Exhibit 10.37
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STATE OF SOUTH CAROLINA
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TRIPLE NET LEASE
AGREEMENT
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COUNTY OF
BERKELEY
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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
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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.
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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.
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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
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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
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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
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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.
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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
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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.
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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