EXHIBIT 10.4
LEASE AGREEMENT
BY AND BETWEEN
DUCK POND CREEK, LLC ("LANDLORD")
AND
BLACKBAUD, INC. ("TENANT")
************
Exhibits
A - Property Description
B - Rent
C - Easement
D - Construction Document List
STATE OF SOUTH CAROLINA )
) LEASE AGREEMENT
COUNTY OF BERKELEY )
THIS LEASE AGREEMENT (the "Lease") executed this 13th day of October,
1999, to be effective as of this date, by and between DUCK POND CREEK, LLC, a
South Carolina limited liability company ("Landlord") and BLACKBAUD, INC., a
South Carolina corporation, ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord is developing an office building on a parcel of land
located on Xxxxxx Island in Berkeley County in the City of Charleston, South
Carolina; and
WHEREAS, Landlord desires to lease to Tenant and Tenant desires to
lease from Landlord the Property as defined herein subject to all terms and
conditions as set forth hereinafter;
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) in hand paid by Tenant to Landlord, the receipt and sufficiency of
which are hereby acknowledged and in consideration of the rents to be paid to
Landlord by Tenant, and covenants and agreements herein agreed to be performed
by Landlord and Tenant, Landlord does hereby grant and lease to Tenant the
following described property (the "Property"), subject to the following terms
and conditions:
1. Property. The Property is hereby described as that certain
real property located in Berkeley County, South Carolina as more particularly
described in Exhibit A, which is attached to this Agreement and made a part
hereof. The Property includes all buildings and improvements located or to be
located thereon.
2. Term. The term ("Term") of this Lease shall be ten (10) years
after thirty (30) days following the issuance of a Certificate of Occupancy, as
hereinafter defined, for the office building being constructed on the Property
by Landlord (the "Commencement Date"), with two (2) five (5) year options by
Tenant to renew. Tenant shall provide Landlord with not less than one hundred
eighty (180) days' prior written notice of exercise of the options to renew.
Base Rent for any such renewal terms(s) shall be in the amount set forth in
Exhibit B hereto. Promptly after the Commencement Date, Tenant and Landlord
shall execute and deliver a written notice confirming the Commencement Date and
the end of the initial term and each renewal term hereunder. As used herein, the
term "Certificate of Occupancy" shall mean, collectively, any certificate of
occupancy, certificate of completion or any other certificate of approval issued
or to be issued by a governmental authority necessary for the use and occupancy
by Tenant of the office building.
3. Net Lease. UNLESS OTHERWISE PROVIDED IN THIS LEASE (INCLUDING
IN SECTIONS 5 AND 10 HEREOF), THIS IS AN ABSOLUTELY NET LEASE AND LANDLORD SHALL
NOT BE REQUIRED TO PAY ANY EXPENSE, TO PROVIDE ANY SERVICES, OR TO DO ANY ACT OR
THING WITH RESPECT TO THE PROPERTY, INCLUDING THE BUILDING, IMPROVEMENTS, OR ANY
APPURTENANCES TO SAME. THE RENT PAYABLE UNDER THIS LEASE SHALL BE PAID TO
LANDLORD WITHOUT ANY CLAIM ON THE PART OF TENANT FOR DIMINUTION, SET-OFF OR
ABATEMENT
AND NOTHING SHALL SUSPEND, XXXXX OR REDUCE ANY RENT TO BE PAID HEREUNDER, EXCEPT
AS OTHERWISE PROVIDED IN THIS LEASE (INCLUDING IN SECTIONS 5 AND 10 HEREOF).
4. Rental.
(a) Monthly Rental. During the Term hereof, Tenant shall
pay to Landlord a monthly base rent (the "Base Rent") as set forth on Exhibit B
attached hereto and incorporated by reference herein. Rent shall be due and
payable on the first (1st) day of each month with any partial month to be
pro-rated.
(b) Additional Rent. During the Term hereof, in addition
to the monthly Base Rent, Tenant shall pay additional rent ("Additional Rent")
as follows:
[1] Utilities. Tenant agrees to have all utilities
placed in its name (and Landlord shall reasonably cooperate therewith) and pay
all utilities for the Property, including, but not limited to, gas, water,
sewer, electricity, and disposal waste fees.
[2] Real Estate Taxes and Assessments. Tenant shall
pay all real estate taxes and assessments, including any fees in lieu of taxes,
both general and special, which may be levied or assessed by the taxing
authorities against the land, buildings and all other improvements within or
constituting the Property on or before the due date without any further notice
from Landlord.
[3] Personal Property Taxes and Assessments. The
Tenant shall be responsible for and shall pay, before delinquency, all
municipal, county, state or federal taxes, including any fees in lieu of taxes,
assessed against any leasehold interest or any fixtures, furnishings, equipment,
stock and trade, or other personal property owned, installed or used on the
Property, or any further improvements to the Property by Tenant.
[4] Documentary and Rental Taxes. Should any
governmental taxing authority acting under any present or future law, ordinance
or regulation, levy, assess, or impose any documentary stamp tax for tax, excise
and/or assessment (other than an income or franchise tax, upon or against the
rentals payable by Tenant to the Landlord, or on any rental, leasing, or letting
of the Property) due to the execution hereof, either by way of substitution or
in addition to any existing tax on land and buildings or otherwise, Tenant shall
be responsible for and shall pay such documentary stamp tax, tax, excise and/or
assessment, including any fees in lieu of taxes, or shall reimburse Landlord for
any amount thereof as the case may be. Tenant, at its sole cost and expense,
shall have the right to contest in good faith any taxes either imposed upon it
by any applicable governmental authority or for the payment of which it is
responsible hereunder, provided that Tenant provides notice to Landlord of any
such contest, bonds over or otherwise has discharged any lien that may attach to
the Property as a result thereof, indemnifies Landlord from and against any
loss, cost, or damage (including, without limitation, court costs and reasonable
attorneys' fees and expenses) arising as a result of such contest, and otherwise
continues to comply with all of the terms and conditions of this Lease.
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[5] Insurance. Tenant shall pay annually all amounts
expended by Landlord for property and casualty insurance with respect to the
Property sufficient, in the reasonable opinion of Landlord, to protect Landlord
from any loss, subject to Section 7(a) hereof.
[6] Allocation of Utilities, Taxes, and Insurance
Costs. To the extent that any costs of or expenses for any utilities, taxes, or
insurance, as provided above, are charged or billed to Landlord or to Tenant, as
applicable, together with charges attributable to the Stadium Property, as
defined in Section 6, Landlord and Tenant, in good faith, shall fairly allocate
the same as between the Property and the Stadium Property, and Tenant shall not
be responsible for paying any such costs or expenses allocable to the Stadium
Property, which costs and expenses shall be paid by Landlord in a timely manner.
In the event that Landlord and Tenant cannot agree on any such allocation,
Landlord and Tenant shall agree on and choose, in good faith, an appropriate
independent expert or other independent qualified individual to make such
allocation, and the determination of such expert or qualified individual shall
be conclusive and binding upon Landlord and Tenant.
(c) Additional Charges. Any charges due Landlord by
Tenant under this Lease, including but not limited to damage to the Property
caused by Tenant or Tenant's employees, agents, contractors, licensee, or
invitees, legal fees, costs of default remedies, past due charges for utilities,
insurance, cleaning, maintenance and repairs, etc., or for work done on the
Property by order of Tenant, shall be considered as Additional Rent due (in
addition to all other Rent payable) and shall be included in any statutory
landlord's lien, if applicable, for that period. (Base Rent and Additional Rent
may sometimes be referred to collectively hereunder as "Rent.")
(d) Late Charges. In the event any monthly payment of
Rent shall not be paid within ten (10) days of when such payment is due, Tenant
shall pay an additional amount equal to four percent (4%) of the amount due.
(e) Fees-in-Lieu of Taxes. In the event that any taxing
or assessing authority has agreed to tax or assess Landlord or Tenant, as
applicable, by means of a "fee-in-lieu" of taxes with respect to the Property,
Landlord and Tenant agree to cooperate reasonably with one another to the extent
necessary to finalize any such fee-in-lieu agreement(s) with such taxing
authority.
4A Use of Property and Compliance with Laws. Tenant
agrees to use the Property as an office building, with applicable reasonable
ancillary uses and for no other use, and Tenant shall not use the Property for
any illegal, unlawful, or other purposes. The Property shall not be used as a
residence, sleeping quarters, or other domestic dwelling. Tenant agrees to
comply with and adhere to all laws, whether municipal, state, federal or
otherwise, applicable to and affecting the Property, including but not limited
to all environmental laws affecting the Property, provided that nothing in this
Section 4 shall modify or diminish Landlord's obligations to Tenant pursuant to
Section 5 or Section 10 hereof. Tenant, at its sole cost and expense, shall have
the right to contest in good faith any laws affecting the Property, provided
that Tenant provides notice to Landlord of any such contest, bonds over or
otherwise has discharged any lien that may attach to the Property as a result
thereof, indemnifies Landlord from and against any loss, cost, or damage
(including, without limitation, court costs and reasonable attorneys' fees and
expenses) arising as a
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result of such contest, and otherwise continues to comply with all of the terms
and conditions of this Lease.
5. Construction. Tenant has reviewed all of the plans,
drawings, specifications and all other documentation in effect or available as
of the date hereof (the "Construction Documentation") to be utilized in
developing the Property including interior fit out. Landlord, at its sole cost,
shall construct the improvements in substantial conformity with the Construction
Documentation, in a good and workmanlike manner consistent with industry
standards in the Charleston, South Carolina area for the design and construction
of first-class office buildings, and in compliance with all legal requirements
(including any Xxxxxx Island conditions, covenants, or restrictions). In
addition, Landlord and Tenant acknowledge and agree that as part of Landlord's
construction responsibilities hereunder Landlord, at its sole cost, shall also
design and install (or cause the same to be done) within the Premises computer
and telecommunications wiring and cabling, including related wiring and cabling
installations and fixtures appropriate for Tenant's use as a software
development and marketing company (collectively, "Cabling") to a standard
customary for first-class office buildings in the Charleston, South Carolina
area according to plans and specifications for such Cabling to be agreed upon by
Landlord and Tenant in good faith. At the time the plans and specifications for
the Cabling are finalized, the same shall be confirmed in writing by Landlord
and Tenant and shall become a part of the Construction Documentation, and
references in this Section 5 and elsewhere in this Lease to the "improvements"
or the "office building" shall be deemed to include the Cabling. The target date
for Landlord's completion of the office building on the Property is June 1, 2000
(the "Target Date"). As used in this Section 5, the term "improvements" includes
the construction of the office building and all other work described in the
Construction Documentation, including building systems and equipment, interior
work, paving, landscaping, and irrigation. If Landlord, on before the Target
Date, is unable to complete the office building in accordance with the
Construction Documentation and to deliver possession of the Property including
the office building for occupancy for any reason whatsoever, this Lease shall be
not affected or impaired in any way, and Landlord shall not be liable to Tenant
for any loss or damage resulting therefrom, except to the extent provided in
this Section 5. Landlord shall use its commercially reasonable best efforts to
meet the Target Date, provided, however, that if the office building on the
Property is not substantially completed in accordance with the Construction
Documentation and available for occupancy by the Target Date, this Lease shall
not terminate, but the Commencement Date and Tenant's obligations to pay Rent
upon the Commencement Date shall not begin until thirty (30) days after the
issuance of a Certificate of Occupancy, as provided in Sections 2 and 4, above.
In the event that Landlord fails to complete the office building in accordance
with the Construction Documentation and to deliver the Property to Tenant by the
Target Date and in the event that Tenant, thereby, must pay to its then current
landlord any increased rent or holdover penalties, or if Tenant is forced by its
then current landlord to move from its current premises to temporary premises,
Landlord shall promptly, after written demand accompanied by reasonable
substantiation of all actual costs, reimburse Tenant for the actual costs of
such penalties and reasonable moving costs, if applicable, and for any increase
in rent over and above Tenant's then current rent, incurred by Tenant for the
period after the Target Date but prior to the Commencement Date hereunder.
Notwithstanding the foregoing sentence, in the event of a tropical storm or
hurricane that causes material structural damage to the improvements (as
certified in writing by the general contractor) prior to the date of Closing, as
defined in that certain Recapitalization Agreement dated September 13, 1999, by
and between the Blackbaud Group, the Selling Shareholders, the Purchaser, and
H&F Investors, as defined therein, Landlord shall be
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responsible for only fifty percent (50%) of such penalties and costs for the
first six (6) months after the Target Date (except to the extent of relocation
costs, if necessary, for which Landlord shall pay one hundred percent (100%) of
the costs), provided, however, that after such six (6) month period, Landlord
shall be responsible for all penalties and increased rent as provided in the
preceding sentence notwithstanding that such damage is caused by a tropical
storm or hurricane. Upon substantial completion of the improvements, which shall
include Landlord's obtaining a Certificate of Occupancy sufficient to allow
Tenant to take possession of the Property, Tenant and Landlord will agree to a
punch list, which will be completed by Landlord in a commercially reasonable
manner. Upon punch list completion, Tenant will completely and thoroughly
examine the improvements to the Property. Upon acceptance by Tenant, except as
expressly provided herein, Tenant agrees to accept the Property and all
improvements thereon in its then-present condition. After acceptance, Landlord
makes no warranties of any kind, express or implied, regarding the Property, its
condition or its potential uses, provided, however, that Landlord shall be
responsible for the repair of any defects in design, materials, and workmanship
to the extent of and for the duration of any warranties which Landlord has
received from its contractor and architect regardless of whether Landlord
actually seeks to enforce, or recovers any expenses or damages pursuant to, such
warranties. Landlord shall also assign to Tenant all assignable manufacturers'
warranties applicable to the Property, and Landlord shall not thereafter be
responsible for the repair or replacement of any such warranted manufactured
items notwithstanding Landlord's limited warranty contained in the preceding
sentence. Regarding the construction of the improvements on the Property,
Landlord represents and covenants to Tenant:
(a) Attached hereto as Exhibit D is a true and accurate
list of the plans and specifications, construction budget and schedule,
construction contract with the general contractor, and contract with the
architect and Landlord covenants that such documents and materials shall not be
amended, modified or supplemented (other than to a de minimus extent) without
the prior written consent of Tenant;
(b) The plans and specifications set forth on Exhibit D
provide that the work to be performed by Landlord, at Landlord's cost, pursuant
to this Section 5, includes construction of improvements, fit-up, and related
work on the exterior and grounds at least comparable to the offices currently
occupied by tenant;
(c) To Landlord's knowledge after due inquiry, Landlord
has obtained all necessary permits and approvals required for construction of
the improvements to date;
(d) Landlord has complied and shall comply with all loan
document, insurance, and legal requirements (including any Xxxxxx Island
restrictions, covenants, or restrictions) in connection with construction of the
improvements;
(e) To Landlord's knowledge after due inquiry, no default
(or conditions that with notice or the passage of time would constitute a
default) by Landlord exists under the loan documents in connection with the
construction of the improvements;
(f) To Landlord's knowledge after due inquiry, no default
(or conditions that with notice or the passage of time would constitute a
default) by the general
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contractor or the architect exists under their respective contracts with respect
to the construction of the improvements; and
(g) Landlord has adequate financial resources (loan
proceeds together with available equity) to complete the project in a timely
manner.
During the period following the execution of this Lease but prior to the
Commencement Date, Landlord, at Tenant's request, shall provide Tenant with
reasonably detailed information as to the status of the construction of the
improvements and shall provide Tenant and its consultants or representatives
with the opportunity to inspect the project periodically, at reasonable times
and upon reasonable prior notice. Landlord further covenants and agrees that up
to three (3) of Tenant's employees and/or consultants ("Tenant's
Representatives"), to be designated by Tenant, shall be invited to, and
permitted to attend, all significant project team meetings (including meeting
with the general contractor and architect) in connection with the construction
of the improvements, and Landlord agrees to consult with and to consider in good
faith the suggestions and recommendations, if any, of Tenant's representatives
with respect to the construction of the improvements.
6. Parking and Access Easement. Notwithstanding anything stated
herein to the contrary, this Lease is subject to a parking and access easement
for the benefit of the stadium property adjacent to the Property (the "Stadium
Property"), in the form attached hereto as Exhibit C and made a part hereof, to
use the parking areas located on the Property for parking for events held on the
Stadium Property and to use the access ways, driveways, and parking areas
located on the Property for vehicular and pedestrian access, ingress, egress,
and regress to and from the Stadium Property. The Landlord shall record in the
real estate records of Berkeley County, South Carolina an easement instrument in
the form attached hereto as Exhibit C. Landlord shall not materially modify such
recorded easement without first obtaining the written consent of Tenant, which
shall not unreasonably be withheld. Subject to Landlord's rights of entry and
inspection as provided in this Lease, and except as set forth in the easement
described in Exhibit C, Tenant and Tenant's agents, employees, licensees, and
invitees shall have the exclusive right to use and occupy the Property during
the Term hereof.
7. Insurance.
(a) Insurance Required. Tenant shall not carry any stock
of goods or do anything in or about the Property which would, in any way,
restrict or invalidate any insurance coverage of the Property. Tenant agrees to
pay, upon demand, as Additional Rent, any and all premiums of insurance carried
by the Landlord on the leased Property resulting from or in connection with
Tenant's use or occupancy, including, without limitation, hazard insurance for
the Property and the improvements located thereon in the amount of their full
replacement value. Such insurance shall be at customary market rates and (with
respect to coverage other than hazard insurance) shall be for insurance of such
types and amounts as are customarily maintained by landlords under net leases of
first-class office properties in the Charleston area, and Landlord shall provide
Tenant, upon request, with evidence of such coverage. Landlord may elect to
carry any such insurance in the form of umbrella coverage and Landlord's hazard
insurance shall include a customary waiver of subrogation against Tenant and its
agents and employees. Tenant shall keep in full force and effect at Tenant's
expense, insurance for personal property, trade, fixture, business
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interruption, environmental injury (to the extent customary for office tenants
under net leases of first-class offices in the Charleston area and available at
customary market rates), and public liability all in form and substance
reasonably satisfactory to Landlord, in which Tenant shall be named as the
Insured and Landlord as the additional insured with the following minimum
coverage: replacement cost as to property damage and Five Million Dollars
($5,000,000.00) as to general liability. Said policy or policies shall bear
endorsements to the effect that the insurer agrees to notify the Landlord not
less than thirty (30) days in advance of any modification or cancellation
thereof. Tenant shall provide Landlord with a certificate of insurance prior to
occupancy. Should Tenant fail to carry such public liability insurance, the
Landlord may, at its option (but shall not be required to do so) cause public
liability insurance as aforementioned, to be issued, and, in such event, the
Tenant agrees to pay the premium for said insurance promptly upon Landlord's
demand.
(b) Increased Insurance Risk. Tenant will not permit the
Property to be used for any purpose which would render the insurance thereon
void or cause cancellation thereof or the insurance risk more hazardous or
increase the insurance premiums in effect at the time prior to commencement of
the term of this Lease. Tenant will not keep, use or sell, or allow to be kept,
used or sold in or about the Property, any article or material which is
prohibited by law or by standard fire insurance policies of the kind customarily
in force with respect to premises of same general type as the Property. If the
insurance premium is increased due to Tenant's occupancy, Tenant agrees to
immediately pay the amount of such increase and to maintain such insurance in
effect in accordance with the provision of this Lease.
(c) INSURANCE FOR PERSONAL PROPERTY. ALL PERSONAL
PROPERTY, MERCHANDISE, FIXTURES, AND EQUIPMENT PLACED OR MOVED INTO THE PROPERTY
SHALL BE AT THE RISK OF TENANT OR THE OWNERS THEREOF, AND LANDLORD SHALL NOT BE
LIABLE FOR ANY DAMAGES, LOSS OR THEFT OF SAID PERSONAL PROPERTY, MERCHANDISE,
FIXTURES, OR EQUIPMENT, EXCEPT TO THE EXTENT SPECIFICALLY SET FORTH IN THIS
LEASE.
8. Maintenance and Repair. At Tenant's expense, Tenant shall make
all repairs necessary to maintain the Property and all improvements located
thereon in a good operating condition and repair. This obligation extends to all
improvements, whether interior or exterior, ordinary or extraordinary, including
roof, foundation, window glass, plate glass, store fronts, sidewalks, curbs,
parking spaces, doors, window screens, awnings, locks, keys, weather stripping
and thresholds as well as all interior vaults, floors, walls, ceiling and floor
coverings. Tenant's responsibility to maintain the improvements shall also
include landscaping; irrigation; the replacement, servicing, repair and
maintenance of equipment and fixtures at the Property, including the heating,
ventilation, and air conditioning systems and changing filters for such systems.
Tenant shall also repair and be responsible for the damage caused by stoppage,
breakage, leakage, overflow, discharge or freezing of plumbing pipes, soil lines
or fixtures. If any part of the improvements is damaged by Tenant, or Tenant's
employees, agents, or invitees or any breaking and entering of said
improvements, Tenant shall provide Landlord with prompt written notification of
all damage to the Property. After notification and approval by Landlord, repairs
shall be made promptly at Tenant's expense so as to restore said improvement to
its previous condition. If Tenant refuses or neglects to commence the necessary
repairs within thirty (30) days after the written demand by Landlord (other than
in the case of emergency), Landlord may (but shall not be
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required to) make such repairs without liability to Tenant for any loss or
damage that may accrue to Tenant's stock, business or fixtures by reason
thereof, and if Landlord makes such repairs, Tenant shall pay to Landlord, on
demand, as Additional Rent, the actual cost thereof. Tenant's failure to pay
shall constitute a default under this Lease. Tenant's failure to give, or
unreasonable delay in giving, notice of needed repairs or defects shall make
Tenant liable for any loss or damage resulting from delay or needed repairs.
Notwithstanding Tenant's stated maintenance and repair obligations hereunder,
Landlord shall be responsible for (a) any maintenance and/or repair to the
parking areas and driveways (including landscaping, curbs, and light poles and
fixtures) located on the Property to the extent that the need for such
maintenance and/or repair is caused by the acts or omissions of the Landlord or
any of its tenants (or their respective employees, agents, contractors, or
invitees) in connection with the Stadium Property's use of the Property pursuant
to the Easement set out in Exhibit C hereof, and (b) any repairs required of
Landlord under Section 18 hereof.
9. Regulations and Sanitation. Tenant shall keep the Property,
clean, safe, sanitary, free from environmental hazards arising from the acts or
omissions of Tenant, its agents, employees, contractors, or invitees, and in
compliance with all laws, ordinances, regulations and requirements of any
legally constituted public authority, including all environmental rules and
regulations to the extent that any breach thereof is caused by the acts or
omissions of Tenant, its agents, employees, contractors, or invitees. If
(following notice and a right to cure as provided in Section 29 hereof) Tenant
fails to comply with any such laws, ordinances, regulations and requirements, or
any aspect thereof, including notice requirements, such failure shall constitute
a default by Tenant under this Lease. Notwithstanding anything to the contrary
in this Lease, if such a failure occurs by Tenant, Landlord may, without being
liable for trespass, immediately re-enter the Property and take whatever steps
Landlord deems necessary to protect Landlord's interest. Tenant shall keep broom
clean all areas within the Property such as front sidewalks and areas around the
buildings thereon. Cleaning includes removing any trash or refuse deposited upon
the Property or any adjacent public area by Tenant, Tenant's customers or anyone
else. In the event of non-compliance by Tenant (following notice and a right to
cure as provided in Section 29 hereof, except in the event that Landlord
reasonably determines that such circumstances constitute an emergency, health
hazard, or other unreasonable condition), Landlord shall have the right to have
said areas cleaned, trash and refuse removed and charge the expense to Tenant as
additional rent which shall be due and payable upon demand, non-payment of which
shall constitute a default of this Lease. Tenant shall employ, if Landlord
reasonably determines it is necessary, a reputable pest extermination company at
regular intervals.
10. Hazardous Materials.
(a) Tenant represents, warrants and agrees that: (i)
during the Term, the Property shall be kept free of Hazardous Materials (as
defined herein), arising from Tenant's use or occupancy of the Property (and
that of its agents, employees, contractors, and invitees) except for small
amount of Hazardous Materials such as copy toner and cleaning supplies used in
the ordinary course of Tenant's business and office use and at all times subject
to any applicable Environmental Laws, and shall not be used to generate,
manufacture, refine, transport, treat, store, handle, dispose of, produce or
process Hazardous Materials; (ii) Tenant shall not cause or permit the
installation of Hazardous Materials in,
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on, over or under the premises or a Release (hereinafter defined) of Hazardous
Materials onto or from the property or suffer the presence of Hazardous
Materials in, on, over or under the Property; (iii) Tenant shall comply with,
and insure compliance by Tenant's agents, employees, contractors, and invitees
with, all applicable Environmental Laws (as hereinafter defined) relating to or
affecting the Property, and Tenant shall keep the Property free and clear of any
liens imposed pursuant to any applicable Environmental Laws, all at Tenant's
sole cost and expense; (iv) Tenant shall immediately give Landlord oral and
written notice in the event that Tenant receives any notice from any
governmental agency, entity, or any other party with regard to Hazardous
Materials on, from or affecting the Property and Tenant shall conduct and
complete all investigations, studies, sampling and testing, and all remedial
soil removal, and other actions necessary to clean up and remove all Hazardous
Materials, on from or affecting the Property in accordance with all applicable
Environmental laws.
(b) Tenant hereby agrees to indemnify Landlord and hold
Landlord harmless from and against any and all liens, demands, actions, suits,
proceedings, disbursements, liabilities, losses, litigation, damages, judgments,
obligations, penalties, injuries, costs, expenses (including without limitation,
reasonable attorney and expert fees and expenses) and claims of any and every
kind whatsoever paid, incurred, suffered by or asserted against Landlord and/or
the Property for, with respect to, or as a direct or indirect result of the
following: (i) the presence in, on, over or under, or the escape, seepage,
leakage, spillage, discharge, emission or release on or from, the Property of
any Hazardous Materials if caused by or within the control of the Tenant; (ii)
the failure by Tenant to comply fully with the terms and provisions of this
paragraph. In the event Landlord reasonably suspects Tenant has violated any of
the covenants, warranties or representations contained in this paragraph, or
that the Property is not in compliance with the Environmental Laws for any
reason, or that the Property is not free of Hazardous Materials for any reason,
Tenant shall take such steps as Landlord requires by written notice to Tenant in
order to confirm or deny such occurrences, including, without limitation, the
preparation of environmental studies, surveys or reports. In the event Tenant
fails to take such action, Landlord may take such action as Landlord reasonably
deems necessary, and the cost and expenses of all actions taken by Landlord,
including, without limitation, Landlord's reasonable attorney's fees, shall be
added as Additional Rent. Notwithstanding the foregoing, in no event shall
Tenant be responsible to Landlord for the presence or release of Hazardous
Materials at, within, or around the Property or for the violation of any
Environmental Laws (i) which existed prior to the commencement of Tenant's use
or occupancy of the Property or (ii) which was not caused in whole or in part by
Tenant or its agents, employees, officers, partners, contractors, or invitees.
(c) Landlord hereby agrees to indemnify Tenant and hold
Tenant harmless from and against any and all liens, demands, actions, suits,
proceedings, disbursements, liabilities, losses, litigation, damages, judgments,
obligations, penalties, injuries, costs, expenses (including without limitation,
reasonable attorney and expert fees and expenses) and claims of any and every
kind whatsoever paid, incurred, suffered by or asserted against Tenant and/or
the Property for, with respect to, or as a direct or indirect result of the
following: (i) the presence in, on, over or under, or the escape, seepage,
leakage, spillage, discharge, emission or release on or from, the Property of
any Hazardous Materials prior to the Commencement Date or (ii) the presence in,
on, over or under, or the escape, seepage, leakage, spillage, discharge,
emission or release on or from, the Property of any Hazardous Materials
occurring on the Property as a result of the use of the Property by Landlord or
the employees, agents, tenants, licensees, or invitees of Landlord in connection
with the use of the Stadium Property and the easement set forth in Exhibit C
hereof.
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(d) For the purposes of this Lease: (i) "Hazardous
Material" or "Hazardous Materials" means and includes petroleum products,
flammable explosives, radioactive materials, asbestos or any material containing
asbestos, polychlorinated biphenyls, and/or any hazardous, toxic or dangerous
waste, substance or material defined as such or defined as a Hazardous Substance
or any similar term, by, in, or for the purposes of the Environmental Laws,
including, without limitation section 101(14) of CERCLA (hereinafter defined);
(ii) "Release" shall have the meaning given such term, or any similar term, in
the Environmental Laws, including, without limitation, Section 101(22) of
CERCLA; and (iii) "Environmental Law" or "Environmental Laws" shall mean any
"Super Fund" or "Super Lien" law, or any other federal, state or local statute,
law, ordinance, code, rule, regulation, order or decree regulating, relating to
or imposing liability or standards of conduct concerning any Hazardous Materials
as may now or at any time hereafter be in effect, including, without limitation,
the following, as same may be amended or replaced from time to time, and all
regulations promulgated thereunder or in connection therewith: The Super Fund
Amendments and Reauthorization Act of 1986 ("XXXX"); The Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"); The Clean Air Act ("CAA"); the Clean Water Act ("CWA"); The Toxic
Substances Control Act ("TSCA"); The Solid Waste Disposal Act ("SWDA"), as
amended by the Resource Conservation and Recovery Act ("RCRA"); the Hazardous
Waste Management System; and the Occupational Safety and Health Act of 1970
("OSHA"). The obligations and liabilities of Tenant under this Paragraph shall
survive this Lease and any eviction of, or abandonment by, the Tenant.
11. Alterations. Tenant shall be allowed to make reasonable
alterations to the Property provided any such alterations are in accordance with
all applicable building codes, are approved by Landlord IN WRITING and IN
ADVANCE, which approval shall not unreasonably be withheld or delayed. All
additions, or improvements affixed to the building by Tenant including
carpeting, tile or other floor covering, wall covering, ceiling tile, etc. made
with or without Landlord's written consent shall become part of the Property,
and the property of Landlord upon installation or shall be removed by Tenant at
the expiration or earlier termination of the Lease, at Landlord's election made
by Landlord in writing to Tenant within five (5) days of the time any such
additions or alterations shall have been approved by Landlord in accordance with
this Section 11, or, if such additions or alterations are of a type that do not
require Landlord's prior written approval, as provided below, then within five
(5) days of written notice to Landlord that Tenant will undertake such additions
or alterations, provided that if Landlord shall have failed to make such
election, Tenant shall have the right either to remove any such additions or
alterations at the end of the Term and, at Tenant's expense, make any
restoration or repair required as a consequence of such removal, or to abandon
any such additions or improvements, whereupon they shall remain as part of the
Property. Trade fixtures and office furniture shall be installed so as to be
readily removable without injury to the Property or any injury caused by said
removal shall be repaired immediately at Tenant's expense. Said trade fixtures
shall be removed from the Property before the end of this Lease or shall be
deemed abandoned by Tenant. Tenant shall not install or maintain any equipment,
partitions, furniture, etc. which the weight or the operation of which would
tend to injure or be detrimental to the Property. Notwithstanding the foregoing,
Landlord's consent shall not be required with respect to alterations that (a)
cost less than $50,000.00 on a per-project basis (which $50,000.00 amount shall
be deemed to increase annually during the Term based upon CPI), (b) do not
affect the building's systems, structural components, or exterior (other than to
a de minimus extent), and (c) do not adversely affect the market value or
utility of the Property. All
10
other alterations require Landlord's prior written consent, which shall not
unreasonably be withheld or delayed. In any event, all alterations by Tenant
shall be performed with due diligence, in a good and workmanlike manner
consistent with industry standards in the Charleston, South Carolina area for
design and construction of first-class office buildings, in compliance with all
laws (including any Xxxxxx Island restrictions), and shall be promptly paid for
by Tenant. All alterations requiring Landlord's approval hereunder shall be made
by Tenant under the supervision of an engineer or architect and by a general
contractor and pursuant to plans and specifications reasonably approved by
Landlord. Notwithstanding anything in this Section 11, in all events Tenant
shall provide Landlord with written notice of its intention or desire to make
additions or alterations to the Property, such notice to set out in reasonably
specific detail the nature and extent of such additions or improvements. In all
events, upon request from Landlord, Tenant shall promptly provide to Landlord a
copy of Tenant's construction plans, specifications, and budget for any proposed
additions or alterations.
12. Assignment or Sub-Lease. Tenant shall not, without written
consent of Landlord, in each case, assign, transfer, mortgage, pledge or
otherwise encumber or dispose of this Lease, or sublet the Property, or any part
thereof, or permit the Property to be occupied by other persons. Such consent
shall not unreasonably be withheld, conditioned or delayed by Landlord, provided
that Tenant, upon at least thirty (30) days' prior written notice to Landlord
but without the necessity of obtaining Landlord's prior written consent, may
assign or sublease the Property or portions thereof (subject to all of the terms
and conditions of this Lease) to an entity controlling, controlled by or under
common control with Tenant, and in any such event Tenant shall remain fully
liable for the Rent and other obligations hereunder. If this Lease is assigned,
or if the Property, or any part thereof, be subject to the possession of or
occupied by any other person, firm, office or corporation, with or without
written permission of Landlord, it will not relieve Tenant of any obligations
under the terms of this Lease and if sublet, assigned or occupied without the
Landlord's permission (except as permitted hereby), this Lease may, at the
option of the Landlord, be terminated by a seven-day written notice. In the
event Tenant shall sublease the Property, or any part of it, in accordance
herewith for net rent in excess of the Rent payable hereunder, Tenant shall pay
to Landlord, monthly, in advance, as Additional Rent hereunder, one-half (1/2)
of all such excess net rent. For purposes of this Section, "net rent" shall
reasonably be computed by subtracting from gross rent reasonable and customary
costs and expenses as are actually incurred or accrued by Tenant in connection
with such subletting, including, without limitation, advertising costs,
reasonable and customary real estate brokerage commissions, customary subtenant
improvement costs, and operating expenses (to the extent Tenant subleases a
portion of its premises on a "full service" basis). If the sublease affects only
a portion of the Property, then the determination of excess net rent shall be
based on the square footage occupied by the subtenant as compared to the entire
Property. Any proposed assignee that proposes to assume Tenant's obligations
hereunder shall execute an assumption agreement reasonably satisfactory to
Landlord before consent shall be given. Tenant shall not be entitled directly or
indirectly to sublet the Property or to assign, sell or transfer this Lease or
any portion thereof except pursuant to this Section 12. Any attempted transfer
or sublet other than in accordance with this Section 12 shall be null and void
ab initio and shall constitute a default under this Lease. If Tenant desires to
transfer any rights hereunder and to request a release from this lease, Tenant
may make a written request to Landlord for a release. Tenant acknowledges that
Landlord shall have the right to negotiate a new Lease with such third party
either under the same terms and conditions of this Lease or upon new terms and
conditions. Landlord agrees to begin such negotiations upon the request of
Tenant for a
11
release from this Lease. Such request shall include Tenant's deposit of an
amount equal to two (2) months Base Rent in escrow to insure compliance with
this Lease during the term of negotiations with any third party introduced to
Landlord by Tenant and shall further include the deposit of such other sums,
including (1) a sum sufficient in Landlord's opinion to reimburse Landlord for
all out-of-pocket expenses, including legal fees, actually incurred in the work
related to the release and to the negotiations with the party to whom the Tenant
desires to sell its equipment and (2) all sums agreed upon for the release. If
Landlord agrees to execute a new lease for the Premises with a third party and
if Tenant has paid Landlord all amounts required for the release, Tenant shall
be released. However, if Landlord does not agree to execute a new lease with
such third party, in Landlord's sole discretion, but rather consents (in
accordance with this Section 12) to a sublease under or an assignment of the
Lease, Tenant shall not be released from its obligations under the Lease, and
Landlord shall retain the necessary amount from the escrowed funds to pay
Landlord's out-of-pocket expenses in connection with such prior negotiation and
the assignment or subleasing. If the amount escrowed is insufficient, Tenant
shall immediately pay Landlord the deficiency. Notwithstanding the foregoing and
to the extent permitted by Landlord's then mortgagee, Tenant shall have the
right to mortgage its leasehold interest hereunder, provided, however, that
Landlord shall not be required to subordinate its fee interest to any such
leasehold mortgagee. Subject to Landlord obtaining the consent of its then
mortgagee, Landlord agrees to consent in writing to the reasonable and customary
rights of Tenant's leasehold mortgagee. Landlord shall reasonably cooperate with
Tenant in obtaining the consent of Landlord's mortgagee any transaction
described in this Section 12 for which the consent of Landlord's mortgagee is
required, provided, however, that Landlord shall not be responsible to Tenant if
Landlord's mortgagee refuses to grant such consent or somehow conditions its
consent, and further provided that, in any event, Tenant shall reimburse
Landlord for its reasonable attorneys' fees incurred in connection with any such
request. Notwithstanding anything in this Section 12 to the contrary, in no
event shall Landlord consent to any sublease, or assignment, or leasehold
mortgage where Landlord's mortgagee has refused or refrained from giving its
consent to the same pursuant to its rights under applicable loan documents that
are binding and enforceable against Landlord.
13. Signs or Awnings. Tenant shall have the right to place or
install reasonable signs, notices, pictures or advertising matter upon the
exterior of the leased Property after first having obtained Landlord's written
consent, which shall not unreasonably be withheld or delayed. Any and all signs
placed on the Property by Tenant shall be maintained in compliance with rules
and regulations governing such signs. Tenant shall be responsible to Landlord
for any damages caused by installation, use, maintenance, or removal of said
signs. Any electrical service needed for signs shall be installed at the
Tenant's expense. Landlord shall not withhold its consent to any requests for
approval of Tenant's signage where such signage is in compliance with all laws
(including any Xxxxxx Island restrictions) and is consistent with Tenant's
originally-approved signage in content, size, design, quality, and illumination.
14. Waiver of Landlord's Rights. No failure by Landlord to
exercise any power given by Landlord hereunder, or to insist upon Tenant's
strict compliance with Tenant's obligations hereunder, and no custom or practice
of the parties at variance with the terms hereof will constitute a waiver of
Landlord's rights to demand exact compliance with the terms of this Lease at a
future time. The rights and remedies created by this Lease are cumulative and
the use of one remedy shall not be taken to exclude the right to use another.
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15. Waiver of Tenant's Rights. No failure by Tenant to exercise
any power given by Tenant hereunder, or to insist upon Landlord's strict
compliance with Landlord's obligations hereunder, and no custom or practice of
the parties at variance with the terms hereof will constitute a waiver of
Tenant's rights to demand exact compliance with the terms of this Lease at a
future time. The rights and remedies created by this Lease are cumulative and
the use of one remedy shall not be taken to exclude the right to use another.
16. Right of Entry. Landlord, without being liable for trespass or
damages, shall have the right to enter the Property after reasonable notice
during reasonable hours to examine the same, or to make repairs as provided in
this Lease (or to inspect for the need for the same) or to exhibit said
Property. Landlord shall also be allowed to post a "For Rent" notice during
sixty (60) days before the expiration of the Term of this Lease. Said right to
entry shall likewise exist for the purpose of removing (after notice to Tenant
and a right to cure as provided in Section 29 hereof, except in an emergency)
place cards, signs, fixtures, alterations or additions which do not conform to
this Lease. In accordance with this right, Tenant shall give Landlord a key to
any and all applicable locks (except for locks on desks, filing cabinets, safes,
and vaults), security systems and burglar alarms. Tenant shall not change or
install new locks or security systems without the written consent of Landlord,
which shall not unreasonably be withheld.
17. Liens. Tenant shall not create, or permit to be created, any
liens for labor or material against Landlord's interest in the Property. All
persons contracting with the Tenant for the erection, installation, alteration,
repair or demolition of any building or other improvements on the Property, and
all materials, flyers, contractors, mechanics, and laborers are hereby charged
with notice that they must look to the Tenant and to the Tenant's interest only
in the Property to secure payment of any xxxx for work or material furnished
during the rental period created by this Lease. The placement of any liens of
record arising from the acts or omissions of Tenant, its agents, employees,
contractors, or invitees will constitute a default hereunder.
18. Damages to or Destruction of Property. Tenant shall give
prompt written notice to Landlord of any damage to the Property caused by fire
or other casualty. In the event the Property and the improvements located
thereon are damaged by fire, explosion or any other casualty to an extent which
is less than fifty percent (50%) of the cost of replacement of the improvements
located on the Property, the damage shall promptly be repaired by Landlord at
Landlord's expense in a manner (including design and quality of materials and
workmanship) substantially equivalent to the original construction of the
improvements, provided that Landlord shall not be obligated to expend for such
repair an amount in excess of the net insurance proceeds recovered or reasonably
recoverable as a result of such damage and released to Landlord by Landlord's
then mortgagee, and that in no event shall Landlord be required to repair or
replace Tenant's stock-in-trade, fixtures, furniture, furnishings, floor
coverings and Tenant's equipment. Notwithstanding the foregoing, in the event of
any such damage and (a) Landlord reasonably has determined that Landlord shall
not be provided sufficient insurance proceeds to repair, restore, and replace
the improvements as required hereunder or (b) the Property and the improvements
located thereon shall be damaged to the extent of fifty percent (50%) or more of
the cost of replacement, then, in either event, Landlord may elect either to
repair or rebuild (in the manner provided in the preceding sentence) the
improvements located on the Property or to terminate this Lease upon giving
notice of such election in writing to Tenant within ninety (90) days after the
occurrence of the event causing the damage (such notice to specify, in good
faith, whether
13
Landlord is terminating the Lease pursuant to subsection (a) and/or (b), above).
In the event one of Landlord's stated reasons for terminating the Lease is
subsection (a), Tenant shall have the option of providing notice to Landlord
(the "Notice"), within twenty (20) days of Landlord's notice to Tenant, that
Tenant, itself, shall pay the difference between the total amount of Landlord's
insurance proceeds made available to Landlord for such repair, restoration, and
replacement and the Landlord's total cost for the same. If Tenant provides the
Notice to Landlord, the Lease and Landlord's obligation to repair, restore and
replace the damaged improvements as provided hereunder shall not terminate,
provided that Tenant also provides to Landlord within twenty (20) days of the
Notice reasonable evidence satisfactory to Landlord that it has sufficient funds
available (including, without limitation, a binding commitment for a loan from a
bank or other institutional lender). Notwithstanding that Tenant has provided
the Notice and such reasonable evidence, Landlord shall not be required to
commence construction of any repairs, replacements, or restorations the cost of
which would be in excess of Landlord's available insurance proceeds until Tenant
has made available to Landlord its additional funds. Notwithstanding anything to
the contrary in this Section 18, and provided that the casualty to the Property
does not arise from the acts or omissions of Tenant, its agents, employees,
contractors, or invitees and further provided that such casualty materially
adversely affects Tenant's use and occupancy of the Property, if the time
necessary to repair any casualty (as reasonably estimated by an independent
architect in the Charleston area mutually designated by Landlord and Tenant)
following such casualty exceeds two hundred and forty (240) days from the date
of casualty, then Tenant shall have the right to terminate this Lease upon
written notice given to Landlord within ninety (90) days after the occurrence of
the event causing the damage. If the casualty, repairing, or rebuilding shall
render the Property untenantable, in whole or in part, and the damage shall not
have been due to the default or neglect of Tenant, a proportionate abatement of
Base Rent shall be allowed from the date when the damage occurred until the date
Landlord completes its work and Tenant is permitted to occupy the affected area,
said proportion to be computed on the basis of the relation which the gross
square foot area of the space in the building rendered untenantable bears to the
entire building.
19. Condemnation. If the whole of the Property or such portion
thereof as will make said Property unusable for the purpose herein leased, be
condemned by any legally constituted authority, this Lease shall terminate on
the date when possession thereof is taken by public authorities, and rental
shall be accounted for as between Landlord and Tenant as of that date and Tenant
shall assign all of its rights to condemnation proceeds to Landlord (other than
proceeds paid in respect of Tenant's property, stock in trade fixtures,
furniture, furnishings, and equipment). In the event only such portion of the
Property is acquired by condemnation as will leave the remaining Property, after
alteration and repair, in condition suitable for use by Tenant, the monthly Rent
from the day of such acquisition to the end of the original or any extended term
of this Lease shall be reduced in proportion to the resulting loss of use of the
Property by Tenant. Landlord shall perform all necessary alterations and repairs
which shall be required to restore the Property to a safe and usable condition,
provided, however, that Landlord shall not be obligated to expend for such
repair an amount in excess of the net condemnation award received by Landlord,
and that in no event shall Landlord be required to repair or replace Tenant's
stock-in-trade, fixtures, furniture, furnishings, floor coverings and equipment,
and Tenant shall be entitled to a proportionate abatement of Base Rent during
the restoration period as provided in Section 18, above.
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20. Indemnity and Liability. Except to the extent caused by the
negligent acts or omissions or willful misconduct of Landlord, its affiliates,
and their respective employees, agents, and contractors, (a) Tenant shall
indemnify and save Landlord harmless from any and all claims, damages, costs and
expenses, including reasonable attorney's fees arising from Tenant's use and
occupancy of the Property, and (b) Landlord shall not be liable, and Tenant
waives all claims for damage to person or property sustained by Tenant, its
employees or agents, resulting from the condition of the Property or as may
result from any accident in or about the Property or which may be the result
directly or indirectly from any act or neglect to the property of which the
Lease is a part. Except to the extent caused by the negligent acts or omissions
or willful misconduct of Landlord, its affiliates, and their employees, agents,
and contractors, (i) Landlord shall not be responsible or liable at any time for
any loss or damage to Tenant's merchandise, equipment, fixtures or other
personal property of Tenant or Tenant's business; (ii) Landlord shall not be
responsible or liable to Tenant or those claiming by, through or under Tenant
for any loss or damage to either the person or property of Tenant that may be
occasioned by or through the acts or omissions of persons occupying adjacent,
connecting or adjoining Premises (other than the Stadium Property); (iii) Except
as set forth in Section 5 hereof, Landlord shall not be responsible or liable
for any defect, latent or otherwise, in any building constituting the Property
of any of the equipment, machinery, utilities, appliances or apparatus therein,
nor shall it be responsible or liable for any injury, loss or damage to any
person or to any property of Tenant or other person caused or resulting from
bursting, breakage, or by or from leakage, ice, running, backing up, seepage, or
the overflow of water or sewage in any part of the Property or from any damage
caused by or resulting from acts of God or the elements. In the event Landlord
transfers this lease, except as collateral security for a loan, upon such
transfer Landlord will be released from all liability and obligations under this
Lease arising or accruing on and after the date of such transfer. The
indemnities provided in this Lease shall survive the termination or expiration
of this Lease or any renewals.
21. Reversion. At the end of the Term or upon cancellation of this
Lease, Tenant shall surrender the Property to Landlord in a broom clean
condition as good as the Property was at the beginning of the Term (subject to
reasonable wear and tear and damage by casualty (to the extent not caused by
Tenant or its employees, agents, contractors, or invitees) or condemnation, as
provided in Sections 18 and 19 hereof) and free from any toxic or hazardous
substances arising from Tenant's acts. Tenant will pay to Landlord double the
Base Rent from and after the end of the Term and until such clean up is
completed. Tenant will indemnify and save Landlord harmless from and against all
claims made by any succeeding Tenant of the Property against Landlord because of
delay in delivering possession of the Property, so far as such delay is
occasioned by failure of Tenant to so surrender the Property in such condition.
22. Effective Date of Lease. This Lease shall become effective as
a binding agreement only upon the execution and delivery thereof by both
Landlord and Tenant. If this Lease is signed by one party and submitted to the
other party, it shall constitute an offer to lease which is subject to
revocation at any time prior to execution by the other party and delivery of a
fully executed copy to the submitting party.
23. Notices. Any notice required to be given under this Lease
shall be sent to the addresses provided below either by (a) United States
certified mail, return receipt requested, or national overnight courier service
(such as Federal Express), such notice being deemed delivered upon receipt or
refusal of receipt or (b) by facsimile transmission, with confirmation of
receipt of
15
such facsimile transmission and hard copy sent first-class mail. Either party
may change its notice address(es) hereunder by giving ten (10) days prior
written notice to the other of such new address(es).
If to Landlord:
Duck Pond Creek, LLC
Attn: Xxxx X. Xxxxxxxxx
0000 Xxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
If to Tenant:
Blackbaud, Inc.
Attn: Xxx Xxxx, Esq.
0000 Xxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
24. Bankruptcy. If Tenant shall apply for relief under any
bankruptcy act or shall be adjudicated bankrupt or insolvent or take the benefit
of any federal reorganization or make a general assignment or take the benefit
of any insolvent law, or if a Trustee in bankruptcy or a receiver be appointed
or elected for Tenant, under federal or state law, this lease at the option of
Landlord shall expire and end seven (7) days after Landlord gives Tenant written
notice, UNLESS Tenant's trustee immediately cures any default of Tenant
hereunder and provides (in compliance with federal and state laws) adequate
assurance of future performance of Tenant's obligations hereunder.
25. Beyond Landlord's Control. None of the acts, promises,
covenants, or obligations on the part of Tenant to be kept, performed, or not
performed as the case may be, nor the obligation of Tenant to pay Rent or other
charges or payments on and after the Commencement Date, as provided hereunder,
shall be anywise waived, excused, or affected by reason of Landlord being unable
at any time during the Term of this Lease, to supply or to delay in supplying
heat, light, elevator service or any other service expressed or implied on the
part of Landlord to be supplied; or by reason of Landlord being unable to make
any alterations, repairs, or decorations, or to supply any equipment or
fixtures, or any other promise, covenant, or obligations on the part of the
Landlord to be performed, if Landlord's inability or delay is caused by
circumstances beyond Landlord's reasonable control, including, without
limitation, by reason of war, civil commotion, acts of God, governmental
restrictions, scarcity of labor or materials, strikes or labor walkouts.
26. Keys. Landlord shall provide Tenant with one key per lock, and
Tenant is responsible for accounting for all keys provided or duplicated and
shall return all keys of leased Property to the Landlord upon termination or
cancellation of this Lease and/or Tenant's vacating said Property. Landlord
shall have the right, if in the Landlord's reasonable judgment it is necessary,
to require Tenant at Tenant's expense to replace locks, and to supply Landlord
with one
16
key to the new locks. The Landlord shall retain a master key or pass key to the
Property, including all security locks and systems. Tenant shall not change or
install new locks (except for locks on desks and filing cabinets) or security
systems without prior written approval of Landlord, which shall not unreasonably
be withheld. Locks referred to in this Section 26 shall not include locks for
desks, filing cabinets, safes, or vaults in the office building.
27. Estoppel Certificates. Financial Statements.
Tenant or Landlord shall from time to time, within ten (10) days following
written notice from the other, execute, acknowledge and deliver to the
requesting party a written statement certifying that this Lease is in full force
and effect. This statement should also state whether or not the requesting party
is in default in performance of any covenant and shall constitute an
acknowledgment by the non-requesting party that this Lease is unmodified and in
full force and effect, and shall constitute a waiver of any defaults by the
non-requesting party which may have existed prior to the date of such notice of
which the non-requesting party is aware. Time is of the essence in complying
with this provision.
To the extent such information is otherwise publicly available, Tenant shall
furnish to Landlord within one hundred twenty (120) days after the close of each
fiscal year a balance sheet, as well as a profit and loss statement on Tenant
for such fiscal year certified by Tenant to be correct and accurate and prepared
in accordance with generally accepted accounting principles consistently applied
and a quarterly profit and loss statement of Tenant.
28. Peaceful Possession. Subject to the terms, covenants and
conditions of this Lease, Tenant shall have, hold and enjoy quiet possession of
the leased Property undisturbed by Landlord or parties acting through Landlord,
subject to the rights of the holders of any mortgage which now covers said
Property or which may hereafter be placed on the Property by Landlord (subject
to the provisions of Section 32 hereof) and subject to the Easement set out in
Exhibit C hereof, and any and all matters of public record as of the date hereof
or known to Tenant as of the date hereof.
29. Default. If Tenant fails to pay Rent on or before the due
dates as herein stated (TIME IS OF THE ESSENCE), this Lease shall be in default.
If Tenant fails to cure such default within five (5) days; or if Tenant shall be
in default in performing any of the terms, covenants and conditions of this
Lease other than the provision requiring the payment of Rent, and fails to cure
such default within thirty (30) days after the receipt of written notice of
default from Landlord provided that if Tenant shall have diligently commenced
such cure within such 30-day period, then such cure period shall be extended for
so long as Tenant shall be diligently attempting to cure such default, provided
further that such aggregate cure period shall not exceed 90 days from the date
of Landlord's written notice of default to Tenant; or if Property shall be
abandoned or deserted for forty-five (45) days, or this Lease is assigned to any
other persons, firm, office or corporation, without the permission of Landlord
as required herein, this Lease, at Landlord's option, shall expire and terminate
seven (7) days after Landlord delivers written notice to Tenant of such
condition or default and Tenant shall immediately quit and surrender said
Property to Landlord. In the event of any such default or breach of performance,
Landlord without any further notice or demand of any kind to Tenant, may, with
or without terminating the Lease re-enter and forthwith repossess the entire
Property and without being liable for trespass or damage may relet, lease, or
demise the Property to another tenant without any hindrance or prejudice to
Landlord's right to
17
distraint for and claim to any past due Rent, and Rent (including without
limitation the reasonable costs of repair and restoration of the Property
required due to Tenant's acts or omissions and Landlord's reasonable brokerage
commissions and reasonable attorneys' fees incurred in connection with any such
default and reletting) and from the time of such default or termination until
the Property was leased or rented to another tenant, for all of which Tenant
shall be responsible to Landlord. From and after any event of default that
remains uncured beyond the applicable grace period set forth herein, as provided
hereunder, in addition to Landlord's other rights and remedies hereunder and at
law and equity, Landlord may charge Tenant default interest on any amounts owing
to Landlord hereunder at the rate of the Prime Rate of interest as published
from time to time in the Wall Street Journal plus four percent (4%). Landlord's
rights and remedies hereunder are cumulative.
30. Attorneys' Fees. In the event a dispute arises between the
parties with regard to this Agreement, the parties agree that the non-prevailing
party shall reimburse the prevailing party for all reasonable attorneys' fees,
costs and expenses, arising from and after the date of this Agreement, incurred
by the prevailing party in connection with the enforcement or interpretation of
rights under this Agreement. This reimbursement includes, without limitation,
reasonable attorneys' fees, costs and expenses for trial, appellate proceedings,
out-of-court negotiations, workouts and settlement or for enforcement of rights
under any state or federal statute, including without limitation, reasonable
attorneys' fees, costs and expenses incurred to protect the prevailing party and
attorneys' fees, costs and expenses incurred in bankruptcy and insolvency
proceedings such as (but not limited to) in connection with seeking relief from
stay in a bankruptcy proceeding. The term "expenses" as used herein, means any
expenses incurred by the prevailing party in connection with any of the
out-of-court, or state, federal or bankruptcy proceedings referenced above,
including, but not limited to, the fees and expenses of any appraisers,
consultants and expert witnesses retained or consulted by the prevailing party
in connection therewith.
The prevailing party shall also be entitled to its attorneys' fees, costs, and
expenses incurred in any post-judgment proceedings to collect and enforce the
judgment. This provision is separate and several and shall survive the merger of
this Agreement into any judgment on this Agreement.
31. Definitions. "Landlord" as used in this Lease shall include
the owner or owners of the property and/or the aforementioned managing agents as
well as the Landlord's heirs, representatives, assigns, and successors in title
to Property. "Tenant" shall include Tenant, Tenant's heirs and representatives,
and if this Lease shall be assigned or sublet in compliance with the provisions
of this Lease, shall include also Tenant's assignees or sublessees, as to
Property covered by such assignment or sublease. "Agent" shall include agent,
agent's successors, assigns, heirs and representatives. "Landlord", "Tenant" and
"Agent" include male and female, singular, plural, corporation, partnership or
individual, as may fit the particular parties.
32. Subordination and Modification. Tenant covenants that this
Lease shall be and shall remain subordinate to any mortgages placed upon the
Property and Tenant shall, at the request of Landlord, execute any customary
subordination and attornment agreements in form and substance reasonably
acceptable to Landlord, provided that any such mortgagee has executed for Tenant
a non-disturbance agreement in such mortgagee's usual and customary form.
Further, if any prospective mortgagee of the Property requires, as a condition
precedent to issuing its loan, the modification of this Lease in such manner
that does not materially lessen Tenant's rights or
18
increase its obligations hereunder, Tenant shall not unreasonably delay or
withhold its consent to such modification and shall execute and deliver such
conforming documents therefore as such mortgagee requires.
33. Entire Agreement. This Lease and the exhibits hereto, together
with (a) the Real Property Holder's Estoppel, Waiver and Consent Agreement of
even date herewith between Landlord, Tenant, and Bankers Trust Company, and (b)
the Non-Disturbance, Attornment and Subordination Agreement of even date
herewith between Landlord, Tenant, and SouthTrust Bank N.A., contain the entire
agreement between the parties hereto and all previous negotiations leading
thereto, and it may be modified only by a dated written agreement signed by both
Landlord and Tenant. No surrender of the Property or of the remainder of the
Term of this Lease shall be valid unless accepted by Landlord in writing. TIME
IS OF THE ESSENCE IN THIS AGREEMENT. This Lease amends, restates and supersedes
in its entirety the Lease Agreement between Landlord and Tenant, dated as of May
27, 1999.
34. Applicable Law. The parties executing this Lease acknowledge
that the negotiations and anticipated performance of this Lease occurred or
shall occur, and that this Lease is executed in the State of South Carolina;
therefore, the parties irrevocable and unconditionally agree that South Carolina
law shall govern the interpretation of this Lease and the rights and duties of
the parties hereto.
35. Permits. Tenant shall procure any and all permits required
from local, state and federal governmental agencies, and/or otherwise, which may
be required to use the Property in the manner permitted by this Lease. Any and
all costs associated with such permits shall be the sole responsibility of the
Tenant. At its sole cost and expense, Landlord shall procure all permits and
approvals necessary for (i) construction of the improvements on the Property
prior to the Commencement Date and (ii) the initial Certificate of Occupancy for
the Property.
36. Survival of Representations and Warranties. All
representations, warranties, covenants and agreements contained in this Lease
and in all documents and agreements incorporated herein shall survive the
execution and termination of this Lease.
37. Severability. If any term or provision of this Lease shall to
any extent be held by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this lease shall not be effective thereby and a
balance of the terms and provisions of this Lease shall be valid and enforceable
to the fullest extent either hereunder or as permitted by law.
38. Heirs, Successors and Assigns. This Lease shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
heirs, successors and assigns.
39. Authority. The individuals signing this Lease personally
warrant that they have the right and power to enter into this Lease, to grant
the rights granted under this Lease, and to undertake the obligations undertaken
in this Lease.
40. Brokers. Tenant and Landlord represent that no broker or agent
has any claim to a commission with respect to the Lease contemplated hereby.
Landlord shall not be liable for any real estate fee, consulting fee, commission
or other form of compensation whatsoever with respect to the transactions
contemplated hereby. Tenant shall indemnify and hold Landlord harmless from
19
and against and in respect to any and all liability or expense resulting from or
in connection with fees, claims or commissions alleged to be due through
Tenant's acts as a result of the transactions contemplated hereby to any person
or entity.
41. Captions. The marginal captions herein are done for
convenience and reference only and shall not be deemed as part of this Lease or
construed as in any manner or as amplifying the terms and provisions of this
Lease to which they relate.
42. Memorandum of Lease. Promptly after execution and delivery of
this Lease, the parties shall execute, deliver and record in the land records of
Berkeley County, South Carolina, a Memorandum of this Lease. At Landlord's
request, upon the expiration or earlier termination of this Lease, Tenant shall
execute in recordable form and deliver to Landlord a Notice of Termination of
Lease to be recorded in the land records of Berkeley County, South Carolina. If
Tenant shall fail to comply with Landlord's request within ten (10) days of
Landlord's request therefore, Tenant hereby appoints Landlord as its
attorney-in-fact to execute the same on behalf of Tenant.
IN WITNESS WHEREOF, the parties hereto have their duly authorized representative
to execute this Lease on the day and year first above written.
WITNESSES: LANDLORD:
DUCK POND CREEK, LLC, a South
Carolina limited liability company
/s/ X. X. Xxxx
------------------------------
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
/s/ Xxxxxxxx Xxxxxxx
------------------------------
Its:
-----------------------------
TENANT:
BLACKBAUD, INC., a South Carolina
corporation
/s/ X. X. Xxxx
------------------------------
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------
/s/ Xxxxxxxx Xxxxxxx Its: EVP
------------------------------ -----------------------------
20
EXHIBIT A
TO LEASE AGREEMENT BY AND BETWEEN
DUCK POND CREEK, LLC (LANDLORD)
AND
BLACKBAUD, INC. (TENANT)
The "Property" shall consist of all of that tract, parcel and piece of land,
situate, lying and being on Xxxxxx Island, City of Charleston, Berkeley County,
measuring and containing approximately 36.491 acres above the DHEC-OCRM Critical
Line, more or less, located in Parcel K, Phase 1, as more fully shown on a plat
entitled "A Subdivision Plat of A 36.491 Acre Tract of Land Parcel K Phase 1
Owned by The Xxxxxx Island Company Located In Xxx Xxxx xx Xxxxxxxxxx Xxxxxxxx
Xxxxxx, Xxxxx Xxxxxxxx," prepared by Xxxx X. Xxxxx, R.L.S., dated December 8,
1997, with latest revisions dated January 27, 1998, and recorded in Plat Cabinet
N, Page 114, in the RMC Office for Berkeley County, South Carolina LESS AND
EXCEPT that portion of such tract identified in cross-hatch on Exhibit A-1,
attached hereto and made a part hereof.
EXHIBIT B
RENT
Upon thirty (30) days following the issuance of a Certificate of Occupancy for
the office building, during the Term Tenant shall pay to Landlord annually Base
Rent in an amount equal to Four Million Two Hundred Eighty-Seven Thousand and No
00/100 Dollars ($4,287,000.00) payable in equal monthly installments of Three
Hundred Fifty-Seven Thousand, Two Hundred Fifty and No 00/100 Dollars
($357,250.00).
The Base Rent shall escalate annually (including during any renewal term) at a
rate equal to the percentage increase in the CPI (as hereafter defined) for a
given lease year over the CPI for the prior lease year. The increase shall take
effect beginning with the Rent payment due on the third anniversary date of the
Commencement Date (there being no increase in Base Rent for the first three
lease years, the increase beginning with the fourth lease year) and shall
continue on each anniversary of the Commencement Date thereafter, and shall be
calculated based on the increase in the CPI published in October immediately
prior to the lease year for which the increase in Base Rent is being determined,
over that published the October one year before. "CPI" shall mean the Consumer
Price Index - U.S. City Average for Urban Wage Earners and Clerical Workers, all
Items (1982-84 = 100) of the United States Bureau of Labor Statistics. In no
event shall Base Rent for a given lease year ever be less than the Base Rent for
the prior lease year.
EXHIBIT C
STATE OF SOUTH CAROLINA DECLARATION OF
ACCESS AND PARKING
COUNTY OF BERKELEY EASEMENT
THIS DECLARATION OF ACCESS AND PARKING EASEMENT (the "Declaration of
Easement") is made this _____ day of ___________, 1999 by DUCK POND CREEK LLC, a
South Carolina limited liability company ("Declarant").
W I T N E S S E T H :
WHEREAS, Declarant is the record owner of the property described as the
"Office Property" on Exhibit A, attached hereto and incorporated herein by
reference; and
WHEREAS, Declarant is also the record owner of the property described
as the "Stadium Property" and shown in cross-hatch on Exhibit A-1, attached
hereto and incorporated herein by reference; and
WHEREAS, in order to provide for certain parking and access rights for
the benefit of the Stadium Property over, upon and across the Office Property,
Declarant desires to and does subject the Stadium Property and the Office
Property to this Declaration of Easement.
NOW, THEREFORE, Declarant hereby declares as follows:
1. The recitals set out above are incorporated herein by
reference.
2. There shall exist during Non-Business Hours (for
purposes of this Declaration of Easement, "Non-Business Hours" being defined as
all hours other than 8:30 A.M. to 6:00 P.M. Monday through Friday and all hours
on commonly observed state and national holidays) a non-exclusive right of
access, for the benefit of the Stadium Property, over, upon, and across the
access ways, driveways, and parking areas located upon the Office Property for
vehicular (both passenger and commercial) and pedestrian ingress, egress, and
regress to and from the Stadium Property to the public right-of-way.
3. There shall exist during Non-Business Hours a
non-exclusive right over, upon and across the designated parking areas located
on the Office Property for the benefit of the Stadium Property for parking of
vehicles (both passenger and commercial) for training camps, practices,
scrimmages, games, concerts, fairs, and any other events held on or uses made of
the Stadium Property. Notwithstanding the foregoing, Declarant shall designate a
reserved parking area on the Office Property reasonably proximate to the office
building containing 50 parking spaces that shall be reserved for the exclusive
use of the Office Tenant, as defined below, and its subtenants, if any
(hereinafter, "All Office Tenants") and which shall not be subject to the rights
for the benefit of the Stadium Property set forth in this Section 3.
4. In connection with the use of the easements created
herein, Declarant shall require in any lease, license, or other use or occupancy
agreement for the Stadium Property or any portions thereof (but excluding
tickets or other rights, permission, or licenses to go upon the Stadium Property
that are sold, granted, or made available to the public, visitors, spectators,
etc.) (hereinafter, a "Stadium Lease") provisions, among others, stating (i)
that the tenant (or licensee, as applicable,) under any Stadium Lease
(hereinafter, a "Stadium Tenant"), provide, at its sole cost, after-event
clean-up of the Office Property in connection with any use of the easements
EXHIBIT C - 2
created hereunder, (ii) that the Stadium Tenant indemnify All Office Tenants
from and against any loss, cost, damage, or liability (including reasonable
attorneys' fees and court costs) arising out of its use of the Office Property
(including use by its employees, agents, contractors, and invitees, hereinafter
"Use," the lower-case "use" specifically referring to use only by a Stadium
Tenant itself or by its employees and agent, but excluding use by its
contractors and invitees) pursuant to easements created herein, (iii) that the
Stadium Tenant shall maintain public liability insurance for matters arising out
of its Use of the Office Property pursuant to easements created herein in a
minimum amount of $5,000,000 naming All Office Tenants as additional insureds;
(iv) that the Stadium Tenant shall comply with all applicable governmental
rules, regulations, laws, restrictions (including any public or private
covenants, conditions, or restrictions applicable to the Stadium Property as
part of Xxxxxx Island), and ordinances in its use of the Stadium Property and in
its use of the Office Property hereunder; and (v) that the Stadium Tenant shall
maintain the Stadium Property (or the portion thereof that is the subject of its
Stadium Lease) in good condition. Upon written request, Declarant, at its
election, shall provide to the Office Tenant a copy of any Stadium Lease(s)
containing such provisions. In the event that Declarant has elected not to
provide the Office Tenant with a requested copy of a Stadium Lease containing
such provisions or in the event that Declarant has not entered into a Stadium
Lease in connection with any particular use of the Stadium, then Declarant
itself shall directly and for the benefit of All Office Tenants be obligated to
perform the covenants set forth in subparagraphs (i) through (v), above, with
respect to the activities of (a) any Stadium Tenant the Stadium Lease for which
Declarant has elected not to provide the Office Tenant a copy and (b) any
particular use of the Stadium for which Declarant has not entered into a Stadium
Lease.
EXHIBIT C - 3
5. This Declaration of Easement shall inure to and be
binding upon the heirs, successors and assigns of Declarant and shall run with
and benefit and burden the Stadium Property and shall run with and benefit and
burden the Office Property forever or until this Declaration and the easements
created hereunder shall be terminated by Declarant or its heirs, successors and
assigns by written, recorded instrument.
6. Declarant shall use its reasonable best efforts to
provide Blackbaud, Inc., the initial tenant of the Office Property (together
with its successors and assigns, but specifically excluding its subtenants, if
any, the "Office Tenant"), reasonable prior notice of the events to be held at
the Stadium. Declarant will not materially amend this Declaration of Easement
without the prior written consent of the Office Tenant which consent shall not
unreasonably be withheld, conditioned, or delayed.
7. In the event that Declarant reasonably determines
that it is in the best interest of the Office Property and the Stadium Property
to subdivide the Stadium Property from the Office Property, in compliance with
all local laws and ordinances, All Office Tenants shall reasonably cooperate
with Declarant to accomplish the same, at no expense to any such tenant(s)
provided that any such subdivision shall not have a material adverse effect on
the use, utility, value of, or expenses required to own or operate, the Office
Property. Any such subdivision may necessarily include a provision for recording
a shared access and parking easement between the Office Property and the Stadium
Property in reasonable and customary form and reasonably acceptable to
Declarant, the Office Tenant, the local governmental jurisdiction having
authority over such subdivision, and any lenders holding either a fee or
leasehold mortgage on the Office Property or the Stadium Property.
EXHIBIT C - 4
8. The Office Tenant shall be a third-party beneficiary
hereunder and, as such, shall be entitled to enforce the covenants and
obligations contained herein against the Declarant and any Stadium Tenant.
IN WITNESS WHEREOF, the duly authorized Manager of Declarant has set his hand
and affixed his seal as of the day and year first above written.
DUCK POND CREEK LLC
Witness: ________________________
Witness: ________________________ By: ____________________________(SEAL)
Title: _________________________
SOUTH CAROLINA
BERKELEY COUNTY
I, the undersigned Notary Public do hereby certify that
___________________________ personally appeared before me this day and
acknowledged that he is the Manager of DUCK POND CREEK LLC, a South Carolina
limited liability company, and that by authority duly given as the act of the
limited liability company, the foregoing instrument was signed by him as its
Manager under seal.
Witness my hand and official seal this _____ day of ____________, 1999.
NOTARY PUBLIC
My Commission Expires:
(Notary Seal)
EXHIBIT C - 5
EXHIBIT A
TO DECLARATION OF ACCESS AND PARKING EASEMENT
The "Office Property" shall consist of all of that tract, parcel and piece of
land, situate, lying and being on Xxxxxx Island, City of Charleston, Berkeley
County, measuring and containing approximately 36.491 acres above the DHEC-OCRM
Critical Line, more or less, located in Parcel K, Phase 1, as more fully shown
on a plat entitled "A Subdivision Plat of A 36.491 Acre Tract of Land Parcel K
Phase 1 Owned by The Xxxxxx Island Company Located In Xxx Xxxx xx Xxxxxxxxxx
Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx," prepared by Xxxx X. Xxxxx, R.L.S., dated
December 8, 1997, with latest revisions dated January 27, 1998, and recorded in
Plat Cabinet N, Page 114, in the RMC Office for Berkeley County, South Carolina
(the "36.491 Acre Tract") LESS AND EXCEPT that portion of such tract identified
in cross-hatch on Exhibit A-1, attached hereto and made a part hereof.
The "Stadium Tract" shall consist of that portion of the 36.491 Acre Tract
identified in cross-hatch on Exhibit A-1.
Exhibit D
1. Construction Management Agreement, dated as of May 28, 1998, between
Landlord and Hill Construction Corporation, as amended, modified or
supplemented.
2. Architect's Agreement, dated as of May 21, 1998, between Landlord and
Xxxxxx Xxxxxxx Xxxxx Architects, Inc., as amended, modified or
supplemented.
3. Site Work Engineering Agreement between Landlord and Xxxxxx &
Whiteside, as amended, modified or supplemented.
4. Interior Design Agreement between Landlord and Xxxxx X. Xxxxx
Architects, as amended, modified or supplemented (if applicable),
subject to the limitations set forth in subparagraph 5(c) below.
5. The current plans, drawings and specifications for the office building
and other improvements to the Property (a) issued by Xxxxxx Xxxxxxx
Xxxxx Architects, Inc., as of October 13, 1999, (b) issued by Xxxxxx &
Whiteside (site work engineers), as of October 13, 1999, and (c) to be
issued by Xxxxx X. Xxxxx Architects (interior designer) and approved by
Landlord, provided that Landlord covenants that the interior design
work to be designed by such firm and approved by Landlord shall be
consistent with the standards for newly constructed first-class office
buildings in Charleston, South Carolina. Landlord and Tenant shall, not
later than October 22, 1999, cause to be prepared, and shall confirm in
writing, a list of such plans, drawings and specifications, and such
list, upon confirmation thereof in writing by Landlord and Tenant,
shall be deemed to be included in, and made a part of, this Exhibit D.
