Back to top

TRIPLE NET LEASE AGREEMENT

Triple Net Lease Agreement

TRIPLE NET LEASE AGREEMENT | Document Parties: BLACKBAUD, INC | DPC?SPE, LLC | DUCK POND CREEK-SPE, LLC You are currently viewing:
This Triple Net Lease Agreement involves

BLACKBAUD, INC | DPC?SPE, LLC | DUCK POND CREEK-SPE, LLC

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: TRIPLE NET LEASE AGREEMENT
Date: 12/11/2008
Industry: Software and Programming     Sector: Technology

50 of the Top 250 law firms use our Products every day

Exhibit 10.37

 

 

 

 

 

 

STATE OF SOUTH CAROLINA

  

)

  

 

 

  

)

  

TRIPLE NET LEASE AGREEMENT

COUNTY OF BERKELEY

  

)

  

 

THIS TRIPLE NET LEASE AGREEMENT (the “ Lease ”) dated as of the 1 st day of October, 2008, to be effective as set forth in Section 25 below (the “ Effective Date ”), by and between DUCK POND CREEK—SPE, LLC , a South Carolina limited liability company (“ Landlord ”) and BLACKBAUD, INC. , a Delaware corporation, (“ Tenant ”).

WITNESSETH:

WHEREAS , Landlord and Tenant entered into that certain lease agreement dated October 13, 1999 (the “ Existing Lease ”), whereby Tenant leased approximately 25 acres of property together with improvements thereon (the “ Old Parcel ”) from Landlord; and

WHEREAS , Landlord and Tenant entered into that certain nonbinding letter of intent (“ LOI ”) on or about August 29, 2008; and

WHEREAS , Landlord and Tenant have agreed to completely replace the Existing Lease with this Lease and all of the terms and conditions of the LOI have been incorporated herein; and

WHEREAS , as of the Effective Date, neither party shall rely on any terms and conditions set forth in the LOI, the Existing Lease, nor any other documentation pre-dating this Lease;

NOW, THEREFORE , for and in consideration of the sum of Ten Dollars ($10.00) in hand paid by Tenant to Landlord, the receipt and sufficiency of which are hereby acknowledged and in consideration of the rents to be paid to Landlord by Tenant, and covenants and agreements herein agreed to be performed by Landlord and Tenant, Landlord does hereby grant and lease to Tenant, the following described below-described property, subject to the following terms and conditions:

1. Property . The Property is hereby described as that certain real property located in Berkeley County, South Carolina, being approximately seventeen and six hundred seventy eight thousandths (17.678) acres, together with improvements thereon, all as more particularly described in Exhibit A , attached hereto and incorporated by reference herein (the “ Property ”), which Property does not include the parcel designated as “7.70 Acre Development Parcel” on said Exhibit A . The Property includes all buildings and improvements located or to be located thereon.

2. Term.

a. Initial Term . The initial term (“ Initial Term ”) of this Lease shall be fifteen (15) years, commencing on the first (1 st ) day of October, 2008, and expiring at 11:59 p.m. on the thirtieth (30 th ) day of September, 2023

b. Options To Renew Lease . Tenant shall have the option to renew for two (2) additional terms (“ Option Terms ”) of five (5) years each (the Initial Term and any

 

1


exercised Option Terms sometimes collectively referred to hereinafter as the “Term”). All terms and conditions of this Lease shall be applicable during the Option Terms except that Base Rent for any such renewal term(s) shall be in the amount set forth on Exhibit B hereto. Tenant may exercise its right to an Option Term under the following terms and conditions:

a. As a condition precedent to Tenant’s exercise of each of the Option Terms all of the following must be true:

i. Tenant is occupying the Premises at the time any Option Term is exercisable by Tenant; and

ii. Tenant is not in default under any terms, conditions, and covenants contained in this Lease at the time any Option Term is exercisable.

b. No later than Three Hundred Sixty (360) days prior to the expiration of the Term or any Option Term, if applicable, the Tenant must submit written notification to Landlord of Tenant’s desire to renew the lease for an Option Term. TIME IS OF THE ESSENCE.

3. Net Lease . EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THIS IS A TRIPLE NET LEASE AND LANDLORD SHALL NOT BE REQUIRED TO PAY ANY EXPENSE, TO PROVIDE ANY SERVICES, OR TO DO ANY ACT OR THING WITH RESPECT TO THE PROPERTY, INCLUDING THE BUILDING, IMPROVEMENTS, OR ANY APPURTENANCES. THE RENT PAYABLE UNDER THIS LEASE SHALL BE PAID TO LANDLORD WITHOUT ANY CLAIM ON THE PART OF TENANT FOR DIMINUTION, SET-OFF OR ABATEMENT AND NOTHING SHALL SUSPEND, ABATE OR REDUCE ANY RENT TO BE PAID HEREUNDER.

4. Rental .

a. Monthly Rental . During the Term, Tenant shall pay to Landlord a monthly base rent (the “Base Rent ”) as set forth on Exhibit B attached hereto and incorporated herein by reference. Rent shall be due and payable on the first (1 st ) day of each month with any partial months to be pro-rated.

b. Additional Rent . During the Term, in addition to the Base Rent, Tenant shall pay additional rent (“ Additional Rent ”) as follows:

i. Utilities . Tenant agrees to maintain all utilities in its name and pay all utilities for the Property, including, but not limited to, gas, water, sewer, electricity, and disposal waste fees.

ii. Real Estate Taxes and Assessments . Tenant shall pay all real estate taxes and assessments, including any fees in lieu of taxes, both general and special, which may be levied or assessed by the taxing authorities against the land, buildings and all other improvements within or constituting the Property. Tenant shall pay all real estate taxes and assessments it has been duly assessed directly to the taxing authority.

 

2


iii. Personal Property Taxes and Assessments . The Tenant, at all times, shall be responsible for and shall pay, before delinquency, all municipal, county, state or federal taxes, including any fees in lieu of taxes, assessed against any leasehold interest or any fixtures, furnishings, equipment, stock and trade, or other personal property owned, installed or used on the Property, or any further improvements to the Property by Tenant or by Landlord if requested by Tenant.

iv. Documentary and Rental Taxes . Should any governmental taxing authority acting under any present or future law, ordinance or regulation, levy, assess, or impose any documentary stamp tax for tax, excise and/or assessment (other than an income or franchise tax, upon or against the rentals payable by Tenant to the Landlord, or on any rental leasing, or letting of the Property) due to the execution hereof, either by way of substitution or in addition to any existing tax on land and buildings or otherwise, Tenant shall be responsible for and shall pay such documentary stamp tax, tax, excise and/or assessment, including any fees in lieu of taxes, or shall reimburse Landlord for any amount thereof as the case may be.

v. Insurance . Tenant shall pay for property and casualty insurance with respect to the Property sufficient, in the reasonable opinion of Landlord and agreed to by Tenant on an annual basis, to protect Landlord from any loss.

vi. Daniel Island Property Assessments . Tenant shall pay all assessments assessed by the property owners’ associations specific to the Property.

vii. Allocation of Utilities, Taxes, and Insurance Costs . To the extent that any costs of or expenses for any utilities, taxes or insurance, as provided above, are charged or billed to Landlord or to Tenant, Landlord and Tenant shall fairly allocate the same as between the Property and any adjacent property. It is the intent of this paragraph that Tenant shall not be responsible for paying any costs or expenses allocable to the adjacent stadium property. In the event that Landlord and Tenant cannot agree on any such allocation, Landlord and Tenant shall agree on and choose, in good faith, an appropriate independent expert or other independent qualified individual to make such allocation, and the determination of such expert or qualified individual shall be conclusive and binding upon Landlord and Tenant.

c. Additional Charges . Any charges due Landlord by Tenant under this Lease, including but not limited to damage to the Property caused by Tenant or Tenant’s employees, agents, contractors, licensees, or invitees, legal fees, costs of default remedies, past due charges for utilities, insurance, cleaning, maintenance and repairs, etc., or for work done on the Property by order of Tenant. (Base Rent and Additional Rent may sometimes be referred to collectively as “ Rent ”.)

d. Late Charges . In the event any monthly payment of Rent shall not be paid within ten (10) days of when such payment is due, Tenant shall pay an additional amount equal to two percent (2%) of the amount due for each ten days that the amount due remains unpaid.

 

3


e. Fees in Lieu of Taxes . The Property is currently subject to a “fee-in-lieu” of taxes agreement. In the event Tenant desires to contest, modify or change the agreement, such attempts shall only be undertaken jointly with Landlord.

5. Use of Property and Compliance with Laws . Tenant agrees to use the Property as permitted by laws and zoning, with applicable reasonable ancillary uses including coffee bars, vending machines, lunchrooms, cafeteria and kitchen facilities in support thereof, exercise\health facilities and any other legally permitted uses consistent with the character of first-class office buildings in the Tri-County region of Charleston, South Carolina. Blackbaud shall be entitled to use the Building stairwells between all floors comprising the Premises for interfloor traffic. Tenant agrees to comply with and adhere to all laws, whether municipal, state, federal or otherwise, applicable to and effecting the Property, including but not limited to all environmental laws.

6. Existing Easement . This Lease is subject to that certain Declaration of Access and Parking Easement dated October 8, 1999 and recorded on October 18, 1999 and re-recorded on December 22, 1999, a copy of which is attached hereto and incorporated by reference herein as Exhibit C (the “ Existing Easement ”). The parties represent and warrant that the Existing Easement is in full force and effect and neither party is, nor has been, in default thereunder. The Existing Easement shall be amended to increase the number of spaces reserved to Tenant’s exclusive use from 50 to 100.

7. Access and Parking Easement . The Property is also subject to that certain Joint Use Access and Parking Easement attached hereto and incorporated by reference herein as Exhibit D (the “ Access and Parking Easement ”).

8. Examination of Property . Tenant has occupied the Property since it was built and is familiar with its present condition. Tenant agrees to accept the Property in its current AS-IS condition except for Landlord’s maintenance, repair and replacement obligations set forth in the first sentence of paragraph 10 below, entitled Maintenance and Repair. Landlord makes no warranties of any kind, express or implied, regarding the Property, its condition, or its potential uses.

9. Insurance .

a. Insurance Required . Tenant shall not carry any stock of goods or do anything in or about the Property which would, in any way, restrict or invalidate any insurance coverage of the Property. Tenant agrees to pay, upon demand, as Additional Rent, any and all premiums of insurance carried by the Landlord on the leased Property resulting from or in connection with Tenant’s use or occupancy, including, without limitation, hazard insurance for the Property and the improvements located thereon in the full amount of their full replacement value. Such insurance shall be at customary market rates and (with respect to coverage other than hazard insurance) shall be for insurance of such types and amounts as are customarily maintained by landlords under net leases of first-class office properties in the Charleston area, and Landlord shall provide Tenant, upon request, with evidence of such coverage. Landlord may elect to carry any such insurance in the form of umbrella coverage and Landlord’s hazard insurance shall include a customary waiver of subrogation against Tenant and its agents and employees. Tenant shall keep in full force and effect at Tenant’s expense, insurance for personal property, trade fixture, property damage, business interruption, environmental injury (to the extent customary

 

4


for office tenants under net leases of first-class offices in the Charleston area and available at customary market rates), and public liability all in form and substance reasonably satisfactory to Landlord, in which Tenant and Landlord shall be named as the Insured and Landlord as the additional insured with the following minimum coverage: replacement cost as to property damage and Five Million Dollars ($5,000,000.00) as to general liability. Said policy or policies shall bear endorsements to the effect that the insurer agrees to notify the Landlord not less than thirty (30) days in advance of any modification or cancellation thereof. Tenant shall provide Landlord with a certificate of insurance prior to Lease commencement. Should Tenant fail to carry such public liability insurance, the Landlord may, at its option (but shall not be required to do so) cause public liability insurance as aforementioned, to be issued, and, in such event, the Tenant agrees to pay the premium for said insurance promptly upon Landlord’s demand.

b. Increased Insurance Risk . Tenant will not permit the Property to be used for any purpose which would render the insurance thereon void or cause cancellation thereof or the insurance risk more hazardous or increase the insurance premiums in effect at the time prior to commencement of the term of this Lease. Tenant will not keep, use or sell, or allow to be kept, used or sold in or about the Property, any article or material which is prohibited by law or by standard fire insurance policies of the kind customarily in force with respect to premises of same general type as the Property. If the insurance premium is increased due to Tenant’s occupancy, Tenant agrees to immediately pay the amount of such increase and to maintain such insurance in effect in accordance with the provision of this Lease.

c. INSURANCE FOR PERSONAL PROPERTY . ALL PERSONAL PROPERTY, MERCHANDISE, FIXTURES, AND EQUIPMENT LOCATED, PLACED OR MOVED INTO THE PROPERTY SHALL BE AT THE RISK OF TENANT OR THE OWNERS THEREOF, AND LANDLORD SHALL NOT BE LIABLE FOR ANY DAMAGES, LOSS OR THEFT OF SAID PERSONAL PROPERTY, MERCHANDISE, FIXTURES, OR EQUIPMENT, EXCEPT TO THE EXTENT SPECIFICALLY SET FORTH IN THIS LEASE..

10. Maintenance and Repair . Landlord’s sole obligations shall be repair, replacement and maintenance of the foundation, structural elements, exterior walls, and exterior windows of the Property. At Tenant’s expense, Tenant shall perform all other maintenance and repairs necessary to maintain the improvements in a first class operating condition and repair, both interior or exterior, ordinary or extraordinary, including the roof, window glass, plate glass, store fronts, sidewalks, curbs, parking lots, parking spaces, doors, windows (except exterior windows), screens, awnings, locks, keys, weather stripping and thresholds as well as all interior walls, floors, walls, ceilings and floor coverings. Tenant’s responsibility shall also include landscaping; irrigation; the replacement, servicing, repair and maintenance of equipment and fixtures at the Property, including the heating, ventilation, and air conditioning systems and changing filters for such systems. Tenant shall also repair and be responsible for the damage caused by stoppage, breakage, leakage, overflow, discharge or freezing of plumbing pipes, soil lines or fixtures. If any part of the improvements is damaged by Tenant, or Tenant’s employees, agents, or invitees or any breaking and entering of said improvements, Tenant shall provide Landlord with immediate written notification of all damage to the Property. After notification and approval by Landlord, repairs shall be made promptly at Tenant’s expense so as to restore said improvement to its previous condition. If Tenant refuses or neglects to commence the necessary repairs within thirty (30) days after the written

 

5


demand by Landlord (other than in the case of emergency), Landlord may (but shall not be required to) make such repairs without liability to Tenant for any loss or damage that may accrue to Tenant’s stock, business, equipment, or fixtures by reason thereof, and if Landlord makes such repairs, Tenant shall pay to Landlord, on demand, as Additional Rent, the cost thereof. Tenant’s failure to pay shall constitute a default under this Lease. Tenant’s failure to give, or unreasonable delay in giving, notice of needed repairs or defects shall make Tenant liable for any loss or damage resulting from delay or needed repairs.

11. Upkeep and Sanitation . Tenant shall keep the Property broom clean, sanitary and in compliance with all health and safety laws, ordinances and requirements applicable to Tenant of any legally constituted public authority. Cleaning includes removing of any trash or refuse deposited in the Property by Tenant, Tenant’s customers or anyone else (except Landlord or its agents, employees or contractors). Tenant shall employ, if Landlord reasonably determines it is necessary, a reputable pest extermination company at regular intervals.

12. Hazardous Materials .

a. Tenant represents, warrants and agrees that: (i) the Property shall be kept free of Hazardous Materials (as defined herein), arising from Tenant’s use or occupancy of the Property (and that of its agents, employees, contractors, and invitees) except for small amount of Hazardous Materials such as copy toner and cleaning supplies used in the ordinary course of Tenant’s business and office use and at all times subject to any applicable Environmental Laws, and shall not be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, produce or process Hazardous Materials; (ii) Tenant shall not cause or permit the installation of Hazardous Materials in, on, over or under the Property or a Release (hereinafter defined) of Hazardous Materials onto or from the Property or suffer the presence of Hazardous Materials in, on, over or under the Property; (iii) Tenant shall comply with, and insure compliance by Tenant’s agents, employees, contractors, and invitees with, all applicable Environmental Laws (as hereinafter defined) relating to or affecting the Property, and Tenant shall keep the Property free and clear of any liens imposed pursuant to any applicable Environmental Laws, all at Tenant’s sole cost and expense; (iv) Tenant shall immediately give Landlord oral and written notice in the event that Tenant receives any notice from any governmental agency, entity, or any other party with regard to Hazardous Materials on, from or affecting the Property and Tenant shall conduct and complete all investigations, studies, sampling and testing, and all remedial soil removal, and other actions necessary to clean up and remove all Hazardous Materials on, from or affecting the Property in accordance with all applicable Environmental Laws.

b. Tenant hereby agrees to indemnify Landlord and hold Landlord harmless from and against any and all liens, demands, actions, suits, proceedings, disbursements, liabilities, losses, litigation, damages, judgments, obligations, penalties, injuries, costs, expenses (including without limitation, reasonable attorney and expert fees and expenses) and claims of any and every kind whatsoever paid, incurred, suffered by or asserted against Landlord and/or the Property for, with respect to, or as a direct or indirect result of the following: (i) the presence in, on, over or under, or the escape, seepage, leakage, spillage, discharge, emission or release on or from, the Property of any Hazardous Materials if caused by or within the control of the Tenant; (ii) the failure by Tenant to comply fully with the terms and provisions of this paragraph. In the event Landlord suspects Tenant has violated any of the covenants, warranties or

 

6


representations contained in this paragraph, or that the Property is not in compliance with the Environmental Laws for any reason, or that the premises are not free of Hazardous Materials for any reason, Tenant shall take such steps as Landlord requires by written notice to Tenant in order to confirm or deny such occurrences, including, without limitation, the preparation of environmental studies, surveys or reports. In the event Tenant fails to take such action, Landlord may take such action as Landlord deems necessary, and the cost and expenses of all actions taken by Landlord, including, without limitation, Landlord’s attorney’s fees, shall be added as Additional Rent. Notwithstanding the foregoing, in no event shall Tenant be responsible to Landlord for the presence or release of Hazardous Materials at, within, or around the Property or for the violation of any Environmental Laws (i) which existed prior to the commencement of Tenant’s use or occupancy of the Property or (ii) which was not caused in whole or in part by Tenant or its agents, employees, officers, partners, contractors, or invitees.

c. Landlord hereby agrees to indemnify Tenant and hold Tenant harmless from and against any and all liens, demands, actions, suits, proceedings, disbursements, liabilities, losses, litigation, damages, judgments, obligations, penalties, injuries, costs, expenses (including without limitation, reasonable attorney and expert fees and expenses) and claims of any and every kind whatsoever paid, incurred, suffered by or asserted against Tenant and/or the Property for, with respect to, or as a direct or indirect result of the following: (i) the presence in, on, over or under, or the escape, seepage, leakage, spillage, discharge, emission or release on or from the Property of any Hazardous Materials prior to the Commencement Date or (ii) the presence in, on, over or under, or the escape, seepage, leakage, spillage, discharge, emission or release of Hazardous Materials in connection with the use of the Property by Landlord or the employees, agents, tenants, licensees, or invitees of Landlord in connection with the use of the Stadium Property and the easement set forth in Exhibit C hereof.

d. For the purposes of this Agreement Lease: (i) “Hazardous Material” or “Hazardous Materials” means and includes petroleum products, flammable explosives, radioactive materials, asbestos or any material containing asbestos, polychlorinated biphenyls, and/or any hazardous, toxic or dangerous waste, substance or material defined as such or defined as a Hazardous Substance or any similar term, by, in, or for the purposes of the Environmental Laws, including, without limitation section 101(14) of CERCLA (hereinafter defined); (ii) “Release” shall have the meaning given such term, or any similar term, in the Environmental Laws, including, without limitation, Section 101(22) of CERCLA; and (iii) “Environmental Law” or “Environmental Laws” shall mean any “Super Fund” or “Super Lien” law, or any other federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning any Hazardous Materials as may now or at any time hereafter be in effect, including, without limitation, the following, as same may be amended or replaced from time to time, and all regulations promulgated thereunder or in connection therewith: the Super Fund Amendments and Reauthorization Act of 1986 (“SARA”); The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (“CERCLA”); The Clean Air Act (“CAA”); the Clean Water Act (“CWA”); The Toxic Substances Control Act (“TSCA”); The Solid Waste Disposal Act (“SWDA”), as amended by the Resource Conservation and Recovery Act (“RCRA”); the Hazardous Waste Management System; and the Occupational Safety and Health Act of 1970 (“OSHA”). The obligations and liabilities of Tenant and Landlord under this Paragraph shall survive this Lease and any eviction of, or abandonment by, the Tenant.

 

7


13. Alterations .

a. Capital Improvement Alterations . Simultaneously herewith, Landlord and Tenant entered into that certain Capital Replacement Escrow Agreement which is attached hereto and incorporated herein by reference as Exhibit E (the “Escrow Agreement”), which governs all capital improvements to the Property.

b. All Other Alterations . Tenant shall be allowed to make reasonable non-capital alterations to the Property provided any such alterations are in accordance with all applicable building codes, are approved by Landlord IN WRITING and IN ADVANCE, which approval shall not unreasonably be withheld or delayed. All such improvements made with or without Landlord’s written consent shall become part of the Property unless Landlord requires Tenant to remove the improvements at the expiration or earlier termination of the Lease, such election to be made solely by Landlord and at the time of approving said alterations. If Landlord elects to require removal, the Tenant will return the Property to the same condition it was in immediately prior to the improvements.

Trade fixtures and office furniture shall be installed so as to be readily removable without injury to the Property or any injury caused by said removal shall be repaired immediately at Tenant’s expense. Said trade fixtures shall be removed from the Property before the end of this Lease or shall be deemed abandoned by Tenant. Tenant shall not install or maintain any equipment, partitions, furniture, etc. which the weight or the operation of which would tend to injure or be detrimental to the Property.

Notwithstanding the foregoing, Landlord’s consent shall not be required with respect to any non-capital alterations that (a) cost less than $50,000.00 on a per-project basis; (b) do not materially affect the Property’s systems, structural components, or exterior; and (c) do not adversely affect the market value or utility of the Property. All alterations by Tenant shall be performed with due diligence, in a good and workmanlike manner consistent with industry standards in the Charleston, South Carolina area for design and construction of first-class office buildings, in compliance with all laws (including any Daniel Island restrictions), and shall be promptly paid for by Tenant.

14. Assignment or Sub-Lease . Tenant shall not, without written consent of Landlord, in each case, which shall not be unreasonably withheld or delayed, assign, transfer, mortgage, pledge or otherwise encumber or dispose of this Lease, or sublet the Property, or any part thereof, or permit the Property to be occupied by other persons. Notwithstanding, Tenant may assign or sublease the Property or portions thereof (subject to all of the terms and conditions of this Lease) to an entity controlling, controlled by or under common control with Tenant, so long as Tenant remains fully liable for the Rent and other obligations hereunder, and Tenant gives to Landlord thirty (30) days written notice. If this Lease is assigned, or if the Property, or any part thereof, be subject to the possession of or occupied by any other person, firm, office or corporation, with or without written permission of Landlord, it will not relieve Tenant of any obligations under the terms of this Lease and if sublet, assigned or occupied without the Landlord’s permission or proper notice, this Lease may, at the option of the Landlord, be terminated in seven (7) days. Any proposed assignee that proposes to assume Tenant’s obligations hereunder shall execute an assumption agreement reasonably

 

8


satisfactory to Landlord before consent shall be given. Tenant shall not be entitled directly or indirectly to sublet the Property or to assign, sell or transfer this Lease or any portion thereof except pursuant to this Section. Any attempted transfer or sublet other than in accordance with this Section shall be null and void ab initio and shall constitute a default under this Lease. If Tenant desires to transfer any rights hereunder and to request a release from this lease, Tenant may make a written request to Landlord for a release. Tenant acknowledges that Landlord shall have the right to negotiate a new Lease with such third party either under the same terms and conditions of this Lease or upon new terms and conditions. Landlord agrees to begin such negotiations upon the request of Tenant for a release from this Lease. Such request shall include Tenant’s deposit of an amount equal to two (2) months Base Rent in escrow to insure compliance with this Lease during the term of negotiations with any third party introduced to Landlord by Tenant and shall further include the deposit of such other sums, including (1) a sum sufficient in Landlord’s opinion to reimburse Landlord for all out-of-pocket expenses, including legal fees, actually incurred in the work related to the release and to the negotiations with the party to whom the Tenant desires to sell its equipment and (2) all sums agreed upon for the release. If Landlord agrees to execute a new lease for the Premises with a third party and if Tenant has paid Landlord all amounts required for the release, Tenant shall be released. However, if Landlord does not agree to execute a new lease with such third party, in Landlord’s sole discretion, but rather consents (in accordance with this Section) to a sublease under or an assignment of the Lease, Tenant shall not be released from its obligations under the Lease, and Landlord shall retain the necessary amount from the escrowed funds to pay Landlord’s out-of-pocket expenses in connection with such prior negotiation and the assignment or subleasing. If the amount escrowed is insufficient, Tenant shall immediately pay Landlord the deficiency.

Notwithstanding the foregoing and to the extent permitted by Landlord’s then mortgagee, Tenant shall have the right to mortgage its leasehold interest hereunder, provided, however, that Landlord shall not be required to subordinate its fee interest to any such leasehold mortgagee. Subject to Landlord obtaining the consent of its then mortgagee, Landlord agrees to consent in writing to the reasonable and customary rights of Tenant’s leasehold mortgagee. Landlord shall reasonably cooperate with Tenant in obtaining the consent of Landlord’s mortgagee any transaction described in this Section for which the consent of Landlord’s mortgagee is required, provided, however, that Landlord shall not be responsible to Tenant if Landlord’s mortgagee refuses to grant such consent or somehow conditions its consent, and further provided that, in any event, Tenant shall reimburse Landlord for its reasonable attorneys’ fees incurred in connection with any such request. Notwithstanding anything in this Section 14 to the contrary, in no event shall Landlord consent to any sublease, or assignment, or leasehold mortgage where Landlord’s mortgagee has refused or refrained from giving its consent to the same pursuant to its rights under applicable loan documents that are binding and enforceable against Landlord.

15. Signs or Awnings . Tenant shall have the right to place or install reasonable signs, notices, pictures or advertising matter upon the exterior of the Property after first having obtained Landlord’s written consent, which shall not unreasonably be withheld or delayed. Any and all signs placed on the Property by Tenant shall be maintained in compliance with rules and regulations governing such signs. Tenant shall be responsible to Landlord for any damages caused by installation, use, maintenance, or removal of said signs. Any electrical service needed for signs shall be installed at the Tenant’s expense. Landlord shall not withhold its consent to any requests for approval of Tenant’s signage where such signage is in compliance with all laws (including any Daniel Island restrictions) and is consistent with Tenant’s originally-approved signage in content, size, design, quality, and illumination.

 

9


16. Waiver of Landlord’s Rights . No failure by Landlord to exercise any power given by Landlord hereunder, or to insist upon Tenant’s strict compliance with Tenant’s obligations hereunder, and no custom or practice of the parties at variance with the terms hereof will constitute a waiver of Landlord’s rights to demand exact compliance with the terms of this Lease at a future time. The rights and remedies created by this Lease are cumulative and the use of one remedy shall not be taken to exclude the right to use another.

17. Waiver of Tenant’s Rights . No failure by Tenant to exercise any power given by Tenant hereunder, or to insist upon Landlord’s strict compliance with Landlord’s obligations hereunder, and no custom or practice of the parties at variance with the terms hereof will constitute a waiver of Tenant’s rights to demand exact compliance with the terms of this Lease at a future time. The rights and remedies created by this Lease are cumulative and the use of one remedy shall not be taken to exclude the right to use another.

18. Right of Entry . Landlord, without being liable for trespass or damages, unless damage is caused by the negligence of the Landlord, shall have the right to enter the Property after reasonable notice during reasonable hours to examine the same, or to make repairs as provided in this Lease (or to inspect for the need for the same), or to exhibit said Property. Landlord shall also be allowed to post a “For Rent” notice during One Hundred and Twenty (120) days before the expiration of the Term of this Lease. Said right to entry shall likewise exist for the purpose of removing place cards, signs, fixtures, alterations or additions which do not conform to this Lease. In accordance with this right, Tenant shall give Landlord a key to any and all applicable locks (except for locks on desks, filing cabinets, safes, and vaults), security systems and burglar alarms.

19. Liens . Tenant shall not create, or permit to be created, any liens for labor or material against Landlord’s interest in the Property. All persons contracting with the Tenant for the erection, installation, alteration, repair or demolition of any building or other improvements on the Property, and all materials, flyers, contractors, mechanics, and laborers are hereby charged with notice that they must look to the Tenant and to the Tenant’s interest only in the Property to secure payment of any bill for work or material furnished during the rental period created by this Lease. In the event that liens are placed on record against the Property by contractors, mechanics, laborers, material suppliers, etc., because of action by Tenant it will constitute a default of this Lease.

20. Damages to or Destruction of Property . Tenant shall give prompt written notice to Landlord of any damage to the Property caused by fire or other casualty. In the event the Property and the improvements located thereon are damaged by fire, explosion or any other casualty to an extent which is less than fifty percent (50%) of the cost of replacement of the improvements located on the Property, the damage shall promptly be repaired by Landlord at Landlord’s expense in a manner (including design and quality of materials arid workmanship) substantially equivalent to the original construction of the improvements, provided that Landlord shall not be obligated to expend for such repair an amount in excess of the net insurance proceeds recovered or reasonably recoverable as a result of such damage and released to Landlord by Landlord’s then mortgagee, and that in no event shall Landlord be required to repair or replace Tenant’s stock-in-trade, fixtures, furniture, furnishings, floor coverings and Tenant’s equipment.

Notwithstanding the foregoing, in the event of any such damage and (a) Landlord reasonably has determined that Landlord shall not be provided sufficient insurance proceeds to repair,

 

10


restore, and replace the improvements as required hereunder or (b) the Property and the improvements located thereon shall be damaged to the extent of fifty (50%) percent or more of the cost of replacement, then, in either event, Landlord may elect either to repair or rebuild (in the manner provided in the preceding sentence) the improvements located on the Property or to terminate this Lease upon giving notice of such election in writing to Tenant within ninety (90) days after the occurrence of the event causing the damage (such notice to specify, in good faith, whether Landlord is terminating the Lease pursuant to subsection (a) and/or (b), above). In the event one of Landlord’s stated reasons for terminating the Lease is subsection (a), Tenant shall have the option of providing notice to Landlord (the “Notice”), within twenty (20) days of Landlord’s notice to Tenant, that Tenant, itself, shall pay the difference between the total amount of Landlord’s insurance proceeds made available to Landlord for such repair, restoration, and replacement and the Landlord’s total cost for the same. If Tenant provides the Notice to Landlord, the Lease and Landlord’s obligation to repair, restore and replace the damaged improvements as provided hereunder shall not terminate, provided that Tenant also provides to Landlord within twenty (20) days of the Notice reasonable evidence satisfactory to Landlord that it has sufficient funds available (including, without limitation, a binding commitment for a loan from a bank or other institutional lender). Notwithstanding that Tenant has provided the Notice and such reasonable evidence, Landlord shall not be required to commence construction of any repairs, replacements, or restorations the cost of which would be in excess of Landlord’s available insurance proceeds until Tenant has made available to Landlord its additional funds.

Notwithstanding anything to the contrary in this Section, and provided that the casualty to the Property does not arise from the acts or omissions of Tenant, its agents, employees, contractors, or invitees and further provided that such, casualty materially adversely affects Tenant’s use and occupancy of the Property, if the time necessary to repair any casualty (as reasonably estimated by an independent architect in the Charleston area mutually designated by Landlord and Tenant) following such casualty exceeds twelve (12) months from the date of casualty, then Tenant shall have the right to terminate this Lease upon written notice given to Landlord. If the casualty, repairing, or rebuilding shall render the Property untenantable, in whole or in part, and the damage shall not have been due to the default or neglect of Tenant, a proportionate abatement of Base Rent shall be allowed from the date when the damage occurred until the date Landlord completes its work and Tenant is permitted to occupy the affected area, said proportion to be computed on the basis of the relation which the gross square foot area of the space in the building rendered untenantable bears to the entire building. If the time to cure exceeds the time remaining on the balance of the Lease, Tenant may promptly give written notice and vacate Property with no penalties. This abatement shall not apply unless there is sufficient insurance payable to Landlord to cover all of Landlord’s loss of Rent.

21. Condemnation . If the whole of the Property or such po


SITE SEARCH

AGREEMENTS / CONTRACTS

Document Title:

Entire Document: (optional)

Governing Law:(optional)
 

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Close this window