults if any are claimed, and
certifying such other matters as Landlord may reasonably request. Any such
statement may be relied upon by a prospective purchaser or mortgagee of all or
any part of the Building. Tenant's failure to deliver such statement within said
ten (10) day period shall constitute Tenant's certification that this Lease is
in full force and effect and unmodified, and that there are no uncured defaults
by Landlord.
4.12 DEFAULTS BY LANDLORD.
4.12.1 LANDLORD'S DEFAULT. Breach of any covenant or agreement
or undertaking to be performed by Landlord under this Lease shall constitute a
default by Landlord hereunder. Notwithstanding the foregoing, Landlord shall not
be in default hereunder with respect to: (i) any obligation of Landlord to pay
money to Tenant hereunder unless Landlord has failed to pay such money to Tenant
within the applicable time period specified herein, and such failure continues
for a period of thirty (30) days after written notice from Tenant to Landlord;
and (ii) any other obligation of Landlord under this Lease, unless Landlord
fails to perform the obligation within thirty (30) days after Tenant has
delivered written notice thereof to Landlord; provided, however, that if the
nature of Landlord's obligation is such that more than thirty (30) days are
reasonably required for its performance, then Landlord shall not be in default
if Landlord commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion. Said thirty (30) day
period shall be extended by the period of time during which Landlord is actually
prevented from performing such obligation as a result of Tenant delays or Force
Majeure delays, provided that Landlord is at all times diligently prosecuting
such performance to completion.
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V.
INSURANCE
5.1 CASUALTY INSURANCE. During the Term, Landlord shall insure the
Building and the Building Complex against loss or damage by fire, or other
insurable hazards and contingencies through all risk insurance (which sometimes
may be referenced in the insurance industry as special cause of loss insurance),
including fire and extended coverage, in amounts, coverages and with deductibles
as are commercially reasonable and as are in effect for comparable Buildings.
Landlord shall not be obligated to insure any furniture, equipment, machinery,
goods or supplies which Tenant may bring or obtain upon the Premises or any
leasehold improvements which exceed in value or quantity the Building standards
for doors, lighting, partition walls and floor covering which Tenant may
construct, except that Landlord shall insure all furniture, fixtures and
equipment on behalf of Tenant from the Commencement Date through January 14,
2001. If the premiums for any casualty insurance exceed the standard rates
because Tenant's operations result in increased premiums, then Tenant shall,
promptly upon receipt of appropriate invoices, reimburse Landlord for same.
Tenant shall maintain at its expense, in an amount equal to full replacement
cost, fire and extended coverage insurance on all leasehold improvements
installed by or on behalf of Tenant and on all of its personal property,
including removable trade fixtures, located in the Premises plus such additional
insurance as may be required to meet Tenant's obligations under Section 5.2.2.
5.2 LIABILITY INSURANCE.
5.2.1 LANDLORD'S OBLIGATION. During the Term, Landlord shall
obtain and keep in force commercial general liability insurance in amounts,
coverages and with deductibles as are commercially reasonable and as are in
effect for comparable Buildings. Landlord shall also provide the insurance
required pursuant to Paragraph 5.2.2 below from the Commencement Date through
January 14, 2001.
5.2.2 TENANT'S OBLIGATION. From and after January 15, 2001,
Tenant shall procure, and shall maintain during the Term, at Tenant's sole cost
and expense, commercial general liability insurance against claims for personal
and bodily injury, death or property damage occurring upon, in or about the
Premises with carriers and in amounts reasonably satisfactory to Landlord (but
not less than Three Million Dollars ($3,000,000.00) combined single limit for
bodily injury and property damage).
5.3 INSURANCE STANDARDS; WAIVER OF SUBROGATION.
5.3.1 All such policies and renewals thereof as are required
in Sections 5.1 through 5.2 shall name Landlord and Tenant as additional
insureds. All policies of insurance shall provide (i) that no material change or
cancellation of said policies shall be made without thirty (30) days' prior
written notice to Landlord and Tenant, and (ii) with respect to property
insurance, that the insurance company issuing the same shall have waived any
right of subrogation against Landlord or Tenant. All policies of insurance which
are secured by Landlord and Tenant as required by this Lease shall include
appropriate deductible amounts so that insurance premiums therefor are
commercially reasonable. Before Tenant's initial entry into the Premises and
thereafter at least thirty (30) days prior to the expiration dates of said
policy or policies, both Landlord and Tenant shall provide each to the other
copies of policies or certificates of insurance evidencing all coverages
required of Landlord or Tenant or either of them by this Lease. All the
insurance required under this Lease shall be primary and non-contributory,
issued by companies which are rated at least A/X in Best's Insurance Reports and
authorized to do business in North Carolina. Insurance requirements may be
reasonably increased from time to time by Landlord in order to protect its
interest.
5.3.2 Except for Landlord's obligation to insure furniture,
fixtures and equipment of Tenant from the Commencement Date through January 14,
2001, neither Landlord nor Tenant shall be liable to the other or to any
insurance company (by way of subrogation or otherwise) insuring the other party
for any loss or damage to the Premises, the Building or other tangible property
of Landlord or Tenant, or any resulting loss of income, or losses under worker's
compensation laws and benefits, even though such loss or damage might have been
occasioned by the negligence of such party, its agents, employees, invitees or
contractors, if and to the extent that any such loss or damage is covered by
insurance benefiting the party suffering such loss or damage or was covered by
insurance pursuant to this Lease and proceeds from insurance are collectible.
5.4 OTHER TENANTS; PARKING GARAGE. Landlord shall exercise commercially
reasonable efforts to assure that other tenants in the Building and the operator
of the Parking Garage will carry comprehensive general liability insurance at
commercially reasonable levels.
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5.5 NON-LIABILITY FOR CERTAIN CONDITIONS AND OCCURRENCES.
5.5.1 Landlord and Landlord's partners, agents, employees,
officers and directors shall not be liable to Tenant, Tenant's employees, or any
other person or entity whomsoever claiming through or under Tenant for any
injury to person or damage to property caused by the Premises or other portions
of the Building or Building Complex becoming out of repair or damaged, or by
defect in or failure of equipment, pipes or wiring, or broken glass, or by the
backing up of drains or by gas, water, steam, electricity or oil leaking,
escaping or flowing into the Premises.
5.5.2 Landlord and Landlord's partners, agents, employees,
officers and directors shall not be liable to Tenant or to Tenant's employees,
agents or visitors, or to any person or entity whomsoever, for injury to person
or damage to or loss of property (i) occurring in, on or about the Premises,
regardless of the cause, (ii) occurring within the Common Area, if caused by the
negligence or misconduct of Tenant, its officers, partners, employees, agents,
subtenants, licensees or concessionaires, (iii) arising out of the use of the
Premises by Tenant and the conduct of its business therein, (iv) arising out of
any breach or default by Tenant in the performance of its obligations hereunder,
(v) occasioned by or through the acts or omissions of other tenants or owners of
the Building and/or Building Complex or of any other persons or entities
whomsoever, excepting only the negligence or willful misconduct of duly
authorized employees and agents of Landlord, or (vi) resulting from any other
cause except Landlord's negligence or willful misconduct; and, in any of such
events, Tenant hereby agrees to indemnify Landlord and Landlord's partners,
agents, employees, officers and/or directors and hold each of them harmless from
any and all liability, loss, damage, claim, action or expense (including,
without limitation, all court costs and attorneys' fees) arising out of such
damage or injury due to any of the causes described above (other than those
described in clauses (v) and (vi) above). The provisions of this Article V shall
survive the termination of this Lease with respect to any claims or liability
attributable to acts, omissions, occurrences and/or conditions existing or
occurring prior to such termination.
5.6 NO RELEASE. Tenant's and Landlord's indemnification obligations in
this Article V shall survive the expiration or earlier termination of this
Lease. Tenant's and Landlord's covenants, agreements and indemnity obligations
in this Lease are not intended to and shall not relieve any insurance carrier of
its obligations under policies required to be carried by Landlord or Tenant,
respectively, pursuant to the provisions of this Lease.
5.7 CASUALTY DAMAGE. If the Premises shall be damaged by fire or other
casualty, Tenant shall give prompt written notice to Landlord. If the Building
or any part thereof or access thereto shall be so damaged or destroyed by fire
or other casualty that substantial alteration or reconstruction of the Building
and access thereto shall, in the good faith and reasonable determination of
Landlord's Architect, be required with such repair taking longer than ninety
(90) days (whether or not the Premises shall have been damaged by such
casualty), or in the event any Mortgagee should require that the insurance
proceeds be applied to the payment of the mortgage debt, or in the event of any
material uninsured loss to the Building, then this Lease shall not terminate,
but Landlord may, at its option, relocate Tenant to similar premises within the
Uptown Charlotte Area within ninety (90) days after the date of such damage, at
Landlord's cost, instead of restoring the Building and/or the Premises for
Tenant's use; provided, however that Landlord shall use reasonable efforts to
relocate Tenant's critical operations as soon as possible after such damage or
destruction. In order to relocate Tenant within the aforesaid ninety (90) day
period, Landlord shall have the right to temporarily place Tenant in separate
buildings within the greater Charlotte Area if necessary to accommodate the size
of Tenant's Premises. As soon as reasonably practicable thereafter, Landlord
shall relocate all of the Premises to one (1) building in the Uptown Charlotte
Area, however, the Premises shall not be required to be located on contiguous
floors within such building. Landlord shall not be liable for any inconvenience
or annoyance to Tenant or injury to the business of Tenant resulting in any way
from such damage, repair, or relocation. Upon restoration of the Premises or
relocation of Tenant, Tenant shall proceed to restore Tenant's furniture,
fixtures and equipment and any leasehold improvements installed by Tenant.
Landlord shall pay all relocation costs, as set forth in Section 8.21, unless
the casualty results from the fault or negligence of Tenant or any of Tenant's
agents, employees or invitees, in which case Tenant shall be liable to Landlord
for the cost of the repair and restoration of the Building to the extent such
cost and expense is not covered by insurance proceeds and for the cost of
relocation of Tenant.
5.8 SELF-INSURANCE. Notwithstanding anything herein to the contrary,
Landlord reserves the right for itself, its successors and assigns to
self-insure against any risk required herein to be insured or otherwise assumed
by Landlord.
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VI.
CONDEMNATION
6.1 EFFECT OF CONDEMNATION. If the whole or substantially the whole of
the Premises or access thereto should be taken for any public or quasi-public
use, under any statute or by right of eminent domain or otherwise or should
title to the Building or access thereto be taken or be sold by private purchase
in lieu of condemnation, then Landlord shall, at its cost, and as of the date
when physical possession of the Premises is taken or access thereto is
substantially impaired by the condemning authority, relocate Tenant to
Comparable Space. Landlord shall locate and pay for Comparable Space, as well as
reinstall any of Tenant's leasehold improvements and move Tenant's furniture,
fixtures and equipment, as provided in Section 8.21.
6.2 PROCEEDINGS IN CONDEMNATION. Landlord shall be entitled to receive
the entire amount of any compensation awarded or paid upon any taking described
in or governed by Section 6.1, except that Tenant shall be entitled to the
portions of such compensation or award that corresponds to the value of Tenant's
trade fixtures taken.
6.3 NOTICE OF EXECUTION. Immediately upon service of process or other
notice upon either party in connection with any appropriation, taking or
temporary taking relating to the Building Complex, the Building, the Premises,
or access thereto, such party shall give written notice thereof to the other.
Each party agrees to execute and deliver to the other all instruments that may
be required to effectuate the provisions of this Article VI. Each party reserves
the right to appear in any proceedings in connection with any taking or
temporary taking.
VII.
TENANT'S DEFAULT
7.1 DEFAULT BY TENANT. Each of the following events shall be deemed to
be an event of default by Tenant under this Lease, if such event continues for a
period of (i) ten business (10) days for a monetary default or (ii) thirty (30)
days for a non-monetary default or any other default described in subparagraph
(a) hereof, after written notice thereof is delivered to Tenant (or such longer
cure period as may be specifically permitted by the applicable subparagraph);
provided, however, that no notice need be provided to Tenant if Tenant has
received a notice of default or noncompliance more than twice in the immediately
preceding twelve (12) month period:
(a) If Tenant shall fail (i) to pay any installment of
Additional Rent or any other amount payable to
Landlord hereunder as and when herein provided, (ii)
to obtain the insurance coverage required hereunder
or (iii) to comply with the provisions of Section 4.3
regarding Hazardous Materials.
(b) If Tenant shall become insolvent, or shall make a
transfer in fraud of creditors, or shall make an
assignment for the benefit of creditors.
(c) If Tenant or any permitted sublessee or assignee,
shall (i) make an assignment for the benefit of
creditors, (ii) file or acquiesce in a petition in
any court (whether or not pursuant to any statute of
the United States or of any State) in any bankruptcy,
reorganization, composition, extension, arrangement
or insolvency proceedings, (iii) make an application
in any such proceedings for or acquiesce in the
appointment of a trustee, receiver or similar officer
for it or all or any portion of its property, or (iv)
have been a "debtor" in any voluntary or involuntary
bankruptcy proceeding on the date of execution of
this Lease without having disclosed the same to
Landlord in writing prior to such date.
(d) If any petition shall be filed against Tenant or any
permitted sublessee or assignee (whether or not
pursuant to any statute of the United States or any
State) in any bankruptcy, reorganization,
composition, extension, arrangement or insolvency
proceedings and such proceedings shall not be
dismissed, discontinued, or vacated within thirty
(30) days after such petition is filed.
(e) If in any proceedings, pursuant to the application of
any party other than Tenant in which it does not
acquiesce, a receiver, trustee or other similar
officer shall be appointed for Tenant or for all or
any portion of Tenant's property and such
receivership or trusteeship shall not be set aside
within thirty (30) days after such appointment.
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(f) If a receiver or Trustee shall be appointed for all
of the Premises or for all or substantially all of
the assets of Tenant.
(g) If Tenant shall create or suffer the creation of a
lien upon the Premises in violation of the provisions
of this Lease.
(h) If Tenant shall refuse to take possession of the
Premises on the Commencement Date.
(i) If Tenant shall be a corporation and shall fail to
remain in good standing in the State in which the
Building is located or the State of its
incorporation, or shall, if a foreign corporation,
fail to qualify to transact business and/or maintain
a duly registered agent in the State in which the
Building is located.
(j) If any execution, levy, attachment, or other process
of law shall occur upon Tenant's goods, fixtures or
interest in the Premises.
(k) If Tenant shall at any time be in breach or default
in the observance or performance of any of the other
covenants and/or agreements required to be performed
and/or observed by Tenant hereunder.
Provided, however, that if any default by Tenant for which a
time to cure is not specifically addressed in the preceding subparagraphs (b)
through (j), which default is curable but shall reasonably require more than
thirty (30) days to cure, Tenant shall be afforded an additional time period to
effect such cure, provided Tenant commences to cure the default within the
initial thirty (30) day period and diligently prosecutes the same to completion.
Provided, further, that any default described in subparagraph (k) hereof, the
nature of which may impair Building security or Building systems, shall be
subject to Landlord's right to cure under Paragraph 7.2 hereof, regardless of
whether the applicable Tenant notice and cure periods have expired, provided
that Landlord shall have furnished written notice to Tenant of Landlord's intent
to cure prior to Landlord effecting a cure during the pendency of Tenant's
notice and cure periods.
7.2 LANDLORD'S REMEDIES. Upon the occurrence of any event of default
and the lapse of any grace or cure periods without cure thereof, Landlord shall
have the option to pursue any one or more of the following remedies upon notice
to Tenant:
7.2.1 TERMINATION. Terminate this Lease or terminate Tenant's
right to possession, and in either event, accelerate all obligations of Tenant
owed Landlord under the Lease and force Tenant to immediately surrender the
Premises to Landlord. Tenant agrees to pay to Landlord on demand the costs which
Landlord may reasonably suffer by reason of such termination. Immediately upon
any termination Landlord shall be entitled to recover from Tenant all
outstanding and unpaid Rent as of the date of such termination and all future
Rent due.
7.2.2 POSSESSION. Enter upon and take possession of the
Premises and expel or remove Tenant and any other person who may be present, by
force if necessary (to the extent allowed by law), without terminating the Lease
or being liable for prosecution or any claim for damages, and, if Landlord so
elects, relet the Premises on such terms as Landlord may determine shall best
mitigate its damages and receive the rent therefor. Tenant agrees to pay to
Landlord on demand any deficiency that may arise by reason of such reletting.
7.2.3 ENTRY. Enter upon the Premises, by force if necessary
(to the extent allowed by law), without being liable for prosecution or any
claim for damages, and do whatever Tenant is obligated to do under the terms of
this Lease. Tenant agrees to reimburse Landlord on demand for any expenses which
Landlord may incur in effecting compliance with Tenant's obligations.
7.3 REMEDIES CUMULATIVE. Pursuit of any one or more of the remedies
provided in this Lease shall not preclude pursuit of any other remedies provided
hereunder or by law, which shall be cumulative, nor shall pursuit of any remedy
constitute a forfeiture or waiver of any Rent due or of any damages accruing to
Landlord by reason of the breach. Actions to collect amounts due Landlord may be
brought from time to time, on one or more occasions without the necessity of
Landlord's waiting until the expiration of the Term.
7.4 CURE RIGHTS. Landlord may cure, at any time, without notice except
as otherwise herein provided, any default by Tenant under this Lease. Whenever
Landlord so elects, all unrecovered costs and expenses incurred by Landlord in
curing a default, including, without limitation,
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reasonable attorneys' fees, together with interest on the amount of costs and
expenses so incurred at the Contract Rate, shall be paid by Tenant to Landlord
on demand, and shall be recoverable as Rent.
7.5 RIGHTS UPON POSSESSION. Upon the occurrence of an uncured event of
default by Tenant and exercise of Landlord's remedies hereunder, Landlord may
make such alterations, repairs, replacements and/or decorations in the Premises
as Landlord, in its commercially reasonable judgment, considers advisable and
necessary for reletting the Premises. Such undertakings shall not operate or be
construed to release Tenant from its liability. Except as may be required to
mitigate damages, Landlord shall in no event be liable in any way whatsoever for
failure in good faith to relet the Premises, or in the event that the Premises
are relet, for failure to collect the rent under such reletting. Subject to
Landlord's obligation to mitigate damages, the failure of Landlord to relet the
Premises or any part or parts thereof shall not release or affect Tenant's
liability for damages. In no event shall Tenant be entitled to any excess rent
obtained by reletting. In determining the amount of loss or damage which
Landlord may suffer by reason of termination of this Lease or the deficiency
arising by reason of any reletting of the Premises, Landlord shall be entitled
to recover, in addition to any other damages elsewhere provided in this Lease,
at law or in equity, such unrecovered reasonable expenses as Landlord may incur
in connection with reletting of the Premises (including, without limitation,
court costs, attorneys' fees and disbursements, brokerage expenses and expenses
for putting and keeping the Premises in good order or for preparing the same for
reletting as herein provided).
7.6 PREVAILING PARTY; VENUE. If either party places in the hands of an
attorney the enforcement of this Lease, or any part thereof, or the collection
of any Rent or Additional Rent due or to become due hereunder, or recovery of
the possession of the Premises, or files suit upon the same, the non-prevailing
(or defaulting) party shall pay the other party's reasonable attorneys' fees and
court costs. If Tenant is entitled to receive reasonable attorneys' fees,
recovery of such fees shall not be affected if Tenant represents itself rather
than engaging independent counsel. The parties agree that any litigation
concerning this Lease may be brought before the Superior Court of North Carolina
and that Mecklenburg County, North Carolina shall be the proper venue for any
such action.
VIII.
MISCELLANEOUS PROVISIONS
8.1 FORCE MAJEURE. Whenever a period of time is prescribed for the
taking of any action by Landlord or by Tenant, neither Landlord nor Tenant shall
be liable or responsible for, and there shall be excluded from the computation
of such period of time, any delays due to strikes, fire, earthquakes, floods,
acts of God, governmental regulations, shortages or delay of labor or materials,
war, governmental laws, regulations or restrictions, or any other cause
whatsoever beyond the control of Landlord or Tenant, as applicable (all of which
are sometimes referenced collectively in this Agreement as "Force Majeure")
excluding however the financial condition or the unavailability or cost of funds
of either party.
8.2 SALE OF THE BUILDING. Landlord shall have the right to transfer and
assign, in whole or in part, all its rights and obligations hereunder, and in
the Building and leasehold improvements, and upon the transferee's assumption of
Landlord's obligations hereunder, no further liability or obligations shall
accrue against Landlord. Any and all covenants of Landlord contained in this
Lease shall be binding upon Landlord and its successors only with respect to
breaches occurring during its and their respective ownerships of Landlord's
interest hereunder.
8.3 NAME OF BUILDING. As of the Commencement Date, the name of the
Building is Transamerica Square. Landlord shall have the right and privilege at
its cost at any time to change the name of the Building. Subject to the sign
provisions set out elsewhere in this Lease, Landlord shall have exclusive
control over all signs, graphics or other wall ornamentation or displays in the
entrance lobby to the Building and in all Common Areas.
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8.4 NOTICES. All notices required under this Lease shall be in writing
unless expressly permitted otherwise. Any notice by either party to the other
shall be deemed to be duly given if either personally delivered with written
receipt to the respective addresses set forth below for each party or sent by
first-class mail, postage prepaid, return receipt requested, or by a nationally
recognized overnight courier service addressed as set forth below:
If to Tenant Exult, Inc.
401 N. Tryon Street, 2nd Floor
Charlotte, North Carolina 28202
Attn: Client Executive
with a copy to: Exult, Inc.
4 Park Plaza, Suite 1000
Irvine, California 92641
Attn: General Counsel
If to Landlord: c/o Corporate Real Estate
525 N. Tryon Street
NC1-023-04-03
Charlotte, North Carolina 28255
Attn: Headquarters Real Estate Asset Manager
Either party which desires to change the address as set forth above shall do so
by notice to the other party which complies with the requirements of this
Section 8.4.
8.5 NO WAIVER. Neither Landlord's nor Tenant's failure to enforce or
delay in exercising any of the provisions, rights or remedies in this Lease
shall be a waiver, nor in any way affect the validity of this Lease or any part
hereof, or their respective right thereafter to enforce each and every such
provision, right or remedy. No waiver of any breach of this Lease shall be held
to be a waiver of any other or subsequent breach. The receipt by Landlord of
Rent, or any other payment by or to Tenant at a time when the Rent or the
payment of any other sum due hereunder is in default shall not be construed as a
waiver of such default. The receipt by Landlord of a lesser amount than the
Rent, or by Landlord or Tenant of any other sum due, shall not be construed to
be other than a payment on account which may be applied in such manner as such
party deems appropriate. Either Landlord or Tenant may accept any such payment
without prejudice to its right to recover the balance due or to pursue any other
remedies. No act or thing done by Landlord or its agents or employees during the
Term, including acceptance of keys or card keys, shall be deemed an acceptance
of a surrender of the Premises, and no agreement to accept such a surrender
shall be valid unless signed by Landlord.
8.6 COMMISSIONS. Landlord and Tenant each represents and warrants to
the other that it has contacted no broker in connection with this Lease or the
Premises. Landlord and Tenant hereby indemnify and hold each other harmless
against any loss, claim, expense or liability with respect to any commissions or
brokerage fees claimed on account of the execution, expansion and/or renewal of
this Lease and the execution of the New Lease due to any action of the
indemnifying party.
8.7 RIGHTS OF LIGHT, VIEW OR AIR. This Lease does not grant any rights
to light, view or air over adjacent property, and any diminution or shutting off
of light, view or air by any structure that may be erected adjacent to the
Building shall not affect this Lease or impose any obligation or liability upon
Landlord.
8.8 SEVERABILITY. If any term or provision of this Lease, or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provisions to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and shall be enforceable to the extent permitted by
law.
8.9 RECORDATION. Landlord and Tenant agree not to record this Lease. At
Tenant's sole cost and expense, the parties shall execute and record the
Memorandum of Sublease attached hereto as Exhibit H.
8.10 BINDING EFFECT. This Lease, including all exhibits attached
hereto, shall be binding upon and shall inure to the benefit of Landlord, its
successors and assigns, and Tenant, its successors, and to the extent assignment
and subletting may be approved by Landlord hereunder, Tenant's assigns and
sublessees. Each individual executing this Lease on behalf of the respective
parties represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of said party in accordance with the duly adopted
resolution of the Board of Directors of said corporation or in accordance with
the pertinent partnership agreements and that this Lease is binding upon said
party in accordance with its terms.
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8.11 ENTIRE AGREEMENT. The following lettered exhibits are attached
hereto and incorporated herein and made a part of this Lease for all purposes:
Exhibit A - Description of the Premises
Exhibit B - Work Letter Agreement
Schedule 1 Tenant's Plans
Exhibit C - Cleaning Specifications
Exhibit D - Rules and Regulations
Exhibit E - Option to Expand
Exhibit F - Services to be Provided by Landlord
Exhibit G - Tenant's Parking Rights and Charges
Exhibit H - Memorandum of Sublease
Exhibit I - Extension of Term
This Lease and the attached exhibits set forth all the covenants,
promises, agreements, conditions and understandings between Landlord and Tenant
concerning the Premises. Tenant agrees that Landlord and its agents made no
representations or promises with respect to the Premises, the Building, the
Building Complex or property of which the same are part except as herein
expressly set forth. Tenant shall make no claim on account of any
representations, whether made by any renting agent, broker, officer or other
representative of Landlord or which may be contained in a circular, prospectus
or advertisement related to the Building Complex or otherwise, unless the same
is specifically set forth in this Lease.
8.12 AMENDMENTS. Except as expressly provided herein, no subsequent
alteration, amendment, change or addition to this Lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed by them.
8.13 COUNTERPARTS. This Lease may be executed in counterparts. Each
fully executed counterpart shall be an original and it shall not be necessary in
making proof of this Lease to produce or account for more than one such
counterpart.
8.14 GOVERNING LAW. This Lease is declared to be a North Carolina
contract, and all of the terms hereof shall be governed by, construed and
enforced according to the laws and judicial decisions of the State of North
Carolina.
8.15 INITIAL REPOSITIONING OF EMPLOYEES; SUBSEQUENT MOVES. Landlord and
Tenant acknowledge that, because Tenant will be assuming certain of Landlord's
employees and certain of Landlord's equipment and workstations as of the
Commencement Date pursuant to the Master Services Agreement to be executed by
the parties of even date herewith, some repositioning of employees of Landlord,
including workstations and equipment assigned to those employees, from the
Initial Premises will occur later than the Commencement Date. Additionally, some
repositioning of Tenant's employees, including workstations and equipment
assigned to those employees, from other areas of the Building to the Initial
Premises (such repositioning of Landlord's and Tenant's employees and their
workstations shall be referred to as the "Initial Moves") will also occur later
than the Commencement Date. All such Initial Moves shall occur on a schedule to
be mutually agreed to by Landlord and Tenant prior to the Commencement Date or
by such later date as is mutually agreed to by both parties within thirty (30)
days of the Commencement Date. Nevertheless, Tenant shall accept possession of
the Initial Premises on the Commencement Date and all provisions of this Lease,
including but not limited to the provisions related to insurance coverage, shall
apply as of such date. Landlord and Tenant agree that portions of each party's
respective premises shall be occupied by employees of the other party until such
time as all of the Initial Moves occur, and neither party shall have a claim for
rent or abatement of rent solely because of the failure to reposition employees
prior to the Commencement Date. Landlord's contract vendor shall be responsible
for the work relating to the Initial Moves (as defined below), including
relocating employees and moving and reinstalling computers and
telecommunications equipment, and all costs associated with moving, and
reinstalling computers and telecommunications equipment in the Initial Moves for
each party's respective employees shall be paid by such party. Any subsequent
relocation of the Tenant's employees and movement and reinstallation of
computers and telecommunications equipment ("Subsequent Moves") shall be paid by
the party that has caused such Subsequent Moves. Tenant shall have the right to
select its own vendor to accomplish any reconfiguration or re-wiring of the
Premises during the Initial Moves and any Subsequent Moves. All such work shall
be done in accordance with Section 4.7 of this Lease and at Tenant's sole cost.
8.16 INTENTIONALLY DELETED.
8.17 SHARED USE OF COMPUTER ROOM. Landlord shall construct a computer
room on the third (3rd) floor of the Building for the exclusive use of Tenant.
Tenant acknowledges that the
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computer room will not be available as of the Commencement Date. Until such time
as the third (3rd) floor computer room is complete, Landlord and Tenant agree
that they shall share the existing computer room located on the second (2nd)
floor of the Building. Landlord and Tenant acknowledge that relocation of
computer equipment to separate the equipment of each party into its own computer
room may occur over a period of time which extends beyond the Commencement Date
of the Initial Premises and that there shall be no additional cost to either
party for the shared use of the existing computer room in the interim; provided,
however, that each party's property insurance shall be in force and effect with
respect to coverage of such party's equipment and neither party shall have
responsibility for loss or damage of the other party's equipment, unless such
loss or damage is due to the gross negligence or willful misconduct of such
party, its employees, agents, contractors and invitees. Landlord and Tenant
shall mutually agree upon the schedule for construction and completion of the
new computer room and movement of equipment within fifteen (15) days following
the Commencement Date. The cost of the new computer room and any costs
associated with the relocation of Tenant's equipment to such new computer room
shall be paid by Landlord.
8.18 EQUIPMENT ACCESS. Tenant shall be provided with reasonable access
to the equipment rooms (including the second floor computer room for such time
as it is jointly shared by Landlord and Tenant), telephone rooms, condensers and
other areas on the floors of the Premises in which Tenant's equipment may be
placed. Tenant agrees that Tenant shall not be given access to the roof of the
Building except in accordance with the terms and conditions of Landlord's
standard rooftop license agreement, and site plans approved by Landlord in
writing. Provided, however, that there shall be no additional charge to Tenant
for a single, receive-only satellite dish or a single antenna of a size
reasonably acceptable to Landlord for Tenant's sole purposes, so long as such
communications equipment is intended solely for the Tenant's uses in the
Premises, does not increase the fire and hazard insurance premiums for the
Building, does not present any structural or aesthetic concerns (it being
acknowledged by Landlord that aesthetic concerns may be addressed by appropriate
screening) and does not interfere with rooftop rights already granted to other
tenants of the Building or with Landlord's own existing rooftop uses. No such
rooftop use shall be permitted to the extent it is intended to provide services
to users other than Tenant or to premises other than the Premises.
8.19 LIMITS ON CERTAIN LIABILITIES. Notwithstanding any other provision
of this Lease, neither Landlord nor Tenant nor any partner (including those
holding a partnership interest in Landlord or Tenant), director, officer, agent
or employee of Landlord or Tenant shall be liable for any indemnified claims
caused by or arising from the actions or omissions of other tenants in or about
the Building or Building Complex, or caused by any public work. Tenant
specifically agrees to look solely to Landlord's equity in the Building for the
recovery of any judgment against Landlord and shall not be entitled to deduct
the amount of any such judgment from Rent. Landlord, or if Landlord is a
partnership, its partners, whether general or limited, or if Landlord is a
corporation, its directors, officers or shareholders, shall never be personally
liable for any such judgment. The terms and provisions of this Section 8.19
shall survive the expiration or earlier termination of this Lease.
8.20 STATUS AS SUBLEASE. Both Landlord and Tenant hereby recognize and
acknowledge that Owner owns the Building Complex of which the Building is a part
and that Landlord's interest in the Building is that of a sub-tenant under a
master sublease between Owner and Bank of America Corporation, and this Lease
is, in fact, a sub-sublease, under which Landlord is a sub-sublessor and Tenant
is a sub-sublessee. For purposes of identification and to facilitate the reading
and preparation of the instrument, the parties are referred to as "Landlord" and
"Tenant" and the instrument as "Lease".
Any rights or remedies provided to Tenant under this Lease can be
exercised only against Landlord and Tenant shall have no claim, right or remedy
against Owner or Bank of America Corporation.
8.21 RELOCATION. Landlord, at its expense and at any time during the
Term of this Lease, shall be entitled to cause Tenant to relocate from the
Premises only if: (i) the term of the Master Lease shall have expired and shall
not have been extended; (ii) the Premises shall have been damaged by fire or
other casualty, as provided in Section 5.7; (iii) the whole or substantially the
whole of the Premises shall have been taken by condemnation or otherwise, as
provided in Section 6.1; (iv) other tenants of the Building with prior expansion
rights shall have exercised such rights with respect to all or a portion of the
Premises; (v) there shall have been an enforcement of the remedies provided to a
mortgagee, trustee or beneficiary, as provided in Section 4.10; or (vi) Tenant
shall have consented to such relocation. Such permissible relocations (each, a
"Relocation") shall be to alternative space within Uptown Charlotte containing
approximately the same Rentable Area as the Premises (the "Relocation Space") at
any time upon prior written notice to Tenant as soon as reasonably possible
after Landlord's knowledge that such Relocation would be necessary or advisable,
but in no event less than two hundred seventy (270) days' prior to such proposed
relocation, except in an event of casualty or condemnation, when the notice
provided may be shorter due to the circumstances.
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Such Relocation Space shall be Comparable Space. Landlord shall pay for all
reasonable costs of such Relocation, including but not limited to any necessary
cabling, phone switches, reinstallation of fixtures and furniture and all such
other expenses necessary to provide a turn key environment similar to the
existing environment. Landlord shall endeavor to provide Relocation Space with a
floor plate of at least twenty-five thousand (25,000) square feet. Such
Relocation shall not affect this Lease except that from and after the date of
such Relocation, "Premises" shall refer to the Relocation Space into which
Tenant has been moved rather than the original Premises. In the event Landlord
exercises its right to relocate Tenant as set forth in this Section 8.21,
Landlord and Tenant agree to enter into an amendment to this Lease substituting
the Relocation Space for the original Premises, extending the Term as more
particularly set forth in Section 8.25 below, and designating the space within
such Building which will be available for Tenant's Expansion Space (if not
already exercised). Notwithstanding any statement to the contrary contained in
the foregoing paragraph, if Tenant elects pursuant to Exhibit E to expand onto
the sixth (6th) floor of Transamerica Square, Tenant shall bear full
responsibility for the cost of later relocating Tenant from the sixth (6th)
floor if due to the election of Transamerica as tenant to expand into the sixth
(6th) floor.
8.22 SURVIVAL. The provisions of this Lease shall survive the
expiration or termination of this Lease.
8.23 DRAFTING. Landlord and Tenant acknowledge that this Lease was
negotiated at arms length and that no presumptions in favor of or against the
drafter shall apply to the interpretation of this Lease.
8.24 RIGHT OF EARLY TERMINATION. If Landlord cancels or terminates the
Master Services Agreement (or if Tenant terminates pursuant to a right of Tenant
to terminate because Landlord is in default beyond applicable cure periods) and
such cancellation or termination is effective prior to the Stated Expiration
Date, then Tenant may elect either to (i) terminate this Lease; or (ii) remain
in the Premises for the remainder of the initial Term. If Tenant elects to
terminate, such election shall be exercised by written notice provided to
Landlord not later than thirty (30) days following the date of such cancellation
or termination of the Master Services Agreement. If Tenant elects to terminate
this Lease, Tenant may also elect, within the same written notice, to holdover
for a period not to exceed six (6) calendar months following the date of such
termination. Upon such early termination, Landlord shall reimburse Tenant for
the Base Rent allocable to the Initial Premises only for the portion of the
initial Term of this Lease (up to the Stated Expiration Date) which remains
following the date Tenant vacates the entire Premises, at the annual rate of
[***]* per square foot discounted to net present value at the ninety (90) day
LIBOR rate as of the date Tenant vacates the entire Premises. Such reimbursement
of Base Rent shall be payable within ninety (90) days after (i) this Lease has
terminated, or (ii) Tenant has vacated the Premises, whichever shall be later.
If Tenant elects to holdover as provided above, and the holdover period extends
beyond the Stated Expiration Date, then Tenant shall pay Base Rent during such
extended period equal to the Market Rate determined in accordance with the
provisions of Exhibit E only for the portion of such holdover period which
extends beyond the Stated Expiration Date.
8.25 NEW LEASE. Landlord and Tenant acknowledge that the Term set forth
in Section 2.1.1 of this Lease is co-terminous with the Master Lease. In the
event of a Relocation pursuant to Section 8.21 above, the Term of this Lease
shall automatically extend to the Stated Expiration Date. In the event Landlord
does not exercise its right to relocate Tenant to alternative space and Tenant
continues to occupy the Premises, then Landlord shall enter into a new lease
with Tenant for the Premises, upon the same terms and conditions set forth in
this Lease, except that the term thereof shall commence on September 29, 2007
and shall end on the Stated Expiration Date (the "New Lease"). Landlord may
cause the New Lease to be executed for successive one year periods until the
Stated Expiration Date in lieu of a single lease term if the Master Lease is
extended in one year increments and, in such event, Section 8.21 shall remain in
effect during such extended periods. Landlord and Tenant agree to enter into the
New Lease no later than sixty (60) days prior to the expiration of this Lease.
Landlord shall be responsible for all costs associated with relocating Tenant to
the new premises covered under the New Lease. In the event Landlord extends the
Term of the Master Lease or obtains ownership of the Building during the Term of
this Lease, at Landlord's sole discretion, Tenant shall continue to occupy the
Premises and the New Lease shall cover the Premises rather than Comparable
Space.
8.26 BASE BUILDING PLANS AND SPECIFICATIONS. Tenant has reviewed and
accepted Landlord's Base Building plans and specifications affecting the
Premises prior to execution of this Lease. Landlord represents and warrants to
Tenant that, as of the Commencement Date, the Building, to the extent
constructed by Landlord or Landlord's contractor, has been constructed
substantially in compliance with the applicable requirements of the Base
Building plans reviewed by Tenant pursuant to this Section 8.26.
--------------
* Confidential information has been omitted.
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8.27 TENANT'S TERMINATION FEE. If Tenant elects not to exercise any
further renewal rights upon the Stated Expiration date of the Master Services
Agreement, then Tenant shall be obligated to pay to Landlord a termination fee
equal to Base Rent at the Market Rate on the Premises for a [***]* month period,
unless Tenant elects to remain in the Premises and pay Base Rent during such
holdover period.
IN TESTIMONY WHEREOF, the parties, by authority duly given, have
executed this Lease as of the date set forth on the first page of this Lease.
ATTEST: LANDLORD:
BANK OF AMERICA, NATIONAL ASSOCIATION
By: a national banking association
---------------------------------
its Secretary
-------------------
By:
---------------------------------
Name: John G. Saclarides
Title: Senior Vice President
ATTEST: TENANT:
EXULT, INC.,
a Delaware corporation
By: By:
--------------------------------- ---------------------------------
its Secretary Name:
------------------- -------------------------------
Title: President
----------------
--------------
* Confidential information has been omitted.
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SCHEDULE OF EXHIBITS
Exhibit A - Description of the Premises
Exhibit B - Work Letter Agreement
Schedule 1 - Tenant's Plans
Exhibit C - Cleaning Specifications
Exhibit D - Rules and Regulations
Exhibit E - Option to Expand
Exhibit F - Services to be Provided by Landlord
Exhibit G - Tenant's Parking Rights and Charges
Exhibit H - Memorandum of Sublease
Exhibit I - Extension of Term
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EXHIBIT A
FLOOR PLAN OF THE PREMISES
Original document includes a floor plan of the premises.
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EXHIBIT B
WORK LETTER AGREEMENT
A. CONSTRUCTION OF THE PREMISES
(1) Any Alterations to the Premises shall be the responsibility of
Tenant ("Tenant's Work"), including, without limitation, all items required by
applicable building and occupancy codes.
(2) Tenant, at its sole cost and expense, shall cause to be prepared by
Tenant's Architect and, if required by Landlord, an engineering firm reasonably
qualified to address structural and MEP components, final working plans and
specifications of Tenant's Work suitable for construction containing, without
limitation, at least the information requested on Schedule 1 of this Exhibit B.
Tenant shall provide such plans and specifications to Landlord for Landlord's
approval. As approved by Landlord, such final working plans and specifications
are referred to as "Tenant's Plans." Any changes to such final plans and
specifications during construction shall be subject to the reasonable approval
of Landlord.
(3) Workmanship and materials used in construction of Tenant's Work
shall be of the highest quality. Landlord approves _____________________________
_________________________ as Tenant's general contractor. If Tenant wishes to
use a different general contractor, Tenant shall submit the name of the proposed
contractor and its project manager for Landlord's prior approval, along with
information on at least three (3) comparable projects completed by the
contractor, if requested by Landlord and if the contractor has not previously
worked in the Building. Any contractors and/or subcontractors engaged by Tenant
shall comply with all reasonable, nondiscriminatory rules and regulations
established by Landlord to promote safety and quality of construction in the
Building. All design, construction and installation for Tenant's Work shall
conform to the requirements of the National Board of Fire Underwriters, all
applicable building, plumbing and electrical codes and the requirements of all
Governmental Authorities having jurisdiction over or with respect to Tenant's
Work. Tenant or its contractors shall secure all necessary building and
occupancy permits and/or approvals from all Governmental Authorities to allow
Tenant to complete the Alterations and to use and occupy the Premises, and shall
provide Landlord with copies of such permits.
(4) Entry of Tenant, its employees, agents and contractors upon the
Premises and completion of Tenant's Work shall be subject to all the provisions
of this Lease, including, without limitation, the provisions of Sections 4.7 and
5.2. Tenant agrees to indemnify Landlord, its agents, employees and contractors
and to hold them harmless from and against any and all losses, costs, claims and
liabilities of every kind and description which may arise out of or be connected
in any way with the performance of Tenant's Work and not caused or contributed
to by the negligence or wrongdoing of Landlord, its employees, agents and
contractors.
(5) Landlord shall permit Tenant and Tenant's duly authorized agents
and Tenant's approved contractors and subcontractors to enter the Premises and
to use designated elevators in the Building, in order that Tenant may install
Tenant's Work, and otherwise adapt the Premises for Tenant's use. The foregoing
license is conditioned upon Tenant's duly authorized agents and contractors not
interfering with the rights of other tenants, including employees of Landlord,
to quiet enjoyment, and complying with all rules and regulations established by
Landlord and/or Landlord's Building Manager to promote safety and quality of
construction; failure of such compliance shall entitle Landlord to compel Tenant
to use its best efforts to discharge the contractors or subcontractors who fail
so to comply but shall not constitute revocation of the license granted herein.
This license is further conditioned upon the employment by the contractors or
subcontractors engaged by Tenant of workers and means to insure the pro |
