Exhibit 10.11
AMENDMENT FOUR TO LEASE AGREEMENT
THIS AMENDMENT FOUR TO LEASE AGREEMENT (this "Amendment"), made and
entered into as of the 27th day of March, 1998, by and between RBC CORPORATION
("Landlord") and BUSINESS TELECOM, INC. (referred to in the Lease (defined
below) as Business Telecommunication, Inc. ("Tenant");
WITNESSETH THAT:
WHEREAS, Landlord and Tenant entered into that certain Lease dated May
13, 1994, as amended by that certain Amendment One to Lease Agreement dated as
of March 1, 1995 (the "First Amendment"), as further amended by that certain
Amendment Two to Lease Agreement dated November 30, 1995 (the "Second
Amendment") and letter agreement of even date therewith (the "Modified Option"),
as further amended by that certain Amendment Three to Lease Agreement dated May
15, 1997 (the "Third Amendment") (the Lease, the First Amendment, the Second
Amendment, the Modified Option and the Third Amendment being collectively
hereinafter referred to as the "Lease") for certain premises consisting of
approximately 81,887 rentable square feet of office space (the "Demised
Premises") in the building at 0000 Xxx Xxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx (the
"Building");
WHEREAS, Landlord has agreed to lease additional premises to Tenant and
Tenant has agreed to lease such additional premises from Landlord; and
WHEREAS, Landlord and Tenant desire to evidence such expansion of the
Demised Premises and to amend certain other terms and conditions of the Lease
and evidence their agreements and other matters by means of this Amendment;
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the Lease is hereby amended and
the parties hereto do hereby agree as follows:
1. Paragraph 3 of the Third Amendment provides that Tenant shall
vacate and return to Landlord approximately 8,912 rentable
square feet of space on the second floor and being more
particularly described therein as the "Released Space" (and
referred to in this Amendment as the "Expansion Space") as of
January 1, 1998 (the "Effective Date"). As of the Effective
Date, Paragraph 3 of the Third Amendment shall be deleted from
the Lease and Landlord agrees to lease to Tenant and Tenant
agrees to lease from Landlord the Expansion Space upon the
following terms and conditions:
a. The Expansion Space shall be added as part of the
Demised Premises for all purposes, except as
otherwise expressly provided herein, as of the
Effective Date. Annual Minimum Rent and additional
rent with respect to the Expansion Space shall
commence as provided in Section 1(e) below.. The Base
Amount and Tax Base Amount applicable to the
Expansion Space shall be those amounts currently in
place for the balance of the Demised Premises
(excluding the first floor area).
b. All references in this Lease for purposes of
determining Tenant's percentage of the Building shall
include the Expansion Space for purposes of
calculating such percentage or pro rata portion. As
of the Effective Date, the Demised Premises shall
contain 90,799 rentable square feet of space.
c. Annual Minimum Rent with respect to the Expansion
Space only shall be $19.50 per rentable square foot
commencing as provided in Section 1(e) below, subject
to escalations as set forth in the Lease; provided,
however, that in place of all Annual Minimum Rent
(Base Rent) increase limitations of any nature
otherwise set forth in the Lease, Annual Minimum Rent
for the Expansion Space shall not be increased by
more than six percent (6%) per annum calculated on an
annual basis from the previous year; and provided
further, that the increases in Annual Minimum Rent
for the Expansion Space to go into effect as of
January 1 of each calendar year shall be calculated
based on the percentage increases in the Index (using
the Index for December of the year immediately prior
to each January 1 as the numerator and the Index for
December of 1997 as the denominator) applied only to
$14.66, which is the $19.50 Annual Minimum Rent less
the Base Amount ($3.85) and Tax Base Amount ($0.99)
applicable to the Expansion Space, multiplied times
the rentable square feet in the Expansion Space.
d. Tenant hereby accepts the Expansion Space "AS IS" and
acknowledges and agrees Landlord shall have no
obligation to construct any tenant improvements in
the Expansion Space or make any alterations or
additions thereto.
e. Irrespective of the Effective Date for the Expansion
Space, Tenant shall be entitled to four (4) months
free rent, with obligations as to Annual Minimum Rent
and additional rent to commence as of May 1, 1998.
f. Landlord shall deliver to Tenant within five (5) days
from the full execution of this Amendment the sum of
$166,990.44 representing sums due Tenant with respect
to the Expansion Space after adjustments agreed upon
by Landlord and Tenant.
2. Landlord and Tenant agree that the escalations called for by
Section 9, Note 3 of Schedule I (Revised March 1, 1995)
attached to the First Amendment establishes Annual Minimum
Rent for the Demised Premises (excluding portions located on
the First Floor and Second Floor) at $17.49 per rentable
square foot effective January 1, 1998. No escalations are
applicable to those portions of the Demised Premises located
on the First Floor or the Expansion Space for calendar year
1998. For 1999 and future years, Landlord shall notify Tenant
in writing of all escalations in Annual Minimum Rent for all
portions of the Demised Premises by no later than April 15 of
the applicable year. In the event of any failure to so notify
Tenant, Landlord shall not be entitled to recover any
escalation in Annual Minimum Rent for any month prior to the
first full month after the escalation notice is actually given
in writing by
Landlord to Tenant.
3. All capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Lease.
4. This Amendment represents the entire agreement between the
parties hereto. Landlord and Tenant agree that there are no
collateral or oral agreements or understandings between them
with respect to the Demised Premises or the Building. This
Amendment supersedes all prior negotiations, agreements,
letters or other statements with respect to the Expansion
Space.
5. Simultaneously with the execution of this Amendment, the
parties shall execute the attached Memorandum of Lease and
cause the same to promptly be recorded with the Wake County,
North Carolina Register of Deeds.
EXCEPT AS expressly amended and modified hereby, the Lease shall
otherwise remain in full force and effect, the parties hereto hereby ratifying
and confirming the same. To the extent of any inconsistency between the Lease
and this Amendment, the terms of this Amendment shall control.
IN WITNESS WHEREOF, the undersigned parties have duly executed this
Amendment as of the day and year first above written.
TENANT: LANDLORD:
BUSINESS TELECOM, INC. RBC CORPORATION
(referred to in the Lease as Business
Telecommunications, Inc.)
By:__________________________________ By:_________________________________
Title:_____________________________ Title:____________________________
SECOND FLOOR PAYMENT ADJUSTMENTS
$ 225,000.00 Agreed Adjustment for second floor
($ 48,503.43) Pass Through Amounts and/or Base Rent Increases not timely
billed
($ 57,928.00) Four Months Free Rent (8,912 x $19.50 ) 12 x 4)
$ 48,421.87 (1) Refund for Rent Paid
$ 166,990.44 (2) Net Due BTI
============
(1) Rent paid for January, February, March and April on the 8,912 square
foot Expansion Space by Tenant (8,912 x 16.30 ) 12 x 4) being refunded.
(2) Landlord agrees that $6,420.16 representing an interest dispute
regarding the First Floor Upfit, may be applied to after hours HVAC
charges.
