EXHIBIT 10.106
LEASE AGREEMENT FOR THE LUCENT BUILDING
NET LEASE AGREEMENT
FROM
XXXXX OPERATING PARTNERSHIP, L.P.
LANDLORD
TO
LUCENT TECHNOLOGIES INC.
TENANT
PREMISES: 000 Xxxxxx Xxxx,
Xxxx, Xxxxx Xxxxxxxx
DATED: September 28, 2001
* * * *
The mailing, delivery or negotiation of this Lease by Tenant or Landlord or
their respective agents, brokers, or attorneys shall not be deemed an offer by
Tenant or Landlord to enter into this Lease or to enter into any other
relationship with Landlord or Tenant, as the case may be, whether on the terms
contained herein or on any other terms. This Lease shall not be binding upon
Tenant or Landlord, and neither Tenant nor Landlord shall have any rights,
obligations or liabilities with respect thereto, or with respect to the
Premises, unless and until Tenant and Landlord have executed and delivered this
Lease. Until such execution and delivery of this Lease, Tenant and Landlord each
may terminate all negotiation and discussion of the subject matter hereof,
without cause and for any reason, without recourse or liability to the other.
* * * *
TABLE OF CONTENTS
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Page
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1. DEFINITIONS............................................................. 1
2. PREMISES DEMISED........................................................ 2
3. TERM.................................................................... 2
4. RENTAL.................................................................. 3
5. DELIVERY OF POSSESSION.................................................. 4
6. INTENTIONALLY OMITTED................................................... 4
7. TENANT'S PROPERTY....................................................... 4
8. USE..................................................................... 4
9. COMPLIANCE WITH LEGAL REQUIREMENTS...................................... 5
10. ENVIRONMENTAL COMPLIANCE............................................... 5
11. REPAIRS AND MAINTENANCE................................................ 7
12. INTENTIONALLY OMITTED.................................................. 9
13. TAXES.................................................................. 9
14. SERVICES AND UTILITIES................................................. 11
15. ALTERATIONS............................................................ 11
16. ASSIGNMENT AND SUBLEASE................................................ 14
17. DAMAGE OR DESTRUCTION.................................................. 17
18. EMINENT DOMAIN......................................................... 18
19. INSURANCE.............................................................. 20
20. SUBROGATION AND WAIVER................................................. 22
21. INDEMNITY.............................................................. 23
22. INTENTIONALLY OMITTED.................................................. 23
23. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT.......................... 23
24. LANDLORD'S RIGHT OF ENTRY.............................................. 24
25. PARKING FACILITIES..................................................... 25
26. SIGNS.................................................................. 25
27. RULES AND REGULATIONS.................................................. 25
28. ACCESS................................................................. 25
29. USE OF THE ROOF AND BUILDING STRUCTURE................................. 26
30. TENANT'S DEFAULT; RIGHTS AND REMEDIES.................................. 26
31. LANDLORD'S DEFAULT; RIGHTS AND REMEDIES................................ 31
32. HOLDING OVER........................................................... 32
33. QUIET ENJOYMENT........................................................ 33
34. MUTUAL REPRESENTATION OF AUTHORITY..................................... 33
35. LANDLORD'S CLAIMS...................................................... 33
36. REAL ESTATE BROKERS.................................................... 34
37. ATTORNEYS' FEES........................................................ 34
38. ESTOPPEL CERTIFICATE................................................... 35
39. RECORDABLE MEMORANDUM.................................................. 36
40. OPTIONS TO EXTEND...................................................... 36
41. INTENTIONALLY OMITTED.................................................. 38
42. CONFIDENTIALITY........................................................ 38
43. GOVERNING LAW.......................................................... 38
44. NOTICES................................................................ 38
45. INTENTIONALLY OMITTED.................................................. 39
46. COUNTERPARTS........................................................... 39
47. ENTIRE AGREEMENT....................................................... 40
48. MISCELLANEOUS.......................................................... 40
49. INTENTIONALLY OMITTED.................................................. 42
50. INTENTIONALLY OMITTED.................................................. 42
51. SURRENDER.............................................................. 42
52. DECLARATION OF EASEMENTS................................................ 43
LEASE AGREEMENT
THIS LEASE AGREEMENT made this 28 day of September, 2001 between XXXXX
OPERATING PARTNERSHIP, L.P. ("Landlord"), a Delaware limited partnership, having
an office at 0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000, and
LUCENT TECHNOLOGIES INC. ("Tenant"), a Delaware corporation, having its
principal office at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
W I T N E S S E T H:
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1. Definitions.
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The following terms are defined in the paragraphs listed below:
TERM PARAGRAPH
---- ---------
Additional Rent 4(c)
Alterations 15(a)
BOMA Standards 2(b)
Building 2(a)
Casualty 17(a)
Environmental Laws 10(b)
Event of Default 30(a)
Expiration Date 3(a)
Extended Term 40(a)
Fair Market Rent 40(b)
Fixed Rent 4(a)
Fixtures 15(f)
Force Majeure 48(d)
Hazardous Substances 10(b)
Impositions 13(a)(i)(1)
Interest Rate 4(c)
Land 2(a)
Legal Requirements 9(c)
Listed Broker 36(a)
Net Rent 30(e)(ii)
Premises 2(a)
Primary Term 3(a)
Property 2(a)
TERM PARAGRAPH
---- ---------
Qualified Real Estate
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Appraiser 42(f)
Rent 4(c)
Rentable Floor Area of
the Premises 2(b)
Rentable Floor Area of
the Building 2(b)
Rental Commencement Date 3(a)
Substantial Taking 18(a)
Superior Interest 23
Taking 18(a)
Target Date 5(a)
Taxes 13(a)(iii)
Tenant Affiliate 16(d)
Tenant's Property 7
Term 3(a)
2. Premises Demised.
----------------
(a) Landlord leases and demises to Tenant and Tenant hires from Landlord
the "Premises" (as hereinafter defined). The "Premises" shall mean the
"Property" (as hereinafter defined). The "Property" shall mean the "Land" (as
hereinafter defined), together with all improvements now or hereafter located on
the Land, including but not limited to the "Building" (as hereinafter defined),
the Building's parking facilities, any walkways, covered walkways or other means
of access to the Building and the Building's parking facilities, lobbies,
plazas, and landscaping. The "Building" means that certain building consisting
of approximately 120,000 rentable square feet and located at 000 Xxxxxx Xxxx,
Xxxx, Xxxxx Xxxxxxxx. No easement for light, view or air is included in the
Premises or granted hereunder. The Building is located on the parcel of land
described on the attached Exhibit B (the "Land").
---------
(b) For purposes of this Lease, the "Rentable Floor Area of the Premises"
shall mean 120,000 square feet and the "Rentable Floor Area of the Building"
shall mean 120,000 square feet.
3. Term.
----
The primary term of this Lease (the "Primary Term") shall commence on the
date hereof and shall expire at 11:59 p.m. on September 30, 2011 (the "Initial
Expiration Date"). The date of this Lease is sometimes referred to as the
"Rental Commencement Date". As used in this Lease, "Term" shall mean the Primary
Term and any duly exercised extension of the term. "Expiration Date" shall mean
the later of the Initial Expiration Date or the date upon which any Extended
Term (the option for which has been exercised) would have expired but for any
termination of this Lease.
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4. Rental.
------
(a) For each Lease Year (as hereinafter defined), Tenant agrees to pay
Landlord the annual rent set forth in subparagraph (b) of this Paragraph 4 (the
"Fixed Rent"). Fixed Rent shall be payable in equal monthly installments, in
advance, on the first day of each month of the Term. Rent for any month's
partial occupancy shall be prorated, as shall Rent for any Lease Year consisting
of more or less than twelve (12) full calendar months. As used in this Lease,
the term "Lease Year" shall mean the twelve month period commencing on the
Rental Commencement Date, and each successive twelve month period thereafter
during the Term, except that if the Rental Commencement Date is not on the first
day of a calendar month, the first Lease Year shall extend through the end of
the twelfth month after the Rental Commencement Date.
(b) Fixed Rent: The Fixed Rent payable in each Lease Year of the Primary
Term shall be:
Lease Year Fixed Rent Monthly Installments
---------- ------------- --------------------
1 $1,800,000.00 $150,000.00
2 $1,854,000.00 $154,500.00
3 $1,909,620.00 $159,135.00
4 $1,966,908.60 $163,909.05
5 $2,025,915.96 $168,826.33
6 $2,086,693.44 $173,891.12
7 $2,149,294.20 $179,107.85
8 $2,213,772.96 $184,481.08
9 $2,280,186.12 $190,015.51
10 $2,348,591.76 $195,715.98
(c) "Rent" shall mean Fixed Rent. Tenant covenants and agrees to pay to
Landlord, from time to time as provided in this Lease, (i) interest at the
"Interest Rate" [which for all purposes of this Lease shall equal two percent
(2%) plus the "prime rate" (as used herein, "prime rate" shall mean the rate of
interest per annum announced from time to time by Bank of America, N.A., or its
successor organization, as its prime commercial lending rate)] on all
installments of Rent not paid by the fifth (5th) day after receipt by Tenant of
notice of nonpayment, from the due date through the date of payment, provided,
however, such five (5) day grace period shall be applicable only two (2) times
in any twelve (12) month period, and with respect to any installment of Rent
thereafter coming due within said twelve (12) month period, interest shall
accrue from the due date of such Rent through the date of payment regardless of
whether same is paid by the fifth (5/th/) day after receipt by Tenant of notice
of nonpayment, (ii) all amounts, other than
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Rent, which Tenant herein agrees to assume and pay to Landlord, (iii) all other
amounts (including but not limited to Taxes) which Tenant herein agrees to
assume and pay to a third party or third parties, in those circumstances where
Tenant shall fail or refuse to pay to such third party or parties and Landlord
elects to pay such amounts as herein provided, and (iv) interest at the Interest
Rate on amounts referred to in (ii) and (iii) above not paid within five (5)
days after receipt by Tenant of notice of nonpayment thereof, from the due date
through the date paid or, if demand is required therefor by the terms of this
Lease, from the date which is forty-five (45) days after the date of demand
through the date paid (all of the aforementioned items being herein included in
"Additional Rent"). If Tenant fails to pay any Additional Rent, Landlord shall
have the same rights, powers and remedies for such failure as are provided in
this Lease, at law, in equity or otherwise for the nonpayment of Rent.
5. Delivery of Possession.
----------------------
As of the date hereof, Tenant acknowledges that Landlord has delivered
possession of the Premises to Tenant and accepts the Premises in their current
"AS-IS" condition. Tenant further acknowledges that the Premises are acceptable
for Tenant's permitted use, as set forth in Paragraph 8.
6. Intentionally Omitted.
---------------------
7. Tenant's Property.
-----------------
"Tenant's Property" shall mean all of Tenant's personal property,
furniture, furnishings, signs, telecommunication equipment, equipment and trade
fixtures, including but not limited to all modular office furniture located on
the Premises. Tenant's right to remove Tenant's Property upon the expiration or
other termination of this Lease shall be governed by the provisions of Paragraph
51 hereof.
8. Use.
---
The Premises shall be used for executive, general administrative, office
space, telemarketing center, telephone customer service center, research and
development, and other similar purposes and no other purposes and in accordance
with all applicable Legal Requirements, all nationally recognized industry
standards applicable to such uses and the Rules and Regulations attached hereto
and made a part hereof. Manufacturing and assembly are expressly prohibited
uses. Tenant covenants and agrees to abide by the Rules and Regulations in all
respects as now set forth and attached hereto and, upon receipt of a copy
thereof, as hereafter promulgated by Landlord. Landlord shall
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have the right at all times during the Term to publish and promulgate and
thereafter enforce such rules and regulations or changes in the existing Rules
and Regulations as it may reasonably deem necessary to protect the
tenantability, safety, operation, and welfare of the Premises and the Property.
9. Compliance with Legal Requirements.
----------------------------------
(a) Landlord shall comply with all applicable Legal Requirements which
apply to the use of the Premises for office use in general and which pertain to
the structural components of the Building, including without limitation the
roof, roofing system, exterior walls, bearing walls, support beams, foundations,
columns, exterior doors and windows and lateral support to the Building. Tenant
shall comply with Legal Requirements which apply to any particular manner in
which Tenant uses the Premises (as distinguished from general office use) and
which pertain to the structural components of the Building. With respect to any
changes, repairs, alterations, or additions to the Premises which are non-
structural, Tenant will also comply with all Legal Requirements pertaining to
the Premises, whether required of office buildings in general or required for
Tenant's particular use of the Premises. Tenant shall defend, indemnify and
save Landlord harmless from any claims, fines, penalties, liabilities, losses,
damages, costs and expenses (including reasonable attorney's fees, expert
witness fees and other costs of defense) arising from the failure of Tenant to
comply with its obligations under this Paragraph 9.
(b) "Legal Requirements" shall mean (i) all federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations,
ordinances or recommendations affecting the Premises or any part thereof, or the
use thereof, including without limitation those which require repairs to or any
structural changes in the Premises or the Building whether or not any such
statutes, laws, rules, orders, regulations, ordinances or recommendations which
are now existing or which may hereafter be enacted involve a change of policy on
the part of the governmental body enacting the same, (ii) all rules, orders and
regulations of the National Board of Fire Underwriters or other bodies
exercising similar functions and responsibilities in connection with the
prevention of fire or the correction of hazardous conditions which apply to the
Premises, (iii) the requirements of all policies of public liability, fire and
other insurance which at any time may be in force with respect to the Premises,
and (iv) private restrictive covenants applicable to the Property.
10. Environmental Compliance.
------------------------
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(a) Tenant agrees to comply with all applicable Environmental Laws [as
defined in Paragraph 10(b) hereof] insofar as they pertain solely to the
particular manner in which Tenant shall use the Premises.
(b) Tenant shall not generate, store, handle, transport, treat,
dispose of or use on the Premises any Hazardous Substances, except that Tenant's
use on the Premises of cleaning supplies, copying fluids, other office and
maintenance supplies and other substances normally and customarily used by, and
in amounts customarily used by, tenants occupying space for office and
administrative purposes similar to the Premises shall not be deemed a violation
of this Paragraph 10(b), but only so long as the quantities thereof do not pose
a threat to public health or to the environment and do not necessitate a
"response action", as that term is defined in the Comprehensive Environmental
Response, Compensation, and Liability Act, as amended, and so long as Tenant
strictly complies or causes compliance with all Environmental Laws concerning
the use, storage, production, transportation and disposal of such Hazardous
Substances. "Hazardous Substances" shall mean and include those elements or
compounds which are contained in the list of Hazardous Substances adopted by the
United States Environmental Protection Agency (EPA) or in any list of toxic
pollutants designated by Congress or the EPA or which are defined as hazardous,
toxic, pollutant, infectious or radioactive by any other federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to or imposing liability (including, without limitation, strict
liability) or standards of conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereinafter in effect
(collectively "Environmental Laws"). Tenant agrees that any Alterations (as
permitted in accordance with the provisions of Paragraph 15) made by it to the
Premises will contain no Hazardous Substances that would violate Environmental
Laws or pose a threat to public health or the environment except that Tenant's
use of commercially available construction products and materials, normally and
customarily used in, and in amounts customarily used in, the construction of
improvements in buildings similar to the Building by tenants occupying space for
office and administrative purposes similar to the Premises shall not be deemed a
violation of this sentence when such products and materials are used and
installed as is usual and customary in the construction of improvements similar
to the Building at the time of construction or installation.
(c) Tenant shall defend, indemnify and save Landlord harmless from any
claims, fines, penalties, liabilities (including without limitation strict
liability), losses, damages, costs and expenses (including without limitation
reasonable
6
attorney's fees, expert witness fees and other costs of defense and costs of any
settlement or judgment or claims asserted or arising under the Comprehensive
Environmental Response, Compensation, and Liability Act, any so-called federal,
state or local "Superfund" or "Superlien" laws or any other Environmental Law)
which arise from Tenant's breach of its representations, warranties, covenants
and agreements contained in this Paragraph 10.
11. Repairs and Maintenance.
-----------------------
(a) Landlord shall not be required to maintain nor make any repairs,
replacements or improvements to the Property.
(b) Except for the obligations of Landlord under Paragraphs 11(a), 17 and
18 hereof, Tenant covenants and agrees that at Tenant's sole cost (i) Tenant
will take good care of the Premises and all alterations, additions and
improvements thereto and will keep and maintain the same in good condition and
repair, except for normal wear and tear and casualty, (ii) Tenant shall perform
diligently, promptly and in a good and workmanlike manner in compliance with all
applicable Legal Requirements, all maintenance, repairs and replacements to the
Premises, and (iii) Tenant shall operate, use, clean, repair and maintain
(including without limitation replacements), and provide security for, the
Property, in a first-class manner, including without limitation providing the
Building Standard Services and providing the following:
(1) electricity, gas, steam, water, sanitary sewer, air
conditioning and other fuel and utilities for the Property;
(2) casualty, liability, fidelity, rental loss, plate glass and
any other insurance applicable to the Property;
(3) repairs, maintenance and painting;
(4) all supplies, tools, materials and equipment used in the
operation, management, maintenance and access control of the Property;
(5) supplies, work clothes and dry cleaning;
(6) maintenance and service agreements for the Property and the
equipment therein, including but not limited to window cleaning, security
personnel, service or system, elevator maintenance, HVAC maintenance,
janitorial service,
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waste recycling service, landscaping maintenance and customary landscaping
replacement;
(7) telephone and stationery;
(8) legal, accounting and other professional fees and
disbursements incurred in connection with the operation, management,
maintenance and repair of the Property;
(9) association fees and dues levied pursuant to recorded
instruments affecting the Property, if any;
(10) decorations;
(11) exterior and interior landscaping;
(12) wages, salaries and other costs of all on-site and off-site
employees engaged in the operation, management, maintenance or access
control of the Property, including taxes, insurance and benefits;
(13) operating and maintaining the signage described in
Paragraph 26 hereof;
(14) all items (including security equipment and energy
management equipment), amortized over their respective useful lives, which
are installed for the purpose of reducing operating expenses, promoting
safety, complying with governmental requirements, or maintaining the first-
class nature of the Property; and
(15) trash and garbage removal, vermin extermination, and snow,
ice and debris removal.
Tenant shall at once report, in writing, to Landlord any defective or dangerous
condition known to Tenant. To the fullest extent permitted by law, Tenant agrees
that the rights of Tenant set forth in this Lease to make repairs at the expense
of Landlord are the sole and exclusive rights and remedies of Tenant for the
failure of Landlord to make repairs. Landlord has no obligation and has made no
promise to alter, remodel, improve, repair, decorate or paint the Premises or
any part thereof, except as may be specifically and expressly herein set forth.
This Lease sets forth the sole and exclusive rights of Tenant to terminate this
Lease or quit and surrender the Premises or receive an abatement of rent by
reason of any happening, event, occurrence or situation during the Term, whether
foreseen or unforeseen, and however extraordinary. In addition to and not in
limitation of the foregoing, during the Term, Tenant shall, at its sole expense,
(i) do its own redecorating of the interior of
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the Premises; (ii) be responsible for normal, routine maintenance and care of
the interior of the Premises, such as changing filters and light bulbs, and
(iii) make all repairs caused by Tenant's negligence, unless covered by any
insurance policy maintained by Landlord or unless caused by the negligence or
willful misconduct of Landlord, its agents, independent contractors,
representatives or employees. Landlord shall grant Tenant a nonexclusive
assignment, to be shared in common with Landlord, its successors and assigns, of
all warranties and guaranties assigned to Landlord by Tenant, upon Landlord's
acquisition of the Property from Tenant, with respect to items which Tenant is
obligated to repair hereunder.
12. Intentionally Omitted
---------------------
13. Taxes.
-----
(a) For purposes of this Lease, the following Definitions shall apply:
(i) "Taxes" shall mean all real estate taxes, assessments (special or
otherwise), sewer and water rents, rates and charges, and any other governmental
(including without limitation taxing districts and authorities now existing or
hereafter created) levies, impositions and charges of a similar nature and any
other taxes and assessments attributable to the Property or its operation (and
the costs of contesting any of the same), including without limitation business
license taxes and fees ("Impositions"), which may be levied, assessed or imposed
on or in respect of all or any part of the Property, whether or not the same
constitute one or more tax lots. If, however, by law, any assessment may be
divided and paid in annual installments, then, for the purposes of this
definition, (i) such assessment shall be deemed to have been so divided and to
be payable in the maximum number of annual installments permitted by law, and
(ii) there shall be deemed included in Taxes for each calendar year the annual
installment of such assessment becoming payable during such year, together with
interest payable during such year on such annual installment and on all
installments thereafter becoming due as provided by law, all as if such
assessment had been so divided. Impositions do not include taxes and
assessments imposed on the personal property of the tenants of the Property,
federal and state taxes on income, death taxes, franchise taxes.
(ii) "Taxes" shall include penalties and interest resulting from Tenant's
failure to pay all or any portion of the Taxes in accordance with Paragraph
13(b) hereof.
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(b) Tenant shall be solely responsible for and shall pay prior to
delinquency all Taxes. On or before the date such Taxes become delinquent or any
interest or penalty shall be imposed for nonpayment thereof, Tenant shall
provide Landlord with written evidence of such payment of Taxes.
(c) Tenant shall pay promptly when due all taxes directly or indirectly
imposed or assessed upon Tenant's gross sales, business operations, machinery,
equipment, trade fixtures and other personal property or assets, whether such
taxes are assessed against Tenant, Landlord, the Property or the Building. In
the event that such taxes are imposed or assessed against Landlord or the
Property or the Building, Landlord shall furnish Tenant with copies of all
applicable tax bills, public charges and other assessments or impositions and
Tenant shall forthwith pay the same either directly to the taxing authority or,
at Landlord's option, to Landlord. In addition, in the event there is imposed at
any time a tax upon and/or measured by the rental payable by Tenant under this
Lease, whether by way of a sales or use tax or otherwise, Tenant shall be
responsible for the payment of such tax and shall pay the same on or prior to
the due date thereof; provided, however, that the foregoing shall not include
any inheritance, estate, succession, transfer, gift or income tax imposed on or
payable by Landlord.
(c) Tenant shall be entitled to any reductions or refunds (net of the
costs of collection thereof) for taxes paid by Tenant. If any reduction or
refund is credited or paid to Landlord for taxes paid by Tenant, said amount
shall be paid by Landlord to Tenant within twenty (20) days after receipt by
Landlord of credit or payment. This provision shall survive the expiration of
this Lease.
(d) Provided Landlord consents, which consent shall not be unreasonably
withheld or delayed, Tenant, at Tenant's sole cost and expense, shall have the
right to contest the validity or the amount of any Taxes by appropriate
proceedings conducted in good faith and with due diligence in the applicable
jurisdiction, and may defer payments of such obligations, pay same under
protest, or take such other steps as Tenant may deem appropriate, provided,
however, that (a) Tenant shall first make all contested payments (under protest
if it desires) unless such proceeding shall suspend the collection thereof from
Landlord and from Rent under this Lease and from the Property and the Premises,
(b) no part of the Premises or the Property or any interest therein or the Rent
under this Lease shall be subjected thereby to sale, forfeiture, foreclosure or
interference, (c) Landlord shall not be exposed thereby to any civil or criminal
liability for failure to comply with any law, statute, code or regulation and
neither the Premises nor the Property shall be subject to the imposition
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of any lien as a result of such failure, and (d) Tenant shall have furnished any
security required in such proceeding or under this Lease or reasonably requested
by Landlord to ensure payment of any Taxes. Landlord shall cooperate in the
institution and prosecution of any such proceedings and will execute any
documents required therefor without cost or expense to Tenant. The expense of
such proceedings shall be borne by Tenant. Tenant shall be entitled to retain
any refunds or rebates secured in such proceedings. Tenant agrees that it shall
pay, and save Landlord harmless from and against, any and all losses, judgments,
decrees and costs (including all attorneys' fees and expenses) in connection
with any such contest and that, promptly after the final determination of every
such contest, Tenant shall fully pay and discharge all amounts which shall be
levied, assessed, charged or imposed or be determined to be payable therein,
together with all penalties, fines, interest, costs and expenses resulting
therefrom.
14. Services and Utilities.
----------------------
(a) Tenant acknowledges that all utility service connections to the
Premises and the Building, including but not limited to connections for water,
sewerage, and electrical service, currently exist and are sufficient to permit
Tenant's use of the Premises and Building as permitted hereunder. The cost of
any additional or upgraded utility service connections desired by Tenant during
the Term of this Lease shall be paid for by Tenant.
15. Alterations.
-----------
(a) Without first obtaining Landlord's prior written consent, Tenant
shall not make any alterations, additions or improvements or install any floor
covering, lighting, plumbing fixtures, shades or awnings or any exterior
"Fixtures" [as defined in Paragraph 15(f)] or make any changes in the Premises
(individually, an "Alteration", collectively, "Alterations"); provided, however,
that Tenant shall have no obligation to obtain Landlord's consent for any
Alteration or related series of Alterations if such Alteration or related series
of Alterations:
(i) are nonstructural;
(ii) do not cause any violation of and do not require any change in
any certificate of occupancy applicable to the Building;
(iii) do not cause any change in the outside appearance of the
Building, do not weaken or impair the structure of the
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Building and do not materially reduce the value of the Premises or the Building
or the Property;
(iii) do not affect the proper functioning of the Building equipment;
and
(iv) do not cost in excess of $100,000.00.
Even if Landlord's consent is not required for any Alteration or Alterations,
Tenant shall give Landlord prior notice of any Alteration or related series of
Alterations, and upon completion of any Alterations (other than decorations),
Tenant shall deliver to Landlord three (3) copies of the "as-built" plans for
such Alterations.
(b) With respect to any Alterations that require Landlord's consent, such
consent shall not be unreasonably withheld, delayed or qualified.
(c) Tenant agrees that all Alterations shall at all times comply with all
applicable Legal Requirements and that Tenant, at its expense, shall (i) obtain
all necessary municipal and other governmental permits, authorizations,
approvals and certificates for the construction of such Alterations, (ii)
deliver a copy of such items to Landlord and (iii) cause all Alterations to be
constructed lien free, in a good and workmanlike manner, in accordance with all
Legal Requirements. Tenant, at its expense, shall promptly procure the
cancellation or discharge of all notices of violation arising from or otherwise
connected with Alterations issued by any public authority having or asserting
jurisdiction.
(d) Throughout the making of all Alterations (other than mere
decorations), Tenant, at its expense, shall carry or cause its contractors to
carry the following:
(i) Builder's Risk Insurance, covering Landlord, Landlord's agents and
Landlord's lender(s), and Tenant and Tenant's contractor, as their
interests may appear, against loss or damage by fire, vandalism, and
malicious mischief and other such risks as are customarily covered by the
so-called "broad form extended coverage endorsement" upon all the
Alterations in place and all materials stored at the site of the
Alterations and all materials, equipment and supplies of all kinds incident
to the Alterations, all on a completed value basis to the full insurable
value at all times. Said Builder's Risk Insurance will also include
coverage for loss of rents for a period of twelve (12) months. Said
Builder's Risk Insurance shall contain an express waiver of any right
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of subrogation by the insurer against Landlord, its agents, employees and
contractors.
(ii) Commercial general liability insurance covering any occurrence in or
about the Premises in connection with such Alterations which complies with
the requirements of Paragraph 20. Such liability insurance shall be on a
comprehensive basis including:
(A) Premises - Operations (including X-C-U);
(B) Independent contractors protection;
(C) Contractual liability; and
(D) Broad form coverage for property damage.
(iii) Automobile liability for owned, non-owned and hired motor vehicles;
and
(iv) Statutory Workers' Compensation as required by the State of North
Carolina or local municipality having jurisdiction.
All insurance policies procured and maintained pursuant to this subparagraph
shall name Landlord, Landlord's partners, Landlord's agents and Landlord's
lender(s) as additional insureds and/or loss payees, shall be carried with
companies licensed to do business in the State of North Carolina reasonably
satisfactory to Landlord and shall provide twenty (20) days' written notice to
Landlord. Duly executed certificates of insurance with respect thereto shall be
delivered to Landlord before the commencement of the Alterations, and renewals
thereof as required shall be delivered to Landlord prior to the expiration of
each respective policy term. If Tenant carries the foregoing insurance rather
than its contractor, the insurance company identified in Section 19 shall be
acceptable to Landlord.
(e) Tenant shall indemnify Landlord against liability for any and all
mechanics' and other liens filed in connection with Alterations. Tenant, at its
expense, shall procure the discharge of any such lien within thirty (30) days
after the filing thereof against any part of the Property. If Tenant fails to
discharge any such lien within such thirty (30) day period, then, in addition to
any other right or remedy, Landlord may, upon giving ten (10) days' prior
written notice to Tenant, discharge the same either by paying the amount claimed
to be due or by deposit or bonding proceedings if Tenant has not discharged the
lien within the ten (10) day notice period provided herein. Any amount so
13
paid by Landlord, and all costs and expenses incurred by Landlord in connection
therewith, shall be payable by Tenant upon demand.
(f) Except for items constituting Tenant's Property, all Alterations,
whether or not at the expense of Tenant, and whether or not Landlord's consent
is required shall be and remain a part of the Premises, shall be deemed the
property of Landlord as of the date such Alterations are completed, attached to
or built into the Premises, shall not be removed by Tenant and shall remain on
the Premises at the expiration or earlier termination of the Term without
compensation to Tenant. "Fixtures" shall mean electrical, plumbing, heating and
sprinkling equipment, fixtures, outlets, venetian blinds, partitions, gates,
doors, vaults, paneling, molding, shelving, radiator enclosures, cork, rubber,
linoleum and composition floors, ventilating, silencing, air conditioning and
cooling equipment, and all fixtures, equipment and appurtenances of a similar
nature or purpose. If any Alterations involve the removal of any Fixtures, such
Fixtures shall be promptly replaced, at Tenant's expense and free of superior
title, liens, security interests and claims, with like property, of at least
equal quality and value. Under no circumstances shall Tenant be required at any
time to remove or restore (i) any Alterations that do not require Landlord's
consent, (ii) any Alterations that do require Landlord's consent, unless
Landlord, at the time it gives such consent, expressly requires in writing
removal or restoration of such Alterations, or (iii) any partitions, flooring,
floor covering, pipes, wires, conduits run through a floor, ceiling, or
partition, provided these are cut off or capped in accordance with all
applicable Legal Requirements.
16. Assignment and Sublease.
-----------------------
(a) Tenant shall not, without the prior written consent of Landlord,
assign this Lease or any interest herein or in the Premises, or mortgage,
pledge, encumber, hypothecate or otherwise transfer or sublet the whole Premises
or any part of the Premises or permit the use of the Premises by any party other
than Tenant or a "Tenant Affiliate" (as hereinafter defined). Consent to one or
more such transfers or subleases shall not destroy or waive this provision, and
all subsequent transfers and subleases shall likewise be made only upon
obtaining the prior written consent of Landlord. Without limiting the foregoing
prohibition, in no event shall Tenant assign this Lease or any interest herein,
whether directly, indirectly or by operating of law, or sublet the Premises or
any part thereof or permit the use of the Premises or any part thereof by any
party (i) if the proposed assignee or subtenant is a party who would (or whose
use would) detract from the character of the Building as a first-class building,
such as, without limitation, a dental, medical or
14
chiropractic office or a governmental office, (ii) if the proposed
assignment or subletting shall be to a governmental subdivision or agency
or any person or entity who enjoys diplomatic or sovereign immunity, (iii)
if such proposed assignee or subtenant is an existing tenant of the
Building, or (iv) if such proposed assignment, subletting or use would
contravene any restrictive covenant (including without limitation any
exclusive use) granted to any other tenant of the Building. Sublessees or
transferees of the Premises for the balance of the Term shall become
directly liable to Landlord for all obligations of Tenant hereunder,
without relieving Tenant (or any guarantor of Tenant's obligations
hereunder) of any liability therefor, and Tenant shall remain obligated for
all liability to Landlord arising under this Lease during the entire
remaining Term including any extensions thereof, whether or not authorized
herein, unless such assignee assumes all liability hereunder and has a net
worth equal to or exceeding the aggregate net worth of Tenant and all other
parties then liable for the obligations of Tenant under this Lease. If
Tenant is a partnership, a withdrawal or change, whether voluntary,
involuntary or by operation of law, of partners owning a controlling
interest in Tenant shall be deemed a voluntary assignment of this Lease and
subject to the foregoing provisions; provided, however, if at least one of
the partners owning a controlling interest in Tenant both before and after
such withdrawal or change shall be a corporation (or any entity controlled
by a corporation) whose stock is publicly traded on a nationally recognized
securities exchange (including the NASDAQ over-the-counter market), then
such withdrawal or change shall not be deemed to be an assignment of this
Lease. If Tenant is a corporation, any dissolution, merger, consolidation
or other reorganization of Tenant, or the sale or transfer of a controlling
interest in the capital stock of Tenant, shall be deemed a voluntary
assignment of this Lease and subject to the foregoing provisions. The
preceding sentence shall not apply to, and Tenant shall not be in default
under this Paragraph 16(a) as a result of, an offering of voting stock to
the public pursuant to a registered securities offering, the transfer of
voting stock on a national securities exchange or through the NASDAQ
national market system, or the transfer of voting stock to Tenant's
employees pursuant to a bona fide employee stock ownership plan. If Tenant
shall be a corporation whose stock is publicly traded on a nationally
recognized securities exchange (including the NASDAQ over-the-counter
market), then any merger, consolidation or other similar reorganization of
Tenant, or the sale or transfer of a controlling interest in the voting
capital stock of Tenant shall not be deemed to be an assignment of this
Lease. In the event Landlord consents to an aggregate of three or more
assignments or subleases (in any combination), beginning with the third
such assignment or sublease, and continuing with respect to all subsequent
assignments and subleases, Tenant shall pay to
15
Landlord a fee to cover Landlord's reasonable accounting costs plus any legal
fees incurred by Landlord as a result of the assignment or sublease. Fifty
percent (50%) of any consideration, in excess of "Tenant's Out of Pocket Costs"
(as hereinafter defined), paid to Tenant by any assignee of this Lease (other
than a Tenant Affiliate) for its assignment, or by any sublessee (other than a
Tenant Affiliate) under or in connection with its sublease (when Landlord's
consent is required), or otherwise paid to Tenant by another party for use and
occupancy of the Premises or any portion thereof, shall be promptly remitted by
Tenant to Landlord as additional rent hereunder. "Tenant's Out of Pocket Costs"
shall mean all of Tenant's actual out-of-pocket costs associated with the
applicable assignment or subletting, including the Rent and other charges and
sums due and payable by Tenant under this Lease with respect to such space,
reasonable advertising costs, brokerage commissions, lease concessions,
improvement allowances, and legal fees. Where a portion of the Premises is
sublet, in calculating the profit from such sublease, the costs of Tenant
attributable to the sublet space but applicable to some larger portion of the
Premises shall be prorated on the basis of rentable areas determined according
to BOMA Standards. No assignment of this Lease consented to by Landlord shall be
effective unless and until Landlord shall receive an original assignment and
assumption agreement, in form and substance reasonably satisfactory to Landlord,
signed by Tenant and Tenant's proposed assignee, whereby the assignee assumes
due performance of this Lease to be done and performed for the balance of the
then remaining Term. No subletting of the Premises, or any part thereof, shall
be effective unless and until there shall have been delivered to Landlord an
agreement, in form and substance reasonably satisfactory to Landlord, signed by
Tenant and the proposed sublessee, whereby the sublessee acknowledges the right
of Landlord to continue or terminate any sublease, in Landlord's sole
discretion, upon termination of this Lease, and such sublessee agrees to
recognize and attorn to Landlord in the event that Landlord elects under such
circumstances to continue such sublease.
(b) Any assignment of this Lease or any sublease of the Premises shall not
relieve Tenant of any of its obligations under this Lease.
(c) Whenever Landlord's consent to an assignment or subletting is
required, Tenant shall submit to Landlord a written request for Landlord's
consent, which request shall include the name of the proposed assignee or
sublessee, and the basic business terms of the proposed assignment or
subletting. Landlord may, as a prior condition to considering any request for
consent to an assignment or sublease (when Landlord's consent is required),
require Tenant to obtain and submit current financial
16
statements of any proposed subtenant or assignee. Landlord's failure to respond
within ten (10) business days after receipt of Tenant's request and the
information required by this Paragraph 16(c) shall be deemed approval of the
proposed assignment or sublease.
(d) The consent of Landlord need not be obtained if the assignment or
sublease is to any "Tenant Affiliate" (as hereinafter defined). Tenant shall
give Landlord written notice of any assignment to a Tenant Affiliate, including
the effective date of the assignment. Landlord acknowledges that the Premises
may be occupied by one or more Tenant Affiliates and their employees and that
such use of the Premises shall not be considered an assignment or sublease,
unless Tenant elects to treat it as such and provides Landlord with prompt
written notice thereof. For purposes hereof, "Tenant Affiliate" shall mean an
entity which owns, directly or indirectly, more than fifty percent (50%) of
Lucent Technologies Inc. or which is more than fifty percent (50%) owned,
directly or indirectly, by Lucent Technologies Inc. or an entity into which
Tenant is merged, provided that in the event of a merger, the surviving entity's
net worth exceeds that of Tenant at such time.
17. Damage or Destruction.
---------------------
(a) If the Premises are damaged by fire, other casualty, acts of God, or
the elements (a "Casualty"), this Lease shall not terminate and such damaged
portion of the Premises shall be repaired or rebuilt as set forth in Paragraph
17(b), unless this Lease is terminated as provided in this Paragraph 17(a). If
the Premises are (i) damaged to such an extent that repairs cannot, in
Landlord's judgment, be completed within one hundred eighty (180) days after the
date of the Casualty (if Landlord so determines that the repairs cannot be
completed within such one hundred eighty (180) day period, Landlord shall give
Tenant notice of such determination within forty-five (45) days after the date
of such Casualty), or (ii) damaged or destroyed as a result of a risk which is
not insured under standard fire insurance policies with extended coverage
endorsement, or (iii) damaged or destroyed during the last eighteen (18) months
of the Term, or if the Building is damaged in whole or in part (whether or not
the Premises are damaged), to such an extent that the Building cannot, in
Landlord's judgment, be operated economically as an integral unit, then and in
any such event Landlord may at its option terminate this Lease by notice in
writing to Tenant within forty-five (45) days after the date of such occurrence.
If the Premises are damaged to such an extent that repairs cannot, in Landlord's
judgment, be completed within one hundred eighty (180) days after the date of
the Casualty or if the Premises are substantially damaged during the last
17
eighteen (18) months of the Term, then in either such event Tenant may elect to
terminate this Lease by notice in writing to Landlord within forty-five (45)
days after the date of such occurrence. If the Lease is terminated pursuant to
this Paragraph 17(a), the termination shall be effective as of the date of the
Casualty and the Rent shall xxxxx from that date, and any Rent paid for any
period beyond such date shall be refunded to Tenant.
(b) If this Lease is not terminated as provided in Paragraph l7(a), then
Landlord shall, at its sole cost and expense, restore the Premises as speedily
as practical; provided, however, Landlord's obligation shall be limited to
restoration of the Premises substantially to the condition existing immediately
prior to the Casualty. During the restoration period, Fixed Rent and Additional
Rent shall not xxxxx for any period the Premises are undergoing restoration or
repair. If the cost of performing such repairs exceeds the actual proceeds of
insurance paid or payable to Landlord on account of such Casualty, or if
Landlord's mortgagee or the lessor under a ground or underlying lease shall
require that any insurance proceeds from a casualty loss be paid to it, Landlord
may terminate this Lease unless Tenant, within forty-five (45) days after demand
therefor, deposits with Landlord a sum of money sufficient to pay the difference
between the cost of repair and the proceeds of the insurance available to
Landlord for such purpose.
(c) If Landlord, subject to Force Majeure and subject to delays caused by
Tenant, does not restore the Premises as required in Paragraph 17(b) within the
time period therein set forth, Tenant may terminate this Lease at any time
thereafter [and Rent shall be accounted for as of the date of termination (as of
the date of the Casualty with respect to the damaged portion)], prior to the
date such restoration is substantially completed, provided (i) Tenant gives
Landlord not less than thirty (30) days' prior written notice, and (ii) Landlord
does not complete the restoration during such thirty (30) day period.
(d) If the Modular Office Furniture set forth on Exhibit M shall be
---------
destroyed by fire, other casualty, acts of God, or the elements during the Term
of this Lease, Tenant shall be required to replace such Modular Office Furniture
with modular office furniture of equal value as soon as reasonably practicable
using due diligence.
18. Eminent Domain.
--------------
(a) If there is a taking of all or any portion of the Property or the
Premises by right or threat of eminent domain or by private purchase in lieu
thereof (a "Taking"), this Lease
18
shall terminate as to the part so taken as of the date of Taking, and, in the
case of a "Substantial Taking" (as hereinafter defined), either Landlord or
Tenant shall have the right to terminate this Lease as to the balance of the
Premises by written notice to the other within thirty (30) days after such date.
"Substantial Taking" shall mean either (i) that more than fifteen percent (15%)
of the Premises was taken, or (ii) that the portion of the Premises taken shall
be of such extent and nature as substantially to handicap, impede or impair
Tenant's use of the balance of the Premises and cannot be restored to a
condition suitable for Tenant's business needs within one hundred twenty (120)
days from the date of the Taking, or (iii) that more than fifteen percent (15%)
of the parking spaces for the Building were taken, unless within thirty (30)
days after the date of such Taking Landlord shall notify Tenant of its intention
to replace the parking spaces, and such replacement is provided within one
hundred fifty (150) days of such notice. If title to so much of the Building is
taken that a reasonable amount of reconstruction thereof will not in Landlord's
sole discretion result in the Building being a practical improvement and
reasonably suitable for use for the purpose for which it is designed, then this
Lease shall terminate on the date that the condemning authority actually takes
possession of the part so condemned or purchased. If this Lease is terminated
pursuant to this Paragraph 18(a), Rent shall be prorated and accounted for as of
the date of such termination.
(b) If there shall be a Taking which does not constitute a Substantial
Taking, this Lease shall not terminate but Landlord shall, at its sole cost and
expense, with due diligence, restore the Premises as speedily as practical;
provided, however, Landlord's obligation shall be limited to restoration of the
Premises substantially to the condition existing immediately prior to the
Taking. During the restoration period, a just and proportionate part of the
Fixed Rent shall xxxxx for the period during which the Premises or a portion
thereof are not suitable for Tenant's business needs.
(c) Tenant shall not be entitled to any part of the payment or award for a
Taking, provided that Tenant may file a claim for any loss of Tenant's Property;
moving expenses; or for damages for cessation or interruption of Tenant's
business, provided such claim will not diminish Landlord's recovery. Subject to
the foregoing provisions of this subparagraph (c), Tenant hereby assigns to
Landlord any and all of its right, title and interest in or to any compensation
awarded or paid as a result of any such Taking.
(d) If Landlord, subject to Force Majeure and subject to delays caused by
Tenant, does not restore the Premises as
19
required in Paragraph 18(b) within the time period therein set forth, Tenant may
terminate this Lease at any time thereafter [and Rent shall be accounted for as
of the date of termination (as of the date of the Taking with respect to the
portion taken)], prior to the date such restoration is substantially completed,
provided (i) Tenant gives Landlord not less than thirty (30) days' prior written
notice, and (ii) Landlord does not complete the restoration during such thirty
(30) day period.
19. Insurance.
---------
(a) Landlord shall maintain, at Tenant's sole cost and expense [and Tenant
shall reimburse Landlord such cost and expense within forty-five (45) days after
written demand therefor], during the Term, with solvent and responsible
companies having a rating from Best's Insurance Reports of not less than A-/X,
insurance covering the Property against loss or damage by fire and such other
risks as are from time to time included in a standard form of all-risk policy of
insurance available in the State of North Carolina. Such coverage shall equal
one hundred percent (100%) of the replacement cost of the Building and any
parking facility, exclusive of excavation, footings and foundations, as such
replacement cost is determined from time to time by the insurance company (and
such insurance may provide for a $10,000.00 deductible, or such higher amount as
Tenant shall from time to time approve, which approval shall not be unreasonably
withheld, conditioned or delayed). Notwithstanding the foregoing obligation of
Tenant to pay the cost of such insurance maintained by Landlord, in the event
Tenant reasonably believes that the cost of the insurance Landlord maintains
pursuant to this subparagraph (a) is above market or that Tenant can obtain
comparable insurance at a lower cost, Tenant, at its option and its sole cost
and expense, may obtain such comparable insurance subject to Landlord's
reasonable approval of the insurance carrier and the terms and conditions of the
coverage, including the deductible.
(b) Landlord shall maintain, at Tenant's expense, during the Term, with
solvent and responsible companies having a rating from Best's Insurance Reports
of not less than A-/X, a policy or policies of commercial general liability
insurance insuring against the liability of Landlord arising out of the
maintenance, use and occupancy of the Property, with the limits of such policy
or policies to be in combined single limits for both damage to property and
personal injury and in amounts not less than Five Million Dollars
($5,000,000.00) for each occurrence. Such insurance required herein shall be
issued by an insurance company licensed to do business in the State of North
Carolina. Landlord, Landlord's partners, Landlord's agents, Landlord's managing
agent, any mortgagee of landlord, and any other party
20
designated by Landlord shall be named as insureds under such policy.
(c) Tenant shall maintain, at its expense, during the Term, with solvent
and responsible companies, a policy or policies of commercial general liability
insurance insuring against the liability of Tenant arising out of the
maintenance, use and occupancy of the Property, or occasioned by or arising out
of any construction work being done by Tenant or Tenant's contractors on the
Premises, or in any way occasioned by or arising out of the activities of
Tenant, its agents, contractors or employees in the Premises, or other portions
of the Building or the Property, and of Tenant's guests and licensees while they
are in the Premises, with the limits of such policy or policies to be in
combined single limits for both damage to property and bodily injury and in
amounts not less than Five Million Dollars ($5,000,000.00) for each occurrence.
Such insurance required herein shall be issued by an insurance company licensed
to do business in the State of North Carolina. The per occurrence limit stated
above may be satisfied with any combination of primary and umbrella or excess
liability policies totaling the required limit of insurance. Tenant shall name
Landlord, Landlord's managing agent, and any mortgagee of which Landlord has
advised Tenant, as additional insureds under such primary policy.
(d) Tenant shall maintain, at its expense, during the Term a policy or
policies of all-risk insurance insuring the full replacement cost of its
furniture, equipment, supplies, and other property owned, leased, held or
possessed by it and contained in the Premises, and Tenant shall maintain such
worker's compensation insurance as is required by applicable law.
(e) Tenant shall maintain, at its expense, during the Term, a policy or
policies of business interruption insurance for a period of twelve (12) months
after completion of any repairs or restoration required as a result of a
casualty, the period of business interruption insurance carried by Tenant not
being limited with respect to the period of time between the occurrence of the
casualty and completion of repairs or restoration.
(f) All insurance policies procured and maintained by Tenant pursuant to
this Paragraph 19 shall name Landlord and any additional parties designated by
Landlord as additional insureds, shall be carried with companies licensed to do
business in the State of North Carolina having a rating from Best's Insurance
Reports of not less than A-/X, and shall not be subject to cancellation or
material change except after twenty (20) days' written notice to Landlord.
Notwithstanding the foregoing, Tenant is authorized to use its wholly-owned
captive insurance company, First Beacon Insurance Company, to maintain its
property
21
insurance as outlined in Section 19(d) for as long as such company maintains a
rating from Best's Insurance Reports of not less than B++. Tenant represents
that First Beacon Insurance Company has a current rating from Best's Insurance
Reports of B++. Duly executed certificates of insurance with respect to such
policies have been delivered to Landlord prior to the date hereof and
certificates evidencing renewals of such policies shall be delivered to Landlord
prior to the expiration of each respective policy term.
(g) Landlord acknowledges that Tenant is or may be a self-insurer with
respect to all or a substantial portion of the risks commonly insured against
under liability insurance policies. Notwithstanding any provisions of the Lease
to the contrary, so long as Tenant is Lucent Technologies Inc. or any Tenant
Affiliate, Lucent Technologies Inc. may, at its option, elect to either (i)
obtain and maintain liability insurance policies required of Tenant or (ii)
assume the risk contemplated by and otherwise required under liability insurance
policies pursuant to self-insurance programs of Lucent Technologies Inc.
(h) The policy or policies evidencing such insurance for Paragraphs
19(a), (b), (c),(d) and (e) shall provide that they may not be canceled or
amended without twenty (20) days' prior written notice being given to the party
for whose benefit such insurance has been obtained. Prior to the Rental
Commencement Date, each party shall submit to the other insurance certificates
demonstrating that the required policies are in effect.
20. Subrogation and Waiver.
----------------------
To the full extent permitted by law, the parties waive all right of
recovery against the other for, and release each other and their respective
authorized representatives from, any claims for injury to any person or damage
to the Property that are caused by or result from risks insured against under
any fire, extended coverage, business interruption and loss of rents insurance
or self insurance carried or required to be carried by the party seeking
recovery. Each party shall obtain, for each policy of insurance, a waiver by
the insurer of all right of subrogation against the other party for any loss or
damage within the scope of the insurance and each party to the extent permitted
by law, for itself and its insurer, waives all such insured claims against the
other party. If such waiver or agreement shall not be, or shall cease to be,
obtainable without additional charge, any additional premium for such waiver
shall be paid by the primary insured.
22
21. Indemnity.
---------
(a) Tenant shall defend, indemnify and save harmless Landlord, its
affiliates, and their respective officers, directors, shareholders and partners,
against all claims, liabilities, losses, fines, penalties, damages, costs and
expenses (including without limitation reasonable attorneys' fees and other
costs of litigation) because of injury, including death, to any person, or
damage or loss of any kind to any property caused by any action or omission of
Tenant, or any of its employees, contractors, servants, agents, subtenants or
assignees, or of Tenant's invitees while such invitees are within the Premises
or the Building, or any failure on the part of Tenant to perform its obligations
under this Lease, except to the extent caused by the negligence or willful
misconduct of Landlord, or its employees, contractors, agents or
representatives.
(b) Landlord shall defend, indemnify and save harmless Tenant, Tenant
Affiliates, and their respective officers, directors, shareholder and partners,
against all claims, liabilities, losses, fines, penalties, damages, costs and
expenses (including without limitation reasonable attorneys' fees and other
costs of litigation) because of injury, including death, to any person, or
damage or loss of any kind to any property caused by any action or omission of
Landlord, or any of its employees, contractors, servants or agents, or any
failure on the part of Landlord, to perform its obligations under this Lease,
except to the extent caused by the negligence or willful misconduct of Tenant,
or its employees, contractors, agents or representatives.
22. Intentionally Omitted.
---------------------
23. Subordination, Non-Disturbance and Attornment.
---------------------------------------------
Landlord may subordinate Tenant's interest in this Lease to the lien
of any mortgage or deed of trust which may now or hereafter be placed on the
Property. Landlord shall obtain and deliver to Tenant from any present or
future mortgagee, trustee, fee owner, prime lessor or any person having an
interest in the Premises superior to this Lease (a "Superior Interest") a
written subordination, non-disturbance and attornment agreement ("SNDA") in
recordable form (and Tenant shall execute in recordable form and return to
Landlord such SNDA within fifteen (15) days after receipt by Tenant of such
SNDA), substantially in the form of Exhibit I attached hereto or in such other
---------
commercially reasonable form as shall be agreed to by Tenant (which agreement
23
Tenant agrees not to unreasonably withhold, condition or delay), providing that
so long as Tenant performs all of the terms, covenants and conditions of this
Lease and agrees to attorn to the mortgagee, beneficiary of the deed of trust,
purchaser at a foreclosure sale, prime lessor or fee owner, Tenant's rights
under this Lease shall not be disturbed and shall remain in full force and
effect for the Term, except as set forth and agreed to by Tenant in such SNDA
(which agreement Tenant agrees not to unreasonably withhold, condition or delay;
provided, however, Tenant has agreed to the SNDA attached as Exhibit I), and
---------
Tenant shall not be joined by the holder of any mortgage or deed of trust in any
action or proceeding to foreclose thereunder. Landlord represents and warrants
that, as of the date hereof, the only Superior Interest to this Lease is set
forth on Exhibit J.
---------
24. Landlord's Right of Entry.
-------------------------
(a) Landlord shall retain duplicate keys to all doors of the Premises
and Landlord and its agents, employees and independent contractors shall have
the right to enter the Premises at reasonable hours to inspect and examine same,
to make repairs, additions, alterations, and improvements, and to inspect the
Premises to ascertain that Tenant is complying with all of its covenants and
obligations hereunder; provided, however, that Landlord shall afford Tenant such
prior notification of an entry into the Premises as shall be reasonably
practicable under the circumstances, and, except in case of emergency, Landlord
shall enter only during Tenant's normal business hours (unless Tenant otherwise
consents to entry during other hours, which consent Tenant agrees not to
unreasonably withhold or delay). Landlord shall be allowed to take into and
through the Premises any and all materials that may be required to make such
repairs, additions, alterations or improvements. During such time as such work
is being carried on in or about the Premises, the Rent provided herein shall not
xxxxx, and Tenant waives any claim or cause of action against Landlord for
damages by reason of interruption of Tenant's business or loss of profits
therefrom because of the prosecution of any such work or any part thereof.
(b) During business hours and upon reasonable notice to Tenant,
Landlord may, during the Term, show the Premises to prospective purchasers and
mortgagees, and, during the six (6) months prior to expiration of this Lease, to
prospective tenants.
(c) In exercising its rights under this Xxxxxxxxx 00, Xxxxxxxx shall
use reasonable and diligent efforts to minimize the disruption of the normal
operation of Tenant's business. Landlord, and any third parties entering the
Premises at Landlord's invitation or request shall at all times strictly observe
any reasonable rules relating to security on the Premises
24
which Tenant has provided to Landlord prior to such entry. Tenant shall have the
right, in its sole discretion, to designate a representative to accompany
Landlord, or any third parties, while they are on the Premises.
25. Parking Facilities.
------------------
Tenant, its employees, agents, customers and visitors shall have the
right to use all parking facilities at the Building. All parking shall be
provided at no cost to Tenant during the Term. Landlord shall not make any
changes to the parking facilities at the Building that would result in parking
spaces (regular and, to the extent required by Legal Requirements, handicapped)
being less than four (4) spaces per each 1,000 rentable square feet in the
Building.
26. Signs.
-----
Tenant may retain its existing name and location on the bulletin board
or directory in the Building, and Tenant may place its customary number of names
in the Building directory. Tenant shall be permitted to retain its name on the
exterior doors of the Building, the exterior of the Building, and the exterior
monument sign, all in accordance with Legal Requirement. Tenant shall pay for
the cost of designing, purchasing, installing, maintaining and replacing any
signage under this Paragraph 26. Any signage erected by Tenant (other than the
existing bulletin board or directory signage and the exterior Building and
monument signs) shall be subject to the prior approval of Landlord as to size,
materials and method of lighting and attachment, which approval shall not be
unreasonably withheld. Tenant acknowledges that such signage must also comply
with, and may be replaced only if permitted by, Legal Requirements.
27. Rules and Regulations.
---------------------
Tenant agrees to comply with all reasonable written rules and
regulations which Landlord may establish for the protection and welfare of
Tenant and the Building, provided that all such rules and regulations shall not
interfere with Tenant's use of the Premises. Tenant shall be given a copy of
the rules at least ten (10) days before they become effective. A copy of the
current rules and regulations are attached as Exhibit K. In the event of a
---------
conflict between the rules and regulations, and the provisions of this Lease,
the provisions of this Lease shall prevail.
28. Access.
------
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For such period of time as Tenant has the right under this Lease to
occupy the Premises, subject to reasonable security procedures, Tenant shall
have full and unimpaired access to the Building and the Premises at all times,
and if access to a public road is via private roads or streets, Tenant shall
have the right to use such roads and streets for ingress and egress to the
Building and the Premises.
29. Use of the Roof and Building Structure.
--------------------------------------
Tenant and Tenant Affiliates shall have the right to use a portion of
the roof of the Building and building structure for installation and use of one
or more microwave dishes or other communications radio antenna and associated
equipment ("Communication Equipment"). Tenant shall have no obligation to pay
Rent for such right, but Tenant shall, at its sole cost and expense, maintain
any Communication Equipment in good condition and repair, and comply with the
terms and conditions set forth on Exhibit L for use of the roof and building
---------
structure.
30. Tenant's Default; Rights and Remedies.
-------------------------------------
(a) The occurrence of any one or more of the following matters
constitutes an "Event of Default" by Tenant under this Lease:
(i) failure by Tenant to pay any installment of Rent or any
other charge or assessment against Tenant pursuant to the terms hereof within
five (5) days after receipt by Tenant of written notice of such failure to pay
on the due date; provided, however, such notice and such grace period shall be
required to be provided by Landlord and shall be accorded Tenant, if necessary,
only two times during any consecutive twelve (12) month period of the Term, and
an Event of Default shall be deemed to have immediately occurred upon the third
failure by Tenant to make a timely payment as aforesaid within any consecutive
twelve (12) month period of the Term;
(ii) failure by Tenant to observe or perform any other
covenant, agreement, condition or provision of this Lease, if such failure
continues for thirty (30) days after receipt of written notice from Landlord to
Tenant, provided, however, if such default is of a nature that it can be cured
and if Tenant in good faith commences to cure such default within such thirty
(30) day cure period, but due to the nature of such default it could not be
cured within such cure period after due diligence, no Event of Default shall be
deemed to have occurred at the end of the cure period if Tenant is then
diligently pursuing such cure to completion, and completes such cure as promptly
as reasonably possible under all the circumstances;
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(iii) Tenant or any guarantor of this Lease shall make a general
assignment for the benefit of creditors, or shall admit in writing its inability
to pay its debts as they become due, or shall file a petition in bankruptcy, or
shall be adjudicated as bankrupt or insolvent, or shall file a petition in any
proceeding seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, or shall file an answer admitting or fail timely to contest
the material allegations of a petition filed against it in any such proceeding;
(iv) a proceeding is commenced against Tenant or any guarantor of
this Lease seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, and such proceeding shall not have been dismissed within
forty-five (45) days after the commencement thereof;
(v) a receiver or trustee shall be appointed for the Premises or for
all or substantially all of the assets of Tenant or of any guarantor of this
Lease;
(vi) Tenant shall do or permit to be done anything which creates a
lien upon the Premises, the Property or Tenant's modular office furniture and
such lien is not removed or discharged by bond or otherwise within thirty (30)
days after written notice to Tenant of the filing thereof; or
(vii) Tenant shall assign this Lease or sublease the Premises, in
whole or in part, in contravention of the terms of Paragraph 16(a)(i) through
(iv) hereof.
(b) If an Event of Default by Tenant occurs,
(i) Landlord may terminate this Lease, by giving Tenant written
notice of Landlord's election to do so, in which event the Term shall end, and
all right, title and interest of Tenant hereunder shall expire, and Tenant shall
surrender the Premises to Landlord, on the date stated in such notice, and if
Tenant fails to do so, Landlord may without prejudice to any other remedy which
it may have for possession or arrearages in Rent, enter upon and take possession
of the Premises and expel or remove Tenant and any other person who may be
occupying the Premises or any part thereof, by lawful force, if necessary,
without being liable for prosecution or any claim of damages therefor; or
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(ii) Landlord, without notice or demand, may terminate the right of
Tenant to possession of the Premises without terminating the Lease and if
Landlord so terminates Tenant's right of possession, Landlord may enter upon and
take possession of the Premises and expel or remove Tenant and any other person
who may be occupying the Premises or any part thereof, by entry (including the
use of lawful force, if necessary), dispossessory suit or otherwise, without
thereby releasing Tenant from any liability hereunder, without terminating this
Lease, and without being liable for prosecution or any claim of damages therefor
and, if Landlord so elects, make such alterations, redecorations and repairs as,
in Landlord's judgment, may be necessary to relet the Premises, and Landlord may
relet the Premises or any portion thereof in Landlord's or Tenant's name, but
for the account of Tenant, for such term or terms (which may be for a term
extending beyond the Term) and at such rental or rentals and upon such other
terms and conditions, which may include without limitation concessions and free
rent periods, as Landlord may reasonably deem advisable, with or without
advertisement, and by private negotiations, and receive the rent therefor; or
(iii) enter upon the Premises without being liable for prosecution or
any claim of damages therefor, and do whatever Tenant is obligated to do under
the terms of this Lease; and Tenant agrees to reimburse Landlord on demand for
any expenses including, without limitation, reasonable attorneys' fees which
Landlord may incur in thus effecting compliance with Tenant's obligations under
this Lease and Tenant further agrees that Landlord shall not be liable for any
damages resulting to Tenant from such action, whether caused by negligence of
Landlord or otherwise.
(c) If Landlord shall reenter the Premises and take possession from Tenant
without terminating this Lease, provided that Tenant has vacated the Premises
and is not contesting Landlord's right to the possession of the Premises,
Landlord will use reasonable efforts to relet the Premises and thereby mitigate
the damages which Landlord shall incur. Tenant hereby agrees that Landlord's
agreement to use reasonable efforts to relet the Premises in order to mitigate
its damages shall not be deemed to impose upon Landlord an obligation to relet
the Premises (i) for any purpose other than use permitted under this Lease or
(ii) to any tenant who is not financially capable of performing the duties and
obligations imposed on such tenant under the applicable lease, or (iii) to
prefer the Premises over any other space available in the Building.
(d) If an Event of Default by Tenant or any person claiming through or
under Tenant of any of the terms of this Lease should occur, Landlord shall be
entitled to seek to enjoin such default
28
and shall have the right to invoke any right allowed at law or in equity, by
statute or otherwise, as if re-entry, summary proceedings or other specific
remedies were not provided for in this Lease, except that Landlord shall not
have any right to place a lien on any of Tenant's Property and Landlord
expressly waives and releases any right to obtain such lien.
(e) Should Landlord terminate Tenant's rights to possession without
terminating this Lease,
(i) Tenant shall pay to Landlord all Rent to the date upon which
Tenant's right to possession under this Lease shall have been terminated; and
(ii) Tenant shall be liable for and shall pay to Landlord, as
damages, any deficiency between (A) all Rent reserved hereunder, and (B) the net
amount, if any, of rents ("Net Rent") collected by Landlord under any reletting
effected pursuant to the provisions of this Paragraph 30 for any period after
termination of Tenant's right to possession, after first deducting from the
rents collected under any such reletting all of Landlord's expenses in
connection with Landlord's reentry, such reletting, and the termination of
Tenant's right to possession, including without limitation all repossession
costs, brokerage commissions, lease assumptions, legal expenses, alteration
costs and other expenses of preparing the Premises for such reletting (such
expenses being referred to as the "Reletting Expenses"). Such deficiency shall
be paid in monthly installments by Tenant on the days specified in this Lease
for the payment of installments of Fixed Rent. Landlord shall be entitled to
recover from Tenant each monthly deficiency as the same shall arise and no suit
to collect the amount of the deficiency for any month shall prejudice Landlord's
right to collect the deficiency for any prior or subsequent month by a similar
proceeding or otherwise. A suit or suits for the recovery of such deficiencies
may be brought by Landlord from time to time at its election. Tenant shall be
liable for the Reletting Expenses. In no event shall Tenant be entitled to any
Net Rent received by Landlord.
(f) Whether or not Landlord shall have collected any monthly
deficiencies as provided in Paragraph 30(e), in the event Landlord at any time
terminates this Lease as a result of the occurrence of an Event of Default by
Tenant, Landlord shall be entitled to recover from Tenant, and Tenant shall pay
Landlord, on demand, as liquidated damages for Tenant's failure to comply with
the terms and provisions of this Lease (Landlord and Tenant agreeing that
Landlord's actual damages in such event are impossible to ascertain and that the
amount set forth below is a reasonable estimate thereof) and not as a penalty, a
sum equal to
29
(v) the amount of Rent and other charges and assessments due and payable through
the date of termination of this Lease, plus (w) the cost (including, without
limitation, court costs and attorneys' fees) of recovering possession of the
Premises, plus (x) the cost of any alteration or redecoration of or repair to
the Premises which Landlord in good faith believes is necessary or proper to
prepare the same for reletting, plus (y) the amount by which (A) the entire
amount of Rent and other charges and assessments which in Landlord's reasonable
determination would have become due and payable to Landlord for the period
ending on the Expiration Date and beginning on the date of termination of this
Lease, exceeds (B) an amount equal to the then fair and reasonable rental value
of the Premises for the same period, both amounts discounted to present value at
the "Discount Rate" published in The Wall Street Journal at the time of
determination. If, before presentation of proof of such liquidated damages to
any court, commission or tribunal, the Premises or any part thereof shall have
been relet by Landlord for a period which but for the termination of this Lease
would have constituted all or any part of the unexpired portion of the Term, the
amount of rent upon such reletting (after giving due consideration to all
concessions such as but not limited to free rent and improvement allowances)
shall be deemed, prima facie, to be the fair and reasonable rental value for the
part or the whole of the Premises (as the case may be) so relet during the term
of such reletting, but shall not have any evidentiary effect with respect to the
fair and reasonable rental value of any other portion of the Premises or with
respect to the fair and reasonable rental value of the Premises or any portion
thereof for the period which but for the termination of this Lease would have
constituted the unexpired portion of the Term other than the term of such
reletting. Upon the acceleration of such amounts, Tenant agrees to pay the same
at once, together with all Rent and other charges and assessments theretofore
due, at Landlord's address as provided herein.
(g) In no event shall Tenant be entitled (A) to receive any excess of
any Net Rent over the sums payable by Tenant to Landlord hereunder or (B) in any
suit for the collection of damages pursuant to this Paragraph 30 to a credit in
respect of any Net Rent [except as provided in Paragraph 30(e)(ii)]. Should the
Premises or any part thereof be relet in combination with other space, then
proper apportionment on a square foot area basis (unless Landlord reasonably
determines that another method of allocation of such expenses is proper) shall
be made of the rent received from such reletting and the expenses of reletting.
(h) If Landlord spends any money to cure such Event of Default by
Tenant, then Landlord shall also be entitled to interest on such expenditure at
the Interest Rate.
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(i) Nothing contained herein shall be construed as limiting or
precluding the recovery by Landlord from Tenant of any sums or damages to which,
in addition to the damages particularly provided above, Landlord may lawfully be
entitled by reason of any default hereunder on the part of Tenant.
(j) Pursuit by Landlord of any of the foregoing remedies shall not
preclude pursuit of any other remedy herein provided or any other remedy
provided by law or at equity, nor shall pursuit by Landlord of any remedy herein
provided constitute an election of remedies thereby excluding the later election
of an alternate remedy, or a forfeiture or waiver of any Rent or other charges
and assessments payable by Tenant and due to Landlord hereunder or of any
damages accruing to Landlord by reason of violation of any of the terms,
covenants, warranties and provisions herein contained. No reentry or taking
possession of the Premises by Landlord or any other action taken by or on behalf
of Landlord shall be construed to be an acceptance of a surrender of this Lease
or the Premises or an election by Landlord to terminate this Lease unless
written notice of such intention is given to Tenant. Forbearance by Landlord to
enforce one or more of the remedies herein provided upon an Event of Default
shall not be deemed or construed to constitute a waiver of such Event of
Default. In determining the amount of loss or damage which Landlord may suffer
by reason of termination of this Lease or the deficiency arising by reason of
any reletting of the Premises by Landlord as above provided, allowance shall be
made for the expense of repossession. Tenant agrees to pay to Landlord all
costs and expenses incurred by Landlord in the enforcement of this Lease,
including, without limitation, the fees of Landlord's attorneys as provided in
Paragraph 37 hereof.
31. Landlord's Default; Rights and Remedies.
---------------------------------------
(a) The occurrence of the following constitutes an "Event of Default"
by Landlord under this Lease:
failure by Landlord to observe or perform any covenant,
agreement, condition or provision of this Lease which materially
affects the use or tenantability of the Premises, if such failure
shall continue for thirty (30) days after receipt of written notice
from Tenant to Landlord (and any mortgagee of Landlord the address for
which Landlord has provided in a written notice to Tenant) specifying
such failure, provided, however, if such default is of a nature that
it can be cured and if Landlord in good faith commences to cure such
default within such thirty (30) day cure period, but due to the nature
of such default it could not be cured within such cure period after
due diligence, no Event of
31
Default shall be deemed to have occurred at the end of the cure period
if Landlord is then diligently pursuing such cure to completion, and
completes such cure as promptly as reasonably possible under all the
circumstances.
(b) If an Event of Default by Landlord occurs, Tenant shall have the
right, but not the obligation, to spend any monies to cure such Event of
Default. If Tenant spends any money to cure such Event of Default by Landlord,
then Tenant shall also be entitled to interest on such expenditure at the
Interest Rate.
(c) If an Event of Default by Landlord occurs, Tenant shall have the
right to invoice Landlord the cost and expenses incurred by Tenant in connection
with curing such Event of Default, and Landlord shall reimburse Tenant within
thirty (30) days following receipt of such invoice. If Landlord shall fail to
reimburse Tenant for such cost and expenses within such thirty (30) day period,
Tenant shall have the right to deduct such cost and expenses from Fixed Rental
thereafter due hereunder, provided, however, that in the event Landlord notifies
Tenant that it disputes the existence of any such Event of Default, during the
pendency of such dispute, Tenant may pay the amount in dispute to an independent
escrow agent of its choice to be held by the agent pending resolution of the
dispute. Tenant shall not be deemed to be in default hereunder by reason of
such payment until the dispute is resolved in favor of Landlord and Tenant fails
to cause the agent to pay the amount determined to be payable to Landlord within
ten (10) days after Tenant is notified of the determination. Tenant and Landlord
shall negotiate in good faith to resolve the dispute by agreement.
32. Holding Over.
------------
Should Tenant remain in possession of the Premises after the
expiration of this Lease, unless Landlord and Tenant have entered into a written
agreement to the contrary, Tenant shall become a tenant from month to month,
terminable as of the last day of any calendar month by either party upon at
least thirty (30) days' prior written notice to the other and there shall be no
renewal of this Lease by operation of law; provided, however, that in the event
of the giving of such notice of termination by Landlord, should Tenant remain in
possession of the Premises after the date of termination of such month to month
tenancy, Tenant shall become a tenant-at-sufferance as of the date of such
termination, and there shall be no renewal of this Lease or of such month to
month tenancy by this Paragraph or by operation of law. During the period of
any such holding over, all provisions of this Lease shall be and remain in
effect except that the daily rental shall be calculated based on a monthly
rental equal to one hundred twenty-five percent (125%) of the amount of Rent
(including any
32
adjustments as provided herein) payable for the last full calendar month of the
Term including renewals or extensions for the first three (3) months of any such
holding over and one hundred fifty percent (150%) thereafter. The inclusion of
the preceding sentences in this Lease shall not be construed as Landlord's
consent for Tenant to hold over. Notwithstanding the foregoing provisions of
this Paragraph 32 to the contrary, in the event of any conflict between the
terms and provisions of this Paragraph 32 and the terms and provisions of
Paragraph 30, the terms and provisions of Paragraph 30 shall control for all
purposes.
33. Quiet Enjoyment.
---------------
Landlord covenants that if and for so long as Tenant pays the Rent and
performs the covenants and conditions hereof, Tenant shall peaceably and quietly
have, hold and enjoy the Premises for the Term, without hindrance, claim or
molestation by Landlord or any other person lawfully claiming under Landlord.
34. Mutual Representation of Authority.
----------------------------------
(a) Landlord and Tenant represent and warrant to each other that they
have full right, power and authority to enter into this Lease without the
consent or approval of any other entity or person and each party makes these
representations knowing that the other party will rely thereon.
(b) The signatories on behalf of Landlord and Tenant further represent
and warrant that each has full right, power and authority to act for and on
behalf of Landlord and Tenant in entering into this Lease.
35. Landlord's Claims.
-----------------
Any "Surrender Claims" (as hereinafter defined) by Landlord must be
presented in writing by Landlord to Tenant within one hundred twenty (120) days
after expiration or termination of this Lease or shall be deemed irrevocably
waived. "Surrender Claims" shall mean claims to the extent the same arise
solely out of the failure of Tenant to surrender the Premises in the condition
required by Paragraph 51 or to maintain and repair the Premises as required by
Paragraph 11. Surrender Claims do not include, inter alia, claims arising under
or pursuant to Paragraph 10. The foregoing provisions of this Paragraph shall
not apply in the event this Lease is terminated by Landlord as a result of an
Event of Default by Tenant.
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36. Real Estate Brokers.
-------------------
(a) Tenant represents that Tenant has dealt directly with and only
with CB Xxxxxxx Xxxxx, Inc. (the "Listed Broker"), in connection with this Lease
and, except for Landlord's breach of Paragraph 36(b), agrees to defend,
indemnify and save harmless Landlord against all claims, liabilities, losses,
damages, costs and expenses (including without limitation reasonable attorneys'
fees and other costs of defense) arising from Tenant's breach of this
representation or as a result of any claim for any fee, commission or similar
compensation with respect to this Lease made by any broker, agent or finder
(including Listed Broker) claiming to have dealt with Tenant.
(b) Except for Tenant's breach of Paragraph 36(a), Landlord hereby
agrees to defend, indemnify and save harmless Tenant against all claims,
liabilities, losses, damages, costs and expenses (including without limitation
reasonable attorneys' fees and other costs of defense) arising from the claims
or demands of any brokers or finders who represented Landlord, whether or not
disclosed, with respect to this Lease, for any commission alleged to be due any
such brokers or finders in connection with this Lease or the transactions
contemplated hereby, including ADEVCO Realty Group, LLC and First Fidelity
Investments Corporation ("Landlord's Brokers").
(c) Tenant shall cause Listing Broker to execute a lien waiver to and
for the benefit of Landlord, waiving any and all lien rights with respect to the
Building, the Property and the Land which such agent or broker has or might have
under North Carolina law. Landlord shall cause Landlord's Brokers to execute a
lien waiver to and for the benefit of Landlord and Tenant, waiving any and all
lien rights with respect to the Building, the Property and the Land which such
agent or broker has or might have under North Carolina law.
37. Attorneys' Fees.
---------------
In the event Landlord or Tenant defaults in the performance of any of
the terms, agreements or conditions contained in this Lease and the non-
defaulting party places the enforcement of this Lease, or any part thereof, or
the collection of any Rent due or to become due hereunder, or recovery of the
possession of the Premises, in the hands of an attorney, or files suit upon the
same, and should such non-defaulting party prevail in such suit (and any and all
appeal periods, as provided by law, with respect thereto have expired with no
appeal having been filed; or if filed, rejected or terminated finally and
conclusively in favor of the non-defaulting party), the defaulting party, to the
extent permitted by applicable law, agrees to pay the non-defaulting
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party all reasonable attorney's fees actually incurred by the non-defaulting
party.
38. Estoppel Certificate.
--------------------
(a) Tenant agrees, upon not less than fifteen (15) days' prior
written request by Landlord, to deliver to Landlord a statement in writing
signed by Tenant, addressed to Landlord, any mortgagee or assignee of Landlord's
interest in, or purchaser of, the Premises or the Building or the Property or
any part thereof, certifying (i) that this Lease is unmodified and in full force
and effect (or if there have been modifications, identifying the modifications
and certifying that the Lease is in full force and effect as modified); (ii) the
date upon which Tenant began paying Fixed Rent and the dates to which the Fixed
Rent has been paid; (iii) that, to the best of Tenant's knowledge, Landlord is
not in default under any provision of this Lease, or, if in default, the nature
thereof; (iv) that there has been no prepayment of Fixed Rent other than that
provided for in this Lease; and (v) that there are no defenses or offsets
against the enforcement of this Lease or stating those claimed by Tenant. Such
certificate shall also include such other factual information as may reasonably
be required by such mortgagee, proposed mortgagee, assignee, purchaser or
Landlord. Any such certificate may be relied upon by Landlord, any mortgagee,
proposed mortgagee, assignee, purchaser and any other party to whom such
certificate is addressed. The estoppel certificate may contain the following:
"Notwithstanding any other provision of this Estoppel Certificate to the
contrary, nothing herein shall be construed as a waiver of (i) any right which
Tenant may have to audit any payments made under the Lease, (ii) any right to
claim that any such payments were not properly charged or calculated in
accordance with the Lease, or (iii) any right to recover from the applicable
present, former or future landlord (including Landlord) any such payments made
to such landlord which were in excess of the amount properly due under the
Lease."
(b) Landlord, upon not less than ten (10) days' prior written request
from Tenant, shall furnish a statement in writing to Tenant certifying (a) that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that this Lease is in full force and effect as modified, and
stating the modifications), (b) the dates to which Rent payable by Tenant
hereunder have been paid, and (c) whether or not, to the knowledge of Landlord,
a default or Event of Default by Tenant has occurred under this Lease which has
not been cured (and if so, specifying the same).
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39. Recordable Memorandum.
---------------------
Landlord and Tenant agree not to record this Lease, but each party agrees,
upon request by the other, to execute a memorandum of this Lease in recordable
form and in compliance with applicable law, with a description of the Premises,
the term of this Lease and any other portions hereof, excepting the rental
provisions, as either party may reasonably request. Any and all recording costs
required in connection with the recording of such Memorandum of Lease shall be
paid by the party requesting recordation.
40. Options to Extend.
-----------------
(a) Landlord hereby grants to Tenant the exclusive and irrevocable option
to extend the Term for three (3) additional periods (each such additional period
being an "Extended Term") of five (5) year(s) each by giving Landlord written
notice at least twelve (12) months prior to the Expiration Date of the Primary
Term or the then applicable Extended Term. Tenant shall have the right to
exercise these options to extend provided that on the date of such exercise no
Event of Default by Tenant then exists under this Lease and there then exists no
uncured default by Tenant with respect to which Landlord has given written
notice to Tenant pursuant to the provisions of Paragraph 30 hereof.
(b) Each Extended Term shall be on the terms, covenants and conditions of
this Lease then applicable, except that the Fixed Rent for each Extended Term
shall be the "Fair Market Rent" (as hereinafter defined) and except that after
the exercise of the option for the first Extended Term, Tenant shall have only
two (2) options to extend and after the exercise of the option for the second
Extended Term, Tenant shall have only one (1) option to extend, and after the
exercise of the option for the third Extended Term, Tenant shall have no further
options to extend the Term. "Fair Market Rent" shall mean (i) the annual
effective rental rate per square foot of rentable floor area then being charged
by landlords under new leases of office space in the metropolitan Cary, North
Carolina, market for space similar to the Premises in a building of comparable
quality and with comparable parking and other amenities, taking into account
concessions offered to new tenants such as free rent, tenant improvement
allowances, moving allowances and other such concessions, and taking into
account Tenant's repair and maintenance obligations under this Lease and the
Taxes and expenses Tenant is obligated to pay under this Lease; (ii) the amount
of space and length of term taken by the tenant; and (iii) the credit worthiness
and quality of the tenant. The fair market value of Tenant's modular office
furniture shall
36
specifically be excluded from the definition of "Fair Market Rent" set forth
above in this Paragraph 40.
(c) On or before the date thirteen (13) months prior to the Expiration
Date of the Primary Term or the then applicable Extended Term, but in no event
more than sixteen (16) months prior to the Expiration Date of the Primary Term
or the then applicable Extended Term, Landlord will advise Tenant of Landlord's
determination of Fair Market Rent for the applicable Extended Term. If Tenant
exercises its option to extend, and Landlord and Tenant cannot agree on the Fair
Market Rate for the Extended Term within thirty (30) days after Tenant exercises
its option to extend, then within forty-five (45) days after Tenant exercises
its option to extend, Landlord and Tenant shall each appoint one (1) "Qualified
Real Estate Appraiser" (as hereinafter defined). Those two (2) Qualified Real
Estate Appraisers shall promptly appoint a third (3rd) Qualified Real Estate
Appraiser. If such Qualified Real Estate Appraisers fail to appoint such third
(3rd) Qualified Real Estate Appraiser within ten (10) business days after notice
of their appointment, then either Landlord or Tenant, upon written notice to the
other, may request the appointment of a third (3rd) appraiser by the then
President of the Board of Realtors in the Cary, North Carolina area or any then
similar existing body. Each appraiser so appointed shall independently make
appraisals of the Fair Market Rent for the applicable Extended Term. Except as
hereinafter provided, the Fair Market Rent for the applicable Extended Term
shall be the average of the three (3) appraisals of the Fair Market Rent;
provided, however, if the determination of the Fair Market Rent of one (1)
Qualified Real Estate Appraiser is disparate from the median of all three (3)
determinations of Fair Market Rent by more than twice the amount by which the
other determination is disparate from the median, then the determination of such
Qualified Real Estate Appraiser shall be excluded, the remaining two (2)
determinations shall be averaged and such average shall be binding and
conclusive on Landlord and Tenant. If, after notice by either Landlord or Tenant
of the appointment of a Qualified Real Estate Appraiser by the party giving such
notice, the other party to whom such notice is given shall fail, within a period
of ten (10) business days after such notice, to appoint a Qualified Real Estate
Appraiser, then the Qualified Real Estate Appraiser so appointed by the party
giving notice shall have the power to proceed as sole Qualified Real Estate
Appraiser to determine the Fair Market Rent for the applicable Extended Term.
Landlord shall pay the fees and expenses of the person appointed by Landlord as
a Qualified Real Estate Appraiser hereunder, and Tenant shall pay the fees and
expenses of the person appointed by Tenant as a Qualified Real Estate Appraiser
hereunder. Landlord and Tenant shall each pay one-half (1/2) of the fees and
expenses
37
of the third (3rd) Qualified Real Estate Appraiser appointed pursuant to the
provisions of this Paragraph.
(d) As used in this Paragraph, the term "Qualified Real Estate Appraiser"
shall mean a member of the American Institute of Real Estate Appraisers (or
successor organization) having at least ten (10) years experience in appraisal
of office buildings and office rental rates in the metropolitan Cary, North
Carolina area.
(e) Tenant may not assign the options to extend under this Paragraph 40 to
any subtenant of the Premises or any assignee of this Lease other than an
"Affiliate" nor may any such subtenant or assignee other than an Affiliate
exercise the options to extend.
41. Intentionally Omitted.
---------------------
42. Confidentiality.
---------------
Except as hereinafter provided in this Xxxxxxxxx 00, Xxxxxxxx shall not
make, nor shall it authorize any broker to make, any public announcement or
press release concerning this transaction unless it has received Tenant's
written consent, which will not be unreasonably withheld or delayed.
Notwithstanding the foregoing, Tenant acknowledges and agrees that Landlord and
any affiliate of Landlord shall have the right to disclose this transaction,
this Lease and the identity of Tenant to the Securities and Exchange Commission
and to current, future and potential investors (and their representatives) in
such entities.
43. Governing Law.
-------------
This Lease shall be construed and interpreted in accordance with the laws
of the state where the Premises are located, except for its conflict of law
rules.
44. Notices.
-------
Any notice by either party to the other shall be in writing and shall be
deemed to be duly given only if delivered personally or by courier or sent by
registered or certified mail return receipt requested postage prepaid, or
recognized overnight delivery service (such as but not limited to Federal
Express, United Parcel Service, Airborne or DHL), to the following:
If to Tenant: Lucent Technologies Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
38
Attn: Lease Administration
with a copy to:
(a) Lucent Technologies Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Corporate Counsel - Real Estate
(b) Xxxxxxx X. Xxxxxxx, XX
Real Estate Transactions Manager
Lucent Technologies Inc.
0000 XX 000xx Xxxxxx, Xxxx XX-000
Xxxxxxx, Xxxxxxx 00000
If to Landlord:
Xxxxx Operating Partnership, L.P.
0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxx X. Xxxxx, III
with a copy to:
Xxxxxxxx Xxxxxxx LLP
Suite 5200
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxx or Managing Partner
or at such other address in the United States as Landlord or Tenant may from
time to time designate by like notice.
Notice shall be deemed to have been given on the date received, if delivered
personally or by courier or overnight delivery service, or, if mailed, three (3)
business days after the date postmarked. Rejection or other refusal to accept
or inability to deliver because of changed address of which no notice was given
shall be deemed to be receipt of such notice.
45. Intentionally Omitted.
---------------------
46. Counterparts.
------------
This Lease may be signed in counterparts and each such counterpart shall be
deemed to be an original, but all of which shall constitute one instrument. Any
signature, witness's signature, or both, appearing on a counterpart of this
Lease shall be deemed to appear on all other counterparts of this
39
Lease. The executed signature pages of any counterpart hereof may be appended or
attached to any other counterpart hereof; and, provided that all parties hereto
shall have executed a counterpart hereof, this Lease shall be valid and binding
upon the parties notwithstanding the fact that the execution of all parties may
not be reflected upon any one single counterpart. This Lease shall only be and
become effective upon its unconditional delivery by and between the parties
hereto.
47. Entire Agreement.
----------------
This Lease constitutes the entire agreement between the parties, there
being no other terms, oral or written, except as herein expressed. No
modification of this Lease shall be binding on the parties unless it is in
writing and signed by both parties hereto.
48. Miscellaneous.
-------------
(a) Time is of the essence of this Lease.
(b) All personal property brought into the Premises by Tenant, or Tenant's
employees or business visitors, shall be at the risk of Tenant only, and
Landlord shall not be liable for theft thereof or any damage thereto occasioned
by any act of co-tenants, occupants, invitees or other users of the Building or
any other person, unless such theft or damage is the result of the act of
Landlord or its employees and Landlord is not relieved therefrom by Paragraph 20
hereof. Unless caused by the negligence or willful misconduct of Landlord or
its employees and Landlord is not relieved therefrom by Paragraph 20 hereof,
Landlord shall not at any time be liable for damage to any property in or upon
the Premises which results from power surges or other deviations from the
constancy of the electrical service or from gas, smoke, water, rain, ice or snow
which issues or leaks from or forms upon any part of the Building or from the
pipes or plumbing work of the same, or from any other place whatsoever.
(c) All personal pronouns used in this Lease, whether used in the
masculine, feminine or neuter gender, shall include all genders, the singular
shall include the plural and vice versa. The headings inserted at the beginning
of each Paragraph are for convenience only and do not add to or subtract from
the meaning of the contents of each Paragraph. No provision of this Lease shall
be construed against or interpreted to the disadvantage of either Tenant or
Landlord by any court, judicial or other governmental authority by reason of
such party's having been deemed to have structured, written, drafted or dictated
such provision.
40
(d) In the event of strike, lockout, labor trouble, civil commotion, act
of God, or any other cause beyond a party's control (collectively "Force
Majeure") resulting in Landlord's inability to supply the services or perform
the other obligations required of Landlord hereunder, this Lease shall not
terminate and Tenant's obligation to pay Rent and all other charges and sums due
and payable by Tenant shall not be affected or excused and Landlord shall not be
considered to be in default under this Lease. If, as a result of Force Majeure,
Tenant is delayed in performing any of its obligations under this Lease, other
than Tenant's obligations to pay Rent and all other charges and sums payable by
Tenant hereunder, Tenant's performance shall be excused for a period equal to
such delay and Tenant shall not during such period be considered to be in
default under this Lease with respect to the obligation, performance of which
has thus been delayed.
(e) Landlord shall have no personal liability with respect to any of the
provisions of this Lease. If Landlord is in default with respect to its
obligations under this Lease, Tenant shall look for satisfaction of Tenant's
remedies, if any, solely to the equity of Landlord in and to the Property and to
the proceeds of Landlord's insurance policy or policies actually paid to
Landlord and not applied by Landlord to the applicable claim or to the
restoration of the Building as required by the terms of this Lease (unless same
are not so applied because such proceeds are required by the holder of a
mortgage to be paid to it to reduce the debt secured by such mortgage). It is
expressly understood and agreed that Landlord's liability under the terms of
this Lease shall in no event exceed the amount of its interest in and to the
Property and the aforedescribed proceeds of insurance. In no event shall any
partner of Landlord nor any joint venturer in Landlord, nor any officer,
director or shareholder of Landlord or any such partner or joint venturer of
Landlord be personally liable with respect to any of the provisions of this
Lease.
(f) If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws, the remainder of this Lease shall
not be affected thereby, and in lieu of each clause or provision of this Lease
which is illegal, invalid or unenforceable, there shall be added as a part of
this Lease a clause or provision as nearly identical to the said clause or
provision as may be legal, valid and enforceable.
(g) No failure of Landlord to exercise any power given Landlord hereunder,
or to insist upon strict compliance by Tenant with any obligation of Tenant
hereunder, and no custom or practice of the parties at variance with the terms
hereof, shall constitute a waiver of Landlord's right to demand exact compliance
with the terms hereof. No failure of Tenant to exercise any power given Tenant
hereunder, or to insist upon strict compliance by Landlord
41
with any obligation of Landlord hereunder, and no custom or practice of the
parties at variance with the terms hereof, shall constitute a waiver of Tenant's
right to demand exact compliance with the terms hereof.
49. Intentionally Omitted.
---------------------
50. Intentionally Omitted.
---------------------
51. Surrender.
---------
(a) Upon the expiration or other termination of this Lease, Tenant shall
quit and surrender to Landlord the Premises and every part thereof and all
alterations, additions and improvements thereto, broom clean and in good
condition and state of repair, reasonable wear and tear only excepted. Tenant
shall remove all of Tenant's Property from the Premises (with the exception of
Tenant's modular office furniture more particularly described on Exhibit M
attached hereto and incorporated herein by reference, which may only be removed
from the Premises by Tenant in accordance with the provisions of subparagraph
(b) below), and Tenant shall restore the Premises to the condition immediately
preceding the time of placement thereof. If Tenant shall fail or refuse to
remove all of Tenant's Property from the Premises upon the expiration or
termination of this Lease for any cause whatsoever or upon Tenant being
dispossessed by process of law or otherwise, Tenant's Property shall be deemed
conclusively to be abandoned and may be appropriated, sold, stored, destroyed or
otherwise disposed of by Landlord without obligation to account for Tenant's
Property. Tenant shall pay Landlord on demand any and all expenses incurred by
Landlord in the removal of Tenant's Property, including, without limitation, the
cost of repairing any damage to the Building or Property caused by the removal
of Tenant's Property and storage charges (if Landlord elects to store Tenant's
Property). The covenants and conditions of this Paragraph 51 shall survive any
expiration or termination of this Lease.
(b) Notwithstanding Tenant's general right to remove its Personal Property
from the Premises upon the expiration or other termination of this Lease, Tenant
shall only be permitted to remove (and, notwithstanding anything in this Lease
to the contrary, Landlord may not require Tenant to remove) the modular office
furniture contained on the Premises in the event that Tenant exercises all
extension options granted under this Lease and that, as of the expiration of the
third Extended Term, there is no uncured Event of Default under this Lease. In
the event Tenant does not extend the Term of this Lease as provided in the
preceding sentence or in the event of an uncured Event of Default, title to the
modular office furniture shall
42
automatically pass to Landlord free and clear of any lien or security interest;
provided, however, Landlord agrees that in the event of an Event of Default,
Landlord shall not remove the modular office furniture from the Premises or deny
Tenant its right to use the modular office furniture unless and until one of the
following has occurred: (i) Tenant's right to possession of the Premises has
been terminated pursuant to entry of an order of ejectment entered in Wake
County, North Carolina after an Event of Default, or (ii) Tenant has vacated the
Premises following an Event of Default, or (iii) Tenant has otherwise been
adjudicated to be in default under this Lease by a court of competent
jurisdiction. In the event that Tenant has exercised the required renewals of
the Term of this Lease provided above and is not in default under this Lease
beyond any applicable grace or cure period, Tenant shall be permitted to remove
all of the modular office furniture contained on the Premises at the end of the
final Extended Term of this Lease. In the event that Tenant fails to satisfy the
above conditions of this subparagraph (b) or one of the events described in
clauses (i), (ii), or (iii) above has occurred, title to all modular office
furniture shall automatically pass to Landlord, free and clear of any lien or
security interest (and Landlord shall receive the modular office furniture in
the same condition existing as of the date hereof, subject to ordinary wear and
tear, Tenant having no obligation to replace any of such modular office
furniture that loses its utility as a result of ordinary wear and tear). If
Landlord is entitled to ownership of the modular office furniture, Tenant, at
Landlord's request, shall further execute and deliver to Landlord a xxxx of sale
for the modular office furniture and to the extent that there exist any liens or
security interests against the title to the modular office furniture, Tenant
shall cause such liens or security interests to be immediately released. At no
time during the Term of this Lease shall Tenant xxxxx x xxxx or security
interest in favor of a third party against the modular office furniture; any
such grant shall constitute an Event of Default under Paragraph 30 if such lien
is not removed by Tenant within the time period specified thereunder.
(c) Nothing contained herein shall prohibit Tenant from the benefits of
ownership of the modular office furniture contained on the Premises during the
Term of this Lease, including without limitation, the right to depreciate its
investment in such modular office furniture.
52. Declaration of Easements
------------------------
(a) Landlord hereby reserves, in favor of itself and its successors and/or
assigns, the right to record a Declaration of Easements (the "Declaration") in
the real estate records of Wake County, North Carolina encumbering the Property
and the adjacent
43
land owned by Landlord described on the attached Exhibit C (the "Adjacent
---------
Land"). The Declaration may be recorded at any time during the Term of the Lease
for the purpose of establishing the rights and easements which burden the
Property and benefit the Adjacent Land described in subparagraph (b) below.
Attached hereto as Exhibit C-1 is a plat of survey entitled "Subdivision Map:
-----------
LUCENT TECHNOLOGIES, Town of Xxxx, Wake County North Carolina RECOMBINATION,
WATER EASEMENT & ACCESS EASEMENT PLAT" (the "Plat"), which shows the respective
locations of the Property and Adjacent Land.
(b) Landlord hereby leases the Property subject to the following rights
and easements benefiting the Adjacent Land and burdening the Property:
(i) A non-exclusive, perpetual easement over, upon, under and
across that portion of the Property shown as "New 40' Private Access Easement"
on the Plat for the construction, installation, maintenance and repair of the
existing driveway located on the Property (including the right to construct and
install an extension of the existing driveway located on the Property within
such easement area) for the purpose of vehicular and pedestrian access, ingress
and egress to and from Ederlee Drive and the Adjacent Land.
(ii) A non-exclusive, perpetual easement over, under, upon, through
and across the Property to install, use, connect, maintain, repair and replace
any necessary utility conduits, lines and facilities necessary for the
development and operation of the Adjacent Land, including the right to tie into
any existing utility facilities located on the Property. The location of any
such utility conduits, lines and facilities shall be subject to the prior,
reasonable approval of Tenant.
(iii) In its exercise of its rights reserved under this Xxxxxxxxx 00,
Xxxxxxxx agrees that it shall not materially interrupt any of Tenant's
activities on the Property, all work shall be done at the cost and expense of
Landlord, no parking spaces on the Property shall be permanently taken and no
temporary taking of parking spaces may exceed ninety (90) days, and Landlord
shall defend, indemnify and hold harmless Tenant, its subtenants, officers,
employees, representatives, agents, invitees and contractors against any damage
or personal injury caused by Landlord, its officers, employees, agents,
representatives, invitees or contractors in the exercise of any rights reserved
by Landlord under this Paragraph 52.
(c) Tenant's interest in this Lease is and shall be subordinate to the
rights and easements reserved herein and, upon recordation thereof, to the
Declaration. Tenant shall execute
44
any documentation requested by Landlord to further evidence such subordination;
provided, however, that Tenant shall be entitled to review the terms of the
Declaration, prior to recording, to confirm that none of the easements
established under the Declaration materially differ from the rights and
easements created and reserved hereby.
(Signatures appear on the following page)
45
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease as of
the day and year first above written.
WITNESS: XXXXX OPERATING PARTNERSHIP, L.P.
a Delaware limited partnership Landlord
By: Xxxxx Real Estate Investment Trust,
Inc., a Maryland corporation
/s/ Xxxxxxx Xxxxxx
-------------------------- By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
Attest: ________________________
Name: ________________________
Title: ________________________
WITNESS: LUCENT TECHNOLOGIES INC.
Tenant
/s/ Xxxxxxxxx Xxxxx-Xxxxxxx By: /s/ Xxxxxxx Xxxx
--------------------------- --------------------------------------
Xxxxxxxxx Xxxxx-Xxxxxxx Name: Xxxxxxx Xxxx
Title: Director, Asset
Management
Attest: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: Senior Manager,
Global Real Estate Transactions
------------------------------------
46
