EXHIBIT 10.15
MIAMI NORTH, LLC
OFFICE LEASE AGREEMENT
COVER PAGE
TENANT: ___ Inflow, Inc. ________________
DATED:__________________
For the purposes of this lease Agreement by and between MIAMI NORTH, LLC
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("Landlord"), by its agent, ▇▇▇▇▇▇▇ & Co., and INFLOW, INC. ("Tenant"), the
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terms set forth below, when preceded by a capital letter, shall have the meaning
set forth in this Cover Page and in the Lease.
I TENANT AND LANDLORD INFORMATION
A. Landlord: Miami North, A NORTH CAROLINA LIMITED LIABILITY COMPANY
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B. Tenant: Inflow, Inc., a Delaware Corporation
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C. Tenant's Notice Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
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Suite 305
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇-▇▇▇-▇▇▇▇
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▇▇▇-▇▇▇-▇▇▇▇ FAX
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D. Tenant's Representative: Art Zeile, CEO
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II DESCRIPTION OF PREMISES
A. Building: ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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B. Business Hours: Monday-Friday, 8:00 am-6:00 pm, Saturday, 9:00 am-1:00 pm
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C. Premises: Approximately 14,443 rentable square feet
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D. Permitted Use: General office use and computer and telecommunications equipment
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use.
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III TERM
A. Commencement Date: July 1, 1999
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B. Expiration Date: September 30, 2009
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IV RENT
A. Advance Rent: n/a
B. Base Annual Rent: Two Hundred Thirty-One Thousand Eighty-Eight Dollars ($231,088.00).
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C. Base Rental Rate: Sixteen Dollars ($16.00________) per square foot.
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D. Monthly Installment of
Basic Annual rent: Nineteen Thousand Two Hundred Fifty-Seven Dollars and
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33/100 ($19,257.33).
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E. Security Deposit: None ($ ), See Rider A for lease
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security paragraph
V ADJUSTMENTS
A. Rental Rate Escalations: See Paragraph 5.01 for schedule of escalations.
B. Base Operating and Real Tenant pays pro rata share of increase in operating expenses above base
year 2000.
C. Tenant's Pro Rata Share: __Seventy-Nine Percent ( 79 %) of the Building. Total rentable
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square footage is 18,237.
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VI MISCELLANEOUS
A. Broker: ▇▇▇▇▇▇▇ & Co.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, SIOR,
Liberty Greenfield Advisors: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Associates of the Carolinas, LLC: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
B. Special Conditions See Rider A
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C. Exclusive Rights See Rider A
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Tenant: Landlord:
INFLOW, INC. MIAMI NORTH, LLC
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by: /s/ Art Zeile by: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: Art Zeile Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title: Chief Executive Officer Title: Manager
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Date: 6/28/99 Date: 6/29/99
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(Please Print or Type)
TABLE OF CONTENTS
ARTICLE I PREMISES
ARTICLE II USE
ARTICLE III TERM
ARTICLE IV COMPLETION OF PREMISES
Section 4.01 Substantial Completion
Section 4.02 Notice
Section 4.03 Inspection and Punchlist
Section 4.04 Delayed Possession
Section 4.05 Landlord Improvements
ARTICLE V RENT AND SECURITY
Section 5.01 Base Rent
Section 5.02 CPI Adjustment
Section 5.03 Expense and Tax Escalations
Section 5.04 Personal Property Tax
Section 5.05 Security Deposit
ARTICLE VI AFFIRMATIVE OBLIGATIONS
Section 6.01 Compliance with Laws
Section 6.02 Services and Utilities
Section 6.03 Repairs and Maintenance
ARTICLE VII NEGATIVE OBLIGATIONS
Section 7.01 Alterations
Section 7.02 Assignment and Subleasing
ARTICLE VIII INSURANCE
Section 8.01 Insurance
Section 8.02 Indemnification
Section 8.03 Limitation of Landlord's Liability
ARTICLE IX LOSS OF PREMISES
Section 9.01 Damages
Section 9.02 Condemnation
ARTICLE X DEFAULT
Section 10.01 Tenant's Default
Section 10.02 Landlord's Remedies
Section 10.03 Self-Help
Section 10.04 Survival
ARTICLE XI NON DISTURBANCE
Section 11.01 Subordination
Section 11.02 Estoppel Certificate
Section 11.03 Quiet Possession
ARTICLE XII LANDLORD'S RIGHTS
Section 12.01 Rules
Section 12.02 Mechanic's Liens
Section 12.03 Right to Enter
Section 12.04 Holdover
Section 12.05 Signs
Section 12.06 Right to Relocate
ARTICLE XIII MISCELLANEOUS
Section 13.01 Broker's Warranty
Section 13.02 Attorneys' Fees
Section 13.03 Notices
Section 13.04 Partial Invalidity
Section 13.05 Waiver
Section 13.06 Binding on Successors
Section 13.07 Governing Law
Section 13.08 Lease not an Offer
Section 13.09 Recording
Section 13.10 Survival of Remedies
Section 13.11 Authority of Parties
Section 13.12 Business Days
Section 13.13 Entire Agreement
Section 13.14 Definition of Lease
EXHIBITS
RIDER A
Exhibit A Floor Plan
Exhibit B Building
Exhibit C Land
Exhibit D Landlord Improvements
Exhibit E SW Corner Space
Exhibit F Rules and Regulations
MIAMI NORTH, LLC
OFFICE LEASE
THIS LEASE ("Lease") is made June 29, 1999, between Miami North, LLC
("Landlord") and Inflow, Inc., a Delaware Corporation ("Tenant"). Landlord is a
Limited Liability Company, organized under the laws of North Carolina, with
principal offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
ARTICLE 1
PREMISES
1.01 Premises. Landlord leases to Tenant that space located in 4518 S. Miami
Blvd., Building 4 in the Miami North Office Park located in Durham, North
Carolina ("Premises") as outlined on the Floor Plan attached as Exhibit A. The
Premises consists of approximately 14,443 square feet of rentable space and
13,130 square feet of usable space in the building ("Building") in which the
Premises are located. The exact amount of space in the Premises shall be
determined by Landlord in accordance with a final space plan consistent with
ANSI/BOMA Z65.1-1996 standard and not to exceed 10% r/u loss factor (except to
the extent, if at all, that Tenant's design for the Premises increases such
factor), and subject to verification by Tenant's architect. The Building is
shown as Exhibit B and is located on the land described in Exhibit C ("Land").
The Premises contain the fixtures, improvements, and other property now
installed plus any Landlord Improvements required by Section 4.02 and Exhibit D.
1.02 Common Areas. Tenant and its agents, employees, and invitees have the
non-exclusive right with others designated by Landlord to the free use of the
common areas ("Common Areas") in the Building and on the Land for the Common
Areas' intended and normal purpose. Common Areas include elevators, sidewalks,
parking areas, driveways, hallways, stairways, public bathrooms, common
entrances, lobby, and other similar public areas and access ways. Landlord may
change the Common Areas if the changes do not materially and unreasonably
interfere with Tenant's access to or use of the Premises.
ARTICLE II
USE
General office use and computer and telecommunications equipment room and any
other legally permitted use. Landlord warrants that applicable laws, ordinances,
regulations, and restrictive covenants permit the Premises to be used for
general offices, and computer and telecommunications equipment room. Tenant
shall not create a nuisance or use the Premises for any immoral or illegal
purposes.
ARTICLE III
TERM
The Lease begins ("Commencement Date") on July 1, 1999.
The Lease ends ("Expiration Date") on September 30, 2009, subject to Tenant's
right to extend as provided in Rider A.
ARTICLE IV
COMPLETION OF PREMISES
4.01 Tenant Improvements. Tenant shall receive an allowance for Tenant
improvements for interior upfitting, on an as needed basis, of up to $18.00 per
usable square foot. All costs incurred as a result of architectural,
engineering, design, construction management, permitting, demolition, and
construction shall be paid by Tenant but may be paid for out of the Tenant
improvement allowance. Landlord shall review Tenant's plans and provide its
written approval prior to commencement of construction. Landlord's approval
shall not be unreasonably withheld. Tenant shall commence payment of rent upon
October 1, 1999 regardless of condition of the Premises at that time. Landlord
shall make payments to Tenant from the allowance from time to time within ten
(10) days after receipt of request from Tenant for a payment, accompanied by
reasonable supporting documentation.
4.02 Landlord Improvements. Landlord, at its expense, has made or shall make
improvements to the Premises in accord with Exhibit D ("Landlord Improvements")
prior to the Commencement Date. The Landlord Improvements shall be completed in
a good and workmanlike manner and comply with all applicable laws, ordinances,
rules, and regulations of governmental authorities.
ARTICLE V
RENT AND SECURITY
5.01 Gross Rent. Tenant shall pay to Landlord Gross Rent during the Term, as
follows:
Base Rent and Total Monthly Rent are shown on a rentable square foot basis
DATE BASE RENTAL RENT TOTAL MONTHLY RENT
July 1, 1999-Sept. 30, 1999 $00.00 rsf $0.00
Oct. 1, 1999-Sept. 30, 2000 $16.00 rsf $19,257.33
Oct. 1, 2000-Sept. 30, 2001 $16.38 rsf $19,714.70
Oct. 1, 2001-Sept. 30, 2002 $16.76 rsf $20,172.06
Oct. 1, 2002-Sept. 30, 2003 $17.16 rsf $20,653.49
Oct. 1, 2003-Sept. 30, 2004 $17.57 rsf $21,146.96
Oct. 1, 2004-Sept. 30, 2005 $17.99 rsf $21,652.46
Oct. 1, 2005-Sept. 30, 2006 $18.43 rsf $22,182.04
Oct. 1, 2006-Sept. 30, 2007 $18.87 rsf $22,711.62
Oct. 1, 2007-Sept. 30, 2008 $19.33 rsf $23,265.27
Oct. 1, 2008-Sept. 30, 2009 $19.81 rsf $23,842.99
The Gross Rent shall be paid:
(a) without advance notice, demand, offset, or deduction;
(b) by the first day of each month during the Term; and
(c) to Landlord at its address set forth in Section 13.03 or as
Landlord may specify in writing to Tenant.
If the Term does not begin on the first day or end on the last day of a month,
the Gross Rent for that partial month shall be prorated by multiplying the
monthly Gross Rent by a fraction, the numerator of which is the number of days
of the partial month included in the Term and the denominator of which is the
total number of days in the full calendar month.
If Tenant fails to pay part or all of the Gross Rent by the fifth (5th) business
day of the month due (except that the first time Tenant so fails to timely pay
in any calendar year, then the appropriate grace period shall be until ten (10)
days after Tenant receives notice from Landlord that such amounts are past due
and payable), it is past due, the Tenant shall also pay:
(a) a late charge equal to four percent (4%) of the unpaid Gross Rent
and Additional Rent, plus
interest at eighteen percent (18%) per annum or the maximum then allowed
by applicable law, whichever is less, on the remaining unpaid balance,
retroactive to the date originally due until paid.
5.02 Operating Expense Increases. Tenant shall pay to Landlord during the term
hereof, in addition to the Base Rent, Tenant's Share, as hereinafter defined, of
the amount by which all Operating Expenses, as hereinafter defined, for each
Comparison Year exceeds the amount of all Operating Expenses for the Base Year,
such excess being hereinafter referred to as the "Operating Expense Increase,"
in accordance with the following provisions:
(a) Definitions.
(i) "Base Year" is defined as the period beginning January 1,
2000 and ending December 31, 2000. Consistency shall be
used with all methods in calculating the base year
Operating Expenses.
(ii) "Tenant's Share" means Seventy-Nine Percent (79%), which is
calculated by dividing the rentable square footage of the
Premises (numerator) by the rentable square footage of the
Building (denominator), and expressing the fraction as a
percentage.
(iii) "Comparison Year" is defined as each calendar year during
the term of this Lease subsequent to the Base Year;
provided, however, Tenant shall have no obligation to pay a
share of the Operating Expense Increase applicable to the
first eighteen (18) months of the Lease Term. Tenant's
Share of the Operating Expense Increase for the first and
last Comparison Years of the Lease Term shall be prorated
according to that portion of such Comparison Year as to
which Tenant is responsible for a share of such increase.
(iv) "Property" means the Building and its equipment and
systems, and one-quarter (1/4) of the Land (excluding any
buildings thereon).
(v) "Real Estate Taxes" means real property taxes and currently
due installments of assessments, special or otherwise,
imposed upon the Property, and reasonable legal fees,
costs, and disbursements incurred for proceedings to
contest, determine, or reduce Real Estate Taxes, but only
to the extent the Real Estate Taxes are reduced, but shall
exclude federal, state or local income taxes, franchise,
gift, transfer, excise, capital stock, estate, succession,
or inheritance taxes, and penalties or interest for late
payment of Real Estate Taxes.
(vi) "Operating Expenses" means Landlord's operating expenses
that are reasonable, actual and necessary, out-of-pocket
(except Landlord may use its normal accrual method of
accounting), obtained at competitive prices, and that are
directly attributable to the operation, maintenance,
management, and repair of the Property, as determined under
generally accepted accounting principles consistently
applied, including:
(1) salaries, and other compensation; payroll taxes,
vacation, holiday, and other paid absences; and
welfare, retirement, and other fringe benefits that
are paid to employees, independent contractors, or
agents of Landlord engaged in the operation, repair,
management, or maintenance of the Property;
(2) repairs and maintenance of the Property and the cost
of supplies, tools, materials, and equipment for
Property repairs and maintenance, that under
generally accepted accounting principles
consistently applied, would not be capitalized;
(3) insurance premiums and other charges incurred by
Landlord for insurance on the Property and for its
employees including:
-a- fire insurance, extended coverage insurance,
and earthquake, windstorm, hail, and
explosion insurance;
-b- public liability and property damage
insurance;
-c- workers' compensation insurance;
-d- boiler and machinery insurance; sprinkler
leakage, water damage, water damage legal
liability insurance; burglary, fidelity, and
pilferage insurance on equipment and
materials;
-e- insurance Landlord is required to carry under
this Lease or by any governmental authority
with respect to the Property; and
-f- other insurance as is customarily carried by
operators of comparable office buildings in
the Raleigh, North Carolina area;
(4) costs incurred for inspection and servicing, including all outside
maintenance contracts necessary or proper for the maintenance of
the Property, such as janitorial and window cleaning, rubbish
removal, exterminating, water treatment, elevator, electrical,
plumbing, and mechanical equipment, and the cost of materials,
tools, supplies, and equipment used for inspection and servicing;
(5) costs incurred for electricity, water, gas, fuel, or other
utilities;
(6) sales, use, and excise taxes on goods and services purchased by
Landlord, but Tenant's pro rata share shall exclude prepaid
services that are not used by Landlord;
(7) license, permit, and inspection fees;
(8) auditor's fees for public accounting;
(9) legal fees, costs, and disbursements;
(10) reasonable and customary management fees as stated by BOMA to a
person or entity other than Landlord (provided, such person or
entity may be affiliated with Landlord);
(11) the annual amortization over its useful life with a reasonable
salvage value on a straight-line basis of (i) the costs of any
capital improvements made by Landlord and required by any changes
in applicable laws, rules, or regulations of any governmental
authorities; or (ii) the costs of any equipment or capital
improvements made by Landlord, as a laborsaving measure or to
accomplish other savings in operating, repairing, managing, or
maintaining of the Property, but only to the extent of the
savings;
(12) any costs for substituting work, labor, materials, or services in
place of any of the above items, or for any additional work,
labor, materials, services or improvements to comply with any
governmental laws, rules, regulations, or other requirements
applicable to the Property, that, at the time of substitution or
addition, are considered operating expenses under generally
accepted accounting principles consistently applied;
(13) other costs reasonably necessary to operate, repair, manage, and
maintain the Property in a manner and condition consistent with
comparable office buildings in the Raleigh, North Carolina area;
and
(14) Notwithstanding anything to the contrary in items (1) through (13)
above, Operating Expenses shall exclude:
-a- leasing commissions, costs, disbursements, marketing costs,
attorneys' fees and other expenses incurred for leasing,
renovating, or improving space for tenants;
-b- costs incurred by Landlord in discharging its obligations under
Section 4.02 and Exhibit D;
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-c- costs (including permit, license, and inspection fees) incurred in
renovating, tenants or common areas;
-d- Landlord's cost of electricity or other service sold to tenants
for which Landlord is to be reimbursed as a charge over the Gross
Rent and Additional Rent payable under the lease with that tenant;
-e- depreciation and amortization on the Building except as expressly
permitted elsewhere in this Lease;
-f- costs of a capital nature including capital improvements, capital
repairs, capital equipment, and capital tools, as determined under
generally accepted accounting principles consistently applied,
except that the annual amortization of these costs shall be
included to the extent expressly permitted elsewhere in this
Lease;
-g- costs incurred because the Landlord or other tenant violated the
terms of any lease or because Landlord violated any other contract
or obligation (including without limitation legal fees and
disbursements);
-h- interest on debt or amortization payments on mortgages or deeds of
trust or any other debt for borrowed money;
-i- advertising and promotional expenditures;
-j- repairs or other work needed because of fire, windstorm, or other
damage, casualty or cause insured against by Landlord or to the
extent Landlord's insurance provided coverage insurance;
-k- other expenses that under generally accepted accounting principles
consistently applied would not be considered normal maintenance,
repair, management, or operation expenses.
-l- fines or penalties incurred by Landlord;
-m- mortgage or ground rent uses;
-n- any types of utility services (including, without limitation,
electricity) or other benefits that at any time during the Term
are not provided to Tenant, or are separately metered or
contracted for and paid for by Tenant directly, to the extent
serving any portions of the Building or the Land except the Common
Areas;
-o- costs incurred due to the violation or alleged violation by the
Property of any law or regulation which is in effect on the date
of this Lease or the violation or alleged violation by Landlord of
any law or regulation whether or not in effect on the date of this
Lease;
-p- costs incurred for repair of latent defects in the Property;
-q- costs arising from the negligence or fault of other tenants or
occupants, Landlord or its agents, or any vendors, contractors or
providers of materials or services engaged by Landlord or its
agents.
-r- costs arising from or related to the presence in or about the
Property of hazardous materials (as defined under applicable laws
in effect on the date of this Lease) except any of the same which
are placed in the Property by Tenant;
-s- costs for sculpture, paintings, or other objects of art; and
-t- overhead and profit paid to subsidiaries or affiliates of Landlord
for management or other services on or to the Property or for
supplies or other materials, to the extent that the costs of the
services, supplies, or materials exceed the competitive costs of
the services, supplies, or materials were they not provided by a
subsidiary or affiliate.
Landlord shall use reasonable efforts to keep Operating Expenses at reasonable
amounts, while maintaining a high quality building.
(vi) "Adjustment Period" means each calendar year or partial calendar
year occurring during the Term.
(b) Credits/Reimbursements. Operating Expenses shall be reduced by
reimbursements, credits, discounts, reductions, or other allowances
received or receivable by Landlord for items of cost included in
Operating Expenses, except reimbursements to the Landlord by tenants
under this Article V.
(c) Tax Refund. If Landlord receives a refund of any portion of Real Estate
Taxes that were included in the Real Estate Taxes paid by Tenant, then
Landlord shall reimburse Tenant its pro rata share of the refunded taxes,
less any expenses that Landlord reasonably incurred to obtain the refund.
(d) Substituted Taxes. If any non-Real Estate Taxes are imposed against the
Landlord in substitution for any Real Estate Taxes, then the substituted
tax shall be considered a Real Estate Tax. Conversely, if any additional
Real Estate Taxes are imposed in substitution for any non-Real Estate
Taxes (that are not Substituted Taxes) they shall not be considered Real
Estate Taxes.
(e) Payment by Landlord. Subject to reimbursement under this Article V,
Landlord shall pay the Property's Operating Expenses and Real Estate
Taxes before delinquency.
(f) Payment by Tenant. If the Operating Expenses and Real Estate Taxes, when
combined for any Adjustment Period, exceed Base Operating and Real Estate
Tax Expense ("Operating and Real Estate Tax Expense Increase"), then
Tenant agrees to pay Landlord as Additional Rent, Tenant's Pro Rata Share
of the Operating and Real Estate Tax Expense Increase.
(g) Manner of Payment.
(i) Within one hundred twenty (120) days after each Adjustment Period
ends, or as soon as reasonably practical, Landlord shall give
Tenant an itemized statement ("Statement") showing in reasonable
detail the:
(1) actual Operating Expenses and Real Estate Taxes for the
Adjustment Period;
(2) the Operating and Real Estate Tax Expense Increase for the
Adjustment Period;
(3) the amount of Tenant's Pro Rata Share of the Operating and
Real Estate Tax Expense Increase; and
(4) the amount Tenant owes toward the Operating and Real Estate
Tax Expense Increase.
Any Additional Rent due, including interest and penalty, shall
survive the Expiration Date.
(ii) During any Adjustment Period that is less than a complete calendar
year, unless this Lease was terminated because of Tenant's
default, Tenant's obligation for Additional Rent for those
Adjustment Periods shall be prorated by multiplying the Additional
Rent for the Adjustment Period by a fraction expressed as a
percentage, the numerator of which is the number of days of the
Adjustment Period included in the Term and the denominator of
which is 365.
(iii) Landlord shall keep and maintain records of all Operating Expenses
and Real Estate Taxes for a period of not less than two (2) years,
which records shall be made available to Tenant at reasonable
times at Landlord's offices for inspection and copying by Tenant
or its representatives, at Tenant's cost. Tenant shall have the
right to audit Landlord's books and records. If such audit
establishes that the sum total of all actual Operating Expenses or
Real Estate Taxes are less than Landlord's final determination of
such total by four percent (4%) or more, then Landlord shall pay
the cost of such audit. Any over-charged or under-paid amounts
shall be reimbursed by the responsible party with thirty (30) days
following delivery of such audit to Landlord.
5.03 Personal Property Tax. Before delinquency Tenant shall pay taxes assessed
during the Term against trade fixtures or personal property placed by Tenant in
the Premises. If these taxes are assessed against the Building, Tenant shall pay
its share of the taxes to Landlord within ten (10) days after receiving
Landlord's written statement setting forth the amount of taxes applicable to
Tenant's property and the basis for the charge to Tenant. Tenant's failure to
pay within the ten-day period shall entitle Landlord to the same remedies it has
upon Tenant's failure to pay Gross Rent or Additional Rent.
ARTICLE VI
AFFIRMATIVE OBLIGATIONS
6.01 Compliance with Laws.
(a) Landlord's Compliance. Landlord warrants, that on the Commencement
Date, the Building, the Property and Premises shall comply with
all applicable laws, ordinances, rules, and regulations of
governmental authorities, including the Americans with
Disabilities Act (ADA). ("Applicable Laws"). During the Term,
Landlord shall comply with all Applicable Laws regarding the
Premises and Building except to the extent Tenant must comply
under Section 6.01(b).
(b) Tenant's Compliance. Tenant shall comply with all Applicable Laws
(i) regarding the physical condition of the Premises, but only to
the extent the Applicable Laws pertain to the particular manner in
which Tenant uses the Premises; or (ii) that do not relate to the
physical condition of the Premises but relate to the lawful use of
the Premises and with which only the occupant can comply, such as
laws governing maximum occupancy, workplace smoking, and illegal
business operations, such as gambling. Notwithstanding the
foregoing, Tenant shall comply with any requirements imposed under
the Americans with Disabilities Act of 1990 ("ADA") which relate
exclusively to Tenant's buildout of the Premises.
6.02 Services and Utilities.
(a) Services. Landlord shall provide at its expense, subject to
reimbursement under Section 5.02:
(i) Janitorial services to the office portion of the Premises
(all business days, Monday through Friday);
(ii) Hot and cold water sufficient for drinking, lavatory,
toilet, and ordinary cleaning purposes;
(iii) [Intentionally Deleted].
(iv) Replacement of lighting tubes, lamp ballasts, and bulbs;
(v) Extermination and pest control to the office portion of the
premises when necessary; and
(vi) Maintenance of Common Areas in a manner consistent with
other comparable office buildings in the Raleigh, North
Carolina area. The maintenance shall include cleaning,
illumination, snow shoveling, deicing, repairs,
replacements, lawn care, and landscaping.
(b) Business Hours. "Business Hours" means:
(i) Monday through Friday, 8:00 a.m. through 6:00 p.m., and
(ii) Saturday, 9:00 a.m. through 1:00 p.m., but excludes the
following holidays or the days on which the holidays are
designated for observance: New Year's Day, Easter (Good
Friday), Memorial Day, July Fourth, Labor Day, Thanksgiving
Day, and Christmas Day.
(c) 24 Hour Access. Tenant, its employees, agents, and invitees shall
have access to the Premises, twenty-four (24) hours a day, seven
(7) days a week, 52 weeks per year. During non business hours
Landlord may restrict access by requiring persons to show a badge
or identification card issued by Landlord, unless such persons are
authorized or accompanied by a representative of Tenant. Landlord
shall not be liable for denying entry to any person unaccompanied
by Tenant or unable to show the proper identification. Landlord
may temporarily close the Common Areas of the Building if required
in an emergency. Landlord shall use its best efforts to make any
such closure during non business hours only and, to the extent
reasonably possible, in a manner and for a time period so as not
to interfere with Tenant's operations in the Building, If Landlord
closes the Building, then the Gross Rent and Additional Rent shall
▇▇▇▇▇ during any closing that lasts more than twenty-four (24)
hours.
(e) Interruption of Services. Landlord does not warrant that any
services Landlord supplies will not be interrupted. Services may
be interrupted because of accidents, repairs, alterations,
improvements, or any reason beyond the reasonable control of
Landlord, and such an interruption shall not:
(i) be considered an eviction or disturbance of Tenant's use
and possession of the Premises;
(ii) make Landlord liable to Tenant for damages;
(iii) ▇▇▇▇▇ Gross Rent or Additional Rent; or
(iv) relieve Tenant from performing Tenant's Lease obligations.
6.03 Repairs and Maintenance.
(a) Tenant's Care of Premises. Tenant shall:
(i) keep the Premises and fixtures in good order;
(ii) make repairs or replacements to the Premises or Building
needed because or Tenant's misuse or negligence, except to
the extent that the repairs or replacements are covered by
Landlord's insurance or the insurance Landlord is required
to carry under this Lease, whichever is greater;
(iii) repair and replace, to the extent repair and replacement
are desired by Tenant, special equipment or decorative
treatments installed by or at Tenant's request which Tenant
is entitled to remove at the end of the Lease term and that
serve the Premises only, except
(1) to the extent the repairs or replacements are needed
because of Landlord's misuse or primary negligence,
and are not covered by Tenant's insurance or the
insurance Tenant is required to carry under this
Lease, whichever is greater; or
(2) if the Lease is terminated under Article IX (Loss of
Premises); and
(iv) not commit waste.
(b) Landlord's Repairs. Except for repairs and replacements that
Tenant must make under paragraph 6.03(a), Landlord shall pay for
and make all other repairs and replacements to the Premises,
Common Areas and Building (including Building fixtures and
equipment). Landlord shall make the repairs and replacements to
maintain the Building in a condition consistent with other
comparable office buildings in the Raleigh, North Carolina area.
This maintenance shall include the roof, foundation, exterior
walls, interior structural walls, all structural components, and
all Building systems, such as mechanical, electrical, and plumbing
(but not separate systems installed and operated by Tenant that
serve the Premises only), as well as sidewalks and parking areas
and other Common Area improvements.
(c) Time for Repairs. Repairs or replacements required under Sections
6.03(a) or 6.03(b) shall be made within a reasonable time
(depending on the nature of the repair or replacement needed)
after receiving notice or having actual knowledge of the need for
a repair or replacement.
(d) Surrendering the Premises. Upon the Expiration Date or earlier
termination of this Lease, Tenant shall surrender the Premises to
Landlord in the same condition that the Premises were in on the
Commencement Date except for:
(i) ordinary wear and tear;
(ii) damage by the elements, fire, and other casualty unless
Tenant would be required to repair under paragraph 6.03(a);
(iii) condemnation;
(iv) damage arising from any cause not required to be repaired
or replaced by Tenant; and
(v) alterations as permitted by this Lease unless consent was
conditioned on their removal or Tenant is entitled to and
elects to remove them pursuant to this Lease.
On surrender Tenant shall remove from the Premises its personal
property, trade fixtures, and any alterations required to be
removed under Section 7.01 and repair any damage to the Premises
caused by the removal. Any items not removed by Tenant as required
above shall be considered abandoned. Landlord may dispose of
abandoned items as Landlord chooses and ▇▇▇▇ Tenant for the cost
of their disposal, minus any revenues received by Landlord for
their disposal.
ARTICLE VII
NEGATIVE OBLIGATIONS
7.01 Alterations.
(a) Definitions. "Alterations" means alterations, additions,
substitutions, installations, changes, and improvements, but
excludes minor decorations and the Improvements Landlord is to
make under Section 4.02 and Exhibit D.
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(b) Consent. Tenant shall not make Alterations without the Landlord's
advance written consent. Landlord's consent shall not be
unreasonably withheld or conditioned or unduly delayed. Landlord's
review of Alterations that will be visible from the exterior of
the Building may include, without limitation, consideration of the
aesthetics of the Miami North Office Park. If Landlord fails to
approve or disapprove in writing within five (5) business days
after submission, the same shall be deemed approved by the
Landlord. Any disapproval shall specify the reasons for such
disapproval. With respect to Tenant's initial alterations, if
Landlord and Tenant are unable to agree upon the plans and
specifications, Tenant shall have the right to terminate the
Lease. At the time of plan approval, Landlord shall notify Tenant
which of the fixtures and equipment would be required to be
removed at the end of the term; however, Tenant shall have the
right to elect not to remove conduit, cabling, piping, electrical
conductors, walls or standard office improvements and Tenant shall
have the right to remove any or all of its equipment, including
generators, HVAC, batteries, UPS systems, etc. at any time during
the term.
(c) Conditions of Consent. Landlord may condition its consent in
Section 7.01(b) on all or any part of the following:
(i) Tenant shall furnish Landlord with reasonably detailed
plans and specifications of the alterations as requested by
Tenant.
(ii) The Alterations shall be performed and completed-
(1) in accord with the submitted plans and
specifications approved by Tenant and Landlord.
(2) in a workmanlike manner,
(3) in compliance with all applicable laws, regulations,
rules, ordinances, and other requirements of
governmental authorities,
(4) using new materials and installations at least equal
in quality to the original Building materials and
installations,
(5) by not unreasonably disturbing the quiet possession
of the other tenants,
(6) by not unreasonably interfering with the
construction, operation, or maintenance of the
Building, and
(7) with due diligence;
(iii) Tenant shall have the right to use contractors, architects,
engineers and other workers of its choice, subject to
Landlord's approval in writing, which approval shall not be
unreasonably withheld or unduly delayed.
(iv) Tenant shall have the right to modify plans and
specifications because of reasonable conditions set by
Landlord after reviewing the plans and specifications;
(v) Tenant's contractors shall carry builder's risk insurance
in an amount then customarily carried by prudent
contractors and workers' compensation insurance for its
employees in statutory limits, naming Landlord as an
additional insured, to the extent its interest may appear;
(vi) Tenant's workers or contractors shall work in harmony and
not unreasonably interfere with Landlord's workers or
contractors or other tenants and their workers or
contractors;
(vii) Tenant shall give Landlord at least fifteen (15) days
advance notice before beginning any alterations so that
Landlord may post or record notices of non-responsibility;
Tenant shall have the right to perform alterations 24 hours
per day, seven days per week, together with reasonable
access to Common Areas.
(viii) Upon demand Tenant shall give Landlord evidence that it
complied with any condition set by Landlord;
(ix) If Tenant completes alterations, Tenant shall give Landlord
complete as-built mylar drawings of the Alterations after
they are finished; and
(x) Tenant shall remove any unusual additions, alterations and
repair any damage from their removal by the Expiration Date
to the extent such removal is required pursuant to Section
7.01(b) above.
(d) Payment and Ownership of the Alterations. Alterations made under
this paragraph shall be at Tenant's expense. The Alterations shall
belong to Landlord when this Lease ends except as provided in
Section 7.01(b). Nevertheless, Tenant may remove its trade
fixtures, furniture, equipment, and other personal property if
Tenant promptly repairs any damage caused by their removal.
Landlord shall not receive any profit from or change any
supervisory fees for Tenant's alterations.
7.02 Assignment and Subleasing.
(a) Consent Required. Tenant shall not transfer, mortgage, encumber,
assign, or sublease all or part of the Premises without Landlord's
advance written consent. Landlord's consent to any transfer,
mortgage, encumbrance, assignment or sublease shall not be
unreasonably withheld or conditioned or unduly delayed.
(b) Reasonableness. The Landlord's consent shall not be considered
unreasonably withheld if:
(i) the proposed subtenant's or assignee's financial
responsibility does not meet the same criteria Landlord
uses to select comparable Building tenants;
(ii) the proposed subtenant's or assignee's business is not
suitable for the Building considering the business of the
other tenants and the Building's prestige; or
(iii) the proposed use is inconsistent with the use permitted by
Article II.
(c) Procedure.
(i) Tenant must provide Landlord in writing:
(1) the name and address of the proposed subtenant or
assignee;
(2) the nature of the proposed subtenant's or assignee's
business it will operate in the Premises;
(3) the terms of the proposed sublease or assignment;
and
(4) reasonable financial information so that Landlord
can evaluate the proposed subtenant or assignee.
(ii) Landlord shall, within ten (10) business days after
receiving the information under Section 7.02(c)(i), give
notice to Tenant to permit or deny the proposed sublease or
assignment. If Landlord denies consent, it shall explain
the reasons for the denial. Landlord's failure to respond
within the 10 day period set forth above shall be deemed to
be Landlord's consent.
(d) Affiliates. Notwithstanding Section 7.02(a), (b), and (c), Tenant
may assign or sublease part or all of the Premises without
Landlord's consent to:
(i) any corporation or partnership or other entity that
controls, is controlled by, or is under common control
with, Tenant; or
(ii) any corporation or other entity resulting from the merger
or consolidation with Tenant or to any entity that acquires
all or substantially all of Tenant's assets or stock as a
going concern of the business that is being conducted on
the Premises, as long as the assignee or sublessee is a
bona fide entity and assumes the obligations of Tenant.
(e) Conditions. Any subleases and assignments by Tenant are also
subject to the following:
(i) The terms of this Lease;
(ii) The term of any sublease shall not extend beyond the Term,
including the extensions provided in Rider A;
(iii) Tenant shall remain liable for all Lease obligations;
(iv) Consent to one sublease or assignment does not waive the
consent requirements for future assignments or subleases;
and
"Excess Consideration" shall mean the consideration received by Tenant from an
assignment or sublease that exceeds the amount Tenant must pay Landlord, which
amount is to be prorated where a part of the Premises is subleased or assigned.
Excess Consideration shall be adjusted to exclude leasing commissions,
improvements made to the Premises by Tenant for
its own use and also for the subtenant, the costs incurred by Tenant during any
period of vacancy, and other reasonable out-of-pocket costs paid by Tenant.
Tenant shall pay to Landlord a portion of the Excess Consideration, as follows:
with respect to any Excess Consideration collected during
the Term, fifty percent (50%);
with respect to any Excess Consideration collected during
the first Extension Term, seventy percent (70%)
with respect to any Excess Consideration collected during
the second Extension Term, ninety percent (90%).
Tenant shall pay such amounts to Landlord at the end of each calendar month
during which Tenant collects any Excess Consideration. Each payment shall be
sent with a detailed statement showing the total consideration paid by the
subtenant or assignee and any relevant exclusions. Landlord shall have the right
to audit Tenant's books and records to verify the accuracy of the detailed
statement
(f) Collocation. Tenant's business use of the Premises, including
provision of collocation space to customers, shall not be
considered transfer, assignment or sublet and, accordingly, does
not require Landlord's consent pursuant to this Section 7.02.
ARTICLE VIII
INSURANCE
8.01 Insurance.
(a) Landlord's Building Insurance. Landlord shall keep the Building,
including the Landlord Improvements insured against damage and
destruction by fire, earthquake, vandalism, and other perils in
the amount of the full replacement value of the Building, as the
value may exist from time to time.
(b) Property Insurance. Each party shall keep its personal property
and trade fixtures in the Premises and Building insured with "all
risks" insurance in an amount to cover one hundred percent (100%)
of the replacement cost of the property and fixtures. Tenant shall
also keep any non-Building-standard improvements (which term shall
include any improvements to the Premises beyond those set forth on
Exhibit D) made to the Premises by Tenant insured to the same
degree as Tenant's personal property. Tenant's property insurance
shall also provide for business interruption/extra expense
coverage in sufficient amounts.
(c) Liability Insurance. Each party shall maintain contractual and
comprehensive general liability insurance, including limits of no
less than $1,000,000 per occurrence/$2,000,000 aggregate per
location including contractual liability
Tenant's policy shall be endorsed to name Landlord as additional
insured. Definition of additional insured shall include all
Partners, Officers, Directors, Employees, agents and
representatives of the named entity including its managing agent.
Further, coverage for the additional insured shall apply on a
primary basis irrespective of any other insurance, whether
collectible or not.
(d) Workers Compensation and Employee Liability Insurance. Affording
coverage under the Workers Compensation laws of the State of North
Carolina and Employers liability coverage subject to a limit of no
less than $100,000 each employee, $100,000 each accident, $500,000
policy limit.
(e) Umbrella Liability Insurance. Each Party shall maintain umbrella
liability insurance to the extent necessary to provide coverage to
the limits and coverage noted in Sections 8.0l.c and 8.01.d above.
(f) Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant hereby waive and release each
other of and from any and all right of recovery, claim, action or
cause of action, against each other, their agents, officers and
employees, for any loss or damage that may occur to the Premises,
improvements to the Building, or personal property within the
Building, by reason of fire or the elements, regardless of cause
or origin, including negligence of Landlord or Tenant and their
agents, officers and employees. Landlord and Tenant agree
immediately to give their respective insurance companies which
have issued policies of insurance covering all risk of direct
physical loss, written notice of the terms of the mutual waivers
contained in this Section, and to have the insurance policies
properly endorsed, if necessary, to prevent the invalidation of
the insurance coverage by reason of the mutual waivers. The waiver
does not apply to claims caused by a party's willful misconduct.
If despite a party's best efforts it cannot find an insurance
company meeting the criteria in Section 8.01(h) that will give the
waiver at reasonable commercial rates, then it shall give notice
to the other party within thirty (30) days after the Commencement
Date. The other party shall then have thirty (30) days to find an
insurance company that will issue the waiver. If the other party
also cannot find such an insurance company, then both parties
shall be released from their obligations to obtain the waiver.
(i) Increase In Insurance. If due to Tenant's particular use of
the Premises, Landlord's insurance rates are increased,
Tenant shall pay the increase; provided, however, that
Landlord warrants that Tenant's use of the Premises as a
telecommunications and computer equipment room, including,
without limitation, the provision of colocation services to
customers, is a permitted use of the Building pursuant to
Landlord's insurance and Landlord agrees that it will not
require any payment from Tenant under the foregoing
sentence due to such use of the Premises by Tenant.
(h) Insurance Criteria. Insurance policies required by this Lease
shall:
(i) be issued by insurance companies licensed to do business in
the state of North Carolina with general policyholders
ratings of at least A and a financial rating of at least
VIII in the most current Best's Insurance Reports available
on the date of this Lease;
(ii) name the non procuring party as an additional insured as its
interest may appear (other landlords or tenants or other
third parties may also be added as additional insureds in a
blanket policy);
(iii) provide that the insurance not be canceled or materially
changed in the scope or amount of coverage unless thirty
(30) days' advance notice is given to the non procuring
party;
(iv) be primary policies-not as contributing with, or in excess
of, the coverage that the other party may carry;
(v) be permitted to be carried through a "blanket policy" or
"umbrella" coverage;
(vi) have property deductibles not greater than $15,000; and
(vii) be maintained during the entire Term.
(i) Evidence of Insurance. By the Commencement Date and upon each renewal
of its insurance policies, Tenant shall give copies of certificates
of insurance to Landlord. The certificate shall specify amounts,
types of coverage, the waiver of subrogation, and the insurance
criteria listed in Section 8.01(h). The policies shall be renewed or
replaced and maintained by Tenant. If Tenant fails to give the
required certificate within thirty (30) days after the notice of
demand for it, Landlord may obtain and pay for that insurance, but is
not obligated to do so, and receive reimbursement from the party
required to have the insurance.
8.02 Indemnification.
(a) Tenant's Indemnity. Tenant indemnities, defends, and holds Landlord
harmless from claims:
(i) for personal injury, death, or property damage;
(ii) for incidents occurring in or about the Premises or
Building; and
(iii) caused by the negligence or willful misconduct of Tenant,
its agents, employees, or invitees.
When the claim is caused by the joint negligence or willful
misconduct of Tenant and Landlord or Tenant and a third party
unrelated to Tenant, except Tenant's agents, employees, or invitees,
Tenant's duty to defend, indemnify, and hold Landlord harmless shall
be in proportion to Tenant's allocable share of the joint negligence
or willful misconduct.
(b) Landlords Indemnity, Landlord indemnifies, defends, and holds Tenant
harmless from claims:
(i) for personal injury, death, or property damage;
(ii) for incidents occurring in or about the Premises or
Building; and
(iii) caused by the negligence or willful misconduct of Landlord,
its agents, employees, or invitees.
When the claim is caused by the joint negligence or willful
misconduct of Landlord and Tenant or Landlord and a third party
unrelated to Landlord, except Landlord's agents, employees, or
invitees, Landlord's duty to defend, indemnify, and hold Tenant
harmless shall be in proportion to Landlord's allocable share of the
joint negligence or willful misconduct.
(c) Release of Claims. Notwithstanding Section 8.02(a) and (b), the
parties release each other from any claims either party ("Injured
Party") has against the other to the extent the claim is covered by
the Injured Party's insurance or the insurance the Injured Party is
required to carry under this Lease, whichever is greater.
8.03 Limitation of Landlord's Liability.
(a) Transfer of Premises. If the Building is sold or transferred,
voluntarily or involuntarily, Landlord's Lease obligations and
liabilities accruing after the sale or transfer shall be the sole
responsibility of the new owner provided:
(i) The new owner expressly agrees in writing to assume
Landlord's obligations; and
(ii) Tenant's funds in the hands of Landlord, such as the
Security Deposit, shall be given to the new owner.
(b) Liability for Judgments. If Landlord, its employees, officers,
directors, partners, members or managers are ordered to pay Tenant a
monetary judgment because of Landlord's default, Tenant's sole remedy
to satisfy the judgment shall be to execute against Landlord's
interest in the Building and Land (including any insurance or
condemnation proceeds received with respect thereto and rental income
and any proceeds of sale). Under no circumstance will Landlord, or
its officers, directors, partners or employees be personally liable
for any monetary judgment beyond such amounts.
ARTICLE IX
LOSS OF PREMISES
9.01 Damages.
(a) Definition. "Relevant Space" means:
(i) the Premises, excluding Tenant's fixtures installed by
or at the request of Tenant;
(ii) access to the Premises; and
(iii) any part of the Building that provides essential
services to the Premises or is otherwise necessary for
the conduct of Tenant's business in the Premises.
(b) Repair of Damage. If the Relevant Space is damaged in part or
whole from any cause and the Relevant Space can be substantially
repaired and restored within ninety (90) days from the date of the
damage using standard working methods and procedures, Landlord
shall at its expense promptly and diligently repair and restore
the Relevant Space to substantially the same condition as existed
before the damage. This repair and restoration shall be made
within ninety (90) days from the date of the damage unless the
delay is due to causes beyond Landlord's reasonable control.
If any material damage to the Relevant Space cannot be repaired
and restored within the ninety (90) day period, then either party,
may, within thirty (30) days after determining that the repairs
and restoration cannot be made within ninety (90) days, cancel the
Lease by giving notice to the other party. Nevertheless, if the
Relevant Space is not repaired and restored within ninety (90)
days from the date of the damage, then Tenant may cancel the Lease
at any time after the ninetieth (90th) day and until ten (10) days
after Tenant receives notice that the Relevant Space is repaired
and restored. Tenant shall not be able to cancel this Lease if its
willful misconduct causes the damage unless Landlord is not
promptly and diligently repairing and restoring the Relevant
Space.
(c) Determining the Extent of Damage. If the parties cannot agree in
writing whether the repairs and restoration will take more than
ninety (90) days to make, then the determination will be made by
Landlord's architect and Tenant will receive notice from Landlord
of such determination on or prior to the fifteenth (15th) day
after the date of damage. Landlord's failure to give such notice
within ten (10) days after notice from Tenant of such failure will
entitle Tenant to cancel the Lease.
(d) Abatement. Unless the damage is caused by Tenant's willful
misconduct, the Gross Rent and Additional Rent shall ▇▇▇▇▇ in
proportion to that part of the Premises that is unfit for use in
Tenant's business. The abatement shall consider the nature and
extent of interference to Tenant's ability to conduct business in
the Premises and the need for access and essential services. The
abatement shall continue from the date the damage occurred until
ten (10) business days after Landlord completes the repairs and
restoration to the Relevant Space or the part rendered unusable
and notice to Tenant that the repairs and restoration are
completed, or until Tenant again uses the Premises or the part
rendered unusable, whichever is first.
(e) Tenants Property. Notwithstanding anything else in this Article
IX, Landlord is not obligated to repair or restore damage to
Tenant's trade fixtures, furniture, equipment, or other personal
property, or any Tenant improvements.
(f) Damage to Building. If:
(i) more than fifty percent (50%) of the Building is damaged
and the Landlord decides not to repair and restore the
Building;
(ii) any mortgagee of the Building shall not allow adequate
insurance proceeds for repair and restoration;
(iii) the damage is not covered by Landlord's insurance or the
insurance Landlord is required to carry under this
Lease, whichever is greater; or
(iv) the Lease is in the last twelve (12) months of its Term,
including all renewal options, then Landlord may cancel
this Lease. To cancel, Landlord must give notice to
Tenant within thirty (30) days after the Landlord knows
of the damage. The notice must specify the cancellation
date, which shall be at least thirty (30) but not more
than sixty (60) days after the date notice is given.
(g) Cancellation, If either party cancels this Lease as permitted
above, then this Lease shall end on the day specified in the
cancellation notice. The Gross Rent, Additional Rent, and other
charges shall be payable up to the cancellation date and shall
account for any abatement. Landlord shall promptly refund to
Tenant any prepaid, unaccrued Gross Rent and Additional Rent,
accounting for any abatement, plus Security Deposit, if any, less
any sum then owing by Tenant to Landlord.
9.02 Condemnation.
(a) Definitions. The terms "eminent domain," "condemnation," "taken,"
and the like in Section 9.02 include takings for public or
quasi-public use and private purchases in place of condemnation by
any authority authorized to exercise the power of eminent domain.
(b) Entire Taking. Landlord shall give Tenant prompt notice following
Landlord's receipt of any notice from an authority authorized to
exercise the power of eminent domain that relates to any actual or
potential taking of any portion of the Building or the Land. If
the entire Premises or the portions of the Building required for
reasonable access to, or the reasonable use of, the Premises for
the conduct of Tenant's business therein are taken by eminent
domain, this Lease shall automatically end on the earlier of:
(i) the date title vests; or
(ii) the date Tenant is dispossessed by the condemning
authority.
(c) Partial Taking. If the taking of a part of the Premises or
Building materially interferes with Tenant's ability to continue
its business operations in substantially the same manner and space
then Tenant may terminate this Lease on the earlier of:
(i) the date when title vests, provided that Tenant had at
least thirty (30) days advance notice prior to such
date;
(ii) the date Tenant is dispossessed by the condemning
authority, provided that Tenant had at least thirty
(30) days advance notice prior to such date; or
(iii) sixty (60) days following notice to Tenant of the date
when vesting or dispossession is to occur.
If there is a partial taking and this Lease continues, then the
Lease shall end as to the part taken and the Gross Rent and
Additional Rent shall ▇▇▇▇▇ in proportion to the part of the
Premises taken and Tenant's pro rata share shall be equitably
reduced.
(d) Rent Adjustment. If the Lease is canceled as provided in Sections
9.02(b) or (c), then the Gross Rent, Additional Rent, and other
charges shall be payable up to the cancellation date, and shall
account for any abatement. Landlord, considering any abatement,
shall promptly refund to Tenant any prepaid, unaccrued Gross Rent
and Additional Rent plus Security Deposit, if any, less any sum
then owing by Tenant to Landlord.
(e) Repair. If the Lease is not canceled as provided for in Sections
9.02(b) or (c), then Landlord at its expense shall promptly repair
and restore the Premises and other portions of the building
necessary for the conduct of Tenant's business in the Premises to
the condition that existed immediately before the taking, except
for the part taken, to render the Premises a complete
architectural unit, but only to the extent of the:
(i) condemnation award received for the damage; and
(ii) the Landlord's original obligation under Section 4.02
and Exhibit D.
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(g) Awards and Damages. Landlord reserves all rights to damages paid
because of any partial or entire taking of the Premises. Tenant
assigns to Landlord any right Tenant may have to the damages or
award. Further, Tenant shall not make claims against Landlord or
the condemning authority for damages. Notwithstanding anything
else in this Paragraph 9.02(g). Tenant may claim and recover from
the condemning authority a separate award for Tenant's moving
expenses, business dislocation damages, Tenant's personal property
and fixtures, all improvements made by Tenant to the Premises as
part of the initial upfit or otherwise, (including without
limitation the unamortized costs of leasehold improvements paid
for by Tenant), but excluding the Landlord's Improvements, and any
other award that would not substantially reduce the award payable
to Landlord. Each party shall seek its own award, as limited by
this provision, at its own expense, and neither shall have any
right to the award made to the other.
ARTICLE X
DEFAULT
10.01 Tenant's Default.
(a) Defaults. Each of the following constitutes a default ("Default"):
(i) Tenant's failure to pay Gross Rent or Additional Rent
within five (5) business days after it is past due and
payable; provided, however, that Tenant shall not be in
Default under this provision the first time Tenant so
fails to timely pay in any calendar year unless Tenant
fails to pay within ten (10) days after Tenant receives
notice from Landlord that such amounts are past due and
payable;
(ii) Tenant's failure to pay Gross Rent or Additional Rent by
the due date, at any time during a calendar year in
which Tenant has already received two (2) notices of its
failure to pay Gross Rent or Additional Rent by the due
date;
(iii) Tenant's failure to perform or observe any other Tenant
obligation after a period of thirty (30) business days
or the additional time, if any, that is reasonably
necessary to promptly and diligently cure the failure,
after it receives notice from Landlord setting forth in
reasonable detail the nature and extent of the failure
and identifying the applicable Lease provision(s);
(iv) Tenant's failure to vacate or stay any of the following
within ninety (90) days after they occur:
(1) a petition in bankruptcy is filed by or
against Tenant;
(2) Tenant is adjudicated as bankrupt or insolvent;
(3) a receiver, trustee, or liquidator is appointed for
all or a substantial part of Tenant's property; or
(4) Tenant makes an assignment for the benefit of
creditors.
10.02 Landlord's Remedies.
(a) Remedies. Landlord in addition to the remedies given in this Lease
or under the law, may do any one or more of the following if
Tenant commits a Default beyond any applicable grace period under
Section 10.01:
(i) end this Lease, and Tenant shall then surrender the
Premises to Landlord;
(ii) enter and take possession of the Premises either with
or without process of law and remove Tenant, with or
without having ended the Lease; and
(iii) alter locks and other security devices at the Premises.
(iv) terminate this Lease by providing written notice to
Tenant, take possession of the Premises, and re-let the
Premises to another tenant in Landlord's sole
discretion.
Tenant waives claims for damages by reason of Landlord's reentry,
repossession, or alteration of locks or other security devices and
for damages by reason of any legal process.
(b) No Surrender. Landlord's exercise of any of its remedies or its
receipt of Tenant's keys shall not be considered an acceptance or
surrender of the Premises by Tenant. A surrender must be agreed to
in writing signed by both parties.
(c) Rent. If Landlord terminates this Lease or Tenant's right to
possess the Premises because of a Default, Landlord may hold
Tenant liable for Gross Rent, Additional Rent, and other
indebtedness accrued to the date the Lease expires or is
terminated. Tenant shall also be liable for the Gross Rent,
Additional Rent and other indebtedness that otherwise would have
been payable by Tenant during the remainder of the Term had there
been no default, reduced by any sums Landlord receives by
reletting the Premises during the Term.
(d) Other Expenses. Tenant shall also be liable for that part of the
following sums paid by Landlord and attributable to that part of
the Term ended due to Tenant's Default:
(i) reasonable broker's fees incurred by Landlord for
reletting part or all of the Premises prorated for that
part of the reletting Term ending concurrently with the
then current Term of this Lease;
(ii) the cost of removing and storing Tenant's property;
(iii) the cost of repairs, alterations, and remodeling
necessary to put the Premises in a condition reasonably
acceptable to a new Tenant; and
(iv) other necessary and reasonable expenses incurred by
Landlord in enforcing its remedies, including, without
limitation, reasonable attorneys fees.
(e) Payment. Tenant shall pay the sums due in Sections 10.02(c) and
(d) within thirty (30) days of receiving Landlord's proper and
correct invoice for the amounts.
(f) Reletting. Landlord may reflect for a shorter or longer period of
time than the Lease Term and make any necessary repairs or
alterations. Landlord may relet on any reasonable terms including
a reasonable amount of free rent.
10.03 Self-Help. If Tenant defaults, Landlord may, without being obligated and
without waiving the Default, cure the Default, and may enter the Premises to do
so. Tenant shall pay Landlord, upon demand, as Additional Rent, all costs,
expenses and disbursements incurred by Landlord.
10.04 Survival. The remedies permitted by this Article X and the parties'
indemnities in Section 8.02 shall survive the Expiration Date or earlier
termination of this Lease.
ARTICLE XI
NON DISTURBANCE
11.01 Subordination.
(a) Mortgages. Subject to Section 11.01(b), this Lease is subordinate
to prior or subsequent mortgages covering the Building. Landlord
shall provide to Tenant non-disturbance agreements from all
existing and future mortgages, beneficiaries of deeds of trust and
ground lessors.
(b) Foreclosures. If any mortgage is foreclosed, then:
(i) This Lease shall continue;
(ii) Tenant's quiet possession shall not be disturbed if
Tenant is not in Default;
(iii) Tenant will attorn to and recognize the mortgagee or
purchaser at foreclosure sale (Successor Landlord) as
Tenant's landlord for the remaining Term; and
(iv) The Successor Landlord shall not be bound by:
(1) any payment of Gross Rent or Additional Rent for
more than one month in advance, except the
Security Deposit and free rent, if any, specified
in the Lease,
(2) any amendment, modification, or ending of this
Lease without Successor Landlord's consent after
the Successor Landlord's name is given to Tenant
unless the amendment, modification, or ending is
specifically authorized by the original Lease and
does not require Landlord's prior agreement or
consent, and
(3) any liability for any act or omission of a prior
Landlord.
(c) Self-Operating. This Section 11.01 is self-operating. However,
Tenant shall promptly execute and deliver any documents needed to
confirm this arrangement.
11.02 Estoppel Certificate.
(a) Obligation, Tenant shall from time to time, within ten (10)
business days after receiving a written request from Landlord,
execute and deliver to Landlord a written statement which may be
relied upon by Landlord and any third party with whom the Landlord
is dealing and which shall certify:
(i) the accuracy of the Lease document;
(ii) the Commencement and Expiration Dates of the Lease;
(iii) that the Lease is unmodified and in full effect or in
full effect as modified, stating the date and nature of
the modification;
(iv) whether to the Tenant's knowledge the Landlord is in
default or whether the Tenant has any claims or demands
against Landlord, and, if so, specifying the Default,
claim, or demand; and
(v) to other correct and reasonably ascertainable facts that
are covered by the Lease terms.
(b) Remedy. The Tenant's failure to comply with its obligations in
Section 11.02(a) shall be a Default, except that the cure period
for this Default shall be five (5) business days after the Tenant
receives notice of the Default.
11.03 Quiet Possession. If Tenant is not in default, and subject to the Lease
terms, Landlord warrants that Tenant's peaceable and quiet enjoyment of the
Premises shall not be disturbed by anyone claiming by or through Landlord.
ARTICLE XII
LANDLORD'S RIGHTS
12.01 Rules.
(a) Rules, Tenant, its employees and invitees, shall comply with:
(i) the Rules attached as Exhibit F and
---------
(ii) reasonable modifications and additions to the Rules
adopted by Landlord provided that such rules are
applicable to all tenants of the Building and provided
further that such rules do not materially interfere with
the conduct of Tenant's business at the Premises as
permitted under this Lease.
(b) Conflict with Lease. If a Rule issued under Section 12.01(a)
conflicts with or is inconsistent with any Lease provision, the
Lease provision controls.
(c) Enforcement. Although Landlord is not responsible for another
tenant's failure to observe the Rules, Landlord shall not
unreasonably enforce the Rules against Tenant.
12.02 Mechanic's Liens.
(a) Discharge Lien. Tenant shall, within twenty (20) days after
receiving notice of any mechanic's lien for material or work
claimed to have been furnished to the Premises on Tenant's behalf
and at Tenant's request:
(i) discharge the lien; or
(ii) post a bond equal to the amount of the disputed claim
with companies reasonably satisfactory to Landlord.
If Tenant posts a bond, it shall contest the validity of the lien.
Tenant shall indemnify, defend, and hold Landlord harmless from
losses incurred from these liens.
(b) Landlord's Discharge. If Tenant does not discharge the lien or
post the bond within the twenty (20) day period, Landlord may pay
any amounts, including interest and legal fees, to discharge the
lien. Tenant shall then be liable to Landlord for the amounts paid
by Landlord as Additional Rent.
(c) Consent not Implied. This Section 12.02 is not a consent to
subject Landlord's property to these liens.
12.03 Right to Enter.
(a) Permitted Entries. Landlord and its agents, servants, and
employees may enter the Premises at reasonable times, and at any
time if an emergency, without charge, liability, or abatement of
Gross Rent, to:
(i) examine the Premises;
(ii) make repairs, alterations, improvements, and additions
either required by the Lease or advisable to preserve
the integrity, safety, and good order of part or all of
the Premises or Building;
(iii) provide janitorial and other services required by the
Lease;
(iv) comply with Applicable Laws;
(v) show the Premises to prospective lenders or purchasers;
(vi) post notices of non responsibility;
(vii) remove any Alterations made by Tenant in violation of
Section 7.01; and
(viii) post "For Sale" signs and, during the one hundred twenty
(120) days immediately before this Lease ends, post "For
Lease" signs.
(b) Entry Conditions. Notwithstanding Section 12.03(a), entry is
conditioned upon Landlord:
(i) giving Tenant at least twenty-four (24) hours advance
notice, except in an emergency;
(ii) promptly finishing any work for which it entered; and
(iii) causing the least practical interference to Tenant's
business.
12.04 Holdover.
(a) Holdover Status. If Tenant continues occupying the Premises after
the Term ends ("Holdover") then:
(i) if the Holdover is with Landlord's written consent, it
shall be a month-to-month tenancy, terminable on thirty
(30) days advance notice by either party. Tenant shall
pay at the beginning of each month Gross Rent and
Additional Rent that is five percent (5%) higher than
the amount due in the last full month immediately
preceding the Holdover period unless Landlord specifies
a lower or higher Rent and Additional Rent in the
written consent;
(ii) if the Holdover is without Landlord's written consent,
then Tenant shall be a tenant-at-sufferance. Tenant
shall pay by the first day of each month 150% of the
amount of Gross Rent and Additional Rent due in the last
full month immediately preceding the Holdover period and
shall be liable for any damages suffered by Landlord
because of Tenant's Holdover, Landlord shall retain its
remedies against Tenant who holds over without written
consent.
(b) Holdover Terms. The Holdover shall be on the same terms and
conditions of the Lease except:
(i) the Term;
(ii) Gross Rent and Additional Rent;
(iii) the extension Term is deleted;
(iv) the Quiet Possession provision is deleted;
(v) Landlord's obligation for services and repairs is
deleted; and
(vi) consent to an assignment or sublease may be unreasonably
withheld and delayed.
12.05 Signs. Tenant shall not place or have placed any other signs, listings,
advertisements, or any other notices anywhere in the Building without Landlord's
prior written consent.
ARTICLE XIII
MISCELLANEOUS
13.01 Broker's Warranty. The parties warrant that ▇▇▇▇▇▇▇ and Co., Liberty
Greenfield Advisors and ▇▇▇▇▇▇ & Associates of the Carolinas, LLC are the only
broker they dealt with on this Lease. The party who breaches this warranty shall
defend, hold harmless, and indemnify the non breaching party from any claims or
liability arising from the breach. Landlord is solely responsible for paying the
commission of ▇▇▇▇▇▇▇ & Co., Liberty Greenfield Advisors and ▇▇▇▇▇▇ & Associates
of the Carolinas, LLC.
13.02 Attorney's Fees. In any litigation or arbitration between the parties
regarding this Lease, the losing party shall pay to the prevailing party all
reasonable expenses and fees and court costs including attorneys' fees incurred
by the prevailing party. A party shall be considered the prevailing parry if:
(a) it initiated the litigation or arbitration and substantially
obtains the relief it sought, either through a judgment or
voluntary action before (after it is scheduled) trial or judgment;
(b) the other party withdraws its action without substantially
obtaining the relief it sought; or
(c) it did not initiate the litigation and judgment is entered for
either party, but without substantially granting the relief
sought.
13.03 Notices. All notices, requests, demands and other communications required
or permitted to be given under this Lease shall be in writing and sent to the
address or telecopy number set forth below. Each communication shall be deemed
duly given and received: (i) as of the date and time the same is personally
delivered with a receipted copy; (ii) if given by telecopy, when the telecopy is
transmitted to the recipient's telecopy number and confirmation of complete
receipt is received by the transmitting party during normal business hours for
the recipient, or the day after confirmation is received by the transmitting
part if not during normal business hours for the recipient; (iii) if delivered
by U.S. Mail, three (3) days after depositing with the United States Postal
Service, postage prepaid by certified mail, return receipt requested; or (iv) if
given by nationally recognized or reputable overnight delivery service, on the
next day after deposit with same. If any notice is sent by telecopy, the
transmitting party shall send a duplicate copy of the notice to the other party
by regular mail. In all event, however, any notice sent by telecopy transmission
shall govern all matters dealing with the delivery of the notice, including the
date on which the notice is deemed to have been received by the other party. The
parties may change their address or telecopy number as each may later specify
for that purpose by notice to the other party.
To Tenant: Inflow, Inc.
Art Zeile
================================================================================
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(ph): ▇▇▇-▇▇▇-▇▇▇▇
(fax): ▇▇▇-▇▇▇-▇▇▇▇
and
To Landlord: Miami North, LLC
do ▇▇▇▇▇▇▇ & Co.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Property Management
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ FAX
Either party may change these persons or addresses by giving notice as provided
above. Tenant shall also give required notices to Landlord's mortgagee after
receiving notice from Landlord of the mortgagee's name and address.
13.04 Partial Invalidity. If any Lease provision is invalid or unenforceable to
any extent, then except that provision, the remainder of this Lease shall
continue in effect and be enforceable to the fullest extent permitted by law.
13.05 Waiver. The failure of either party to exercise any of its rights is not a
waiver of those rights. A party waives only those rights specified in writing
and signed by the party waiving its rights.
13.06 Binding on Successors. This Lease shall bind the parties' heirs,
successors, representatives, and permitted assigns.
13.07 Governing Law. This Lease shall be governed by the laws of the state in
which the Building is located.
13.08 Lease Not an Offer. Landlord gave this Lease to Tenant for review. It is
not an offer to lease. This Lease shall not be binding unless signed by both
parties.
13.09 Recording. Recording of this Lease is prohibited except as allowed in this
paragraph. At the request of either party, the parties shall promptly execute
and record, at the cost of the requesting party, a short form memorandum
describing the Premises and stating this Lease's Term, its Commencement and
Expiration Dates, and other information the parties agree to include.
13.10 Survival of Remedies. The parties' remedies shall survive the expiration
or termination of this Lease when caused by the Default of the other party.
13.11 Authority of Parties. Each party warrants that it is authorized to enter
into the Lease, that the person signing on its behalf is duly authorized to
execute the Lease, and that no other signatures are necessary.
13.12 Business Days. Business day means Monday through Friday inclusive,
excluding holidays identified at Section 6.02(b). Throughout this Lease,
wherever "days" are used the term shall refer to calendar days. Wherever the
term "business days" is used the term shall refer to business days.
13.13 Entire Agreement. This Lease contains the entire agreement between the
parties about the Premises and Building. Except for the Rules for which Section
12.01(a) controls, this Lease shall be modified only by a writing signed by both
parties.
13.14 Definition of Lease. This Lease consists of the following:
(a) Title Page;
(b) Table of Contents;
(c) Articles I through XIII;
(d) Signature Page;
(e) Rider A containing Option To Extend and other provisions;
(f) Exhibits A through F.
13.15 Time is of the Essence. Time is of the essence in the performance of the
terms and conditions of this Lease.
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease
under seal the day and year first above written.
LANDLORD: Miami North Carolina Limited Liability Company (SEAL)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Manager
DATE: 6/29/99
-----------------------------------------
WITNESS: Name: illegible
-----------------------------------------
Date: 6/29/99
-----------------------------------------
TENANT: Inflow, Inc., a Delaware Corporation
By /s/ Art Zeile
-----------------------------------------
Art Zeile
Title: President and Chief Executive Officer
--------------------------------------
Date: 6/28/99
-----------------------------------------
Attest: illegible
-------------------------
Secretary
-----------
(CORPORATE SEAL) Date: 6/28/99
---------------------
RIDER A
THIS RIDER constitutes a part of the Lease to which it is attached. In
the event of a conflict between this Rider and the provisions of the Lease, the
Rider will govern and control.
1. Upfit Allowance for Tenant Improvements. Landlord shall provide Tenant at
---------------------------------------------
Landlord's sole expense an upfit allowance of eighteen dollars ($18.00) per
usable square foot for the completion of Tenant's improvements All costs
incurred as a result of architectural engineering design, construction
management, permitting, demolition and construction shall be paid by Tenant but
may be paid out of the Tenant improvement allowance.
2. Options to Extend. Tenant shall have two (2) five (5) year renewal
-----------------
options. ("Extension Term") beginning immediately after the Term upon the same
terms and conditions of the Lease, except that:
(i) the Term shall be modified as stated above;
(ii) the Rent and Additional Rent shall be calculated as
follows: First Renewal Term if applicable:
--------------------------------------------------------------------------------
Oct. 1, 2009-Sept. 30, 2010 $20.30 rsf
--------------------------------------------------------------------------------
Oct. 1, 2010-Sept. 30, 2011 $20.80 rsf
--------------------------------------------------------------------------------
Oct. 1, 2011-Sept. 30, 2012 $21.32 rsf
--------------------------------------------------------------------------------
Oct. 1, 2012-Sept. 30, 2013 $21.86 rsf
--------------------------------------------------------------------------------
Oct. 1, 2013-Sept. 30, 2014 $22.41 rsf
--------------------------------------------------------------------------------
-----------------------------------
Second Renewal term, if applicable:
--------------------------------------------------------------------------------
Oct. 1, 2014-Sept. 30, 2015 $22.97 rsf
--------------------------------------------------------------------------------
Oct. 1. 2015-Sept. 30, 2016 $23.53 rsf
--------------------------------------------------------------------------------
Oct. 1, 2016-Sept. 30, 2017 $24.16 rsf
--------------------------------------------------------------------------------
Oct. 1, 2017-Sept. 30, 2018 $24.78 rsf
--------------------------------------------------------------------------------
Oct. 1, 2018-Sept. 30, 2019 $25.42 rsf
--------------------------------------------------------------------------------
-----------------------------------
(iv) Landlord shall have no obligation to further improve the
Premises.
(b) Conditions. To exercise this Option to Extend, Tenant must:
(i) not be in default beyond any applicable grace period at the
time it exercises the Option to Extend; and
(ii) give notice to Landlord that Tenant is exercising its
Option to Extend at least one hundred eighty (180) days
before the Term ends, which notice shall be binding. In the
event Landlord does not receive Tenant's notice within the
time frame described, this Option shall become null and
void and the Lease shall terminate on the Expiration Date.
3. Right of First Refusal Tenant shall be granted an ongoing right of first
----------------------
refusal on any space that is to be rented in the Building or becomes
vacant over the term of the lease. Landlord shall provide Tenant notice
of the availability of space not more than one hundred eighty (180) days
nor less than forty-five (45) days prior to the date such space will be
available for occupancy, which notice shall specify the date such space
will be available for occupancy, and Tenant shall provide notice within
ten (10) business days from the date it receives Landlord's notice to
accept or decline the space. If Tenant provides notice to accept the
space, which notice shall be binding, Tenant shall take possession of the
space when it is made available for occupancy, with a term to be
coterminous with Tenant's existing lease provided a minimum of
twenty-four (24) months remains on Tenant s existing lease. The rental
rate for such space shall be fixed at the Market Rate at the time Tenant
accepts the space. "Market Rate" shall mean the rent that third parties
are paying at the time for comparable space in the Raleigh area, and
which shall take into account improvements allowances, free rent, base
year expense stops, and other terms and incentives offered to such third
parties. If Landlord does not receive Tenant's notice within the ten (10)
day period or Tenant declines to accept the space, Tenant's right of
first refusal shall be null and void and Landlord may lease the space to
another tenant in Landlord's sole discretion, provided that if such space
again becomes available to be rented or vacant after six (6) months,
Tenant's right of first refusal shall again apply.
4. Lease Security: As security for the lease, Tenant shall provide a letter
of credit in accordance with the terms of Exhibit A-1 and Exhibit A-2
attached hereto
5. Accommodation Space: Tenant shall have the right, throughout the term, to
utilize or create additional space in, on, or adjacent to the Building
(at no additional rental) to accommodate Tenant's equipment and
facilities (e.g. the construction of a structural platform to support
HVAC cooling tower or an enclosure for an emergency backup generator)
Subject to Landlord's consent, which shall not be unreasonably withheld.
6. Signage: At Tenant's request, Landlord shall provide signage on the
common building directory and the monument sign for the Building in the
standard font for the Miami North Office Park, per Durham code. Tenant
shall have the right to use its standard graphics on the entrance to its
space.
7. Environmental:. Landlord warrants to the best of its knowledge that
except as may be specifically identified in the Phase I Environmental
Report delivered to Tenant, there are no hazardous substances in the
Building or the Land, including, without limitation, asbestos and
lead-based paint.
8. Conduit/Riser Space: Tenant shall have the right, at no additional
charge, to all of the following: (a) to use existing fiber optic cabling
in the Building or, at Tenant's election, to construct additional
telecommunications entrances into the Building and into the Premises.
Landlord acknowledges that Tenant will require redundant entrances for
its data center operations; (b) to use existing riser space and available
conduit, at Tenant's option, to install any additional conduit and
facilities required in order to connect Tenant's power, HVAC equipment
and piping, antennas, grounding, and related equipment and for other
purposes not inconsistent with the design of such conduits or risers.
Upon Tenant's request, Landlord shall provide, for Tenant's use
throughout the lease term, easement or rights of way for up to ten
telecommunications cables from the Premises to exit the Building and to
the boundary of the land on which the Building is located. Tenant shall
take all reasonable, economically feasible measures, including, when
applicable, using directional boring, to avoid damage to existing
pavement or other improvements. Landlord shall have the right to approve
of installation plans for such cables, which approval shall not be
unreasonably withheld. Tenant shall repair any damage to pavement and
improvements and shall replace any damaged landscaping after installation
of any such cables.
9. Electricity: Tenant shall be permitted to use Building electricity, which
is not generator-protected, to serve the office portion of the Premises,
in reasonable amounts for normal office use, lighting, and HVAC. Tenant
shall separately meter and pay for its usage of such electricity. In
addition to the foregoing, Landlord and Tenant shall use their best
efforts to arrange with a local utility provider acceptable to Tenant for
the provision of up to 1400 amps of 480 volt, three-phase a/c power to
the Premises, substantially at such provider's expense, for the exclusive
use of Tenant. If such power is not available to the Premises by
September 1, 1999, Tenant shall have the right to terminate the Lease.
Landlord acknowledges that Tenant shall be entitled to use, at all times,
through the duration of the Lease, the 1400 amps of 480 volt a/c three
phase power delivered by a local utility provider. Tenant shall
separately meter and pay for its usage of such electricity. If Tenant
requires additional electric capacity, Tenant shall have the right, at
its expense, with Landlord's cooperation, to reconfigure switch equipment
and facilities and to make application directly to an electricity
provider serving the Building. Tenant shall have the right to make its
own arrangements for power.
10. Tenant UPS. Tenant shall have the right to install UPS systems and their
associated batteries within Tenant's within the Premises and to integrate
the Building utility power into such systems.
11. Grounding. Tenant shall have the right to install an electrical grounding
system for the Premises.
12. Tenant Generator. Tenant shall have the right to install and maintain
power generators to serve the Premises, together with associated fuel
storage tanks, and to integrate Building utility power into such
generators. Landlord shall provide, at no additional charge, easements
and if applicable, riser space to connect such generators. Landlord shall
provide a pad site for such generators at no additional charge, which
shall be located outside the Building, on the South side of the Building,
next to the existing retaining wall. The footprint required for Tenant's
generators and associated tanks and equipment shall not exceed 500 square
feet. Tenant shall have the right, at its option, to construct fencing or
use other appropriate security measures to protect its generators. Tenant
shall construct fencing walls or other measures to screen its generators
as reasonably required by Landlord.
13. HVAC & Humidity Control. Tenant shall have the right to tap into Building
water supply in order to operate a humidifier system in the Premises.
Tenant shall have the right to install coolant lines at Tenant's expense
to support AC systems in the Premises or on the roof or elsewhere serving
the Premises. Tenant shall have the right at no additional charge, to
install and operate a cooling system to serve the Premises on the roof of
the Building or at Tenant's option, at another location reasonably
acceptable to Tenant and Landlord. Landlord shall provide at no
additional charge, easements and riser space to connect such equipment.
Tenant shall have the right to vent through the roof of the Building or
through the Building ventilation system, if any, and to install drains
for the HVAC equipment and to discard any HVAC wastewater into the
Building's sewage system or otherwise as necessary. Tenant shall have the
right to remove or cap any heating system in its premises. Tenant shall
not be obligated to connect its cooling system to Landlord's energy
management system.
14. Fire System. Tenant shall have the right, in its discretion and at its
expense, to do any or all of the following: (a) convert any existing
sprinkler system within the Premises to dry-pipe, pre-action system or
install such a system. (b) relocate or encase any water mains or other
water pipes running through or adjacent to the Premises. (c) install an
FM 200 gas system in the Premises, and (d) install any other fire
suppression system approved by Landlord, not to be unreasonably withheld.
15. Structural. Tenant shall have the right, at its expense, to do any or all
of the following: (a) to cover or block up windows and/or exterior walls
in the Premises, provided that such measures are reasonably acceptable to
landlord with respect to external aesthetics of the Miami North Office
Park; (b) to install up to three manholes adjacent to the Building for
bringing telecommunications fiber into the Building; and (c) to fence in
any equipment or facilities located or installed outside the Premises.
16. Security of Premises. Tenant shall have the right to install its own
security systems for the Premises. Tenant shall be permitted to create a
special security area within the Premises to encompass Tenant's equipment
room. Landlord will cooperate with, but shall not be responsible to,
Tenant in maintaining the security for such area. Tenant shall be
permitted to install security for such area with non-building-standard
locks and other access
controls which restrict access to Tenant and its customers, provided that
Landlord shall be provided with keys or other entry mechanisms which may
be used in accordance with the terms of this Lease. Landlord shall not
enter such area or permit any janitorial, maintenance, repair or other
service to such area except as approved and supervised by Tenant.
Landlord or its agents shall enter such area only after at least
twenty-four (24) hours notice to Tenant and when accompanied by Tenant,
except when failure to comply with the foregoing will cause imminent
danger to the Premises or other portions of the Building or any person.
Any entry by Landlord will be conducted with reasonable caution under the
circumstances to prevent damage to or interference with any of the
equipment in the Area.
17. Roof Rights. Tenant shall have the right to install HVAC equipment,
dishes, antennas and other telecommunications equipment and other
equipment on the roof of the building, at no charge during the term of
the Lease, including any renewals. The square footage available for
Tenant's use shall not be less than 50% of the total useable square
footage available on the roof as of the date hereof. Tenant shall be
responsible for expenses associated with installation, maintenance,
operation, repair and removal of said items.
18. Landlord's Remedies. Notwithstanding anything to the contrary in the
Lease, in no event shall Landlord be entitled to enter the Premises and
remove or interfere with Tenant's property or the property of Tenant's
customers without judicial process.
19. Confidentiality. Landlord acknowledges that it may have access to certain
confidential information of Tenant concerning Tenant's business,
facilities, operations, plans, customers, proprietary software,
technology, and products ("Confidential Information"). Landlord agrees
that it will not use in any way, for its own account or the account of
any third party, except as expressly permitted by this Lease, nor
disclose to any third party (except as required by law or to its
attorneys, accountants, and other advisors and mortgagees and prospective
purchasers of the Premises as reasonably necessary and subject to the
confidentiality provisions hereof), any of Tenant's Confidential
Information and will take reasonable precautions to protect the
confidentiality of such information.
20. Tenant's Equipment. Tenant shall have the right to install, maintain,
repair and replace computer, telecommunication, and other equipment in
the equipment room of the Premises, so long as the average load of such
equipment does not exceed 50 pounds per square foot, and so long as the
load of any individual item does not exceed 200 pounds per square foot.
Landlord hereby acknowledges that such weights are not excessive loads
for the structure and hereby consents thereto. Tenant shall have the
right to install fixed telephony and HVAC systems in the Premises, and
Landlord hereby consents thereto. Tenant shall have the right to move
computer, telecommunication, and other equipment in and out of the
Premises from time to time in the course of its business, and locate the
same within the Premises at its discretion, and Landlord hereby consents
thereto.
21. Arbitration. Any controversy or claim arising out of or relating to this
Lease which involves less than $100,000 or which relates to a denial of
any consent or approval shall be settled by arbitration administered by
the American Arbitration Association under its Commercial Arbitration
Rules, including the Expedited Procedures, and judgment on the award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction.
22. Condition of the Premises. Landlord shall deliver the Premises to Tenant
on the Commencement Date, at Landlord's sole cost and expense, broom
clean and free of all non-structural, non-core interior walls. Landlord
represents and warrants, and shall deliver evidence to Tenant prior to
the Commencement Date which confirms, that the floor loading capability
of the Premises is not less than ▇▇▇ ▇▇▇./▇▇▇▇▇▇ ▇▇▇▇▇▇ foot. Landlord
shall provide Tenant with any existing as-built drawings of the Building
in CAD format and any other existing CAD drawings with respect to the
Building. Landlord, at its expense, shall provide Tenant with one-line
drawings of the Building's mechanical and electrical systems. All
documentation shall be provided in electronic format if available.
23. Parking. Landlord shall provide 68 unreserved parking spaces to Tenant in
the lot adjacent to the Building at no charge during the Lease term,
including any renewals.
24. Access. Tenant and its customers and vendors shall have 24 hours per day,
7 days per week; 52 weeks per year access to Tenant's premises in the
Building, common areas, and any of Tenant's equipment in the Building or
otherwise within Landlord's control, power and the telephone closets
serving the premises, and the parking area without the requirement of
prior notice.
25. Colocation/Interconnection. Tenant shall have the right to do any or all
of the following, at no additional charge, subject to Landlord's prior
approval, which shall not be unreasonably withheld, conditioned or
delayed, of any property modifications of any kind: (a) to co-locate
customer equipment in the Premises without Landlord's consent, (b) to
provide rights to use portions of the Premises to its customers and
vendors without Landlord's consent, and (c) to connect Tenant's equipment
and customer equipment to telecommunications facilities in any buildings
within the office park owned by Landlord, subject to Tenant's receiving
the consent of any third party owner of such facilities and subject
further to Tenant's installation of such interconnections along routes
reasonably acceptable to Landlord, using existing conduit whenever
feasible.
26. Matters with Respect to Rules and Regulations. In addition to other
provisions of the Rules and Regulations that are overridden by the
express terms of the Lease, the following items in the Rules and
Regulations attached as Exhibit F shall not apply to Tenant's operations
in the Premises: Rule 11, Rule 15 (a) through (f), and Rule 17. Tenant's
use of the Premises as office space and a computer and telecommunications
equipment room, including the use of HVAC and UPS and similar systems in
support thereof, in compliance with all laws regarding the use of
hazardous substances, shall not be deemed to violate Rule 7.
27. Representations and Warranties. Landlord represents and warrants to
Tenant: (i) Landlord has good and marketable fee simple title to the
Building, including without limitation the Premises, (ii) the Building
and the Premises, as of the date hereof, are not subject to any ground
lease, mortgage or deed of trust except the Deed of
Trust in favor of Wachovia Bank of North Carolina N.A. recorded June 18,
1997 in Book 2326 at Page 759; and (iii) no other party has any right to
use or occupy the Premises from and after the Commencement Date.
28. Rent Credit. Tenant shall receive a credit against the amounts of Gross
Rent first coming due under this Lease in the amount of $3.80 per useable
square foot of the Premises, which credit reflects the parties agreement
regarding the value of standard Building improvements that are not
included in Exhibit D and not provided by Landlord under this Lease.
29. SW Corner Space. The "SW Corner Space" shall mean that portion of the
Building, in the southwest corner thereof, that is not currently occupied
by the existing tenant of the building and is not included in the
Premises, and which is outlined on Exhibit E attached hereto (the "SW
---------
Corner Space"). From and after the Commencement Date, Landlord shall use
good faith efforts to lease the SW Corner Space and to negotiate
favorable terms and conditions for the same.
(a) If Landlord enters into a lease for the SW Corner Space
prior to July 1, 2001 at a rental rate equal to or greater
than the Desired Rent, as defined below, then Landlord
shall give notice to Tenant thereof and this Section 29
shall be of no further force and effect. The "Desired
Rent" shall mean a rental rate of $17.50 per rentable
square foot for a full service gross lease in the first
year, with increases of 3% for each subsequent year.
(b) If the SW Corner Space remains vacant for two (2) years
following the Commencement Date, then on July 1, 2001, the
SW Corner Space shall become part of the Premises under
this Lease in accordance with the SW Corner Terms, as
defined below.
(c) If Landlord proposes to lease the SW Corner Space prior to
July 1, 2001, but at a rental rate less than the Desired
Rent, then Tenant shall have an additional right of first
refusal to rent the SW Corner Space in accordance with the
following. Landlord shall give notice to Tenant of the
terms agreed to for the SW Corner Space, in writing, by
Landlord and a third party tenant, which notice shall
include the identity of the proposed tenant and shall
specify the proposed rental rate per rentable square foot
of the SW Corner Space and any appropriate adjustments
thereto with respect to services not provided (the "SW
Corner Rent"), the proposed date for commencement of
payment of rent (the "SW Corner Rent Commencement Date"),
the proposed expiration date of the lease (the "SW Corner
Expiration Date") and other material terms and conditions.
Tenant shall have a period of ten (10) business days after
its receipt of Landlord's notice to elect to exercise its
right of first refusal by giving notice of such election
to Landlord. If Tenant exercises its right of first
refusal, then thirty (30) days after Tenant's receipt of
Landlord's notice, the SW Corner Space will become part of
the Premises in accordance with the SW Corner Terms,
provided that Tenant shall have no obligation to pay Gross
Rent or additional rent with respect to the SW Corner
Space until the later of sixty (60) days after Tenant's
receipt of Landlord's notice or the SW Corner Rent
Commencement Date. If Landlord does not receive Tenant's
notice within the ten (10) day period or Tenant declines
to accept the SW Corner Space, then Tenant's right of
first refusal under this section shall be waived and
Landlord shall have the right to lease the SW Corner Space
to the proposed tenant at the SW Corner Rent and on the
other terms and conditions specified in its notice to
Tenant. If Tenant waives its right of first refusal and
Landlord leases the SW Corner Space to such proposed
tenant at the SW Corner Rent and on such other terms and
conditions, then from and after the SW Corner Rent
Commencement Date and until the SW Corner Expiration Date,
or, if earlier, the end of the Term or earlier termination
of this Lease, Tenant shall pay to Landlord, as additional
rent, the lesser of (1) $3.00 per rentable square foot of
the SW Corner Space, or (2) the difference between the
Desired Rent and the SW Corner Rent. Tenant shall make
such payments monthly in accordance with the payment
provisions of Article V. If Landlord does not lease the SW
Corner Space to such proposed tenant at the SW Corner Rent
and on such other terms and conditions, Tenant's right of
first refusal under this section shall continue in full
force and effect.
(d) The "SW Corner Terms" shall mean: (i) Tenant shall pay
Gross Rent for the SW Corner Space at the rates set forth
in Article V of this Lease, (ii) Tenant's Share shall be
increased to reflect the additional rentable square
footage of the SW Corner Space, (iii) Tenant shall receive
an upfit allowance from Landlord of eighteen dollars
($18.00) per useable square foot of the SW Corner Space,
(iv) Tenant shall receive a credit against the amount of
Gross Rent first coming due thereafter in the amount of
$3.80 per useable square foot of the SW Corner Space, and
(v) if Tenant subleases or assigns the SW Corner Space,
Tenant shall have no obligation to pay to Landlord any
Excess Consideration with respect to the SW Corner Space.
EXHIBIT A-1
LETTER OF CREDIT REQUIREMENTS
1. Tenant shall deposit with Landlord, on or prior to the Commencement
Date, as security for the full and prompt performance by Tenant of the terms and
covenants of this Lease, a clean, unconditional, stand-by, irrevocable Letter of
Credit in favor of Landlord in the initial amount of $200,000 substantially in
the form attached hereto as Exhibit A-2, issued by Silicon Valley Bank or any
-----------
other federally insured national banking association reasonably acceptable to
Landlord.
2. The Letter of Credit shall: (a) have an expiration date no earlier
than December 31, 2001 (the "Expiration Date"), or (b) have an original
---------------
expiration date at least one year after issued, and shall be renewed annually
and automatically through said Expiration Date, in which event, if but only if
required in order to effectuate such extension, Tenant shall submit to Landlord
original amendments extending the expiration date (or replacement letters of
credit with extended expiration dates), on an annual basis no later than the
date that is thirty (30) days prior to the expiration date of the Letter of
Credit then in effect. Failure to so extend the expiration date of the Letter of
Credit through said Expiration Date in the foregoing manner shall constitute a
Default under this Lease entitling Landlord, in addition to all other remedies,
after ten (10) days notice to Tenant, to draw down the Letter of Credit and to
hold or apply the proceeds thereof as a cash security deposit ("Cash Security
Deposit"), as security for the full and prompt performance by Tenant of the
terms and covenants of this Lease and apply the same as provided herein with
respect to the Letter of Credit.
3. If Tenant commits a Default under this Lease, Landlord may, but shall
not be obligated to, draw upon the Letter of Credit (but only to the extent
necessary to cure the Default) and use or apply the whole or any part of the
proceeds of the Letter of Credit so drawn for the payment of Tenant's
obligations hereunder. If Landlord draws upon the Letter of Credit and any
portion of the proceeds thereof is not required for such purposes, Landlord
shall hold such unused proceeds as a Cash Security Deposit. The use or
application of the proceeds of the Letter of Credit or any portion thereof shall
not prevent Landlord from exercising any other right or remedy provided
hereunder or under any Law and shall not be construed as liquidated damages.
4. The parties agree that, to the extent that Landlord has not applied
the Letter of Credit or Cash Security Deposit as described herein, the amount of
the Letter of Credit shall be reduced as follows (and any Cash Security Deposit
shall be returned to Tenant to accomplish the same reduction in the total amount
of security provided hereunder): (a) On January 1, 2000, to $150,000; (b) on
July 1, 2000, to $100,000; (c) on December 31, 2001, to zero (0). If the
foregoing reductions are not accomplished automatically pursuant to the terms of
the Letter of Credit, Tenant shall have the right to substitute a new Letter of
Credit to accomplish such reduction and Landlord shall cooperate with Tenant in
coordinating such substitution. Notwithstanding the foregoing, if at any time
prior to December 31, 2001, Tenant delivers to Landlord financial statements,
prepared in accordance with generally accepted accounting principles "GAAP" and
accompanied by a letter from an independent accounting firm stating that such
statements fairly represent Tenant's operations, which indicate that earnings
before interest, taxes, depreciation and amortization (EBITDA) from Tenant's
operations attributable solely from the Premises has reached break-even or
better for the preceding six (6) month period, then the Letter of Credit and any
Cash Security Deposit shall be reduced to zero (0) and Landlord shall return the
same to Tenant within five (5) business days thereafter. Tenant shall not
assign, pledge or otherwise transfer any interest in the Letter of Credit except
as part of an assignment of this Lease approved by Landlord under Section 7.02,
and any attempt to do so shall be null and void.
EXHIBIT A-2
FORM OF LETTER OF CREDIT FOR SECURITY DEPOSIT
(Letterhead and Address of Bank)
Irrevocable Standby Letter of Credit No. ________________________
Date: ______________
Beneficiary: Miami North, LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
as "Landlord"
Applicant: INFLOW, Inc
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
as "Tenant".
Amount: Two Hundred Thousand Dollars (USD 200,000.00)
Expiry Date: ______________
Location: At our counter in ________________
Dear Sir/Mam:
We hereby establish our Irrevocable Standby Letter of Credit
No. _________________ in your favor. Available by payment with _________________
Bank, ____________________________, Attention: ___________________ of
Beneficiary's draft at sight drawn on us, and accompanied by the following
documents:
1. The original of this letter of credit and amendment if any.
2. A signed and dated certification from the Beneficiary stating the
following:
(a) . "A Default (as defined in the Lease) has occurred by Inflow,
Inc. under that certain Office Lease Agreement between Inflow,
Inc. and Miami North LLC (the "Lease") and Tenant has failed to
cure its default after the expiration of any applicable cure
period, and therefore the undersigned is entitled to the amount
set forth in the draft.
It is a condition of this Letter of Credit that it will be deemed
automatically renewed without an amendment for a period of one (1) one year from
the present or each future expiration date unless at least thirty 30) days prior
to such expiry date we notify you in writing sent by overnight mail that we
elect not to renew this Letter of Credit for such additional period. In no event
shall this letter of credit be automatically extended beyond December 31, 2001.
This Letter of Credit is transferrable by the issuing bank in whole but not
in part and only once upon our receipt of the attached Exhibit "A" (Transfer
Form) duly completed and executed by the beneficiary together with this original
letter of credit and all amendments if any accompanying our transfer charges
(i.e. 1/4 of 1 percent minimum USD 250.00).
[The amount of this letter of credit shall be decreased on the following
dates, provided that the available amount exceeds the following aggregate
amount(s):
Effective Date Aggregate Amount(s)
January 1, 2000 $150,000
July 1, 2000 $100,000]
All documents including the draft(s) must indicate the number and date of
this credit.
27
Each draft presented hereunder must be accompanied by this original letter of
credit for our endorsement thereon of the amount of such draft(s).
Documents must be sent to use via overnight courier (i.e. Federal Express, UPS,
DHL or other Express Courier) at our address: ________________________________.
We hereby engage with drawers and/or bonafide holders that draft(s) drawn under
and negotiated in conformance with the terms and conditions of the subject
credit will be duly honored on presentation.
This credit is subject to the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication 500
------------------------------------ -------------------------------------
Authorized Signature Authorized Signature
28
EXHIBIT A
FLOOR PLAN
29
EXHIBIT A
FLOOR PLAN
[DIAGRAM]
Floorplan is subject to final approval by Landlord and Tenant.
EXHIBIT B
BUILDING
30
EXHIBIT B
BUILDING
MIAMI NORTH OFFICE PARK
4426-4518 Miami Boulevard,
Research ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[PHOTO]
Leasing By:
[LOGO]
▇▇▇▇▇▇▇ & CO.
COMMERCIAL REAL ESTATE
(▇▇▇)▇▇▇-▇▇▇▇
EXHIBIT C
LAND
BEING all of Lot 1 containing 6.431 acres as shown on plat entitled "Final Plat
for ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.," dated February 24, 1997, prepared by A.R. ▇▇▇▇▇▇,
RLS and recorded in Plat Book 137, Page 136, Durham County Registry
31
EXHIBIT D
BASE BUILDING FEATURES
The base building features are listed below:
* 800 amp/208 volt three phase electrical service, 20x20 overhead grid in
tenant spaces
* Electric power rooftop package HVAC units with digital controls and zoned
to one (1) vav box per 1,500 sf
* Granite accents on exterior perimeter of building at glass line
* 9' high finished ceiling in all tenant spaces, with 2'8" plenum
* High quality reflective glass with miniblinds
* Janitor's closet with mop sink and roof ladder with hatch
* Electrical closet with two (2) spare 4" pvc conduits to fiber optic
telecommunications in Miami Blvd (GTE, FiberSouth, ICI)
* Upgraded lobby area with granite floor tile, wood chairrail and base,
polymix wall covering, 2x2 tegular ceiling tile, 2x4 18-cell parabolic lens
lights
* Solid core stained oak doors in metal frames
* Automatic fire detection system
* Irrigated landscaping
* Exterior accent light for evening illumination
* Monument signage for tenant name listings
* Computer-controlled 24-hour security access system
* Tenant space:
* miniblinds installed
* Main distribution duct as installed prior to the date of execution of
this Lease
*
32
EXHIBIT E
SW Corner Space
33
EXHIBIT F
RULES AND REGULATIONS
(1) Access to Common Areas of the Property. Landlord may from time to time
establish security controls for the purpose of regulating access to the
common areas of the property. Tenant shall abide by all such security
regulations so established and agrees to always leave clear access for
vehicular traffic through all parking lots, loading areas and driveways.
(2) Protecting Demised Premises. Before leaving the Demised Premises
unattended, Tenant shall close and securely lock all doors or other means
of entry to the Demised Premises.
(3) Building Directories. The directories of the building shall be used
exclusively for the display of the name and location of tenants only and
will be provided at the expense of Landlord. Any company names and/or name
changes requested by Tenant to be displayed in the directories must be
approved by Landlord and, if approved, will be provided at the sole expense
of Tenant.
(4) Large Articles. Furniture, freight and other large or heavy articles may be
brought into the building in a manner so as to not damage the property and
always at Tenant's sole responsibility. All damage done to the building,
its furnishings, fixtures or equipment by moving or maintaining such
furniture, freight or articles shall be repaired at the expense of Tenant.
(5) Signs. Tenant shall not paint, display, inscribe, maintain or affix any
sign, placard, picture, advertisement, name, notice, lettering or direction
on any part of the outside or inside of the building, or on any part of the
inside of the Demised Premises which can be seen from the outside of the
Demised Premises, without the written consent of Landlord, and then only
such name or names or matter and in such color, size, style, character and
material as shall be first approved by Landlord in writing. Landlord
reserves the right to remove at Tenant's expense all matter other than that
above provided for without notice to Tenant.
(6) Compliance with Laws. Tenant shall comply with all applicable laws,
ordinances, governmental orders or regulations and applicable orders or
directions from any public office or body having jurisdiction, whether now
existing or hereinafter enacted with respect to the Demised Premises and
the use or occupancy thereof. Tenant shall not make or permit any use of
the Demised Premises which directly or indirectly is forbidden by law,
ordinance, governmental regulations or order or direction of applicable
public authority, or which may be dangerous to person or property.
(7) Hazardous Materials. Tenant shall not use or permit to be brought into the
Demised Premises or the building any flammable oils or fluids, or any
explosive or other articles deemed hazardous to persons or property, or do
or permit to be done any act or thing which will invalidate or which if
brought in would be in conflict with any insurance policy covering the
building or its operation, or the Demised Premises, or any part of either,
and will not do or permit to be done anything in or upon the Demised
Premises, or bring or keep anything therein, which shall not comply with
all rules, orders, regulations or requirements of any organization,
bureaus, department or body having jurisdiction with respect thereto (and
Tenant shall at all times comply with all such rules, orders, regulations
or requirements), or which shall increase the rate of insurance on the
building, its appurtenances, contents or operation.
(8) Defacing Demised Premises and Overloading. Tenant shall not place anything
or allow anything to be placed in the Demised Premises near the glass or
any door, partition, wall or window which may be unsightly from outside the
Demised Premises. Tenant shall not place or permit to be placed any article
of any kind on any window ledge or on the exterior walls; blinds, shades,
awnings or other forms of inside or outside window ventilators or similar
devices shall not be placed in or about the outside windows in the Demised
Premises except to the extent that the character, shape, color material and
make thereof is approved by Landlord. Tenant shall not do any painting or
decorating in the Demised Premises or install any floor coverings in the
Demised Premises or make, paint, cut or drill into, or in any way deface
any part of the Demised Premises or building without in each instance
obtaining the prior written consent of Landlord. Tenant shall not overload
any floor or part thereof in the Demised Premises, or any facility in the
building or any public corridors or elevators therein by bringing in or
removing any large or heavy articles and, Landlord may direct and control
the location of safes, files, and all other heavy articles and, if
considered necessary by Landlord, require supplementary supports at
Tenant's expense of such material and dimensions necessary to properly
distribute the weight.
(9) Obstruction of Public Areas. Tenant shall not, whether temporarily,
accidentally or otherwise, allow anything to remain in, place or store
anything in, or obstruct in any way, any sidewalk, court, passageway,
entrance, or shipping area. Tenant shall lend its full cooperation to keep
such areas free from all obstruction and in a clean and sightly condition,
and move all supplies, furniture and equipment as soon as received directly
to the Demised Premises, and shall move all such items and waste (other
than waste customarily removed by building employees) that are at any time
being taken from the Demised Premises directly to the areas designated for
disposal. All courts, passageways, entrances, exits, elevators, escalators,
stairways, corridors, halls and roofs are not for the use of the general
public and Landlord shall in all cases retain the right to control and
prevent access thereto by all persons whose presence in the judgment of
Landlord shall be prejudicial to the safety, character, reputation and
interest of the building and its tenants provided, however, that nothing
herein contained shall be construed to prevent such access to persons with
whom Tenant deals within the normal course of Tenant's business unless such
persons are engaged in illegal activities.
(10) Additional Locks. Tenant shall not attach or permit to be attached
additional locks or similar devices to any door or window, change any
existing locks or the mechanism thereof, or make or permit to be made any
keys for any door other than those provided by Landlord. Upon termination
of this lease or of Tenant's possession, Tenant shall surrender all keys to
the Demised Premises. Tenant shall be solely responsible for the costs of
all locks and keys other than the original set in the premises as of the
date of occupancy.
(11) Communications or Utility Connections. If Tenant desires signal, alarm or
other utility or similar service connections installed or changed, Tenant
may install or change the same without the approval of Landlord, but at
Tenant's expense.
34
Tenant shall not install in the Demised Premises any equipment which
requires a substantial amount of electrical current without the advance
written consent of Landlord. Tenant shall ascertain from Landlord the
maximum amount of load or demand for or use of electrical current which can
safely be permitted in the Demised Premises, taking into account the
capacity of the electric wiring in the building and the Demised Premises,
taking into account the capacity of the electric wiring in the building and
the Demised Premises and the needs of other tenants in the building, and
shall not in any event connect a greater load than that which is safe.
(12) Office of the Building. Service requirements of Tenant will be attended to
only upon application at the office of ▇▇▇▇▇▇▇ & Co. Employees of Landlord
shall not perform any work outside of their duties unless under special
instructions from Landlord.
(13) Restrooms. The restrooms, toilets, urinals, vanities and the other
apparatus shall not be used for any purpose other than that for which they
were constructed and no foreign substance of any kind whatsoever shall be
thrown therein and the expense of any breakage, stoppage or damage
resulting from the violation of this rule shall be borne by Tenant who, or
whose employees or invitees, shall have caused it.
(14) Intoxication. Landlord reserves the right to exclude or expel from the
building any person who, in the judgment of Landlord, is intoxicated or
under the influence of liquor or drugs, or who shall in any manner do any
act in violation of any of the rules and regulations of the building.
(15) Nuisances and Certain Other Prohibited Uses. Tenant shall not (a) install
or operate any internal combustion engine, boiler, machinery,
refrigerating, heating or air conditioning apparatus in or about the
Demised Premises; (b) engage in any mechanical business, utilize any
article or thing, or engage in any service in or about the Demised Premises
or building, except those ordinarily embraced within the permitted use of
the Demised Premises specified in Article 7; (c) use the Demised Premises
for housing, lodging, or sleeping purposes; (d) place any antennae on the
roof or on or in any part of the inside or outside of the building other
than the inside of the Demised Premises, or place a musical or sound
producing instrument or device inside or outside the Demised Premises which
may be heard outside the Demised Premises; (e) use any illumination or
power for the operation of any equipment or device other than electricity;
(f) operate any electrical device from which may emanate electrical waves
which may interfere with or impair radio or television broadcasting or
reception from or in the building or elsewhere; (g) bring or permit to be
in the building complex any bicycle or other vehicle, or dog (except in the
company of a blind person) or other animal or bird; (h) make or permit any
objectionable noise or odor to emanate from the Demised Premises; (i)
disturb, solicit or canvass any occupant of the building; 6) do anything in
or about the Demised Premises tending to create or maintain a nuisance or
do any act tending to injure the reputation of the building.
(16) Solicitation. Tenant shall not make any room-to-room canvass to solicit
business from other tenants in the building and shall not exhibit, sell or
offer to sell, use, rent or exchange any products or services in or from
the Demised Premises unless ordinarily embraced within the Tenant's use of
the Demised Premises specified herein and specific authority granted in the
lease agreement.
(17) Energy Conservation. Tenant shall not waste electricity, water, heat or air
conditioning and agrees to cooperate fully with Landlord to assure the most
effective operation of the building's heating and air conditioning, and
shall not allow the adjustment (except by Landlord's authorized building
personnel) or any controls.
(18) Building Security. Upon entry to or exit from the building the exterior
building doors and suite entry door(s) should be kept locked at all times
to assist in security. The janitorial service (if any) shall, upon
completion of its duties, lock all building doors. Problems in building and
suite security should be directed to ▇▇▇▇▇▇▇ & Co.
(19) Parking. Parking is in designated parking areas only. There should be no
vehicles in "no parking" zones or at curbs. Handicapped spaces are for
handicapped persons and the Police Department will ticket unauthorized
(unidentified) cars in handicapped spaces. No vehicles may be abandoned or
repaired on the property, and vehicles requiring extended parking should be
identified to Landlord.
(20) Janitorial Service. Tenants will remove excessive trash from inside and
outside their premises and shall deposit same in the dumpsters provided by
Landlord. Any large volume of trash resulting from delivery of furniture,
equipment, etc., should be removed by the delivery company, Tenant, or
Landlord at Tenant's expense. Any requests for extraordinary trash removal
should be directed to ▇▇▇▇▇▇▇ & Co. at 832-1110.
(21) Amendment to Rules. Landlord reserves the right to make such other
reasonable Rules and Regulations which apply to all Tenants as in its
judgment may from time to time be needed for the safety, care and
cleanliness of the Building and the Land, and for the preservation of good
order therein.
35
EXHIBIT E
SW Corner Space
[DIAGRAM]
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE is made by and between Miami North, LLC, as
"Landlord," and Inflow, Inc., as "Tenant," respectively.
WHEREAS, Landlord and Tenant entered into a Lease dated June 29, 1999 (the
"Lease"), covering that certain office building commonly referred to as Building
4 at ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ in the ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇.
WHEREAS, Landlord and Tenant have agreed that the rentable space and usable
space is different than as set forth in the Lease, and have agreed to modify the
Lease as set forth herein to adjust the rental over the term to conform to the
correct areas.
NOW, THEREFORE, Landlord and Tenant hereby desire to amend the Lease as follows:
1. PREMISES (Paragraph 1.01):
The Premises shall be changed as follows:
From: 14,443 rentable square feet
13,130 usable square feet
To: 14,870 rentable square feet
13,518 usable square feet
All references in the Lease to Premises shall be deemed to refer to the
latter square footage areas for usable and rentable square feet.
2. GROSS RENT (Paragraph 5.01):
The table of Base Rent and Total Monthly Rent set forth in paragraph
5.01 of the lease shall be changed as follows:
From:
DATE BASE RENTAL TOTAL MONTHLY RENT
RENT
July 1, 1999-Sept. 30, 1999 $00.00 rsf $0.00
Oct. 1, 1999-Sept. 30, 2000 $16.00 rsf $19,257.33
Oct. 1, 2000-Sept. 30, 2001 $16.38 rsf $19,714.70
Oct. 1, 2001-Sept. 30, 2002 $16.76 rsf $20,172.06
Oct. 1, 2002-Sept. 30, 2003 $17.16 rsf $20,653.49
Oct. 1, 2003-Sept. 30, 2004 $17.57 rsf $21,146.96
Oct. 1, 2004-Sept. 30, 2005 $17.99 rsf $21,652.46
Oct. 1, 2005-Sept. 30, 2006 $18.43 rsf $22,182.04
Oct. 1, 2006-Sept. 30, 2007 $18.87 rsf $22,711.62
Oct. 1, 2007-Sept. 30, 2008 $19.33 rsf $23,265.27
Oct. 1, 2008-Sept. 30, 2009 $19.81 rsf $23,842.99
To:
DATE BASE RENTAL TOTAL MONTHLY RENT
RENT
July 1, 1999-Sept. 30, 1999 $00.00 rsf $0.00
Oct. 1, 1999-Sept. 30, 2000 $16.00 rsf $19,826.67
Oct. 1, 2000-Sept. 30, 2001 $16.38 rsf $20,297.55
Oct. 1, 2001-Sept. 30, 2002 $16.76 rsf $20,768.43
Oct. 1, 2002-Sept. 30, 2003 $17.16 rsf $21,264.10
Oct. 1, 2003-Sept. 30, 2004 $17.57 rsf $21,772.16
Oct. 1, 2004-Sept. 30, 2005 $17.99 rsf $22,292.61
Oct. 1, 2005-Sept. 30, 2006 $18.43 rsf $22,837.84
Oct. 1, 2006-Sept. 30, 2007 $18.87 rsf $23,383.08
Oct. 1, 2007-Sept. 30, 2008 $19.33 rsf $23,953.09
Oct. 1, 2008-Sept. 30, 2009 $19.81 rsf $24,547.89
3. Except as modified herein, all other terms and conditions of the Lease
shall remain in full force and effect.
IN WITNESS THEREOF, the Parties hereto have executed this First Amendment To
Lease on the year and date as indicated below.
LANDLORD: Miami North, LLC TENANT: Inflow, Inc.
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
------------------------ -------------------------
Its: Member Its: President & CEO
----------------------- ------------------------
Date: 11/28/99 Date: 12 November 1999
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