North Carolina-Durham-3518 Westgate Drive Lease - Hamad Jassim Althani and Blue Cross and Blue Shield of North Carolina
SOUTH PARK OFFICE CENTER
AGREEMENT OF LEASE
BETWEEN
Hamad Jassim Althani by Rajai Zumot LESSOR
AND
Blue Cross and Blue Shield of North Carolina LESSEE
TABLE OF CONTENTS
Paragraph Number Description Page
1. Leased Premises......................................... 1
2. Term.................................................... 1
3. Rent.................................................... 1
4. Signs................................................... 2
5. Usage and Insurance..................................... 2
6. Janitorial Service...................................... 2
7. Building Services....................................... 2
8. Lessee's Electricity Charge............................. 3
9. Relocation.............................................. 3
10. Repairs and Maintenance................................. 3
11. Compliance with Laws, Rules and Regulations............. 4
12. Lessor Improvements..................................... 4
13. Alterations and Improvements.............................4
14. Condemnation............................................ 4
15. Fire and Casualty....................................... 4
16. Property insurance...................................... 4
17. Waiver of Subrogation................................... 4
18. Hold Harmless........................................... 5
19. Quiet Enjoyment......................................... 5
20. Lessor's Right of Entry................................. 5
21. Assignment or Sublease.................................. 5
22. Landlord's Lien......................................... 5
23. Uniform Commercial Code................................. 5
24. Default by Lessee....................................... 5
25. Remedies for Lessee's Default........................... 5
26. Waiver of Default or Remedy............................. 6
27. Acts of God............................................. 6
28. Attorney's Fees......................................... 6
29. Holding Over............................................ 6
30. Rights of First Mortgage................................ 6
31. Estoppel Certificates................................... 6
32. Cost of Living Increase................................. 6
33. Successors.............................................. 7
34. Rent tax................................................ 7
35. Definitions............................................. 7
36. Miscellaneous........................................... 7
37. Notice ................................................. 7
38. Entire Agreement and Limitation of Warranties .......... 7
39. Other Provisions ....................................... 8
<PAGE>
COMMERCIAL
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into as of the date set forth below
between Hamad Jassim Althani by Rajai Zumot, hereafter referred to as "Lessor"
and Blue Cross and Blue Shield of North Carolina, hereafter referred to as
"Lessee".
W I T N E S S E T H
LEASE PREMISES: In consideration of the rents, terms, provisions and
covenants of this Lease, Lessor hereby leases, lets and demises to Lessee the
following described premises (referred to as "leased premises") as shown on the
floor plan annexed hereto as Exhibit A and containing approximately 11,851
rentable square feet situated at South Park Office Center, 3518 Westgate Drive,
Durham, N.C. (sometimes referred to as "the building" or "the project"):
For purposes of prorating various expenses, leased premises will represent 20.44
percent of the building or project.
2. TERM: (a) Subject to and upon the conditions set forth below, the term
of the Lease shall commence on January 1, 1995 (the "commencement date") and
shall expire on December 31, 1999 (which date shall be on the last day of the
calendar month), unless sooner terminated as hereinafter provided. Lessor shall
use its reasonable efforts to establish the "completion date" as December 31,
1994.
(b) If the leased premises are not available for occupancy on the
"commencement date" or "completion date," the Lease shall not be affected
thereby and Lessee shall have no claim against Lessor as a result of the
postponement of such date.
3. RENT: (a) Lessee agrees to pay monthly as base rental during the term of
this Lease the sum of See Exhibit D (Rental Schedule) ($___________), which
amount shall be payable to Lessor at the address shown below on the first day of
the month. One monthly installment of rent shall be due and payable on the date
of execution of this Lease by Lessee for the first month's rent and a like
monthly installment shall be due and payable on or before the first day of each
calendar month succeeding the "commencement date" during the demised term;
provided, that if the "commencement date" should be a date other than the first
day of a calendar month, the monthly rental set forth above shall be prorated to
the end of that calendar month, and all succeeding installments of rent shall be
payable on or before the first day of each succeeding calendar month during the
demised term. Lessee shall pay, as additional rental, all other sums due under
this Lease. All rent and sums to be paid under the Lease are to be paid without
set-off, abatement or deduction, except as specifically provided in the Lease.
If the Lease terminates on a day other than the last day of a calendar month,
the rent for said month will be prorated. See Exhibit F, attached hereto and
incorporated herein by this reference for a continuation of Rent.
(c) If any increase in the fire insurance premiums paid by Lessor for the
building in which Lessee occupies space is caused by Lessee's use and occupancy
of the leased premises or if Lessee vacates the leased premises and causes an
increase in such premiums, the Lessee shall pay as additional rent, upon demand,
the amount of such increase to Lessor.
(d) Other remedies for nonpayment of rent notwithstanding, if the monthly
rental payment is not received by Lessor on or before the tenth day of the month
for which rent is due, or if any other payment due Lessor by Lessee is not
received by Lessor on or before the tenth day following the date it was due, a
late charge of five percent (5%) of such past due amount shall become due and
payable in addition to such amounts owed under this Lease.
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(e) In the event the operating expenses (as defined below) of Lessor for
the building and/or project of which the leased premises are part shall, in any
calendar year during the term of this Lease, exceed the sum of *, Lessee agrees
to pay as additional rental Lessee's pro rata share of such excess operating
expenses. For purposes of this calculation, it is understood that the total
square footage in the building is 57,976. Lessor shall, within nine months
following the close of any calendar year for which additional rental is due
under this paragraph, invoice Lessee for the additional rental. The invoice
shall include in reasonable detail all computations of the additional rental,
and Lessee agrees to pay the additional rental within ten days following receipt
of the invoice. If this Lease shall terminate on a day other than the last day
of a year, the amount of any additional rental payable by Lessee applicable to
the year in which such termination shall occur shall be prorated on the ratio
that the number of days from the commencement of such year to and including such
termination date bears to 365. If at any time during the term of this Lease,
Lessor has reason to believe the per square foot operating expenses for the
calendar year will exceed the sum set forth above, Lessor may by invoice direct
Lessee to prepay monthly one-twelfth of an amount equal to the additional rental
paid in the previous year. If the invoice delivered within nine months following
the close of a calendar year in accordance with this subparagraph 3(e) shows an
amount owing by Lessee that is less than the sum of the monthly payments made by
Lessee in the previous calendar year, the invoice shall be accompanied by a
refund of the excess by Lessor to Lessee. If such invoice shows an amount owing
by Lessee which is more than the sum of the monthly payments made by Lessee in
the previous calendar year, Lessee shall pay such deficiency to Lessor within
ten days after receipt of the invoice. During the year in which this Lease
terminates, Lessor shall have the option to invoice Lessee for Lessee's pro rata
share of the excess operating expenses based upon the previous year's excess
operating expenses; Lessor shall invoice Lessee under this option within thirty
days prior to the termination of this Lease or at any time thereafter. Lessee
shall have the right, at its own expense and at a reasonable time, to audit
Lessor's books relevant to the additional rentals due under this Paragraph 3.
The provisions herein shall survive the expiration or sooner termination of the
Lease. *the Operating Expenses during the 1995 calendar year,
(f) The term "operating expenses" as used above includes all expenses
incurred with respect to the maintenance and operation of the building and/or
project of which the leased premises are a part, including, but not limited to,
maintenance and repair costs, electricity, fuel, water, sewer, gas and other
utility charges, security, window washing, janitorial services, trash and snow
removal, landscaping and pest control, management fees, wages and fringe
benefits payable to employees of Lessor whose duties are connected with the
operation and maintenance of the building and/or project, amounts paid to
contractors or subcontractors for work or services performed in connection with
the operation and maintenance of the building and/or project, all services,
supplies, repairs, replacements or other expenses for maintaining and operating
the building and/or project including common area, parking area, recreation area
and plaza area maintenance. The term "operating expenses" also includes all real
property taxes and installments of special assessments, including special
assessments due to deed restrictions and/or owner's associations which are
against the building and/or project of which the leased premises are part during
the term of this Lease as well as all insurance premiums Lessor is required to
pay or deems necessary to pay, including public liability insurance, with
respect to the building and/or project. The term "operating expenses" shall also
include capital improvements (amortized on a basis reasonably determined by
Lessor) that are either required by law or result in cost savings in connection
with the operation or maintenance of the building. The term "operating expenses"
does not include any capital improvement to the building and/or project of which
the leased premises are a part, nor shall it include income and franchise taxes
of Lessor, expenses incurred in leasing to or procuring of tenants, leasing
commissions, advertising expenses, expenses for the renovating of space for new
tenants, interest or principal payments on any mortgage or other indebtedness of
Lessor, compensation paid to any employee of Lessor above the grade of building
superintendent nor any depreciation allowance or expense.
4. SIGNS: (a) If the leased premises are within a multi-story building,
Lessor will furnish and install a suitable building directory and establish
suite numbers to facilitate locating and identifying Lessee's premises. In order
to effect uniformity, to control the graphics, and to maintain dignified
aesthetics, Lessor will also furnish and install at the entrance door to
Lessee's premises a uniform suite number plate and a name plate. Signs, name
plates or graphics which are wholly within the leased premises and not visible
from the exterior of the building or from public spaces within the building will
be permitted.
(b) If the leased premises are within a single-story building which has
integral exterior sign pylons or sign plaques, Lessee shall have the right to
install letters upon a sign plaque approved by Lessor or upon the sign pylon
adjacent to the leased premises, if space is available. The letters, numerals,
emblems, trademarks, insignia and other designs shall be of non-illuminated
plastic, porcelain enamel or aluminum and shall be individual cut-out letters
using the surface of the pylon or sign plaque as background and shall be subject
to approval of Lessor for the purpose of maintaining architectural continuity
and quality of design. If Lessee has not installed a sign in accordance with the
provisions of this paragraph within ninety (90) days following the commencement
date of this Lease, Lessee's right to install a sign shall terminate.
(c) If the leased premises are within a single-story building with or
without integral exterior sign pylons, Lessee shall have the right to place
lettering upon the entrance doors, plate glass windows or sign plaques of the
leased premises; provided, however, that the lettering shall not exceed six
inches in height and shall be subject to the approval of Lessor. If the leased
premises open off a public corridor or lobby, Lessor will furnish and install a
uniform member plate and name plate for Lessee for installation at the corridor
door, and Lessor will furnish and install a suitable building directory to
facilitate locating and identifying Lessee's premises.
(d) Lessee agrees that no other sign (mobile or stationary) of any
description shall be erected, placed or painted in or about the leased premises.
Lessee shall, at Lessee's expense, remove all signs at the termination of this
Lease, and the installation and removal shall be in such manner as to avoid
injury, defacement or overloading of the building or other improvements.
5. USAGE AND INSURANCE: Lessee warrants and represents to Lessor that the
leased premises shall be used and occupied only for the purpose of general
office use. Lessee shall occupy the leased premises, conduct its business and
control its agents, employees, invitees and visitors in such a manner as is
lawful reportable and will not create any nuisance or otherwise interfere with,
annoy or disturb any other Lessee in its normal business operations or Lessor in
its management of the building. Lessee shall not commit, or suffer to be
committed, any waste on the leased premises, nor shall Lessee permit the leased
premises to be used in any way which would, in the opinion of Lessor, be extra
hazardous on account of fire or otherwise which would in any way increase or
render void the fire insurance on the leased premises or contents of the
building.
6. JANITORIAL SERVICE: Lessor shall furnish janitorial services as set
forth on Exhibit C attached hereto during the term of this Lease. The janitorial
services shall be provided five times per week during the term of this Lease.
7. BUILDING SERVICES: (a) Lessor agrees to furnish for the occupied portion
of the leased premises, at Lessor's cost and expense, the following services:
(i) air conditioning, both heating and cooling (as required by the seasons),
from 8:00 a.m. to 6:00 p.m. on weekdays and on Saturdays from 8:00 a.m. to
1:00 p.m. (except on legal holidays designated in the Building Rules and
Regulations) and at such temperatures and in such amounts as may in the sole
judgment of Lessor be reasonably required for comfortable use and occupancy
under normal business operations; provided, that circulating air will not be
available other than by air conditioning and if Lessee shall require air
conditioning at any time other than the hours and days above specified, Lessor
<PAGE>
shall furnish the same for the area or areas specified in a written request by
Lessee delivered to the superintendent of the building before 3:00 p.m. of the
business day preceding the extra usage, and for such service Lessee shall pay
Lessor as additional rent within five (5) days after receipt of a bill
therefore, the sum of $25.00 per hour (subject to proportional adjustments to
reflect increases or decreases in labor and utility costs) and if more than one
Lessee has requested and is furnished this service for the same hour(s), it is
understood that the charge will be prorated if such proration is reasonably
possible and practicable, (ii) cold water (at the normal temperature of the
supply of water to the building) for lavatory and toilet purposes, refrigerated
water for drinking purposes, and hot water (from the regular building supply at
prevailing temperatures) for lavatory purposes, all of such water service to be
supplied from the regular supply of water to the building at points of supply
provided for general use of tenants of the building through fixtures installed
by Lessor or by Lessee with Lessor's prior written consent, (iii) janitor and
maid service to the leased premises on weekdays other than holidays and such
window washing and wall cleaning as may in the judgment of the Lessor be
reasonably required, (iv) operatorless passenger elevators of ingress and
egress from the floor(s) on which the leased premises are located, provide that
Lessor may reasonably limit the number of elevators to be in operation on
Saturdays, Sundays, and holidays, and freight elevator service in common with
other Lessee's but only when scheduled through the manager of the building, (v)
rest-room facilities, and (vi) electric lighting for all public areas and
special service areas of the building in the manner and to the extent deemed by
Lessor to be reasonable and standard including replacement of building standard
light bulbs and tubes.
(b) Lessor shall furnish and install window coverings on all exterior
windows to maintain a uniform exterior appearance. Lessee shall not remove or
replace these window coverings or install any other window covering which would
affect the exterior appearance of the building. Lessee may install lined or
unlined over draperies on the interior sides of the Lessor furnished draperies,
for interior appearance, or to reduce light transmission, provided such over
draperies do not affect the exterior appearance of the building.
8. LESSEE'S ELECTRICITY CHARGE: Lessor shall furnish sufficient power for
lighting and for typewriters, voice writers, calculating machines, and other
standard office machines of similar low electrical consumption, but not
including electricity for electronic data processing equipment, special lighting
in excess of building standard, or any other equipment or machines other than
such standard office machines or which require a nominal voltage of more than
120 volts single phase. If Lessee's requirements for electricity are in excess
of those set forth in the preceeding sentences ('excess amounts of
electricity'), (i) Lessee shall give Lessor written notice prior to placing any
such equipment, machines or special lighting in the leased premises, (ii) Lessor
shall make reasonable efforts to supply such service through the then existing
feeders servicing the building and (iii) Lessee shall reimburse Lessor for the
costs of excess amounts of electricity as set forth below.
If Lessee has any equipment or machines that require excess amounts of
electricity, Lessor reserves the right, at its sole option, except as provided
hereinafter, to install a separate meter(s), at Lessee expense to be reimbursed
to Lessor as additional rent upon demand for the leased premises or any part of
parts thereof. If Lessee has excess electricity requirements for which Lessor
does not elect to install separate meter(s), Lessor's engineer shall determine
the amount of excess electricity to be billed to Lessee based on the power
requirements of any such equipment, machines, or special lighting. If Lessee
does not agree with the amount of such allocation, Lessee may require Lessor to
exercise Lessor's option to install separate meter(s) by giving written notice
to Lessor. Lessor shall not be liable in any way to Lessee for any failure or
defect in the supply or character of electric energy furnished on the leased
premises by reason of any requirement, act, or omission of the public utility
serving the building with electricity. All installations of electrical fixtures,
appliances, and equipment within the leased premises shall be subject to
Lessor's prior written approval. All replacement lighting tubes and bulbs
required in building standard fixtures in the leased premises will be furnished
and installed by Lessor at Lessor's expenses. Whenever heat generating machines
or equipment (other than such standard office machines) which affect the
temperatures otherwise maintained by the air conditioning system, are used in
the leased premises by Lessee, Lessor shall have the right to install
supplemental air conditioning units in the leased premises, and the cost
thereof, including the cost of installation operation, use and maintenance,
shall be paid as additional rent by Lessee to Lessor on demand. The obligation
of Lessor to furnish electrical service shall be subject to the rules and
regulations of the supplier of such electricity and of any municipal or other
governmental authority regulating the business of providing electrical utility
service. Lessee covenants and agrees that at all times its use of electric
current shall never exceed the capacity of existing feeders to the building, or
the risers or wiring installations. Any riser or risers on wiring to meet
Lessee's excess electrical requirements will be installed by Lessor upon written
request of Lessee, at the sole cost and expense of Lessee to be reimbursed to
Lessor as additional rent upon demand, if, in Lessor's sole judgment, the same
are necessary and will not cause permanent damage or injury to the building or
leased premises or cause or create a dangerous or hazardous condition or entail
excessive or unreasonable alterations, repairs or expense or interfere with or
disturb other tenants or occupants.
10. REPAIRS AND MAINTENANCE: (a) Unless otherwise expressly provided,
Lessor shall not be required to make any improvements, replacements or repairs
of any kind or character to the leased premises during the term of this Lease.
Lessor shall not be liable to Lessee, except as expressly provided in this
Lease, for any damage or inconvenience, and Lessee shall not be entitled to any
abatement or deduction of rent by reason of any repairs, alterations or
additions made by Lessor under this Lease. Lessee will be required to promptly
repair all damage to the walls, doors, corridors, windows and other structures
and equipment within and serving the leased premises, unless the same are
necessitated by Lessor's negligence.
(b) Lessee shall, at its own cost and expense, repair or replace any damage
or injury to all or any part of the leased premises caused by Lessee or Lessee's
agents, employees, invitees, licensees or visitors; provided, however, if
Lessee fails to make the repairs or replacements promptly, Lessor may, at its
option, make the repairs or replacements and Lessee shall pay Lessor the cost
thereof plus an overhead charge equal to ten percent (10%) of the cost of such
repairs or replacements; and payment of such cost and overhead shall be made on
demand.
(c) Lessee shall not allow any damage to be committed on any portion of the
leased premises, and at the termination of this Lease, by lapse of time or
otherwise, Lessee shall deliver the leased premises to Lessor in as good
condition as existed at the commencement date or completion date of this Lease,
ordinary wear and tear excepted. The cost and expense of any repairs necessary
to restore the condition of the leased premises shall be borne by Lessee, and if
Lessor undertakes to restore the leased premises it shall have a right of
reimbursement against Lessee.
(d) All requests for repairs or maintenance that are the responsibility of
Lessor pursuant to any provision of this Lease must be made in writing to Lessor
at the address set forth below.
<PAGE>
11. COMPLIANCE WITH LAWS, RULES AND REGULATIONS: Lessee, at Lessee's
expense, shall comply with all laws, ordinances, orders, rules and regulations
of state, federal, municipal or other agencies or bodies having jurisdiction
relating to the disposal of waste including Hazardous Waste, use, condition and
occupancy of the leased premises. Lessee will comply with the rules of the
building adopted by Lessor which are set forth on a schedule attached to this
Lease. Lessor shall have the right at all times to change the rules and
regulations of the building or to amend them in any reasonable manner as may be
deemed advisable for the safety, care and cleanliness, and for the preservation
of good order, of the leased premises. All changes and amendments in the rules
and regulations of the building will be sent by Lessor to Lessee in writing and
shall thereafter be carried out and observed by Lessee.
12. LESSOR IMPROVEMENTS: If construction to the leased premises is to be
performed by Lessor prior to Lessee's occupancy, Lessor will, at its expense,
commence and/or complete the construction of the improvements constituting the
leased premises, including partitions, in accordance with floor plan (attached
Exhibit A), and its specifications agreed to by the parties and made a part of
this Lease by reference. The plans and specifications shall be approved and
signed by the parties prior to the commencement of construction. Any changes or
modifications to the approved plans and specifications shall be made and
accepted by written change order signed by Lessor and Lessee and shall
constitute an amendment to this Lease. Upon completion of the building and
other improvements in accordance with the plans and specifications, Lessee
agrees to execute and deliver to Lessor a letter accepting delivery of the
leased premises.
13. ALTERATIONS AND IMPROVEMENTS: Lessee shall not make or allow to be made
any alterations or physical additions in or to the leased premises without first
obtaining the written consent of Lessor, Lessee shall remove all liens of accord
that may result from the performance of any alteration or additions. Any
alterations, physical additions or improvements to the leased premises made by
Lessee shall at once become the property of Lessor and shall be surrendered to
Lessor upon the termination of this Lease, except that the foregoing shall not
apply to moveable equipment or furniture owned by Lessee which may be removed by
Lessee at the end of the term of this Lease if Lessee is not then in default and
if such equipment and furniture is not then subject to any other rights, liens
and interests of Lessor. Lessor, at its option, may require Lessee to remove any
physical additions and/or repair any alterations in order to restore the leased
premises to the condition existing at the time Lessee took possession, all costs
of removed and/or alterations to be borne by Lessee. If Lessee does not remove
moveable equipment, or furniture or other personal property not owned by Lessor
from the leased premises after Lessor's written request at the end of the term
of the Lease, such property will be deemed abandoned by Lessee and Lessor may
dispose of such property as Lessor sees fit and, if Lessor disposes of such
property, Lessor shall recover its costs incurred for the removal and disposal
thereof. The provisions of this Paragraph 13 shall survive the expiration or
sooner termination of the Lease.
14. CONDEMNATION: (a) If, during the term (or any extention or renewal) of
this Lease, all or a substantial part of the leased premises or the building
(other than the leased premises) are taken for any public or quasi-public use
under any governmental law, ordinance or regulation, or by right of eminent
domain or by purchase in lieu thereof, and the taking would prevent or
materially interfere with the use of the leased premises for the purpose for
which they are then being used, this lease shall terminate and the rent shall be
abated during the unexpired portion of this Lease effective on the date physical
possession is taken by the condemning authority. Lessee shall have no claim to
the condemnation award.
(b) In the event a portion of the leased premises shall be taken for any
public or quasi-public use under any governmental law, ordinance or regulation,
or by right of eminent domain or by purchase in lieu thereof, and this Lease is
not terminated as provided in subparagraph (a) above, Lessor may, at Lessor's
sole risk and expense, restore and reconstruct the building and other
improvements on the leased premises to the extent necessary to make it
reasonably tenantable. The rent payable under this Lease during the unexpired
portion of the item shall be adjusted to such an extent as may be fair and
reasonable under the circumstances. Lessee shall have no claim to the
condemnation award.
15. FIRE AND CASUALTY: (a) If the leased premises or a portion of the
building other than the leased premises should be totally destroyed by fire or
other casualty, or if the leased premises or a portion of the building other
than the leased premises should be so damaged so that rebuilding cannot
reasonably be completed within one hundred and twenty (120) working days after
the date of written notification by Lessee to Lessor of the destruction, this
Lease shall terminate and the rent shall be abated for the unexpired portion of
the Lease, effective as of the date of the written notification.
(b) If the leased premises should be partially damaged by fire or other
casualty, and rebuilding or repairs can reasonably be completed within one
hundred and twenty (120) working days from the date of written notification by
Lessee to Lessor of the destruction, this Lease shall not terminate, but the
Lessor may at sole risk and expense proceed with reasonable diligence to rebuild
or repair the building or other improvements (other than improvements which
Lessor is not obligated to insure pursuant to Paragraph 16) to substantially the
same condition in which they existed prior to the damage. If the leased premises
are to be rebuilt or repaired and are untenantable in whole or in part following
the damage, and the damage or destruction was not caused or contributed to by
act or negligence of Lessee, its agents, employees, invites or those for whom
Lessee is responsible, the rent payable under the Lease during the period for
which the leased premises are untenantable shall be adjusted to such an extent
as may be fair and reasonable under the circumstances. In the event that Lessor
fails to complete the necessary repairs or rebuilding within one hundred and
twenty (120) working days from the date of written notification by Lessee to
Lessor of the destruction plus the number of days by which such repairs or
rebuilding are delayed by reason of acts of God or force majeure, Lessee may at
its option terminate this Lease by delivering written notice of termination to
Lessor, where upon all rights and obligations under this Lease shall cease to
exist.
16. PROPERTY INSURANCE: Lessor shall not be obligated in any way or manner
to insure any personal property (including, but not limited to, any furniture,
machinery, goods or supplies) of Lessor or which Lessee may have upon or within
the leased premises or any fixtures installed by or paid for by Lessee upon or
within the leased premises or any additional improvements which Lessee may
construct on the leased premises. Lessee shall be required to maintain amounts
of insurance (personal injury and property damage and, in connection with the
performance of alterations, workmen's compensation) reasonably required by
Lessor, but in no event less than $1,000,000.00 combined single limit with
respect to personal injury and property damage, the amount required by statute
with respect to workmen's compensation. All such insurance shall be carried with
insurers reasonably acceptable to Lessor. Lessee shall provide Lessor with
evidence of insurance, on an annual basis.
17. WAIVER OF SUBROGATION: Anything in this Lease to the contrary
notwithstanding, Lessor and Lessee hereby waive and release each other of and
from any and all rights of recovery, claim, action or cause of action, against
each other, their agents, officers and employees, for any loss or damage that
may occur to the leased premises, improvements to the building of which the
leased premises are a part, or personal property (building contents) within the
building, by reason of fire or the elements regardless of cause or origin,
including negligence of Lessor or Lessee and their agents, officers and
employees. Because this paragraph will preclude the assignment of any claim
mentioned in it by way of subrogation or otherwise to an insurance company or
any other person, each party to this Lease agrees immediately to give to
each insurance company which has issued to it policies of insurance covering
all risk of direct physical loss, written notice of the terms of the mutual
waivers contained in the paragraph, and to have the insurance policies properly
endorsed, if necessary, to prevent the invalidation of the insurance coverages
by reason
<PAGE>
of the mutual waivers contained in this paragraph.
18. HOLD HARMLESS: There shall be no liability of Lessor hereunder arising
from any injury to person or damage to property, unless such injury results from
the negligence or misconduct of Lessor, its agents, servants, or employees.
There shall be no allowance to Lessee for a diminution of rental value arising
from any building or improvements located on the leased premises becoming out of
repair, or caused by leakage of gas, oil, water or steam or by electricity
emanating from the leased premises. Lessee shall indemnify Lessor and hold it
harmless from and against any loss, attorney's fee, expense or claim arising
from the use or occupation of the leased premises by Lessee or by anyone in the
leased premises with Lessee's permission, and/or from any breach of the lease by
Lessee.
19. QUIET ENJOYMENT: Lessor warrants that it has full right to execute and
to perform this Lease and to grant the estate demised and that Lessee, upon
payment of the required rents and performing the terms, conditions, covenants
and agreements contained in this Lease, shall peaceably and quietly have, hold
and enjoy the leased premises during the full term of this Lease as well as any
extention or renewal thereof, subject to the provisions of this Lease. Lessor
shall not be responsible for the acts or omissions of any other Lessee or third
party that may interfere with Lessee's use and enjoyment of the leased premises.
20. LESSOR'S RIGHT OF ENTRY: Lessor shall have the right, at all reasonable
hours, to enter the leased premises for the following reasons: cleaning or
making repairs; making alterations or additions as Lessor may deem necessary or
desirable; determining Lessee's use of the leased premises, determining if an
act of default under this Lease has occurred, or for the purpose of showing the
leased premises to prospective purchasers, mortgagees, and tenants.
21. ASSIGNMENT OR SUBLEASE: Lessor shall have the right to transfer and
assign, in whole or in part, its rights and obligations in the building and
property that are the subject of this Lease. Lessee shall not assign this Lease
or sublet all or any part of the leased premises. The transfer of a majority of
shares or partnership interests in Lessee, will be deemed an assignment in
violation of this Lease. Without limiting the generality of the foregoing,
Lessor shall have the option, upon receipt from Lessee of written request for
Lessor's consent to subletting or assignment, setting forth the date that the
requested subletting or assignment is to be effective, to cancel this Lease as
of such date. The option shall be exercised, if at all, within fifteen (15) days
following Lessor's receipt of such written request by delivery to Lessee of
written notice of Lessor's intention to exercise the option. In the event of any
assignment or subletting, Lessee shall nevertheless at all times remain fully
responsible and liable for the payment of the rent and for compliance with all
of its other obligations under the terms, provisions and covenants of this
Lease. Upon the occurrence of an "event of default" as defined below, if all or
any part of the leased premises are then assigned or sublet, Lessor, in addition
to any other remedies provided by this lease or provided by law, may, at its
option, collect directly from the assignee or subtenant all rents becoming due
to Lessee by reason of the assignment or sublease, and Lessor shall have a
security interest in all properties on the leased premises to secure payment of
such sums. Any collection directly by Lessor from the assignee or subtenant
shall not be construed to constitute a novation or a release of Lessee from the
further performance of its obligations under this Lease.
22. LANDLORD'S LIEN: As security for payment of rent, damages and all other
payments required to be made by this Lease, Lessee hereby grants to Lessor a
lien upon all property of Lessee now or subsequently located upon the leased
premises. If Lessee abandons or vacates any substantial portion of the leased
premises or is in default in the payment of any rentals, damages or other
payments required to be made by this Lease or is in default of any other
provision of this Lease, Lessor may enter upon the leased premises, by picking
or changing locks if necessary, and take possession of all or any part of the
personal property, and may sell all or any part of the personal property at a
public or private sale, in one or successive sales, with or without notice, to
the highest bidder for cash, and on behalf of Lessee, sell and convey all or
part of the personal property to the highest bidder, delivering to the highest
bidder all of Lessee's title and interest in the personal property sold to him.
The proceeds of the sale of the personal property shall be applied by Lessor
toward the reasonable costs and expenses of the sale, including attorney's fees,
and then toward the payment of all sums then due by Lessee to Lessor under the
terms of this Lease; any excess remaining shall be paid to Lessee or any other
person entitled thereto by law.
23. UNIFORM COMMERCIAL CODE: This Lease is intended as and constitutes a
security agreement within the meaning of the Uniform Commercial Code of the
state in which the leased premises are situated and, Lessor, in addition to the
rights prescribed in this Lease, shall have all of the rights, titles, liens and
interests in and to Lessee's property now or hereafter located upon the leased
premises which are granted a secured party, as that term is defined, under the
Uniform Commercial Code to secure the payment to Lessor of the various amounts
provided in this Lease. Lessee will on request execute and deliver to Lessor a
financing statement for the purpose of perfecting Lessor's security interest
under this Lease or Lessor may file this Lease or a copy thereof as a financing
statement.
24. DEFAULT BY LESSEE: The following shall be deemed to be events of
default by Lessee under this Lease;
(a) Lessee shall fail to pay when due any installment of rent or any other
payment required persuant to this Lease:
(b) Lessee shall abandon any substantial portion of the leased premises;
(c) Lessee shall fail to comply with any term, provision or covenant of
this Lease, other than the payment of rent, and the failure is not cured within
five (5) days after written notice to Lessee;
(d) Lessee shall file a petition or be adjudged bankrupt or insolvent under
federal bankruptcy law or any similar law or statute of the United States or any
state; or a receiver or trustee shall be appointed for all or substantially all
of the assets of Lessee; or Lessee shall make a transfer in fraud of creditors
or shall make an assignment for the benefit of creditors; or
(e) Lessee shall do or permit to be done any act which results in a lien
being filed against the leased premises or the building and/or project of which
the leased premises are a part.
25. REMEDIES FOR LESSEE'S DEFAULT: Upon the occurrence of any event of
default set forth in this Lease, Lessor shall have the option to pursue any one
or more or all of the following remedies without any notice or demand;
(a) Terminate this Lease, in which event Lessee shall immediately surrender
the leased premises to Lessor, and if Lessee fails to surrender the leased
premises, Lessor may, without prejudice to any other remedy which it may have
for possession or arrearages in rent, enter upon and take possession of the
leased premises, by picking or changing locks if necessary, and lock out, expel,
or remove Lessee and any other person who may be occupying all or any part of
the leased premises without being liable for prosecution of any claim for
damages. Lessee agrees to pay on demand the amount of all loss and damage which
Lessor may suffer by reason of the termination of the Lease under this
subparagraph, whether through inability to relet the lease premises on
satisfactory terms or otherwise.
(b) Enter upon and take possession of the leased premises, by picking or
changing locks if necessary, and lock out, expel or remove Lessee and any other
person who may be occupying all or any part of the leased premises without being
liable for any claim for damages, and relet the leased premises on behalf of
Lessee and receive directly the rent by reason of the reletting. Lessee agrees
to
<PAGE>
pay Lessor on demand any deficiency that may arise by reason of any reletting of
the lease premises; further, Lessee agrees to reimburse Lessor for any
expenditures made by it for remodeling or repairing in order to relet the leased
premises.
(c) Enter upon the leased premises, by picking or changing locks if
necessary without, being liable for prosecution of any claim for damages, and do
whatever Lessee is obligated to do under the terms of this Lease. Lessee agrees
to reimburse Lessor on demand for any expenses which Lessor may incur in
effecting compliance with Lessee's obligations under this Lease; further, Lessee
agrees that Lessor shall not be liable for any damages resulting to Lessee from
effecting compliance with Lessee's obligations under this subparagraph caused by
the negligence of Lessor or otherwise.
26. WAIVER OF DEFAULT OR REMEDY: Failure of Lessor to declare an event of
default immediately upon its occurance, or delay in taking any action in
connection with an event of default, shall not constitute a waiver of the
default, but Lessor shall have the right to declare the default at any time and
take such action as is lawful or authorized under this Lease. Pursuit of any one
or more of the remedies set forth in Paragraph 25 above shall not preclude
pursuit of any one or more of the other remedies provided in Paragraph 25 above
or elsewhere in this Lease or provided by law, nor shall pursuit of any remedy
provided constitute forfeiture or waiver of any rent or damages accruing to
Lessor by reason of the violation of any of the terms, provisions or covenants
of this Lease. Failure by Lessor to enforce one or more of the remedies provided
upon an event of default shall not be deemed or construed to constitute a waiver
of the default or of any other violation or breach of any of the terms,
provisions and covenants contained in this Lease.
27. ACTS OF GOD: Lessor shall not be required to perform any covenant or
obligation in this Lease, or be liable in damages to Lessee, so long as the
performance or non-performance of the covenant or obligation is delayed, caused
by or prevented by an act of God or force majeure.
28. ATTORNEY'S FEES: In the event Lessee defaults in the performance of any
of the terms, covenants, agreements or conditions contained in this Lease and
Lessor places in the hands of an attorney the enforcement of all or any part of
this Lease or the collection of any rent due or to become due or recovery of the
possession of the leased premises, then in any of such events. Lessee agrees to
pay Lessor reasonable attorney's fees for the services of the attorney, whether
suit is actually filed or not. In no event shall the attorney's fees be less
than fifteen percent of the outstanding balance owed by Lessee to Lessor.
29. HOLDING OVER: In the event of holding over by Lessee after the
expiration or termination of this Lease, the hold over shall be as a tenant at
will and all of the terms and provisions of this Lease shall be applicable
during that period, except that Lessee shall pay Lessor as rental for the period
of such hold over an amount equal to one and one-half the rent which would have
been payable by Lessee had the hold over period been a part of the original term
of this Lease. Lessee agrees to vacate and deliver the leased premises to Lessor
upon Lessee's receipt of notice from Lessor to vacate. The rental payable during
the hold over period shall be payable to Lessor on demand. No holding over by
Lessee, whether with or without consent of Lessor, shall operate to extend this
Lease except as otherwise expressly provided.
30. RIGHTS OF FIRST MORTGAGEE: This Lease is and shall be subject and
subordinate to all ground or underlying leases which may now or hereafter affect
the building and to all mortgages and deeds of trust which may now or hereafter
affect such leases or the building, and to all renewals, refinancings,
modifications, replacements and extensions thereof (each, a 'superior
instrument'), and to any lien created thereby. Lessee shall promptly execute and
deliver any certificate that the holder of a superior instrument (the 'Holder')
may reasonably request to confirm the subordination and Lessor is hereby
irrevocably designated as attorney-in-fact for Lessee to deliver any such
certificate to the Holder in the name, place and stead of Lessee. In the event
the Holder succeeds to the interest of Lessor under this Lease, it shall not (i)
have any liability for refusal or failure to perform or complete any work
required to be done by Lessor under this Lease or any work letter annexed
thereto, or to prepare the leased premises for Lessee's occupancy, or have any
liability under any guaranty of indemnification with respect to such work, or
otherwise to prepare the leased premises for occupancy in accordance with the
provisions of this Lease, (ii) be liable for any act, omission or default of any
prior Lessor under this Lease, (iii) be subject to any offsets, claims or
defenses which shall have theretofore accrued to Lessee against any prior
Lessor, (iv) be bound by any rent or additional rent which the Lessee might have
paid to any prior Lessor for more than one month in advance, (v) be bound by any
modification, amendment, abridgement, cancellation or surrender of this Lease to
which the Holder shall not have consented in writing. In the case of any
foreclosure or conveyance by deed in lieu of foreclosure under any superior
instrument, the rights and remedies of Lessee in respect of any obligations of
any successor Lessor under this Lease shall be nonrecourse as to any assets of
such successor Lessor other than its equity in the building. In the event the
Holder shall succeed to the interest of Lessor under this Lease, whether through
possessory or foreclosure action or deed in lieu of foreclosure, this Lease
shall, at the option of the Holder, not be terminated or affected by such
foreclosure or any of such proceedings and Lessee shall attorn to and recognize
the Holder as its Lessor upon the terms, covenants, conditions and agreements
contained in this Lease to the same extent and in the same manner as if this
Lease was a direct lease between the Holder and Lessee, except as otherwise
provided above.
31. ESTOPPEL CERTIFICATES: Lessee agrees to furnish promptly, from time to
time, upon request of Lessor or any mortgagee, an estoppel certificate to
Lessor, any person designated by Lessor or any mortgagee, in the form attached
hereto as Exhibit B.
<PAGE>
33. SUCCESSORS: This Lease shall be binding upon and inure to the benefit
of Lessor and Lessee and their respective heirs, personal representatives,
successors and assigns. It is hereby covenanted and agreed that should Lessor's
interest in the leased premises cease to exist for any reason during the term of
this Lease, then notwithstanding the happening of such event this Lease
nevertheless shall remain unimpaired and in full force and effect and Lessee
hereunder agrees to attorn to the then owner of the leased premises.
34. RENT TAX: If applicable in the jurisdiction where the leased premises
are situated, Lessee shall pay and be liable for all rental, sales and use taxes
or other similar taxes, if any, levied or imposed by any city, state, county or
other governmental body having authority, such payments to be in addition to all
other payments required to be paid to Lessor by Lessee under the terms of this
Lease. Any such payment shall be paid concurrently with the payment of the rent
upon which the tax is based as set forth above.
35. DEFINITIONS: The following definitions apply to the terms set forth
below as used in this Lease;
(a) "Abandon" means the vacating of all or a substantial portion of the
leased premises by Lessee, whether or not Lessee is in default of the rental
payments due under this Lease.
(b) An "act of God" or "force majeure" is defined for purposes of this
Lease as strikes, lockouts, sit-downs, material or labor restrictions by any
governmental authority, unusual transportation delays, riots, floods, washouts,
explosions, earthquakes, fire, storms, weather (including wet grounds or
inclement weather which prevents construction), acts of the public enemy, wars,
insurrections and any other cause not reasonably within the control of Lessor
and which by the exercise of due diligence Lessor is unable, wholly or in part,
to prevent or overcome.
(c) The "commencement date" shall be the date set forth in Paragraph 2. The
"commencement date" shall constitute the commencement of this Lease for all
purposes, whether or not Lessee has taken possession.
(d) The "completion date" shall be the date on which the improvements
erected and to be erected upon the leased premises shall have been substantially
completed in accordance with the plans and specifications described in Paragraph
12. Lessor shall use its reasonable efforts to establish the "completion date"
as the date set forth in Paragraph 2. In the event that the improvements have
not in fact been completed as of that date, Lessee shall notify Lessor in
writing of its objections. Lessor shall have a reasonable time after delivery of
the notice in which to take such corrective action as may be necessary, and
shall notify Lessee in writing as soon as it deems such corrective action has
been completed so that the improvements are completed and ready for occupancy.
Taking of possession by Lessee shall be deemed to establish conclusively that
the improvements have been completed and that the leased premises are in good
and satisfactory condition, as of the date possession was so taken by Lessee,
except for latent defects, if any.
(e) "Real property tax" means all school, city, state and county taxes and
assessments including special district taxes or assessments.
(f) "Square feet" or "square foot" as used in this Lease includes the area
contained within the space occupied by Lessee together with a common area
percentage factor of Lessee's space proportionate to the total building area.
(g) "Lessor" as used in this Lease means only the owner, or the mortgagee
in possession, for the time being of the building or the land on which the
building is situated (the "Land") (or the owner of a lease of the building or of
the land and the building), so that in the event of any transfer of title to
said land and building or said lease, or in the event of a lease of the
building, or of the land and building, upon notification to Lessee of such
transfer or lease the said transferor Lessor shall be and hereby is entirely
freed and relieved of all existing or future covenants, obligations and
liabilities of Lessor hereunder.
36. MISCELLANEOUS: The captions appearing in this Lease are inserted only
as a matter of convenience and in no way define, limit, construe or describe the
scope or intent of such paragraph. If any provision of this Lease shall ever be
held to be invalid or unenforceable, such invalidity or unenforceability shall
not affect any other provision of this Lease, and such other provisions shall
continue in full force and effect.
37. NOTICE: (a) All rent and other payments required to be made by Lessee
shall be payable to Lessor at the first address set forth below.
(b) All payments required to be made by Lessor to Lessee shall be payable
to Lessee at the address set forth below, or at any other address within the
United States as Lessee may specify from time to time by written notice.
(c) Any notice or document required or permitted to be delivered by this
Lease shall be deemed to be delivered (whether or not actually received) when
deposited in the United States Mail, or hand delivered, postage prepaid,
certified mail, return receipt requested, addressed to the parties at all
respective addresses set out below:
LESSOR: LESSEE:
Hamad Jassim Althani by Rajai Zumot Blue Cross and Blue Shield of North Carolina
c/o Property Resources P.O. Box 2291
P.O. Box 19206 Durham, NC 27702-2291
Raleigh, North Carolina 27619
Attention: Mark Andrews Attn: Conway Spiers
Senior Vice President Finance
38. ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES: IT IS EXPRESSLY AGREED
BY LESSEE, AS A MATERIAL CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT
THIS LEASE, WITH THE SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE
ENTIRE AGREEMENT OF THE PARTIES; THAT THERE ARE AND WERE NO VERBAL
REPRESENTATIONS, WARRANTIES, UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR
PROMISES PERTAINING TO THIS LEASE OR THE EXPRESSLY MENTIONED WRITTEN EXTRINSIC
DOCUMENTS NOT INCORPORATED IN WRITING IN THIS LEASE. LESSOR AND LESSEE EXPRESSLY
AGREE THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY.
<PAGE>
HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT
OF THIS LEASE AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY
SET FORTH IN THIS LEASE. IT IS LIKEWISE AGREED THAT THIS LEASE MAY NOT BE
ALTERED, WAIVED, AMENDED OR EXTENDED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED
BY BOTH LESSOR AND LESSEE. THE FOLLOWING DOCUMENTS ARE ATTACHED HERETO AND
INCORPORATED HEREIN BY REFERENCES.
39. HAZARDOUS WASTE: Tenant further covenants and agrees that it will not
use, keep or suffer to be kept, or generate or store any hazardous substances,
pollutants or contaminants (collectively, "Hazardous Substance") in, upon or
about the Premises or the Building. Tenant shall promptly remove and clean up
any Hazardous Substance brought on to or about the Premises or the Building in
violation of this provision. Tenant shall indemnify Landlord for all costs and
expenses, incurred by Landlord to correct any violation of this covenant, or to
remove, neutralize or render harmless any Hazardous Substance, or to comply with
the requirements of any regulatory body having jurisdiction over hazardous
substances, or to contest the actions of any such regulatory body with respect
to the Building. Tenant's agreement to indemnify Landlord just given shall
survive the termination of this Lease. In the event of a breach of this
covenant, then in addition to any other remedies available to Landlord, Landlord
at its sole option may declare Tenant to be immediately in default hereof and in
forfeiture of its rights to occupy the Premises under this Lease, and may cause
Tenant to be immediately removed from the Premises, which events shall not
release Tenant from its covenant to pay Rent or otherwise relieve Tenant from
any monetary obligation under this lease.
40. OTHER PROVISIONS:
See Attached Exhibit E "Expansion Option"/"Renewal Option".
LESSOR'S LIABILITY:
Lessee agrees to look solely to Lessor's interest in the property, or the lease
of the building or of the property, and the leased premises, for the
satisfaction of any right or remedy of Lessee for the collection of a judgment
(or other judicial process) requiring the payment of money by Lessor, in the
event of any liability by Lessor, and no other property or assets of Lessor
shall be subject to levy, execution, attachment, or other enforcement, procedure
for the satisfaction of Lessee's remedies under or with respect to the Lease,
the relationship of Landlord and Lessee hereunder, or Lessee's use and occupancy
of the demised premises, or any other liability of Landlord to Lessee.
Signed at /s/ Rajai Zumot , this 8th day of November, 1994.
------------------------- --- -------- --
LESSOR: LESSEE:
BLUE CROSS AND BLUE SHIED OF
HAMAD JASSIM ALTHANI BY RAJAI ZUMOT NORTH CAROLINA
----------------------------------- -----------------------------------
Property Resources as Agent By /s/ Kenneth C. Otis II
--------------------------------
By: /s/ (Signature Illegible) Kenneth C. Otis, II, President
------------------------------- -----------------------------------
PRINCIPAL (Type Name and Title)
Attest:
(Corporate Seal)
By /s/ (Signature Illegible)
--------------------------------
--------------------------Secretary
<PAGE>
EXHIBIT A
LEASED PREMISES AND
LESSOR IMPROVEMENTS
Leased Premises:
----------------
(Diagram of Southpark Center's third floor appears here, depicting premises
that are leased.)
LESSOR IMPROVEMENTS:
Lessor shall provide an allowance for Lessor Improvements of $90,000.00 to
retrofit the Leased Premises. Any costs beyond this level shall be paid for by
Lessee. The plans and specifications shall be approved and signed by both
parties prior to the commencement of construction.
<PAGE>
Exhibit B
Form of Estoppel Certificate
The undersigned __________________________________________________________
("Lessee"), in consideration of One Dollar ($1.00) and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
hereby certifies to ________________________________________________________
("Lessor"), [the holder or prospective holder of any mortgage or deed of trust
covering the property] (the "Mortgagee") and [the vendee under any contract of
sale with respect to the Property] (the "Purchaser") as follows:
1. Lessee executed and exchanged with Lessor a certain lease (the "Lease"),
dated ________________________, 19________, covering the _______________________
floor shown attached on the plan annexed hereto as Exhibit A (the "leased
premises") in the building located in the _____________________________________
known as and by the street number __________________________ (the "Property"),
for a term to commence (or which commenced) on ___________________, 19______,
and to expire on ______________________________________.
2. The Lease is in full force and effect and has not been modified,
changed, altered or amended in any respect.
3. Lessee has accepted and is now in possession of the leased premises and
is paying the full rental under the Lease.
4. The base rental payable under the Lease is $__________________ per
month. The base rental and all additional rent and other charges required to be
paid under the Lease have been paid for the period up to and including
________________________.
5. No rent under the Lease has been paid for more than thirty (30) days in
advance of its due date.
6. All work required under the Lease to be performed by Lessor has been
completed to the full satisfaction of Lessee.
7. There are no defaults existing under the Lease on the part of either
Lessor or Lessee.
8. There is no existing basis for Lessee to cancel or terminate the Lease.
9. As of the date hereof, there exists no valid defense, offsets,
credits, deductions in rent or claims against the enforcement of any of the
agreements, terms, covenants or conditions of the Lease.
10. Lessee affirms that any disputes with Lessor giving rise to a claim
against Lessor is a claim under the Lease only and is subordinate to the rights
of the holder of all mortgages or deeds of trust of the fee or leasehold of the
building and shall be subject to all the terms, conditions and provisions
thereof. Any such claims are not offsets to or defense against enforcement of
the Lease.
11. Lessee affirms that any dispute with Lessor giving rise to a claim
against Lessor is a claim under the Lease only and is subordinate to the rights
of the Purchaser pursuant to any contract of sale. Any such claims are not
offsets to or defense against enforcement of the Lease.
12. Lessee affirms that any claims pertaining to matters in existence at
the time Lessee took possession and which are known to or which were then
readily ascertainable by Lessee shall be enforced solely by money judgment
and/or specific performance against Lessor named in the Lease and may not be
enforced as an offset to or defense against enforcement of the Lease.
13. There are no actions, whether voluntary or otherwise, pending against
Lessee under the bankruptcy laws of the United States or any state thereof.
14. There has been no material adverse change in Lessee's financial
condition between the date hereof and the date of the execution and delivery of
the Lease.
15. Lessee acknowledges that Lessor has informed Lessee that an assignment
of Lessor's interest in the Lease has been or will be made to the Mortgagee and
that no modification, revision, or cancellation of the Lease or amendments
thereto shall be effective unless a written consent thereto of the Mortgagee is
first obtained, and that until further notice payments under the Lease may
continue as heretofore.
16. Lessee acknowledges that Lessor has informed Lessee that Lessor has
entered into a contract to sell the Property to Purchaser and that no
modification, revision or cancellation of the Lease or amendments thereto shall
be effective unless a written consent thereto of the Purchaser has been
obtained.
17. This certification is made to induce Purchaser to consummate a purchase
of the Property and to induce Mortgagee to make and maintain a mortgage loan
secured by the Property and/or to disburse additional funds to Lessor under the
terms of its agreement with Lessor, knowing that said Purchaser and Mortgagee
rely upon the truth of this certification in making and/or maintaining such
purchase or mortgage or disbursing such funds, as applicable.
-1-
<PAGE>
18. Except as modified herein, all other provisions of the Lease are hereby
ratified and confirmed.
By: ______________________________________
LESSEE
___________________________________________
DATE
-2-
<PAGE>
Exhibit C
Specifications for Janitorial Services
DAILY: OFFICES, KITCHENETTE
Empty waste containers and reline
Empty and wipe ash trays
Dust horizontal surfaces
Dust window ledges
Vacuum rugs and carpeting
Clean drinking fountains
Spot wash partitions, walls, and doors as needed
Spot clean rugs and carpeting
Clean all door glass
Clean stairwells
Sweep or dust tile floors
Spot mop tile floors and clean stains
Clean sinks and counters in kitchenette
RESTROOMS
Empty waste containers
Clean and polish sinks
Clean and sanitize urinals
Clean and sanitize toilets
Spot wash partitions and walls
Clean and wash mirrors
Replenish all paper and soap dispensers
Replenish sanitary napkins
Sweep and mop floors with disinfectant
ENTRANCES AND WALKWAYS
Wash entry door glass
Main entrance swept and polished
Mats lifted and swept
ELEVATORS
Metal inside and outside dusted and polished
Carpets cleaned and vacuumed
Elevator tracks vacuumed
WEEKLY: Dust vertical surfaces (ledges, door jambs, etc.)
Damp mop floors
MONTHLY: Wash all exterior lobby glass, inside and outside
Refinish lobby floor
QUARTERLY: Strip and refinish tile floors
Clean baseboards
Clean air grills and vents
MISCELLANEOUS: Extra charge, upon request only
Refer to cost of services
Any services not covered under contract
<PAGE>
TOWER SECTION (IF APPLICABLE)
21. Movement in or out of the building of furniture or office supplies and
equipment, or dispatch or receipt by Lessee of any merchandise or materials,
which require use of elevators or stairways, or movement through the
building entrances or lobby, shall be restricted to hours designated by
Lessor. All such movement shall be under supervision of Lessor and carried
out in the manner agreed between Lessee and Lessor by prearrangement before
performance. Such prearrangement will include determination by Lessor of
time, method, and routing of movement and limitations imposed by safety or
other concerns which may prohibit any article, equipment or any other item
from being brought into the building. Lessee assumes, and shall indemnify
Lessor against, all risks and claims of damage to persons and properties
arising in connection with any said movement.
22. Lessor will provide and maintain an alphabetical directory board in the
ground floor lobby of the building and allot one name strip for Lessee.
23. Lessor shall not be liable for any damages from the stoppage of elevators
for necessary or desirable repairs or improvements or delays of any sort of
duration in connection with the elevator service.
It is Lessor's desire to maintain in the building or project the highest
standard of dignity and good taste consistent with comfort and convenience for
Lessees. Any action or condition not meeting this high standard should be
reported directly to Lessor. Your cooperation will be mutually beneficial and
sincerely appreciated. Lessor reserves the right to make such other and further
reasonable rules and regulations as in its judgment may from time to time be
necessary, for the safety, care and cleanliness of the leased premises, and for
the preservation of good order therein.
<PAGE>
EXHIBIT D
RENT SCHEDULE
During the first through the twelfth month of the Term, Monthly Rent shall be
Fifteen Thousand Three Hundred and Seven dollars and Fifty Four cents
($15,307.54).
During the thirteenth through the twenty-fourth month of the Lease Term, monthly
rent shall be Fifteen Thousand Nine Hundred and Nineteen dollars and Eighty
Four cents ($15,919.84).
During the twenty-fifth through the thirty-sixth month of the Lease Term,
Monthly Rent shall be Sixteen Thousand Five Hundred Fifty Six dollars and Sixty
Four cents ($16,556.64).
During the thirty-seventh through the forty-eighth month of the Lease Term,
Monthly Rent shall be Seventeen Thousand Two Hundred Eighteen dollars and Ninety
cents ($17,218.90).
During the forty-ninth through the sixtieth month of the Lease Term, Monthly
Rent shall be Seventeen Thousand Nine Hundred and Seven dollars and Sixty-Six
Cents ($17,907.66).
<PAGE>
EXHIBIT E
EXPANSION OPTION / RENEWAL OPTION
1. First Right to Lease: Provided Lessee is not in default under any of the
terms of the Lease, Lessee shall have a first right to lease any additional
space on the Third Floor of the Building that becomes vacant. Prior to Lessor
leasing any vacant area on the third floor to a third party, Lessor shall
provide Lessee with notice of the vacancy and the existence of a rental
prospect and Lessee must exercise this first right to lease, if at all, within
three (3) business days of the date of the notice by giving to Lessor written
notice of its intent to lease the additional space. If Lessee does exercise its
first right to lease, then the additional space shall immediately be added to
the Lease Premises under the same terms and conditions as apply to the Lease
Premises at that time, with Rent for the additional office space at the same
rate per square foot as set out in the Lease and terminating on the same date,
unless renewed or extended. Lessee's failure to exercise its first right to
lease in any one instance shall not operate as a waiver of this right. For
purposes of prorating various expenses, the portion of the building represented
by the Leased Premises shall be adjusted accordingly.
2. Renewal Option: Provided Lessee is not in default under any of the terms of
the Lease, Lessee shall have the right to renew the term of the Lease for one
(1) additional term of five (5) years, provided Lessee has given Lessor at
least 180 days prior written notice of its intent to exercise its right. The
terms and conditions of the Lease for the renewal period shall be the same as
specified in the Lease except that Rental Rate and Lessor Improvements shall be
at the current market rates at the time the option is exercised.
<PAGE>
EXHIBIT F
CONTINUATION OF "RENT" SECTION 3(A)
Notwithstanding the foregoing, if all but a portion of the Leased Premises is
not available for occupancy on the "Commencement Date", the monthly rental set
forth above shall be prorated from the date the entire Leased Premises is
available for occupancy (the "date of full occupancy") to the end of that
calendar month and the monthly base rental for the period from the
"Commencement Date" to the date of full occupancy shall (1) be the percentage of
the monthly rental set forth above which is proportionate to the amount of the
Leased Premises that is available for occupancy and (2) shall be prorated from
the "Commencement Date" to the date of full occupancy.
<PAGE>
STATE OF NORTH CAROLINA
FIRST AMENDMENT TO
LEASE AGREEMENT
COUNTY OF DURHAM
THIS FIRST AMENDMENT TO LEASE AGREEMENT (the "First Amendment") is made and
entered into this 15th day of December, 1995 by and between Hamad Jassim Althani
by Rajai Zumot (hereinafter referred to as "Lessor") and Blue Cross and Blue
Shield of North Carolina (hereinafter referred to as "Lessee").
WITNESSETH:
WHEREAS, pursuant to that certain Lease dated November 8, 1994 (the
"Lease") by and between Lessor and Lessee, Lessor leased to Lessee certain
premises containing approximately 11,851 rentable square feet (the "Premises"),
in a building known as South Park Office Center, Durham, Durham County, North
Carolina (the "Building"), all as more particularly described in the Lease, for
a term which commenced on January 1, 1995 and expires on December 31, 1999 (the
"Original Term"); and
WHEREAS, Lessor and Lessee desire to amend the Lease to, among other
things, increase the rentable square footage leased by the Lessee by 4,282 to
16,133 total rentable square feet, and extend the term of the Lease.
NOW, THEREFORE, for and in consideration of the premises, mutual promises
and the provisions contained herein, and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged,
Lessor and Lessee hereby agree to amend the Lease as follows:
1. Demised Premises. Lessee hereby agrees to rent from Lessor, an
additional 2,738 rentable square feet in the Building, more particularly
described as Suite 390, an additional 1,069 rentable square feet in the
Building, more particularly described as Suite 311, and an additional 475
rentable square feet in the Building, more particularly described as Suite 415
(collectively referred to as the "Additional Premises"), commencing on January
1, 1996, running concurrent with the Original Term, and expiring on December 31,
1999. Provided, however, Lessee understands and acknowledges that the additional
1,069 rentable square feet, referred to above, and the additional 475 rentable
square feet, referred to above, are not currently available to be rented to
Lessee by Lessor. Lessee hereby agrees to accept the additional 1,069 rentable
square feet and the additional 475 rentable square feet as soon as they are made
available to Lessee for occupancy by Lessor, but in no event earlier than
January 1, 1996. Lessee hereby agrees, acknowledges and understands that said
additional 1,069 rentable square feet and said additional 475 rentable square
feet shall not be made available for occupancy to Lessee by Lessor until the
current tenants occupying
<PAGE>
said spaces have moved out of said spaces and executed acceptable Termination
Agreements and any and all other documents required by Lessor. Lessor agrees to
notify Lessee when said spaces are available for occupancy, and Lessee agrees to
begin paying rent on the additional 1,069 rentable square feet and the
additional 475 rentable square feet when said spaces are made available for
occupancy by Lessee.
2. Rent for Additional Premises. In addition to the rent payable under the
Lease for the Premises, the minimum annual rent payable under the Lease for the
Additional Premises shall be payable in equal monthly installments in accordance
with Paragraph 3 of the Lease, without set-off or deduction, as set forth below:
Lease Year Annual Rent Per Square Foot Additional Monthly Rent
January 1, 1996-
December 31, 1996 $16.12 $5,752.15/month
January 1, 1997-
December 31, 1997 $16.76 $5,980.53/month
January 1, 1998-
December 31, 1998 $17.44 $6,223.17/month
January 1, 1999-
December 31, 1999 $18.13 $6,469.39/month
Note: The above-stated Additional Monthly Rental amounts assume Lessee
takes occupancy of the additional 1,069 rentable square feet and the additional
475 rentable square feet and begins paying rent for said spaces on January 1,
1996. In the event Lessee takes occupancy of the additional 1,069 rentable
square feet and/or the additional 475 rentable square feet after January 1,
1996, Lessor agrees the Additional Monthly Rental amounts shall be prorated
accordingly.
Note Further: For the purposes of prorating various expenses, the
Additional Premises leased by the Lessee during the Original Term will represent
an additional 7.39% of the Building.
3. Extension of Lease Term for the Premises and Additional Premises. The
term of the Lease for the Premises and Additional Premises, a total of 16,133
rentable square feet, shall be extended for an additional two (2) year term,
commencing on January 1, 2000 and expiring on December 31, 2001 (the "Extended
Term").
4. Rent for Extended Term. The minimum annual rent payable under the Lease
for the Extended Term shall be payable in equal monthly installments in
accordance
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<PAGE>
with Paragraph 3 of the Lease, without set-off or deduction, as set forth below:
Lease Year Annual Rent Per Square Foot Monthly Rent
January 1, 2000-
December 31, 2000 $18.85 $25,342.25/month
January 1, 2001-
December 31, 2001 $19.60 $26,350.57/month
Note: For the purposes of prorating various expenses, the total space
leased
by the Lessee during the Extended Term will represent 27.83% of the Building.
5. Renewal Option. Lessee's Renewal Option, as provided in Exhibit E,
Paragraph 2, of the Lease, shall be deleted and replaced with the following
Renewal Option: At the expiration of the Extended Term, provided Lessee is not
in default under any of the terms of the Lease and any amendments thereto,
Lessee shall have the right to renew the term of the Lease for one (1)
additional term of five (5) years, provided Lessee has given Lessor at least 180
days prior written notice of Lessee's intent to exercise its right to renew. The
rental rate for such renewal period shall be at the current market rate at the
time the option is exercised.
6. Operating Expenses. For the purposes of the Additional Premises during
the Original Term, and the Premises and the Additional Premises during the
Extended Term, the 1995 calendar year will be the "Base Year" for the
determination of calculating any excess operating expenses payable by the Lessee
as additional rent.
7. Improvements. Lessor shall provide Lessee a maximum amount of
$19,269.00, which equals $4.50 per rentable square foot multiplied by the 4,282
rentable square feet, as an allowance for making improvements to the additional
4,282 rentable square feet. Lessee will submit to Lessor an outline of
improvements for Lessor's approval, and such approval will not be unreasonably
withheld. Lessee agrees that all such work shall be completed in a good and
workmanlike manner and that such improvements to the Additional Premises shall
be in compliance with federal, state and local law, including, but not limited
to, the Americans with Disabilities Act (the "ADA") and, upon request of Lessor,
Lessee shall provide Lessor with evidence reasonably satisfactory to Lessor that
such work was performed in compliance with the ADA. Furthermore, Lessee
covenants and agrees that any and all future alterations or improvements made by
Lessee to the Additional Premises or the Premises shall comply with the ADA.
8. Mutual Acknowledgment of Non-Existence of Claims. Lessor and Lessee
acknowledge and agree that as of the date hereof there are no known claims by
either
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<PAGE>
party against the other party hereto arising from their relationship as Lessor
and Lessee pursuant to the terms of the Lease, as amended.
9. Binding Effect. This First Amendment shall apply to, inure to the
benefit of, and be binding upon the parties hereto and upon their respective
heirs, legal representatives, successors and permitted assigns, except as
otherwise provided herein.
10. Full Force and Effect. Except as amended hereby, all terms, covenants
and conditions of the Lease shall remain the same and continue in full force and
effect and shall be deemed unchanged. To the extent that there is any conflict
between the terms of this First Amendment and those of the Lease, the terms of
this First Amendment will govern.
11. Effective Date. The provisions of this First Amendment are effective on
December __, 1995.
IN WITNESS WHEREOF, the parties hereto have hereunto executed this First
Amendment as of the day and year first above written.
Lessor:
Hamad Jassim Althani by Rajai Zumot
(Corporate Seal)
By: /s/ Rajai Zumot
--------------------------------------------
Title: General Agent
--------------------------------------------
Lessee:
Blue Cross and Blue Shield of North Carolina
(Corporate Seal)
By: /s/ Kenneth C. Otis II
--------------------------------------------
Title: President
--------------------------------------------
Attest:
By: /s/ (Signature Illegible)
----------------------------
Title: Secretary
----------------------------
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<PAGE>
STATE OF NORTH CAROLINA
SECOND AMENDMENT TO
LEASE AGREEMENT
COUNTY OF DURHAM
THIS SECOND AMENDMENT TO LEASE AGREEMENT (the "Second Amendment") is made
and entered into this ____ day of January, 1999 by and between Hamad Jassim
Althani by Rajai Zumot ("Landlord") and Blue Cross and Blue Shield of North
Carolina ("Tenant").
WITNESSETH:
WHEREAS, pursuant to that certain Lease dated November 8, 1994 (the
"Lease") by and between Landlord and Tenant, Landlord leased to Tenant certain
premises containing approximately 11,851 rentable square feet (the "Premises"),
in a building known as South Park Office Center, Durham, Durham County, North
Carolina (the "Building"), all as more particularly described in the Lease, for
a term which commenced on January 1, 1995 and expires on December 31, 1999; and
WHEREAS, pursuant to that First Amendment to Lease Agreement dated December
15, 1995, ("First Amendment"), Landlord and Tenant amended the Lease to, among
other things, increase the rentable square footage leased by Tenant by 4,282
rentable square feet to 16,133 total rentable square feet, and extend the term
of the Lease to expire on December 31, 2001, and set forth the rent for the
original and the extended term.
WHEREAS, Landlord and Tenant desire to amend the Lease to, among other
things, decrease the rentable square footage leased by the Tenant by 475
rentable square feet, more particularly described as Suite 415 of the Building,
to 15,658 total rentable square feet and adjust the rent accordingly.
NOW, THEREFORE, for and in consideration of the premises, mutual promises
and the
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<PAGE>
provisions contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Landlord and Tenant
hereby agree to amend the Lease as follows:
1. Effective on the date first set forth above, which shall be the date
that this Second Amendment is fully executed by Landlord and Tenant ("Effective
Date"), the Premises are hereby reduced by 475 rentable square feet, being more
particularly described as Suite 415 of the Building, to 15,658 total rentable
square feet.
2. The minimum annual rent for the Premises shall be reduced by the amount
obtained when 475 is multiplied by the applicable rent per rentable square foot.
The new minimum annual rent shall be payable in equal monthly installments in
accordance with Paragraph 3 of the Lease, without set off or deduction as set
forth on the following schedule:
Lease Year Monthly Base Rent
Effective Date - December 31, 1999 $23,656.63 ($18.13 per square foot)
January 1, 2000 - December 31, 2000 $24,596.11 ($18.85 per square foot)
January 1, 2001 - December 31, 2001 $25,574.73 ($19.60 per square foot)
3. After reducing the Premises by 475 rentable square feet, for the
purposes of prorating various expenses for calculating additional rent, the
total space leased by the Tenant as of the Effective Date is 27.01% of the
Building.
4. Except as amended herein, Landlord and Tenant acknowledge and agree that
all other terms, conditions and provisions of the Lease, as amended by the First
and Second Lease Amendments, shall be and remain in full force and effect. All
defined terms from the Lease used herein shall have the same meanings as used in
the Lease.
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<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment
effective as of the day and year first above written.
LANDLORD:
Hamad Jassim Althani by Rajai Zumot
By:
--------------------------------------------
Title:
--------------------------------------------
TENANT:
Blue Cross and Blue Shield of North Carolina
By:
--------------------------------------------
Title:
--------------------------------------------
Attest:
By:
----------------------------
Title: Secretary
-------------------
(corporate seal)
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