EXHIBIT 10.1
Exhibit 1
STATE OF SOUTH CAROLINA:
COUNTY OF RICHLAND:
OFFICE LEASE
THIS LEASE
("Lease"), made this 1 day of OCTOBER, 2005, by and between AP
SOUTHEAST PORTFOLIO PARTNERS, L.P., a Delaware limited partnership,
("Landlord")
and BIOTEL, INC., A MINNESOTA CORPORATION, ("Tenant"), Provides as
follows:
1. BASIC
DEFINITIONS AND
PROVISIONS. The
following basic definitions and
provisions apply to this Lease:
a.
PREMISES.
Rentable Square Feet: APPROXIMATELY 2,903
Suite:
B 450
Building:
FONTAINE II
Street Address: 400
ARBOR LAKE DRIVE
City/County:
Columbia, County of Richland
State/Zip Code:
South Carolina,
b. TERM.
Number of Months: FORTY-TWO
(42)
Commencement Date: NOVEMBER 1, 2005
Expiration Date: APRIL 30,
2009
c.
PERMITTED USE.
General Office Use
d.
OCCUPANCY LIMITATION.
No more than five (5) persons per
one thousand (1,000) rentable
square feet.
e. BASE
RENT. The minimum base rent for the Term is ($129,473.80),
payable
in monthly
installments
on the 1st day of each
month in accordance
with the
following Base Rent Schedule:
---------------------------------------------------------------------
RATE PER SQUARE MONTHLY
FROM
TO
FOOT
RENT CUMULATIVE
RENT
---------------------------------------------------------------------
11/1/2005 4/30/2006
$
0.00
$
0.00
$ 0.00
---------------------------------------------------------------------
5/1/2006
4/30/2007 $
14.50 $ 3,507.79
$
42,093.50
---------------------------------------------------------------------
5/1/2007
4/30/2008 $
14.85 $ 3,592.46
$
43,109.55
---------------------------------------------------------------------
5/1/2008
4/30/2009 $
15.25 $ 3,689.22
$
44,270.75
---------------------------------------------------------------------
f. RENT
PAYMENT ADDRESS.
HIGHWOODS REALTY LIMITED PARTNERSHIP
c/o Highwoods Properties
P.O. Box 409400
Atlanta, Georgia 30384
Tax ID #: 56-1869557
g.
SECURITY DEPOSIT.
N/A
h.
BUSINESS HOURS.
8:00 A.m. to 6:00 P.m.
Monday through
Friday
(excluding National and State holidays).
i.
ELECTRICAL SERVICE. No more than 3.5
watts per usable
square foot
for convenience outlets.
j. AFTER
HOURS HVAC RATE.
Current charge of
$35.00 Per hour, per
zone,
with a minimum of two (2) hours per
occurrence.
k.
PARKING.
Unreserved, not to exceed 4.8 SPACES PER 1,000
RENTABLE SQUARE FEET OF THE PREMISES.
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l. ACCESS
CARDS:
N/A after hour access cards upon commencement.
Current charge of $25.00 per additional card or
replacement card.
m.
CONSTRUCTION FEE. The
Construction Supervision
Fee
for
alterations is 5% of
the cost of the work. The
construction
supervision fee
for Tenant
Improvements is set
forth in the Workletter
attached as Addendum Number One.
n. NOTICE
ADDRESSES.
LANDLORD:
HIGHWOODS REALTY LIMITED PARTNERSHIP
c/o Highwoods Properties, Inc.
2120 West End Avenue, Suite 100
Nashville, Tennessee 37203
Attn: Manager, Lease Administration
Facsimile: (615) 320-5607
With a copy to:
HIGHWOODS REALTY LIMITED PARTNERSHIP
c/o Highwoods Properties, Inc.
3100 Smoketree Court, Suite 600
Raleigh, North Carolina 27604
Attn: Manager, Lease Administration
Facsimile #: (919) 876-2448
TENANT: 400
ARBOR LAKE DRIVE
SUITE B 450
COLUMBIA, SOUTH CAROLINA 29223
------------------------------------
Attn.:
---------------------------------------
Facsimile #:
---------------------------
WITH A COPY TO:
BIOTEL, INC.
11481 RUPP DRIVE
BURNSVILLE, MN 55337
ATTN: STEVE SPRINGROSE
North American Industry Classification System (NAICS) Code
---------------------------------------
o.
BROKER.
BERONICA M. WHISNANT
COLLIERS KEENAN
POST OFFICE BOX 11610
COLUMBIA, SOUTH CAROLINA 29211-1610
2. LEASED
PREMISES.
a.
PREMISES. Landlord leases to Tenant and Tenant leases from Landlord
the
Premises identified in
Section 1a and as more particularly shown on EXHIBIT A,
attached hereto.
b.
RENTABLE SQUARE FOOT
DETERMINATION. The parties acknowledge that all
square foot
measurements
are approximate and agree that the square
footage
figures in Section 1a shall be conclusive for all purposes with respect to
this
Lease.
c. COMMON
AREAS. Tenant shall have non-exclusive access to the common
areas of the Building.
The common areas
generally include space that is not
included in
portions of the building set aside for leasing to tenants or
reserved for Landlord's exclusive use, including entrances,
hallways, lobbies,
elevators, restrooms, walkways and plazas ("Common Areas").
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Landlord has the exclusive right to (i) designate the Common Areas,
(ii) change
the designation of any
Common Area and otherwise modify the Common Areas,
and
(iii) permit special use of the Common Areas, including temporary exclusive
use
for special occasions.
Tenant shall not
interfere with the rights of others to
use the Common Areas.
All use of the Common Areas shall be subject to any rules
and regulations promulgated by Landlord.
3.
TERM.
a.
COMMENCEMENT
AND EXPIRATION DATES. The Lease Term commences on
the
Commencement Date and
expires on the
Expiration Date, as
set forth in Section
1b.
b.
ADJUSTMENTS
TO COMMENCEMENT DATE. The Commencement Date shall be
adjusted as follows:
i. If
Tenant requests possession of the Premises prior to the
Commencement Date, and Landlord consents, the Commencement Date
shall be the date of possession. All rent and other obligations
under this Lease shall begin on the date of possession,
but the
Expiration Date shall remain the same.
ii. If Landlord,
for any reason,
cannot deliver
possession of the
Premises to
Tenant on the Commencement Date, then the
Commencement Date, Expiration Date, and all other dates that
may
be affected by their change, shall be revised to conform to
the
date of Landlord's
delivery of
possession
of the Premises to
Tenant.
Any such delay shall not relieve Tenant of its
obligations
under this
Lease, and neither Landlord nor
Landlord's agents
shall be liable
to Tenant for any loss or
damage resulting from the delay in delivery of possession.
c.
TERMINATION BY TENANT FOR FAILURE TO DELIVER POSSESSION. In the event
Landlord is unable to deliver possession of the Premises within
(90) days after
the original Commencement Date set forth in the first sentence of
this Section 2
(excluding any
delays resulting from FORCE MAJEURE or caused by Tenant -
"Excused Delays"),
then Tenant may
terminate this Lease by giving notice to
Landlord within
one hundred (100) days of the original Commencement Date
(excluding Excused Delays). Tenant may not terminate the
Lease, however, if
it
has taken possession of any part of the Premises.
d.
DELIVERY OF POSSESSION. Unless otherwise specified in the Workletter
attached as Lease Addendum Number One, "delivery of possession" of the
Premises
shall mean the earlier
of: (i) the date
Landlord has the
Premises ready for
occupancy by Tenant as evidenced by a permanent or temporary Certificate of
Occupancy issued by
proper governmental
authority,
or (ii) the date
Landlord
could have had the
Premises ready had there been no Delays attributable to
Tenant.
e.
ADJUSTMENT OF EXPIRATION DATE. If the Expiration Date does not
occur on
the last day of a calendar month, then Landlord, at its option, may extend the
Term by the number of days necessary to cause the
Expiration
Date to occur on
the last day of the last calendar month of the Term. Tenant shall pay Base Rent
and Additional Rent
for such additional
days at the same rate
payable for the
portion of the last calendar month immediately preceding such
extension.
f. RIGHT
TO OCCUPY. Tenant
shall not occupy the Premises until Tenant has
complied with all of the following requirements to the extent
applicable under
the terms of this Lease: (i) delivery of all certificates of insurance, (ii)
payment of Security
Deposit, (iii)
execution and delivery of any required
Guaranty of Lease, and
(iv) if Tenant is an entity, receipt of a good standing
certificate from the State where it was organized and a certificate
of authority
to do business in the State in which the Premises are located (if different).
Tenant's failure to
comply with these (or
any other conditions
precedent to
occupancy under the terms of this Lease) shall not delay the
Commencement Date.
g.
COMMENCEMENT
AGREEMENT.
The Commencement
Date, Term, and
Expiration
Date may be set forth in a Commencement Agreement similar to
EXHIBIT C, attached
hereto, to be prepared by Landlord and executed by the parties.
4.
USE.
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a.
PERMITTED USE. The Premises may be used only for general office
purposes in connection with Tenant's Permitted Use as defined in
Section 1c and
in accordance with the Occupancy Limitation as set forth in Section
1d.
b.
PROHIBITED USES. Tenant shall not use the Premises:
i. In
violation of any
restrictive
covenants which apply to the
Premises;
ii. In any
manner that constitutes a nuisance or trespass;
iii. In any manner
which increases any insurance premiums, or makes
such insurance unavailable to Landlord on the Building;
provided
that, in the
event of an increase in Landlord's insurance
premiums which
results from Tenant's use of the Premises,
Landlord may elect to
permit the use and charge Tenant for the
increase in premiums,
and Tenant's failure to pay Landlord, on
demand, the
amount of such increase shall be an event of
default;
iv. In any
manner that creates
unusual demands for electricity,
heating or air conditioning; or
v. For any
purpose except the Permitted Use, unless consented to by
Landlord in writing.
c.
PROHIBITED
EQUIPMENT IN PREMISES. Tenant shall not install any
equipment in the Premises that places unusual demands on the
electrical, heating
or air conditioning
systems ("High Demand Equipment") without Landlord's prior
written consent. No
such consent will be given if Landlord determines, in its
opinion, that such
equipment may not be safely used in the Premises or that
electrical service is not adequate to support the equipment.
Landlord's consent
may be conditioned,
without limitation, upon separate metering of the High
Demand Equipment
and Tenant's payment of all engineering, equipment,
installation,
maintenance, removal
and restoration
costs and utility
charges
associated with the High Demand Equipment and the separate meter.
If High Demand
Equipment used in the
Premises by Tenant affect the temperature otherwise
maintained by the heating and air conditioning system, Landlord shall have the
right to install
supplemental air
conditioning units in
the Premises with the
cost of engineering, installation, operation and maintenance of the units to be
paid by Tenant. All
costs and expenses
relating to High Demand Equipment and
Landlord's
administrative costs
(such as reading meters and calculating
invoices) shall be Additional Rent, payable by Tenant upon
demand.
5.
RENT.
a. PAYMENT
OBLIGATIONS.
Tenant shall pay Base
Rent and Additional
Rent
(collectively, "Rent")
on or before the first day of each calendar month during
the Term, as follows:
i. Rent
payments shall be sent to the Rent
Payment Address set
forth in Section 1f.
ii. Rent shall
be paid without previous demand or notice and without
set off or deduction. Tenant's obligation to pay Rent under
this
Lease is completely separate and independent from any of
Landlord's obligations under this Lease.
iii. If the Term
commences on a day other than the first day of a
calendar month,
then Rent for such
month shall be (i) prorated
for
the period between the Commencement Date and the last day of
the month in which the Commencement Date falls, and (ii) due
and
payable on the Commencement Date.
iv. For each
Base Rent payment
Landlord receives after the tenth
(10th) day
of the month and each Additional Rent payment
Landlord receives after its due date, Landlord shall be
entitled
to all default remedies provided under the terms of this
Lease,
and a late charge in
the amount of five
percent (5%) of such
Rent due.
v. If
Landlord presents
Tenant's check to any
bank and Tenant has
insufficient funds to pay for such check, then Landlord shall
be
entitled to all default
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remedies provided
under the terms of this Lease and the maximum
lawful bad check fee or five percent (5%) of the amount of
such
check, whichever amount is less.
b. BASE
RENT. Tenant shall pay Base Rent as set forth in Section 1e.
c.
ADDITIONAL RENT. In addition to Base Rent, Tenant shall pay as rent
all
sums and charges due and payable by Tenant under this Lease
("Additional Rent"),
including, but not limited to, the following:
i.
Tenant's Proportionate
Share of the increase in Landlord's
Operating Expenses as set forth in Lease Addendum Number Two;
ii. Any sales or
use tax imposed on rents collected by Landlord or
any tax on rents in lieu of ad valorem taxes on the Building,
even though laws imposing such taxes attempt to require
Landlord
to pay the same; provided, however, if any such sales or use
tax
are imposed on Landlord and Landlord is prohibited by
applicable
law from collecting
the amount of such tax from Tenant as
Additional Rent,
then Landlord, upon sixty (60) days prior
notice to Tenant, may terminate this Lease; and
iii. Any construction supervision fees in connection with the
construction of
Tenant Improvements or alterations to the
Premises.
6.
SECURITY DEPOSIT.
a.
AMOUNT OF DEPOSIT. Tenant shall deposit with Landlord a Security
Deposit within ten
(10) days following the date of this Lease in the amount set
forth in Section
1g, which sum Landlord shall retain as security for the
performance by Tenant of each of its obligations hereunder. The
Security Deposit
shall not bear interest.
b.
APPLICATION OF
DEPOSIT. If Tenant at
any time fails to perform any of
its obligations
under this Lease, including its Rent or other payment
obligations, its
restoration
obligations,
or its insurance and indemnity
obligations, then
Landlord may, at its option, apply the Security Deposit (or
any portion) to cure Tenant's default or to pay for damages
caused by Tenant's
default. If the Lease has been terminated, then Landlord may apply the
Security
Deposit (or any
portion) against the damages incurred as a consequence of
Tenant's breach.
The application of the Security Deposit shall not limit
Landlord's remedies
for default under the terms of this
Lease. If Landlord
depletes the Security Deposit, in whole or in part, prior to the
Expiration Date
or any termination
of this Lease,
then Tenant shall
restore immediately
the
amount so used by Landlord.
c. REFUND
OF DEPOSIT. Unless
Landlord uses the Security Deposit to cure a
default of Tenant,
to pay damages for Tenant's breach of the Lease, or to
restore the Premises
to the condition to
which Tenant is required to leave the
Premises upon the
expiration or any
termination
of the Lease,
then Landlord
shall, within thirty
(30) days after the Expiration Date or any termination of
this Lease, refund to Tenant any funds remaining in the Security
Deposit. Tenant
may not credit the Security Deposit against any month's Rent.
7.
SERVICES BY LANDLORD.
a. BASE
SERVICES. Provided that Tenant is not then
in default,
Landlord
shall cause to be furnished to the Building, or as applicable,
the Premises, in
common with other tenants the following services:
i. Water
(if available from city mains) for drinking, lavatory and
toilet purposes.
ii. Electricity
(if available from the utility supplier) for the
building standard
fluorescent lighting and for the operation of
general office machines, such as electric typewriters, desk top
computers, dictating equipment, adding machines and
calculators,
and general service
non-production
type office copy
machines;
provided that Landlord
shall have no obligation to provide more
than the amount of power for convenience outlets and the number
of electrical circuits as set forth in Section 1i.
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iii. Operatorless
elevator service.
iv. Building
standard fluorescent lighting composed of 2' x 4'
fixtures; Tenant shall
service, replace and maintain at its own
expense any
incandescent fixtures,
table lamps, or lighting
other than the
building standard
fluorescent
light, and any
dimmers or
lighting controls other than controls for the
building standard fluorescent lighting.
v. Heating
and air conditioning for the reasonably comfortable use
and occupancy of the Premises during Business Hours as set
forth
in Section 1h; provided that, heating and cooling conforming
to
any governmental
regulation
prescribing
limitations
thereon
shall be deemed to comply with this service.
vi. After
Business Hours, weekend and holiday heating and air
conditioning at the
After Hours HVAC rate
set forth in Section
1j, with such charges subject to commercially reasonable annual
increases as determined by Landlord.
vii. Janitorial
services five (5) days a week (excluding National and
State holidays) after Business Hours.
viii. A reasonable
pro-rata share of the unreserved parking spaces of
the Building, not to exceed the Parking specified in Section
1k,
for use by Tenant's
employees and
visitors in common
with the
other tenants and their employees and visitors.
ix. A
reasonable
number of after hour
access cards,
specified in
Section 11, to the Premises upon the Commencement Date. Should
Tenant require additional cards, or require replacement cards,
a
charge will be
assessed as
specified in Section 1l, for each
additional card or replacement card.
b.
LANDLORD'S
MAINTENANCE.
Landlord shall
make all repairs and
replacements to the Building (including Building fixtures and
equipment), Common
Areas and Building Standard Improvements in the Premises, except
for repairs and
replacements that Tenant must make under Section 8. Landlord's
maintenance shall
include the roof,
foundation, exterior
walls, interior
structural walls,
all
structural components, and all Building systems, such as
mechanical, electrical,
HVAC, and plumbing.
Repairs or
replacements shall be
made within a reasonable
time (depending
on the nature of the repair or replacement needed) after
receiving notice from Tenant or Landlord having actual knowledge of
the need for
a repair or replacement.
c. No
ABATEMENT.
There shall be no
abatement or reduction of Rent by
reason of any of the
foregoing services
not being continuously provided to
Tenant. Landlord
shall have the right to shut down the Building systems
(including electricity
and HVAC systems) for
required maintenance
and safety
inspections, and in cases of emergency.
d.
TENANT'S OBLIGATION TO REPORT DEFECTS. Tenant shall report to
Landlord
immediately any defective condition in or about the Premises known
to Tenant and
if such defect is not so reported and such failure to promptly
report results in
other damage, Tenant shall be liable for same.
e.
LIMITATION ON LANDLORD'S LIABILITY. Landlord shall not be liable to
Tenant for any damage
caused to Tenant and its property due to the Building
or
any part or
appurtenance
thereof being improperly constructed or being or
becoming out of
repair, or arising
from the leaking of
gas, water,
sewer or
steam pipes, or from problems with electrical service.
8.
TENANT'S ACCEPTANCE AND MAINTENANCE OF PREMISES.
a.
ACCEPTANCE
OF PREMISES. Subject to the terms of the attached
Workletter, if
any, Tenant's occupancy of the Premises is Tenant's
representation to
Landlord that (i) Tenant has examined and inspected the
Premises, (ii)
finds the Premises to be as represented by Landlord and
satisfactory for
Tenant's intended use, and (iii) constitutes Tenant's
acceptance of the Premises "as is". Landlord makes no
representation or warranty
as to the condition of the Premises except as may be specifically set forth in
the Workletter.
b.
MOVE-IN OBLIGATIONS. Tenant shall schedule its move-in with the
Landlord's Property
Manager. Unless
otherwise approved by Landlord's Property
Manager, move-in shall not take
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place during Business Hours. During Tenant's move-in, a
representative of Tenant
must be on-site with Tenant's moving company to insure proper
treatment of the
Building and the Premises. Elevators, entrances, hallways and other
Common Areas
must remain in use for the general public during business hours.
Any specialized
use of elevators
or other Common
Areas must be
coordinated
with Landlord's
Property Manager.
Tenant must
properly dispose of all packing
material and
refuse in accordance with the Rules and Regulations. Any damage or destruction
to the Building or the Premises due to moving will be the sole
responsibility of
Tenant.
c.
TENANT'S MAINTENANCE.
Tenant shall: (i) keep the Premises and fixtures
in good order; (ii)
make repairs and
replacements to the
Premises or Building
needed because of
Tenant's misuse or negligence; (iii) repair and replace
Non-Standard
Improvements,
including any
special equipment or decorative
treatments, installed
by or at Tenant's request that serve the Premises (unless
the Lease is ended
because of
casualty loss or condemnation); and (iv) not
commit waste.
d.
ALTERATIONS TO
PREMISES. Tenant shall
make no structural or
interior
alterations to the Premises. If Tenant requests such
alterations,
then Tenant
shall provide
Landlord's Property
Manager with a
complete set of construction
drawings. If Landlord
consents to the
alterations,
then the Property
Manager
shall determine
the actual cost of the work to be done (to include a
construction
supervision fee to be
paid to Landlord in the amount set forth in
Section 1l). Tenant
may then either agree to pay Landlord to have the work done
or withdraw its request for alterations. All such alterations are
subject to the
prior written approval of Landlord.
e.
RESTORATION OF PREMISES. At the expiration or earlier termination of
this Lease, Tenant shall (i) deliver each and every part of the
Premises in good
repair and condition,
ordinary wear and tear and damage by insured casualty
excepted, and (ii)
restore the
Premises at Tenant's
sole expense to the
same
condition as existed at the Commencement Date, ordinary wear and
tear and damage
by insured casualty excepted. If Tenant has required or
installed
Non-Standard
Improvements, such improvements shall be removed as part of
Tenant's restoration
obligation. Landlord,
however, may elect to require Tenant to leave any
Non-Standard
Improvements in
the Premises unless at the time of such
Non-Standard Improvements were installed, Landlord agreed in
writing that Tenant
could remove such
improvements. Tenant
shall repair any
damage caused by
the
removal of any Non-Standard Improvements. "Non-Standard
Improvements" means such
items as (i) High Demand Equipment and separate meters, (ii) all wiring and
cabling from the point of origin to the termination point, (iii) raised floors
for computer or
communications
systems, (iv)
telephone equipment, security
systems, and UPS systems, (iv) equipment racks, (v)
alterations installed by or
at the request
of Tenant after the Commencement Date, and (vi) any other
improvements that are not part of the Building Standard
Improvements.
f.
LANDLORD'S PERFORMANCE
OF TENANT'S
OBLIGATIONS.
If Tenant does not
perform its
maintenance
or restoration obligations in a timely manner,
commencing the same
within five (5) days after receipt of notice from
Landlord
specifying the work needed, and thereafter diligently and continuously
pursuing
the work until
completion, then
Landlord shall have the right, but not the
obligation, to perform
such work.
Any amounts expended by Landlord on such
maintenance or
restoration
shall be Additional Rent to be paid by Tenant to
Landlord within thirty (30) days after demand.
g.
CONSTRUCTION LIENS.
Tenant shall have no
power to do any act or
make
any contract that may create or be the foundation of any lien,
mortgage or other
encumbrance upon the
reversionary or other estate of Landlord, or any interest
of Landlord in the Premises. NO CONSTRUCTION LIENS OR OTHER LIENS
FOR ANY LABOR,
SERVICES OR MATERIALS
FURNISHED TO THE
PREMISES SHALL ATTACH
TO OR AFFECT THE
INTEREST OF LANDLORD IN AND TO THE PREMISES OR THE BUILDING. Tenant shall keep
the Premises
and the Building free from any liens arising out of any work
performed, materials
furnished,
or obligations incurred by or on behalf of
Tenant. Should any
lien or claim of lien be filed against the Premises or the
Building by reason of any act or omission of Tenant or any of
Tenant's agents,
employees, contractors
or representatives,
then Tenant shall cause the same to
be canceled and
discharged of record by bond or otherwise within ten (10) days
after the filing
thereof. Should
Tenant fail to
discharge the lien within ten
(10) days, then
Landlord may discharge the lien. The amount paid by Landlord to
discharge the lien (whether directly or by bond), plus all
administrative
and
legal costs incurred
by Landlord, shall be
Additional Rent
payable on demand.
The remedies
provided herein shall be in addition to all other remedies
available to Landlord under this Lease or otherwise.
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9.
PROPERTY OF TENANT.
a.
PROPERTY TAXES. Tenant
shall pay when due all taxes levied or assessed
upon Tenant's
equipment,
fixtures,
furniture,
leasehold improvements and
personal property located in the Premises.
b.
REMOVAL. Provided
Tenant is not in
default, Tenant may remove all
fixtures and equipment which it has placed in the Premises;
provided, however,
Tenant must repair all damages caused by such removal. If Tenant
does not remove
its property from the Premises upon the expiration or earlier
termination
(for
whatever cause) of
this Lease,
such property shall be deemed abandoned by
Tenant, and
Landlord may dispose
of the same in whatever manner Landlord may
elect without any liability to Tenant.
10. SIGNS.
Tenant may not erect, install or display any sign or
advertising material
upon the exterior of
the Building or Premises (including
any exterior
doors, walls or windows) without the prior written consent of
Landlord, which consent may be withheld in Landlord's sole
discretion. Door
and
directory signage
shall be provided and installed by the Landlord in accordance
with building
standards at Tenant's expense, unless otherwise provided in the
Workletter attached as Lease Addendum Number One.
11. ACCESS
TO PREMISES.
a.
TENANT'S ACCESS. Tenant, its agents, employees, invitees, and guests,
shall have access to the Premises and reasonable ingress and egress to common
and public areas of the Building twenty-four hours a day, seven days a week;
provided, however, Landlord by reasonable regulation may control
such access for
the comfort, convenience, safety and protection of all
tenants in the Building,
or as needed for making repairs and alterations. Tenant shall be
responsible for
providing access to the Premises to its agents, employees, invitees and guests
after business
hours and on weekends and holidays, but in no event shall
Tenant's use of and access to the Premises during non-business hours compromise
the security of the Building.
b.
LANDLORD'S ACCESS.
Landlord shall have the right, at all reasonable
times and upon reasonable oral notice, either itself or through its
authorized
agents, to enter the
Premises (i) to make
repairs, alterations
or changes as
Landlord deems necessary, (ii) to inspect the Premises,
mechanical systems
and
electrical devices, and (iii) to show the Premises to prospective
mortgagees and
purchasers. Within one
hundred eighty (180) days prior to the Expiration Date,
Landlord shall have the right, either itself or through its
authorized agents,
to enter the Premises at all reasonable times to show prospective
tenants.
c.
EMERGENCY ACCESS.
Landlord shall have
the right to enter the Premises
at any time without notice in the event of an emergency.
12.
TENANT'S COMPLIANCE.
a. LAWS.
Tenant shall comply
with all applicable
laws, ordinances and
regulations affecting the Premises, whether now existing or
hereafter enacted.
b. RULES
AND REGULATIONS. Tenant shall comply with the Rules and
Regulations attached
as EXHIBIT B. The
Rules and Regulations
may be modified
from time to time by Landlord, effective as of the date
delivered to Tenant
or
posted on the
Premises, provided
such rules are
uniformly applicable to all
tenants in the
Building. Any conflict between this Lease and the Rules and
Regulations shall be governed by the terms of this Lease.
13. ADA
COMPLIANCE.
a.
TENANT'S COMPLIANCE.
Tenant, at Tenant's sole expense,
shall comply
with all laws, rules, orders, ordinances, directions, regulations and
requirements of federal, state, county and municipal
authorities now in
force,
which shall impose any
duty upon Landlord or
Tenant with respect to the use or
occupation of the Premises or alteration of the Premises to
accommodate
persons
with special needs,
including using all
reasonable efforts to
comply with The
Americans With Disabilities Act (the "ADA").
b.
LANDLORD'S COMPLIANCE.
Landlord, at Landlord's sole expense, shall use
all reasonable efforts
to meet the requirements of the ADA as it applies to the
Common Areas and
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restrooms of the Building; but Landlord shall have no responsibility for ADA
compliance with respect to the Premises. Landlord shall not be required to
make
changes to the Common
Areas or restrooms
of the Building to comply with ADA
standards adopted
after construction of the Building unless specifically
required to do so by law.
c. ADA
NOTICES. If Tenant receives any notices alleging a violation of
ADA
relating to any portion of the Building or Premises (including any governmental
or regulatory actions or investigations regarding non-compliance
with ADA), then
Tenant shall notify
Landlord in writing within ten (10) days of such notice and
provide Landlord with copies of any such notice.
14.
INSURANCE REQUIREMENTS.
a.
TENANT'S LIABILITY INSURANCE. Throughout the Term, Tenant, at
its sole
cost and expense,
shall keep or cause to be kept for the
mutual benefit of
Landlord, Landlord's
Property Manager, (presently HIGHWOODS REALTY LIMITED
PARTNERSHIP and
its affiliates) and Tenant, Commercial General Liability
Insurance (1986 ISO Form or its equivalent) with a combined single limit,
each
Occurrence and General
Aggregate-per location
of at least TWO MILLION DOLLARS
($2,000,000), which policy shall insure against liability of
Tenant, arising out
of and in connection
with Tenant's use of the Premises, and which shall insure
the indemnity
provisions contained in this Lease. Not more frequently than
once
every three (3) years, Landlord may require the limits to be
increased if in its
reasonable judgment (or that of its mortgagee) the coverage is
insufficient.
b.
TENANT'S PROPERTY INSURANCE. Tenant shall also carry the
equivalent of
ISO Special Form Property Insurance on Tenant's Property for full replacement
value and with
coinsurance waived.
For purposes of this
provision,
"Tenant's
Property" shall
mean Tenant's personal property and fixtures, and any
Non-Standard
Improvements to the Premises. Tenant shall neither have, nor
make,
any claim against
Landlord for any loss or damage to the
Tenant's Property,
regardless of the cause of the loss or damage.
c.
CERTIFICATES OF INSURANCE. Prior to taking possession of the
Premises,
and annually thereafter, Tenant shall deliver to Landlord
certificates or other
evidence of insurance
satisfactory to
Landlord. All such policies shall be
non-assessable and shall contain language to the extent obtainable
that: (i) any
loss shall be payable
notwithstanding any
act or negligence
of Landlord or
Tenant that might otherwise result in forfeiture of the insurance,
(ii) that the
policies are primary and non-contributing with any insurance that Landlord
may
carry, and (iii) that the policies cannot be canceled, non-renewed, or coverage
reduced except after thirty (30) days' prior notice to Landlord. If
Tenant fails
to provide Landlord
with such certificates or other evidence of insurance
coverage, Landlord may
obtain such coverage and the cost of such coverage shall
be Additional Rent payable by Tenant upon demand.
d.
INSURANCE POLICY REQUIREMENTS. Tenant's insurance policies
required by
this Lease shall: (i) be issued by insurance companies licensed to do business
in the state in which the Premises are located with a general policyholder's
ratings of at least A- and a financial rating of at least VI in the
most current
Best's Insurance
Reports available on
the Commencement Date,
or if the Best's
ratings are changed or
discontinued, the
parties shall agree to
a comparable
method of rating
insurance companies; (ii) name Landlord as an additional
insured as its interest may appear [other landlords or tenants may be added
as
additional insureds in
a blanket policy];
(iii) provide that the insurance not
be canceled,
non-renewed or coverage materially reduced unless thirty (30)
days
advance notice is given to Landlord; (iv) be primary policies; (v)
provide that
any loss shall be payable notwithstanding any gross negligence of Landlord or
Tenant which might result in a forfeiture thereunder of such insurance or the
amount of proceeds
payable; (vi) have no
deductible
exceeding TEN THOUSAND
DOLLARS ($10,000),
unless approved in writing by Landlord; and (vii) be
maintained during the entire Term and any extension terms.
e. LANDLORD'S PROPERTY INSURANCE. Landlord shall keep the Building,
including the improvements (but excluding Tenant's Property), insured against
damage and destruction
by perils insured by
the equivalent of ISO Special Form
Property insurance in the amount of the full replacement value of
the Building.
f. MUTUAL
WAIVER OF SUBROGATION. Anything in this Lease to the
contrary
notwithstanding,
Landlord hereby releases and waives unto Tenant (including all
partners, stockholders, officers, directors, employees and
agents thereof), its
successors and
assigns, and Tenant
hereby releases and waives unto
Landlord
(including all partners, stockholders,
9
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officers, directors,
employees and agents thereof), its successors and assigns,
all rights to claim damages for any injury, loss, cost or damage to persons or
to the Premises or any
other casualty,
as long as the amount
of such injury,
loss, cost or damage
has been paid either
to Landlord,
Tenant, or any other
person, firm or corporation, under the terms of any Property,
General Liability,
or other policy of
insurance,
to the extent
such releases or waivers are
permitted under applicable law. As respects all policies of
insurance carried or
maintained pursuant
to this Lease and to the extent permitted under such
policies, Tenant and
Landlord each waive the insurance carriers' rights of
subrogation.
15.
INDEMNITY. Subject to the insurance requirements, releases and mutual
waivers of subrogation set forth in this Lease, Tenant agrees as
follows:
a.
INDEMNITY. Tenant
shall indemnify and hold Landlord harmless from and
against any and all claims, damages, losses, liabilities, lawsuits, costs and
expenses (including
attorneys' fees at all
tribunal levels)
arising out of or
related to (i) any activity, work, or other thing done, permitted
or suffered by
Tenant in or about the Premises or the Building, (ii) any breach or default by
Tenant in the performance of any of its obligations under this Lease, or (iii)
any act or neglect of
Tenant, or any
officer, agent, employee, contractor,
servant, invitee or guest of Tenant.
b. DEFENSE
OBLIGATION.
If any such action is
brought against
Landlord,
then Tenant, upon
notice from Landlord,
shall defend the same through counsel
selected by Landlord's
insurer, or other
counsel acceptable to
Landlord. The
provisions of this
Section shall survive
the termination
of this Lease.
16. QUIET
ENJOYMENT.
Tenant shall have
quiet enjoyment and possession of
the Premises
provided Tenant promptly and fully complies with all of its
obligations under this
Lease. No action of Landlord or other tenants working in
other space in the Building, or in repairing or restoring the
Premises, shall be
deemed a breach of this covenant, nor shall such action give to
Tenant any right
to modify this Lease either as to term, rent payables or other
obligations to be
performed.
17.
SUBORDINATION; ATTORNMENT; NON-DISTURBANCE; AND ESTOPPEL
CERTIFICATE.
a.
SUBORDINATION AND ATTORNMENT. Tenant agrees to execute within
ten (10)
days after request to do so from Landlord or its mortgagee an
agreement:
i. Making
this Lease superior or
subordinate
to the interests
of
the mortgagee;
ii. Agreeing to
attorn to the mortgagee;
iii. Giving the
mortgagee notice of, and a reasonable opportunity
(which shall in no
event be less than
thirty (30) days
after
notice thereof is
delivered to
mortgagee) to cure any Landlord
default and
agreeing to accept such cure if effected by the
mortgagee;
iv. Permitting
the mortgagee (or other purchaser at any foreclosure
sale), and its successors and assigns, on acquiring Landlord's
interest in the
Premises and the
Lease, to become
substitute
Landlord hereunder,
with liability only for such Landlord
obligations as accrue after Landlord's interest is so acquired;
v.
Agreeing to attorn to any successor Landlord; and
vi. Containing
such other agreements
and covenants on Tenant's part
as Landlord's mortgagee may reasonably request.
b.
NON-DISTURBANCE.
Tenant's obligation
to subordinate its
interests or
attorn to any mortgagee is conditioned upon the mortgagee's agreement not to
disturb Tenant's possession and quiet enjoyment of the Premises
under this Lease
so long as Tenant is in compliance with the terms of the Lease.
c.
ESTOPPEL CERTIFICATES.
Tenant agrees to execute within five (5)
business days after request, and as often as requested,
estoppel certificates
confirming any factual matter requested by Landlord which is
true and is within
Tenant's knowledge regarding this Lease, and
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the Premises,
including but not limited to: (i) the date
of occupancy,
(ii)
Expiration Date,
(iii) the amount of Rent due and date to
which Rent is paid,
(iii) whether Tenant has any defense or offsets to the enforcement
of this Lease
or the Rent payable,
(iv) any default or
breach by Landlord,
and (v) whether
this Lease, together with any modifications or amendments,
is in full force
and
effect. Tenant
shall attach to such estoppel certificate copies of any
modifications or amendments to the Lease.
18.
ASSIGNMENT - SUBLEASE.
a.
LANDLORD CONSENT.
Tenant may not assign
or encumber this Lease or its
interest in the Premises arising under this Lease, and may not
sublet all or any
part of the Premises
without first
obtaining the written
consent of Landlord,
which consent shall
not be withheld
unreasonably. Factors
which Landlord may
consider in deciding
whether to consent to an assignment or sublease include
(without limitation),
(i) the creditworthiness of the assignee or sublessee,
(ii) the proposed use of the Premises, (iii) whether there is other
vacant space
in the Building, (iv)
whether the assignee or sublessee will vacate other space
owned by Landlord,
(v) whether Landlord is negotiating with the proposed
sublessee or assignee for a lease of other space owned by Landlord,
and (vi) any
renovations to the
Premises or special
services required by the assignee or
sublessee. Landlord
will not consent to an
assignment
or sublease that
might
result in a use that
conflicts with the
rights of any
existing tenant. One
consent shall not be the basis for any further consent.
b.
DEFINITION OF
ASSIGNMENT. For the purpose of this Section 18, the word
"assignment" shall be defined and deemed to include the following:
(i) if Tenant
is a partnership, the withdrawal or change, whether voluntary,
involuntary or by
operation of law,
of partners owning thirty percent (30%) or more of the
partnership, or the
dissolution of the partnership; (ii) if Tenant consists of
more than one person,
an assignment,
whether voluntary, involuntary, or by
operation of law, by
one person to one of the other persons that is a Tenant;
{iii) if Tenant is a corporation, any dissolution or reorganization of Tenant,
or the sale or other transfer of a controlling percentage
(hereafter defined) of
capital stock of
Tenant other than to an affiliate or subsidiary or the sale of
fifty-one percent
(51%) in value of the
assets of Tenant; (iv)
if Tenant is a
limited liability
company, the change of
members whose interest in the company
is fifty percent (50%) or more. The phrase "controlling percentage" means the
ownership of, and the right to vote, stock possessing at least
fifty-one percent
(51%) of the total
combined voting
power of all classes
of Tenant's
capital
stock issued, outstanding and entitled to vote for the election of
directors, or
such lesser percentage as is required to provide actual control
over the affairs
of the corporation;
except that, if the
Tenant is a publicly
traded company,
public trades or sales of the Tenant's stock on a national stock exchange
shall
not be considered an assignment hereunder even if the aggregate of
the trades of
sales exceeds fifty percent (50%) of the capital stock of the
company.
c.
PERMITTED ASSIGNMENTS/SUBLEASES. Notwithstanding the foregoing,
Tenant
may assign this Lease or sublease part or all of the Premises
without Landlord's
consent to: (i) any corporation, limited liability company, or
partnership that
controls, is
controlled
by, or is under common
control with, Tenant at the
Commencement Date;
or (ii) any corporation or limited liability company
resulting from the
merger or
consolidation with
Tenant or to any
entity that
acquires all of Tenant's assets as a going concern of the business
that is being
conducted on the Premises; provided however, the assignor remains liable
under
the Lease and the
assignee or sublessee
is a bona fide entity
and assumes the
obligations of Tenant, is as creditworthy as the Tenant,
and continues the
same
Permitted Use as provided under Section 4.
d. NOTICE
TO LANDLORD.
Landlord must be given prior written notice of
every assignment
or subletting, and failure to do so shall be a default
hereunder.
e. PROHIBITED ASSIGNMENTS/SUBLEASES.
In no event
shall this Lease be
assignable by
operation of any law, and Tenant's rights hereunder may not
become, and shall not
be listed by Tenant as an asset under any bankruptcy,
insolvency or reorganization proceedings. Acceptance of Rent by Landlord
after
any non-permitted
assignment or sublease shall not constitute approval thereof
by Landlord.
f.
LIMITATION ON RIGHTS OF ASSIGNEE/SUBLESSEE. Any assignment or sublease
for which Landlord's consent is required shall not include the
right to exercise
any options to renew the Lease Term, expand the Premises, or similar options,
unless specifically provided for in the consent.
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g. TENANT
NOT RELEASED. No
assignment or sublease shall release Tenant of
any of its obligations under this Lease.
h.
LANDLORD'S RIGHT TO COLLECT SUBLEASE RENTS UPON TENANT DEFAULT.
If the
Premises (or any portion) is sublet and Tenant defaults under its
obligations to
Landlord, then
Landlord is authorized, at its option, to collect all sublease
rents directly from
the Sublessee.
Tenant hereby assigns
the right to collect
the sublease rents to Landlord in the event of Tenant default. The
collection of
sublease rents by
Landlord shall not relieve Tenant of its obligations under
this Lease, nor shall it create a contractual relationship between
Sublessee and
Landlord or give
Sublessee any greater
estate or right to the
Premises than
contained in its Sublease.
i. EXCESS
RENTS. If Tenant
assigns this Lease or subleases all or part of
the Premises at a rental rate that exceeds the rentals paid to Landlord, then
any such excess shall be paid over to Landlord by Tenant.
j.
LANDLORD'S FEES.
Tenant shall pay
Landlord an
administration fee
of
$1,000.00 per assignment or sublease transaction for which consent is
required.
If Landlord assists
Tenant in finding an assignee or subtenant, Landlord shall
be paid a reasonable fee for such assistance.
k.
UNAUTHORIZED
ASSIGNMENT OR
SUBLEASE. Any
unauthorized
assignment or
sublease shall
constitute a default under the terms of this Lease. In addition
to its other remedies
for Default, Landlord
may elect to increase Base Rent to
150% of the Base Rent reserved under the terms of this Lease.
19.
DAMAGES TO PREMISES.
a.
LANDLORD'S
RESTORATION
OBLIGATIONS.
If the Building or
Premises are
damaged by fire or other casualty ("Casualty"), then Landlord shall repair and
restore the
Premises to substantially the same condition of the Premises
immediately prior
to such Casualty, subject to the following terms and
conditions:
i. The
casualty must be insured under Landlord's insurance
policies, and
Landlord's obligation
is limited to the extent
of the insurance
proceeds received by Landlord. Landlord's
duty to repair and restore the Premises shall not begin until
receipt of the insurance proceeds.
ii. Landlord's
lender(s) must permit
the insurance proceeds to be
used for such repair and restoration.
iii. Landlord
shall have no obligation to repair and restore
Tenant's trade fixtures, decorations, signs, contents, or
any
Non-Standard Improvements to the Premises.
b.
TERMINATION
OF LEASE BY LANDLORD.
Landlord shall have the option of
terminating the Lease if: (i) the Premises is rendered wholly
untenantable; (ii)
the Premises
is damaged in whole or
in part as a result of a risk which is not
covered by Landlord's
insurance policies; (iii) Landlord's lender does not
permit a sufficient amount of the insurance proceeds to be used for
restoration
purposes; (iv) the
Premises is damaged in
whole or in part during the last two
years of the Term; or
(v) the Building
containing
the Premises is damaged
(whether or not the Premises is damaged) to an extent of fifty
percent (50%) or
more of the fair market value thereof. If Landlord elects to terminate this
Lease, then it shall give notice of the cancellation to Tenant
within sixty (60)
days after the date of the Casualty. Tenant shall vacate and surrender the
Premises to Landlord
within fifteen
(15) days after
receipt of the notice
of
termination.
c.
TERMINATION
OF LEASE BY
TENANT. Tenant shall have the option of
terminating the Lease if: (i) Landlord has failed to substantially restore the
damaged Building
or Premises within one hundred eighty (180) days of the
Casualty ("Restoration
Period"); (ii) the Restoration Period has not been
delayed by FORCE
MAJEURE; and (iii) Tenant gives Landlord notice of the
termination within
fifteen 15 days after the end of the Restoration Period (as
extended by any FORCE MAJEURE delays). If Landlord is delayed by FORCE
MAJEURE,
then Landlord must provide Tenant with notice of the delays
within fifteen (15)
days of the FORCE
MAJEURE event
stating the reason for the delays and a
good
faith estimate of the length of the delays.
d.
TENANT'S RESTORATION
OBLIGATIONS. Unless
terminated, the Lease
shall
remain in full force and effect, and Tenant shall promptly repair,
restore, or
replace Tenant's trade
fixtures,
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decorations, signs, contents, and any Non-Standard Improvements to
the Premises.
All repair,
restoration or replacement shall be at least to the same
condition
as existed prior to
the Casualty.
The proceeds of all insurance carried by
Tenant on its property shall be held in trust by Tenant for the
purposes of such
repair, restoration, or replacement.
e. RENT
ABATEMENT.
If Premises is
rendered wholly
untenantable
by the
Casualty, then the Rent payable by Tenant shall be fully abated. If
the Premises
is only partially damaged, then Tenant shall continue the
operation of Tenant's
business in any part not damaged to the extent reasonably practicable from the
standpoint of prudent business management, and Rent and other charges shall
be
abated proportionately to the portion of the Premises rendered
untenantable. The
abatement shall be
from the date of the Casualty until the Premises have been
substantially repaired
and restored, or until
Tenant's business operations are
restored in the entire Premises, whichever shall first occur.
However, if the
Casualty is caused by the negligence or other wrongful conduct of Tenant or of
Tenant's subtenants,
licensees,
contractors, or
invitees, or their respective
agents or employees, there shall be no abatement of Rent.
f. WAIVER
OF CLAIMS. The abatement of the Rent set forth above is
Tenant's
exclusive remedy
against Landlord in the event of a
Casualty. Tenant
hereby
waives all claims against Landlord for any compensation or damage for loss of
use of the whole or any part of the Premises and/or for any inconvenience or
annoyance occasioned
by any Casualty and
any resulting
damage, destruction,
repair, or restoration.
20.
EMINENT DOMAIN.
a. EFFECT
ON LEASE. If all of
the Premises
are taken under the
power of
eminent domain
(or by conveyance in lieu thereof), then this Lease shall
terminate as of the date possession is taken by the condemnor, and
Rent shall be
adjusted between
Landlord and Tenant as
of such date. If only a portion of the
Premises is taken and Tenant can continue use of the remainder,
then this Lease
will not terminate,
but Rent shall abate in a just and proportionate amount to
the loss of use occasioned by the taking.
b. RIGHT
TO CONDEMNATION AWARD.
Landlord shall be entitled to receive and
retain the
entire condemnation award for the taking of the Building and
Premises. Tenant shall
have no right or claim against Landlord for any part of
any award received by
Landlord for the
taking. Tenant
shall have no right
or
claim for any alleged
value of the
unexpired portion of this Lease, or its
leasehold estate, or
for costs of removal,
relocation, business
interruption
expense or any other damages arising out of such taking. Tenant,
however, shall
not be prevented
from making a claim against the condemning party (but not
against Landlord)
for any moving expenses, loss of profits, or taking of
Tenant's personal property (other than its leasehold estate) to
which Tenant may
be entitled;
provided that any such award shall not reduce the amount of
the
award otherwise payable to Landlord for the taking of the Building
and Premises.
21.
ENVIRONMENTAL COMPLIANCE.
a.
ENVIRONMENTAL LAWS.
The term
"Environmental Laws"
shall mean all now
existing or hereafter
enacted or issued
statutes, laws, rules, ordinances,
orders, permits
and regulations of all state, federal, local and other
governmental and regulatory authorities, agencies and bodies applicable to
the
Premises, pertaining
to environmental
matters or
regulating,
prohibiting or
otherwise having to do
with asbestos
and all other toxic, radioactive, or
hazardous wastes or materials including, but not limited to, the Federal
Clean
Air Act, the Federal Water Pollution Control Act, and the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
from time to
time amended.
b.
TENANT'S RESPONSIBILITY. Tenant covenants and agrees that
it will keep
and maintain the Premises at all times in compliance with Environmental Laws.
Tenant shall not (either with or without negligence) cause or
permit the escape,
disposal or release of any biologically active or other hazardous
substances, or
materials on the
Property. Tenant shall not allow the storage or use
of such
substances or
materials in any manner not sanctioned by law or in compliance
with the highest standards prevailing in the industry for the
storage and use of
such substances or materials, nor allow to be brought onto the
Property any such
materials or
substances
except to use in the ordinary course of Tenant's
business, and then
only after notice is
given to Landlord of
the identity of
such substances or
materials. No such
notice shall be required, however, for
commercially
reasonable amounts of
ordinary office
supplies and janitorial
supplies. Tenant shall
execute affidavits,
representations and
the like, from
time to time, at
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Landlord's request,
concerning Tenant's best knowledge and belief regarding the
presence of hazardous substances or materials on the Premises.
c.
TENANT'S LIABILITY.
Tenant shall hold
Landlord free,
harmless, and
indemnified from any penalty, fine, claim, demand, liability, cost, or charge
whatsoever which
Landlord shall incur, or which Landlord would otherwise incur,
by reason of Tenant's failure to comply with this Section 21
including, but not
limited to: (i) the cost of full remediation of any contamination to bring the
Property into the same condition as prior to the Commencement Date
and into full
compliance with
all Environmental Laws; (ii) the reasonable cost of all
appropriate tests and
examinations of the Premises to confirm that the Premises
and any other contaminated areas have been remediated and brought into
compliance with all
Environmental
Laws; and (iii) the reasonable fees and
expenses of
Landlord's
attorneys,
engineers,
and consultants incurred by
Landlord in enforcing and confirming compliance with this Section
21.
d.
LIMITATION ON TENANT'S
LIABILITY.
Tenant's obligations under this
Section 21 shall not apply to any condition or matter constituting a violation
of any Environmental
Laws: (i) which existed prior to the commencement of
Tenant's use or occupancy of the Premises; (ii) which was not caused,
in whole
or in part, by
Tenant or Tenant's agents, employees, officers, partners,
contractors or invitees; or (iii) to the extent such
violation is caused by, or
results from the acts or neglects of Landlord or Landlord's
agents, employees,
officers, partners, contractors, guests, or invitees.
e.
INSPECTIONS BY LANDLORD. Landlord and its engineers, technicians, and
consultants
(collectively the
"Auditors")
may, from time to time
as Landlord
deems appropriate,
conduct periodic tests
and examinations
("Audits") of the
Premises to confirm and monitor Tenant's compliance with this Section 21.
Such
Audits shall be conducted in such a manner as to minimize the
interference with
Tenant's Permitted Use; however in all cases, the Audits shall be
of such nature
and scope as shall be reasonably required by then existing
technology to confirm
Tenant's compliance
with this Section 21.
Tenant shall fully
cooperate with
Landlord and its Auditors in the conduct of such Audits. The cost
of such Audits
shall be paid by Landlord unless an Audit shall disclose a
material failure
of
Tenant to comply with this Section 21, in which case, the cost of such Audit,
and the cost of all
subsequent Audits made
during the Term and
within thirty
(30) days thereafter
(not to exceed two (2)
such Audits per
calendar year),
shall be paid for on demand by Tenant.
f.
LANDLORD'S LIABILITY.
Landlord represents and warrants that, to
the
best of Landlord's
knowledge, there are
no hazardous materials on the Premises
as of the Commencement
Date in violation of any Environmental Laws. Landlord
shall indemnify
and hold Tenant
harmless from any
liability resulting from
Landlord's violation of this representation and warranty.
g.
PROPERTY. For the
purposes of this
Section 21, the
term "Property"
shall include the
Premises, Building,
all Common Areas,
the real estate
upon
which the Building is located; all personal property (including that owned by
Tenant); and the soil,
ground water, and
surface water of the real estate upon
which the Building is located.
h.
TENANT'S LIABILITY AFTER TERMINATION OF LEASE. The covenants
contained
in this Section 21 shall survive the expiration or termination of this Lease,
and shall continue for so long as Landlord and its successors and
assigns may be
subject to any expense, liability, charge, penalty, or obligation
against which
Tenant has agreed to indemnify Landlord under this Section 21.
22.
DEFAULT.
a.
TENANT'S DEFAULT.
Tenant shall be in default under this Lease if
Tenant:
i. Fails
to pay when due any Base Rent, Additional rent, or any
other sum of money
which Tenant is obligated to pay, as
provided in this Lease;
ii. Breaches any
other agreement,
covenant or obligation
in this
Lease and such breach is not remedied within fifteen (15) days
after Landlord gives Tenant notice specifying the breach,
or
if such breach cannot,
with due diligence, be cured within
fifteen (15) days,
Tenant does not
commence curing within
fifteen (15) days and
with reasonable
diligence completely
cure the breach within
a reasonable period of
time after the
notice;
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iii. Files any
petition or action for relief under any creditor's
law (including bankruptcy, reorganization, or similar action),
either in state or federal court, or has such a petition
or
action filed against it which is not stayed or vacated within
sixty (60) days after filing; or
iv. Makes any
transfer in fraud of creditors as defined in Section
548 of the United States Bankruptcy Code (11 U.S.C. 548, as
amended or replaced),
has a receiver appointed for its assets
(and the appointment
is not stayed or
vacated within
thirty
(30) days), or makes an assignment for benefit of creditors.
b.
LANDLORD'S REMEDIES. In the event of a Tenant default, Landlord at its
option may do one or more of the following:
i.
Terminate this
Lease and recover all damages caused by
Tenant's breach,
including consequential damages for lost
future rent;
ii. Repossess
the Premises, with or without terminating, and relet
the Premises at such amount as Landlord deems reasonable;
iii. Declare the
entire remaining
Base Rent and
Additional
Rent
immediately due and
payable, such amount
to be discounted to
its present
value at a discount rate equal to the U.S.
Treasury Bill or Note
rate with the closest
maturity to the
remaining term of the Lease as selected by Landlord;
iv. Bring action
for recovery of all amounts due from Tenant;
v. Seize
and hold any personal
property of Tenant located in the
Premises and
assert against the same a lien for monies due
Landlord;
vi. Lock the
Premises and deny Tenant access thereto without
obtaining any court authorization; or
vii. Pursue any other
remedy available in law or equity.
c.
LANDLORD'S EXPENSES;
ATTORNEYS FEES. All reasonable expenses of
Landlord in repairing,
restoring,
or altering the
Premises for
reletting as
general office
space, together with leasing fees and all other expenses in
seeking and obtaining
a new Tenant, shall be
charged to and be a liability of
Tenant. Landlord's
reasonable attorneys'
fees in pursuing any of the foregoing
remedies, or in
collecting any Rent or Additional Rent due by Tenant hereunder,
shall be paid by Tenant.
d.
REMEDIES
CUMULATIVE. All
rights and remedies of Landlord are
cumulative, and the
exercise of any one shall not be an election excluding
Landlord at any other time from exercise of a different or
inconsistent
remedy.
No exercise by Landlord of any right or remedy granted herein shall constitute
or effect a termination of this Lease unless Landlord shall so elect by
notice
delivered to
Tenant. The failure of Landlord to exercise its rights in
connection with this
Lease or any
breach or violation of any term, or any
subsequent breach of
the same or any other term, covenant or condition herein
contained shall not be
a waiver of such term,
covenant or condition or any
subsequent breach
of the same or any other covenant or condition herein
contained.
e. NO
ACCORD AND
SATISFACTION. No
acceptance by Landlord of a lesser sum
than the Rent,
Additional Rent and
other sums then due shall be deemed to
be
other than on account of the earliest installment of such payments due, nor
shall any endorsement or statement on any check or any letter
accompanying
any
check or payment be deemed as accord and satisfaction, and Landlord may accept
such check or payment
without prejudice
to Landlord's right to recover the
balance of such installment or pursue any other remedy provided in
this Lease.
f. No
REINSTATEMENT.
No payment of money by
Tenant to Landlord after the
expiration or termination of this Lease shall reinstate or extend the Term,
or
make ineffective any notice of termination given to Tenant prior to the
payment
of such money. After
the service of notice or the commencement of a suit, or
after final judgment granting Landlord possession of the Premises,
Landlord may
receive and collect any sums due under this Lease, and the payment
thereof shall
not make ineffective
any notice or in any manner affect any pending suit or any
judgment previously obtained.
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g. SUMMARY
EJECTMENT. Tenant
agrees that in
addition to all other rights
and remedies Landlord
may obtain an order for summary ejectment from any court
of competent
jurisdiction without
prejudice to
Landlord's rights to otherwise
collect rents or breach of contract damages from Tenant.
23.
MULTIPLE DEFAULTS.
a. LOSS OF
OPTION RIGHTS. Tenant
acknowledges that any
rights or options
of first refusal, or to extend the Term, to expand the size of the
Premises, to
purchase the Premises or the Building, or other similar rights or options
which
have been granted to Tenant under this Lease are conditioned upon
the prompt and
diligent performance of the terms of this Lease by Tenant.
Accordingly,
should
Tenant default under this Lease on two (2) or more occasions during any twelve
(12) month period, in addition to all other remedies available to
Landlord, all
such rights and options shall automatically, and without further action on
the
part of any party, expire and be of no further force and
effect.
b.
INCREASED SECURITY DEPOSIT. Should Tenant default in the
payment of
Base Rent, Additional Rent, or any other sums payable by Tenant
under this Lease
on two (2) or more occasions during any twelve (12) month period,
regardless of
whether Landlord
permits such default to be cured,
then, in addition to all
other remedies otherwise available to Landlord,
Tenant shall,
within ten (10)
days after demand by
Landlord, post a Security Deposit in, or Increase the
existing Security
Deposit to, a sum equal to three (3) months' installments of
Base Rent. The Security Deposit shall be governed by the terms of
this Lease.
c. EFFECT
ON NOTICE RIGHTS AND CURE PERIODS. Should Tenant default under
this Lease on two (2) or more occasions during any twelve (12)
month period, in
addition to all other remedies available to Landlord, any notice
requirements or
cure periods
otherwise set forth in this Lease
with respect to a default by
Tenant shall not apply.
24.
BANKRUPTCY.
a.
TRUSTEE'S RIGHTS. Landlord and Tenant understand that, notwithstanding
contrary terms in this Lease, a trustee or debtor in possession
under the United
States Bankruptcy
Code, as amended, (the "Code") may have certain
rights to
assume or assign this
Lease. This Lease shall not be construed to give the
trustee or debtor in
possession any rights
greater than the minimum rights
granted under the Code.
b.
ADEQUATE ASSURANCE.
Landlord and Tenant
acknowledge that, pursuant to
the Code, Landlord is
entitled to adequate
assurances of future performance of
the provisions
of this Lease. The parties agree that the term "adequate
assurance" shall include at least the following:
i. In
order to assure
Landlord that any
proposed assignee
will
have the resources with which to pay all Rent payable pursuant
to the provisions of
this Lease, any
proposed assignee
must
have, as demonstrated to Landlord's satisfaction, a net worth
(as defined in accordance with generally accepted accounting
principles
consistently applied)
of not less than the net
worth of Tenant on the Effective Date (as hereinafter
defined),
increased by
seven percent (7%), compounded
annually, for each
year from the
Effective Date through
the
date of the proposed
assignment. It is
understood and agreed
that the financial
condition and resources of Tenant were a
material inducement to Landlord in entering into this Lease.
ii. Any proposed
assignee must have been engaged in the conduct of
business for the five
(5) years prior to any such proposed
assignment, which business does not violate the Use provisions
under Section
4 above, and such proposed assignee shall
continue to engage in the Permitted Use under Section 4. It is
understood that
Landlord's
asset
will be substantially
impaired if the trustee in bankruptcy or any assignee of
this
Lease makes any use of the Premises other than the Permitted
Use.
c.
ASSUMPTION OF LEASE
OBLIGATIONS. Any
proposed assignee of
this Lease
must assume and agree to be personally bound by the provisions
of this Lease.
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25.
NOTICES.
a.
ADDRESSES. All
notices, demands and requests by Landlord or
Tenant
shall be sent to the Notice Addresses set forth in Section 1n,
or to such other
address as a party may specify by duly given notice.
b. FORM;
DELIVERY; RECEIPT. ALL NOTICES, DEMANDS AND REQUESTS WHICH MAY
BE
GIVEN OR WHICH ARE
REQUIRED TO BE GIVEN BY EITHER PARTY TO THE OTHER MUST BE IN
WRITING UNLESS OTHERWISE SPECIFIED. Notices, demands or requests
shall be deemed
to have been properly given for all purposes if (i) delivered
against a written
receipt of delivery, (ii) mailed by express, registered or
certified mail of the
United States Postal Service, return receipt requested, postage prepaid, or
(iii) delivered to a nationally recognized overnight courier service for next
business day delivery
to the receiving
party's address as set forth above or
(iv) delivered via telecopier or facsimile transmission to the facsimile
number
listed above,
with an original counterpart of such communication sent
concurrently as
specified in
subsection
(ii) or (iii) above
and with written
confirmation of receipt of transmission provided. Each such notice, demand or
request shall be
deemed to have been
received upon the
earlier of the
actual
receipt or refusal by the addressee or three (3) business days after deposit
thereof at any main or branch United States post office if sent in
accordance
with subsection (ii) above, and the next business day after deposit
thereof with
the courier if sent pursuant to subsection (iii) above.
c. ADDRESS
CHANGES. The parties shall notify the other of any
change in
address, which
notification must be at least fifteen (15) days in advance of
it
being effective.
d. NOTICE
BY LEGAL COUNSEL. Notices may be given on behalf of any party
by
such party's legal counsel.
26.
HOLDING OVER. If Tenant holds over after the Expiration
Date or other
termination of this
Lease, such holding over shall not be a renewal of
this
Lease but shall create
a
tenancy-at-sufferance.
Tenant shall
continue to be
bound by all of the terms and conditions of this Lease,
except that during
such
tenancy-at-sufferance
Tenant shall pay to
Landlord (i) Base Rent at the rate
equal to two hundred percent (200%) of that provided for as of the
expiration or
termination date,
and (ii) any and all
Operating Expenses and other forms of
Additional Rent payable under this Lease. The increased Rent during
such holding
over is intended to
compensate
Landlord partially for losses, damages and
expenses, including
frustrating
and delaying
Landlord's
ability to secure
a
replacement tenant. If
Landlord loses a prospective tenant because Tenant fails
to vacate the Premises on the Expiration Date or any termination of the Lease
after notice to do so,
then Tenant will be liable for such damages as Landlord
can prove because of Tenant's wrongful failure to vacate.
27. RIGHT
TO RELOCATE.
a.
SUBSTITUTE PREMISES.
Landlord, at its option, may substitute for
the
Premises other space (hereafter called "Substitute Premises") owned by Landlord
in the same
geographical vicinity
before the Commencement Date or at any time
during the Term or any extension of this Lease, insofar as reasonably
possible,
the Substitute
Premises shall be of comparable quality and shall have a
comparable square foot
area and a
configuration
substantially similar
to the
Premises.
b. NOTICE.
Landlord shall give Tenant at least sixty
(60) days notice of
its intention to relocate Tenant to the Substitute Premises. This
notice will be
accompanied by a floor
plan of the Substitute
Premises. After such notice,
Tenant shall
have ten (10) days
within which to agree with Landlord on the
proposed Substitute
Premises and unless
such agreement is
reached within such
period of time,
Landlord may terminate
this Lease at the end of the sixty (60)
day period of time following the notice.
c. UPFIT
OF SUBSTITUTE PREMISES. Landlord agrees to construct or after,
at
its own expense, the
Substitute Premises as
expeditiously as
possible so that
they are in
substantially
the same condition that the Premises were in
immediately prior to the relocation. Landlord shall have the right to
reuse the
fixtures, improvements
and alterations used
in the Premises.
Tenant agrees to
occupy the Substitute
Premises as soon as Landlord's work is substantially
completed.
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<PAGE>
d.
RELOCATION COSTS. If
relocation occurs
after the Commencement
Date,
then Landlord shall pay Tenant's reasonable third-party costs of
moving Tenant's
furnishings, telephone and computer wiring, and other property to
the Substitute
Premises, and reasonable printing costs associated with the change
of address.
e. LEASE
TERMS. Except as
provided herein,
Tenant agrees that all of the
obligations of this Lease, including the payment of Rent (to
be determined on a
per rentable square
foot basis and applied to the Substitute Premises), will
continue despite
Tenant's relocation to the Substitute Premises. Upon
substantial completion of the Substitute Premises, this Lease will apply to the
Substitute Premises as
if the Substitute Premises had been the space originally
described in this Lease.
f.
LIMITATION ON LANDLORD'S LIABILITY. Except as provided above,
Landlord
shall not be liable or responsible in any way for damages or injuries
suffered
by Tenant pursuant to the relocation in accordance with this provision
including, but not limited to, the loss of goodwill, business, productivity or
profits.
28.
BROKER'S COMMISSIONS.
a. BROKER.
Each party represents and warrants to the other that it has not
dealt with any real estate broker, finder or other person with
respect to this
Lease in any manner, except the Broker identified in Section
1o.
b.
LANDLORD'S OBLIGATION.
Landlord shall pay any commissions or fees that
are payable to the Broker with respect to this Lease pursuant to Landlord's
separate agreement with the Broker.
c.
INDEMNITY. Each party shall indemnify and hold the other party
harmless
from any and all damages resulting from claims that may be
asserted against the
other party by any other broker, finder or other person (including, without
limitation, any
substitute or replacement broker claiming to have been
engaged
by indemnifying
party in the future), claiming to have dealt with the
indemnifying party in
connection with this
Lease or any amendment or extension
hereto, or which may
result in Tenant
leasing other or enlarged space from
Landlord. The
provisions of this Section shall survive the termination of this
Lease.
29.
MISCELLANEOUS.
a. NO
AGENCY. Tenant is not,
may not become,
and shall never
represent
itself to be an agent of Landlord, and Tenant acknowledges that
Landlord's title
to the Building
is paramount, and that it can do nothing to
affect or impair
Landlord's title.
b. FORCE
MAJEURE. The term
"FORCE MAJEURE" means:
fire, flood,
extreme
weather, labor
disputes, strike, lock-out, riot, government interference
(including
regulation,
appropriation or
rationing),
unusual
delay in
governmental
permitting, unusual
delay in deliveries or unavailability of
materials, unavoidable
casualties,
Act of God,
or other causes beyond the
Landlord's reasonable control.
c.
BUILDING STANDARD IMPROVEMENTS. The term "Building Standard
Improvements" shall mean the standards for normal construction of
general office
space within the
Building as specified by Landlord, including design and
construction
standards,
electrical load
factors, materials, fixtures and
finishes.
d.
LIMITATION ON DAMAGES.
Notwithstanding
any other provisions in this
Lease, Landlord
shall not be liable to
Tenant for any special, consequential,
incidental or punitive damages.
e.
SATISFACTION
OF JUDGMENTS AGAINST LANDLORD. If Landlord, or its
employees, officers,
directors,
stockholders
or partners
are ordered to pay
Tenant a money
judgment because of
Landlord's default
under this Lease,
said
money judgment may only be enforced against and satisfied out of:
(i) Landlord's
interest in the Building in which the Premises are located
including the
rental
income and proceeds from sale; and (ii) any insurance or
condemnation
proceeds
received because of
damage or condemnation
to, or of, said
Building that are
available for use by Landlord. No other assets of Landlord or said
other parties
exculpated by the
preceding sentence shall be liable for, or subject
to, any
such money judgment.
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f.
INTEREST. Should
Tenant fail to pay any amount due to Landlord within
30 days of the date such amount is due (whether Base Rent,
Additional
Rent, or
any other payment obligation), then the amount due shall begin
accruing interest
at the rate of 18% per annum, compounded monthly, or the highest permissible
rate under applicable usury law, whichever is less, until paid.
g. LEGAL
COSTS. Should Landlord
prevail in any legal proceedings against
the Tenant for breach of any provision in this Lease, then Tenant shall be
liable for the costs and expenses of the Landlord, including its reasonable
attorneys' fees (at all tribunal levels).
h.
COMMUNICATIONS COMPLIANCE. Tenant acknowledges and agrees
that any and
all telephone and telecommunication services desired by Tenant shall
be ordered
and utilized at the sole expense of Tenant. Unless Landlord requests
otherwise
or consents in writing, all of Tenant's telecommunications equipment shall be
located and
remain solely in the Premises in accordance with rules and
regulations adopted by
Landlord from time to time. Landlord shall not have any
responsibility for the
maintenance of
Tenant's
telecommunications
equipment,
including wiring; nor
for any wiring or other infrastructure to which
Tenant's
telecommunications equipment may be connected. Tenant agrees that,
to the extent
any telecommunications
service is interrupted, curtailed or discontinued,
Landlord shall have no
obligation or liability with respect thereto. Landlord
shall have the right, upon reasonable prior oral or written notice
to Tenant, to
interrupt or turn off telecommunications facilities in the event of
emergency or
as necessary in
connection with
repairs to the
Building or
installation
of
telecommunications
equipment for other
tenants of the
Building. In the
event
that Tenant
wishes at any time to
utilize the services of a telephone or
telecommunications
provider whose equipment is not then servicing the Building,
the provider
shall not be
permitted to install its lines or other
equipment
within the Building
without first securing the prior written approval of
Landlord. Landlord's
approval may be conditioned in such a manner to as to
protect Landlord's
financial interests,
the interest of the Building, and the
other tenants
therein. The refusal of Landlord to grant its approval to any
prospective
telecommunications provider shall not be deemed a default or
breach
by Landlord of its obligation under this Lease. The provision of
this paragraph
may be enforced solely
by Tenant and
Landlord, are not for
the benefit of any
other party,
and specifically but without limitation, no telephone or
telecommunications
provider shall be
deemed a third party
beneficiary of this
Lease. Tenant shall
not utilize any wireless communications equipment (other
than usual and customary cellular telephones), including antennae and
satellite
receiver dishes,
within the Premises or the Building, without Landlord's prior
written consent
Landlord's consent may be conditioned in such a manner so as to
protect Landlord's financial interests, the interests of the Building,
and the
other tenants therein.
At Landlord's option,
Tenant may be required
to remove
any and all telecommunications
equipment
(including
wireless equipment)
installed in the
Premises or elsewhere in or on the Building by or on behalf of
Tenant, including wiring, or other facilities for
telecommunications transmittal
prior to the expiration or termination of the Lease and at Tenant's
sole cost.
i. SALE OF
PREMISES OR BUILDING.
Landlord may sell the Premises or the
Building without affecting the obligations of Tenant hereunder;
upon the sale of
the Premises or the Building, Landlord shall be relieved of all
responsibility
for the Premises and shall be released from any liability thereafter accruing
under this Lease.
j. TIME OF
THE ESSENCE. Time is
of the essence in the
performance of all
obligations under the terms of this Lease.
k.
TRANSFER OF SECURITY
DEPOSIT. If any
Security Deposit or prepaid Rent
has been paid by Tenant, Landlord may transfer the Security
Deposit or prepaid
Rent to Landlord's successor and upon such transfer, Landlord shall be released
from any liability for return of the Security Deposit or prepaid
Rent.
l.
TENDER OF PREMISES. The delivery of a key or other such
tender of
possession of the
Premises to Landlord or to an employee of Landlord shall not
operate as a
termination of this
Lease or a surrender of the Premises unless
requested in writing by Landlord.
m.
TENANT'S FINANCIAL STATEMENTS. Upon request of Landlord, Tenant
agrees
to furnish to Landlord
copies of Tenant's
most recent annual,
quarterly and
monthly financial
statements, audited if
available. The
financial
statements
shall be prepared in accordance with generally accepted
accounting
principles,
consistently applied. The financial statements shall include a
balance sheet and
a statement of profit and loss, and the annual financial statement shall also
include a statement of changes in financial position and
appropriate explanatory
notes. Landlord
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may deliver the financial statements to any prospective or existing
mortgagee or
purchaser of the Building.
n.
RECORDATION. This
Lease may not be recorded without Landlord's prior
written consent,
but Tenant and
Landlord agree, upon
the request of the other
party, to execute a memorandum hereof for recording purposes.
o. PARTIAL
INVALIDITY.
The invalidity of any
portion of this Lease shall
not invalidate the remaining portions of the Lease.
p. BINDING
EFFECT. This Lease shall be binding upon the respective parties
hereto, and upon their heirs, executors, successors and
assigns.
q. ENTIRE
AGREEMENT.
This
Lease supersedes and cancels all prior
negotiations between
the parties, and no
changes shall be effective unless in
writing signed by both parties. Tenant acknowledges and agrees that it
has not
relied upon any
statements,
representations,
agreements or warranties except
those expressed in this lease, and that this Lease contains the
entire agreement
of the parties hereto with respect to the subject matter
hereof.
r. GOOD
STANDING. If requested by Landlord, Tenant shall furnish
appropriate legal documentation evidencing the valid existence in
good standing
of Tenant, and the
authority of any person signing this Lease to act for
the
Tenant. If Tenant
signs as a
corporation, each of
the persons executing
this
Lease on behalf of Tenant does hereby covenant and warrant that
Tenant is a duly
authorized and
existing corporation, that Tenant has and is
qualified to do
business in the State in which the Premises are located, that the corporation
has a full right and
authority to enter into this Lease and that each of
the
persons signing on behalf of the corporation is authorized to do
so.
s.
TERMINOLOGY. The
singular shall include the plural, and the masculine,
feminine or neuter includes the other.
t.
HEADINGS. Headings of
sections are for convenience only and shall not
be considered in construing the meaning of the contents of such
section.
u. CHOICE
OF LAW. This Lease shall be interpreted and enforced in
accordance with the laws of the State in which the Premises are
located.
v.
EFFECTIVE DATE. The
submission of this Lease to Tenant for review does
not constitute a reservation of or option for the Premises, and
this Lease shall
become effective
as a contract
only upon the
execution and delivery by both
Landlord and Tenant.
The date of execution
shall be entered on
the top of the
first page of this
Lease by Landlord,
and shall be the date
on which the last
party signed the
Lease, or as
otherwise may be specifically agreed by both
parties. Such date,
once inserted, shall be established as the final day
of
ratification by all
parties to this Lease, and shall be the date for use
throughout this Lease as the "Effective Date".
30.
SPECIAL CONDITIONS.
The following special
conditions, if any,
shall
apply, and where in
conflict with earlier provisions in this Lease shall
control:
30.1 EARLY
TERMINATION
OPTION. SUBJECT TO THE LIMITATIONS
HEREINBELOW,
TENANT SHALL HAVE THE
OPTION TO TERMINATE
THE LEASE EARLY ON OR AFTER OCTOBER
31, 2006, UPON AT
LEAST ONE HUNDRED
FIFTY (150) DAYS PRIOR
WRITTEN NOTICE TO
LANDLORD (THE "EARLY TERMINATION NOTICE") AND PAYMENT TO LANDLORD
WITH THE EARLY
TERMINATION NOTICE OF
A TERMINATION FEE (THE
"TERMINATION
FEE") IN AN AMOUNT
EQUAL TO THE VALUE OF TWO (2) MONTHS OF RENT WHICH WOULD
OTHERWISE BE
SCHEDULED
TO BE PAID FOR THE TWO (2) MONTHS IMMEDIATELY FOLLOWING THE EARLY TERMINATION
DATE. THE EARLY
TERMINATION DATE SHALL
BE THE DATE SPECIFIED BY TENANT AS SUCH
IN THE EARLY
TERMINATION NOTICE
WHICH DATE SHALL BE AT THE END OF A
CALENDAR
MONTH. IF REQUESTED
BY EITHER PARTY, THE PARTIES SHALL ENTER INTO A WRITTEN
TERMINATION AGREEMENT
CONFIRMING THE EARLY
TERMINATION OF THE LEASE. THE LEASE
AND THE TERM SHALL
COME TO AN END ON THE EARLY TERMINATION DATE WITH THE SAME
FORCE AND EFFECT AS IF THE TERM WERE, BY THE PROVISIONS HEREOF,
FIXED TO EXPIRE
ON SUCH DATE.
NOTWITHSTANDING
THE FOREGOING. TENANTS' OPTION TO TERMINATE
GRANTED HEREIN SHALL
BE NULL AND VOID, AND
OF NO FORCE OR EFFECT IF (I) TENANT
IS IN DEFAULT
OF THE LEASE AT THE
TIME OF DELIVERY
OF THE EARLY
TERMINATION
NOTICE OR AT ANY TIME
THEREAFTER, UP TO AND
INCLUDING THE EARLY TERMINATION
DATE, OR (II) TENANT
FAILS TO GIVE THE
EARLY TERMINATION
NOTICE AT LEAST
ONE
HUNDRED EIGHTY (180) DAYS PRIOR TO THE EARLY TERMINATION DATE, OR (III) TENANT
FAILS TO PAY IN FULL WHEN DUE THE TERMINATION FEE; PROVIDED,
20
<PAGE>
however, Landlord shall have the right to waive any of the
foregoing conditions,
declare the Lease
terminated
as of the Early
Termination
Date, and remain
entitled to
payment of the
Termination
Fee by Tenant if the
same is not paid
when due.
31.
ADDENDA AND EXHIBITS. If any addenda are noted below, such addenda
are
incorporated herein and made a part of this Lease.
a.
LEASE
ADDENDUM NUMBER ONE - "WORK LETTER"
b.
LEASE
ADDENDUM NUMBER TWO - "ADDITIONAL RENT - OPERATING EXPENSE
PASS THROUGHS"
c.
EXHIBIT A
- PREMISES
d.
EXHIBIT B - RULES AND
REGULATIONS
e.
EXHIBIT C
- COMMENCEMENT AGREEMENT
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY
SIGNATURE BLOCKS ON NEXT PAGE]
21
<PAGE>
IN WITNESS
WHEREOF, Landlord and Tenant have executed
this lease in four
(4) originals, all as of the day and year first above written.
LANDLORD:
TENANT:
AP SOUTHEAST PORTFOLIO PARTNERS, L.P.
BIOTEL, INC
a Delaware Limited Partnership
A MINNESOTA CORPORATION
By: AP-GP Southeast Portfolio Partners, L.P.
a Delaware
limited partnership,
its
general partner
By: Highwoods Realty GP Corp.,
a Delaware
corporation,
its
general partner
BY: \s\ W.B. Reasey
By: \s\ B. Steven Springrose
---------------------------------
---------------------------
Its: Senior Vice President - Regional
Its: President
Manager
Witness 1: \s\ Karen A. Buntin
Witness 1: \s\ Julie Springrose
--------------------------
--------------------
(signature)
(signature)
KAREN A. BUNTIN
JULIE SPRINGROSE
-------------------------------------
-------------------------------
(print name)
(print name)
Witness 2: \s\ Peggy J. Tetrick
Witness 2: \s\ Sara Fricke
--------------------------
--------------------
(signature)
(signature)
PEGGY J. TETRICK
SARA FRICKE
-------------------------------------
-------------------------------
(print name)
(print name)
22
<PAGE>
LEASE ADDENDUM NUMBER ONE [TENANT TO DO WORK]
WORKLETTER. This Lease
Addendum Number One
(the "First Addendum")
sets
forth the rights and
obligations of
Landlord and Tenant
with respect to space
planning, engineering,
final workshop drawings, and the construction and
installation of any improvements to the Premises ("Tenant
Improvements").
This
First Addendum
contemplates that the
performance of this
work will proceed in
four stages in accordance with the following schedule: (i) preparation of a
space plan; (ii) final design and engineering and preparation of
final plans and
working drawings;
(iii) preparation by the Contractor (as hereinafter defined)
of an estimate
of the cost of the
Tenant Improvements;
(iv) submission and
approval of plans by appropriate governmental authorities and construction
and
installation of the Tenant Improvements.
In
consideration of the mutual covenants hereinafter contained, Landlord
and Tenant do mutually agree to the following:
1.
ALLOWANCE.
Landlord IS NOT
PROVIDING ANY
IMPROVEMENT
ALLOWANCE AND
Tenant is fully
responsible for the payment of all costs in connection with the
Tenant Improvements.
2. SPACE
PLANNING, DESIGN AND
WORKING DRAWINGS.
Tenant shall provide and
designate architects
and engineers licensed
in State in which the Premises are
located and reasonably
acceptable to Landlord, which architects and engineers
will complete
construction
and mechanical drawings and specifications as
required to construct
the Tenant
Improvements. The
architects
and engineers
shall comply with the following:
a. Attend a reasonable number of meetings with Tenant and
Landlord's
agent to
define Tenant
requirements.
Tenant shall
provide one
complete
space plan
prepared by Tenant's
architect in order to
obtain Landlord's
approval of such
space plan.
b. Complete
construction drawings
for Tenant's partition
layout,
reflected
ceiling grid,
telephone and
electrical outlets,
keying, and
finish
schedule (subject to the limitation expressed in Section 2
below).
c. Complete building standard mechanical plans where necessary
(for
installation of air
conditioning
system and
ductwork, and heating and
electrical
facilities) for the work to be done in the Premises.
d. All plans and working drawings for the construction and
completion
of the Premises (the
"Plans") shall be subject to Landlord's
prior
written approval.
Any changes or
modifications
Tenant desires to
make to
the Plans shall
also be subject to
Landlord's
prior approval.
Landlord
agrees that it will not unreasonably withhold its approval of
the
Plans,
or of any changes or
modifications
thereof; provided, however,
Landlord
shall have sole and absolute discretion to approve or
disapprove
any
improvements that will be visible to the exterior of the Premises,
or
which may
affect the structural integrity of the Building. Any approval
of
the Plans
by Landlord shall not
constitute approval of
any Delays caused
by Tenant
and shall not be deemed a waiver of any rights or remedies
that
may arise
as a result of such Delays.
e. If Tenant makes any revisions to the space plan after it has
been
approved
by both Landlord
and Tenant,
Tenant shall pay all additional
costs and
expenses incurred as a result of such revisions.
3. SIGNAGE
AND KEYING. Door
and/or directory
signage and suite keying in
accordance with building standards shall be provided and installed
by Tenant.
4. WORK
AND MATERIALS AT TENANT'S EXPENSE.
a. Tenant shall select
Contractors
licensed in State in
which the
Premises
are located, to
provide the work and
materials to construct the
Tenant
Improvements;
provided that Landlord shall first approve such
Contractors, such approval not to be unreasonably withheld.
b. ALL WORK IS TO BE PERFORMED IN COMPLIANCE WITH LANDLORD'S
CONSTRUCTION RULES, REGULATIONS AND SPECIFICATIONS ("CONSTRUCTION
RULES"),
A COPY OF
WHICH HAS BEEN PROVIDED TO
23
<PAGE>
TENANT.
IT IS TENANT'S
RESPONSIBILITY
TO MAKE SURE THAT ITS
CONTRACTOR
COMPLIES
WITH ALL CONSTRUCTION RULES. IF TENANT HAS NOT RECEIVED A COPY
OF
THE
CONSTRUCTION
RULES, IT IS THE
RESPONSIBILITY
OF TENANT TO OBTAIN
A
COPY PRIOR
TO COMMENCEMENT
OF ANY CONSTRUCTION ACTIVITIES. FAILURE TO
COMPLY
WITH THE CONSTRUCTION RULES IS A DEFAULT UNDER THE LEASE.
c. Tenant shall pay Landlord a fee of ____0___ to reimburse
Landlord
for its
costs and expenses in monitoring construction of the Tenant
Improvements to assure
they are being
constructed in accordance with the
approved
Plans. This fee may be deducted from the Allowance by Landlord.
d. Upon completion of
the Tenant
Improvements and
within five (5)
days after
demand by Landlord,
Tenant shall deliver to Landlord (i) final
releases
of lien from all
contractors,
subcontractors
and materialmen
performing
any work or providing any materials for the Tenant
Improvements, and from
any lienors giving notice required under law; (ii)
a final
contractor's
affidavit from the
general Contractor in accordance
with
applicable
law; and (iii) any
supporting
documentation
evidencing
final
completion
and payment of the Tenant Improvements reasonably
requested
by Landlord.
5.
COMMENCEMENT DATE.
Landlord
shall be deemed to have delivered
possession of the Premises on the Commencement Date set forth in Section 1b
of
the Lease, and the Commencement Date of the Lease shall not be
delayed by reason
of the non-completion
of the Tenant
Improvements
or the failure to obtain a
certificate of occupancy or a temporary certificate of
occupancy.
6.
MATERIALS AND
WORKMANSHIP. Tenant
covenants and agrees
that all work
performed in connection with the construction of the Premises shall
be performed
in a good and workmanlike manner and in accordance with all
applicable laws and
regulations and with
the final approved
Plans. Tenant agrees to exercise due
diligence in completing the construction of the Premises.
7.
INSURANCE; INDEMNITY.
Prior to any entering the Premises or commencing
construction, Tenant
shall comply with all
insurance provisions
of the Lease.
All waiver and
indemnity provisions
of the Lease shall apply upon Tenant's (or
it's contractor's) entry of the Premises.
24
<PAGE>
LEASE ADDENDUM NO. TWO [BASE YEAR]
ADDITIONAL
RENT - OPERATING
EXPENSE PASS THROUGHS.
For the calendar year
commencing on JANUARY
1, 2006 and for each
calendar year
thereafter,
Tenant
shall pay to Landlord as Additional Rent, Tenant's Proportionate Share of any
increase in Operating
Expenses (as hereinafter defined) incurred by
Landlord's
operation or
maintenance of the Building during calendar year 2005 (the "Base
Year"). For purposes
of calculating
Tenant's Proportionate
Share of real and
personal property
taxes, Landlord shall
use the Base Year or the year in which
the Building and
improvements are
completed and are fully assessed, whichever
shall be later. Tenant's Proportionate Share shall be calculated by
dividing the
2,903 rentable square feet of the Premises by the 72995 net
rentable square feet
of the Building, which
equals 3.97%. If
during any calendar year the occupancy
of the rentable area of the Building is less than full, then
Operating Expenses
(as hereinafter
defined) will be adjusted for such calendar
year at a rate of
95% occupancy.
As used
herein, the term
"Operating Expenses"
shall mean direct costs of
operation,
repair and
maintenance
as determined by standard accounting
practices, including,
but not limited to ad valorem real and personal property
taxes, hazard
and liability insurance premiums, utilities, heat, air
conditioning,
janitorial service,
labor, materials,
supplies, equipment and
tools, permits,
licenses, inspection fees, management fees
(but not including
the cost of management
personnel above the level of Property Manager), and
common area expenses; provided, however, the term "Operating
Expenses" shall not
include depreciation on the Building or equipment therein,
interest, executive
salaries, real estate brokers' commissions, or other expenses that
do not relate
to the operation of the Building. The annual statement of Operating
Expenses
shall be accounted
for and reported in accordance with generally accepted
accounting principles (the "Annual Statement").
For the
calendar year
commencing on JANUARY 1, 2006 and for each calendar
year thereafter
during the Term, Landlord shall estimate the amount the
Operating Expenses
shall increase for such calendar year above the
Operating
Expenses incurred during the Base Year. Landlord shall send to Tenant a
written
statement of the
amount of Tenant's Proportionate Share of any estimated
increase in Operating
Expenses and Tenant
shall pay to
Landlord, monthly as
Additional Rent,
Tenant's Proportionate Share of such increase in Operating
Expenses. Within
ninety (90) days after the end of each calendar year, Landlord
shall send a copy of
the Annual
Statement to Tenant. Pursuant to the Annual
Statement, Tenant shall pay to Landlord Additional Rent in a lump
sum as owed or
Landlord shall adjust
Tenant's Rent payments
if Landlord owes Tenant a credit,
such payment or
adjustment to be made
within thirty (30) days after the Annual
Statement is received by Tenant After the Expiration Date, Landlord shall send
Tenant the final Annual Statement for the Term, and Tenant shall
pay to Landlord
Additional Rent as owed or if Landlord owes Tenant a credit, then
Landlord shall
pay Tenant a refund.
If this Lease expires
or terminates
on a day other
than
December 31, then Additional Rent shall be prorated on a
365-day calendar
year
(or 366 if a leap year).
Provided
no default by Tenant
is then outstanding,
Tenant, at Tenant's
sole cost and expense
(except as stated
below), shall have the right, to be
exercised by written
notice given to Landlord within thirty (30) days after
receipt of Landlord's
Annual Statement,
for the preceding
calendar year, to
audit Landlord's
books and records pertaining to such Operating Expenses,
provided such audit
commences within
thirty (30) days after Tenant's notice to
Landlord and thereafter proceeds regularly and
continuously to conclusion, but
in no event later than sixty (60) days following commencement of
the audit, and,
provided further,
that such audit
does not unreasonably interfere with the
conduct of Landlord's business, and provided, further, that such audit shall
be
performed either
by Tenant or a certified public accounting firm but
specifically not by any firm the compensation of which is on a
contingent basis.
Landlord agrees to
cooperate in good faith with Tenant in the conduct of any
such audit. To the
extent such audit reveals an underpayment or over payment by
Tenant of Operating
Expenses, Landlord and Tenant shall promptly make the
appropriate
adjustments for said over payment or underpayment to be paid to
the
other party. If any
such audit reveals
that the amount of
Operating Expenses
billed to Tenant is more than five percent (5%) in excess of Tenant's
Share of
actual Operating
Expenses, then Landlord shall pay fifty
percent (50%) of the
reasonable costs and expenses incurred by Tenant in connection
with such audit.
Tenant agrees on
behalf of Tenant, its
employees and agents (including any
entity conducting
such audit) that any and all information obtained from
Landlord's records,
as well as the
results of any audit, shall be held in
confidence and
shall not be
disclosed to any third party except as may be
specifically required for the limited purpose of enforcing Tenant's
rights under
the Lease.
25
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION/SPACE PLAN
(TO BE PROVIDED)
26
<PAGE>
EXHIBIT B
RULES AND REGULATIONS
1. ACCESS
TO BUILDING. On
Saturdays, Sundays,
legal holidays and weekdays
between
the hours of 6:00 P.M. and 8:00 A.M., access to the Building
and/or to
the halls, corridors, elevators or stairways in the Building
may
be
restricted
and access
shall be gained by use
of a key or
electronic
card to
the outside doors of the Buildings. Landlord may from time to
time
establish
security controls for the purpose of
regulating access to
the
Building.
Tenant shall be responsible for providing access to the
Premises
for its
agents, employees, invitees and guests at times access is
restricted, and
shall comply with all such security regulations so
established.
2.
PROTECTING PREMISES. The last member of Tenant to leave the
Premises shall
close and
securely lock all
doors or other means of entry to the Premises
and shut
off all lights and equipment in the Premises.
3.
BUILDING DIRECTORIES.
The directories for the Building in the form
selected
by Landlord shall be used exclusively for the display of the
name
and
location of tenants. Any additional names and/or name change
requested
by Tenant
to be displayed in the directories must be approved by Landlord
and, if
approved, will be provided at the sole expense of Tenant.
4. LARGE
ARTICLES. Furniture,
freight and other
large or heavy articles may
be brought
into the Building only at times and in the manner designated by
Landlord
and always at Tenant's
sole responsibility.
All damage done to
the
Building, its furnishings, fixtures or equip
