STATE OF NORTH CAROLINA )
) LEASE
COUNTY OF WAKE )
ARTICLE I. PARTIES
1.01. THIS LEASE made and entered into to be effective as of the___ day
of May, 1994, between RBC CORPORATION ("Landlord") and BUSINESS
TELECOMMUNICATIONS, INC. ("Tenant").
W I T N E S S E T H
ARTICLE II. DEMISED PREMISES
2.01. Landlord leases to Tenant and Tenant leases from Landlord certain
office space (hereinafter called the "Demised Premises") in a nine-story office
building currently being renovated (the "Building") situated on certain land
more particularly described by metes and bounds in Exhibit A attached hereto
(the "Land") leased by Landlord at 0000 Xxx Xxxxx Xxxx in Raleigh, North
Carolina. The Demised Premises consists of the square feet of rentable area in
the Building disclosed on Schedule I attached to this Lease and made a part
hereof (hereinafter called "Schedule I"), all of said space being shown on
Exhibit B attached hereto. All calculations of the rentable area of the Demised
Premises and the Building shall be made in accordance with the BOMA Standard of
Measuring Floor Area of Office Buildings (reprinted in August, 1990). Rentable
square feet for any tenant space which constitutes all of the available office
space on any floor in the Building shall be as set forth in Exhibit X-x attached
hereto. Landlord, at its expense, shall provide Tenant with the Base Building
items set forth on Exhibit C-l
2.02. The Demised Premises consist of the unfinished interior office
space in the Building. Landlord, at its expense, shall provide Tenant with the
"Base Building" items set forth on Exhibit C-l. Landlord, at Tenant's cost,
shall also install the items and perform the work (collectively "upfitting")
specified in the plans and upfitting requirements set forth in Exhibit C;
however, Landlord shall provide Tenant with an upfitting allowance to subsidize
Tenant's upfitting cost as specified in Schedule I. All work shall be performed
in accordance with the provisions of Article XVI
2.03. Prior to occupancy of the Demised Premises by the Tenant,
Landlord and Tenant shall enter into a supplement of this Lease in the forth
attached hereto as Exhibit D setting forth the exact measurements of the Demised
Premises calculated as provided hereinabove, the Commencement Date and
Expiration Date of the term of this Lease as provided in Article IV and the
exact amount of the Annual Minimum Rent (hereinafter defined) and monthly
installments of minimum rent required in accordance with Article V herein, with
such terms, conditions and provisions being consistent with the terms set forth
in this Lease as of the date hereof.
2.04. Exhibits A, B, X-x, C, X-x and D and Schedule I mentioned above
and Exhibit E mentioned hereafter are attached hereto and incorporated herein by
this reference.
ARTICLE III. USE
3.01. Tenant shall use and occupy the Demised Premises solely for the
purpose set forth in Schedule I; however, activities conducted within the
Demised Premises shall bc limited to activities generally conducted in
firstclass office buildings in the immediate vicinity of the Building as
reasonably determined by Landlord.
3.02. If any governmental license or permit, other than a governmental
license or permit required for occupancy, shall be required for the proper and
lawful conduct of Tenant's business in the Demised Premises, or any part
thereof, and if failure to secure such license or permit would in any way affect
Landlord's operation of the Building, Tenant, at its expense, shall duly procure
and thereafter maintain such license or permit and submit the same to inspection
by Landlord. Tenant shall at all times comply with the terms and conditions of
each such license or permit.
3.03. Tenant and its employees, invitees, licensees and agents shall
have the right of reasonable ingress to and egress from the Demised Premises
through use of the public entrances, exits, hallways and lobby areas of the
Building located on the first and second floors and the elevator and stairwell
system of the Building twenty-four hours per day, seven days per week (with
appropriate building security measures permitted after normal working hours and
on non-business days); the right of reasonable use of all halls, toilets, and
sanitary facilities on all floors of the Building on which the Demised Premises
are located; and the right of reasonable use of all other general common
facilities located in or about the Building, including sidewalks, areas for
general Building deliveries, and other common appurtenances to the Building.
ARTICLE IV. TERM AND POSSESSION
4.01. Subject to Section 4.02 hereof, the term of this Lease shall
begin OD the date set forth as the "Commencement Date" shown on Schedule I and
end at midnight on the date set forth as the "Expiration Date" shown on Schedule
I.
4 02. Notwithstanding the Commencement Date and Expiration Date set
forth in Section 4 01 hereof. if the Demised Premises are not substantially
ready for occupancy on the Commencement Date specified herein, the Commencement
Date of the term of this Lease shall be the date Tenant is tendered possession
of the Demised Premises ready for occupancy in accordance with Section 4.03
hereof, or the date Tenant takes possession of the Demised Premises, whichever
date is earlier; provided, however, the Commencement Date shall not occur until
all necessary applicable governmental permits and approvals required for
occupancy have been issued and a copy delivered to Tenant. Irrespective of the
foregoing, the Commencement Date shall not occur prior to November 15, 1994,
unless Tenant occupies the Demised Premises for the conduct of its business.
Landlord shall use its good faith efforts to cause the Commencement Date for the
fifth, sixth and ninth floors of the Demised Premisesto occur on November 15,
1994, or as soon thereafter as reasonably practical subject to events or
circumstances beyond the reasonable control of Landlord. Anything to the
contrary contained herein notwithstanding, with respect to the fifth, sixth and
ninth floors of the Demised Premises,
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(i) on or before June 30, 1994, Tenant shall provide Landlord with final,
approved pricing documents related to the upfitting of the Demised Premises
(including, without limitation, space plans showing electrical outlets,
telephone jacks, final wall locations and finish parameters); and (ii) on or
before July 31, 1994, Tenant shall provide Landlord with final, approved plans
and specifications and permit drawings released for construction related to the
upfitting of the Demised Premises. In the event Tenant timely complies with the
requirements of the preceding sentence and the Demised Premises are not ready
for reasonable occupancy by Tenant by November 14, 1994, Landlord shall
reimburse Tenant for any actual, out-of pocket loss, cost, expense and/or
damages (including reasonable attorney's fees) incurred by Tenant due to the
delayed delivery of the Demised Premises; provided, however, that (i) Landlord
shall not be liable for damages with respect to delays caused by unavailability
or delay in delivery of any specialty of custom items required by Tenant; and
(iii) if Tenant fails to meet the deadlines referenced in the preceding
sentence, the November IS, 1994 date for delivery of the Demised Premises shall
be delayed by the number of working days corresponding to the number of days by
which Tenant is tardy in complying with such requirements.
Landlord shall keep Tenant advised as to the progress of construction
of the Building and the improvements to be made in the Demised Premises so that
Tenant can properly plan its relocation into the Building. In the event Tenant
desires to move into the Building in phases, Landlord shall prioritize
completion of the Demised Premises to the extent that Landlord's overall
construction activities are not disrupted. If the Commencement Date is the first
day of a calendar month, the term of this Lease shall expire at midnight on the
last day of the calendar month which corresponds to the 'Number of Months of the
Term of the Lease. shown on Schedule 1. If the Commencement Date is not the
first day of a calendar month, the term of this Lease shall expire as if the
Commencement Date was the first day of the next succeeding month.
4.03. The Demised Premises shall be deemed ready for Tenant's occupancy
when (i) upfitting of the Demised Premises has been completed substantially in
accordance with Exhibit C and the Demised Premises are made available to Tenant
for reasonable use; (ii) public entrances and exits, parking (as required
hereunder) and the elevator and stairwell system, heating, air-conditioning and
ventilation system, electrical system, restrooms and hallways serving the
Demised Premises are substantially completed, and (iii) all governmental
permits, certificates or approvals necessary for Tenant's lawful occupancy of
the Demised Premises have been issued. The Demised Premises shall not be deemed
unready or incomplete if only minor or insubstantial details of construction,
decoration or mechanical adjustments remain to be completed. Irrespective of the
foregoing, in the event delays are caused by reason of Tenant's failure to
provide approvals of the plans and specifications for the upfitting within a
reasonable period of time or other reasons within Tenant's control (e.g. delays
in delivery of specialty or custom items required by Tenant), then the
"Commencement Date" shall be deemed to have occurred when the Commencement Date
would have occurred had delays not been caused by Tenant. Upon substantial
completion of the Demised Premises and prior to Tenant's occupancy of the
Demised Premises, Landlord and Tenant shall conduct a walk-through inspection of
the Demised Premises and shall agree on a so-called "punch list" which shall
contain items which remain to be done and which Landlord, by signing such punch
list, shall agree to complete or to perform
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within thirty (30) days of the date of the walk-through inspection (subject to
availability of specialty or custom items required by Tenant).
4.04. If Tenant shall remain in possession of the Demised Premises
after the expiration of either the original term of this Lease or of any
extended term without Landlord's consent it shall not be deemed or construed to
be a renewal or extension of this Lease but shall only operate to create a
month-to-month tenancy at the then existing rental rate, and said month-to-month
tenancy may be terminated by Landlord at the end of any month upon 30 days prior
written notice to Tenant.
4.05. Tenant's entry into, and taking possession of, the Demised
Premises shall constitute Tenant's acknowledgment that to its knowledge the
Demised Premises are in good and tenantable condition at the beginning of the
term hereof, subject to completion of punch list items and subject to any
obligations of Landlord to correct any defects in the construction or
workmanship in the Base Building items and, if Landlord performs the work
related to the upfitting of the Demised Premises, the upfitting of the Demised
Premises.
4.06. Tenant shall not be liable for the payment of rent until Landlord
delivers possession in accordance with Section 4.03 hereof.
4.07. Tenant shall have the option to extend the term of this Lease-for
the additional Option Period(s) as set forth in Schedule I, by providing written
notice of extension to Landlord of its election to extend the term, such notice
to be given at least one hundred twenty (120) days prior to the expiration of
the then-current term. During each Option Period(s), the Annual Minimum Rent for
the Demised Premises shall be as specified in Schedule I. For purposes of this
Lease, the term "Market Rate" or "Market" shall mean the annual minimum rent
established by Landlord to reflect Landlord's estimate of the annual minimum
rent which could reasonably be expected from a third party if the Demised
Premises were released for the Option Period; however, the annual minimum rent
so established shall not exceed the annual minimum rent then generally being
quoted by Landlord to prospective tenants for comparable tenant space in the
Building, and if no comparable tenant space is then being leased in the
Building, the annual minimum rent so established shall not exceed the annual
minimum rent then being quoted by landlords for new tenants for comparable
tenant space in first-class, high-rise office buildings in the vicinity of the
Building(in each case as adjusted to allow for a Base Amount and Tax Base Amount
equivalent to that specified in Schedule D. For purposes of the foregoing
definition, all references as to the quotation of annual minimum rent shall mean
the rent quoted for a term comparable to the Option Period to the fullest extent
possible. In the event, Tenant exercises its option to extend the term of this
Lease pursuant to this Section 4.07, at the request of Tenant, Landlord, at its
sole cost, shall cause the Demised Premises to be recarpeted and painted and new
wallcoverings to be installed with all such reupfittings to be of the
substantially same standard and quality as the original upfitting of the Demised
Premises pursuant to Exhibit C attached hereto. In written request of Tenant,
Landlord-shall advise Tenant as to the Annual Minimum Rent which will be
applicable for each Option Period; however, Landlord shall-not be obligated to
provide a written quotation to Tenant regarding any Option Period sooner than
one year prior to the expiration of the then current term of this Lease.
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4.08. Tenant shall have .the option to lease the fourth floor of the
Building (the "Option Space") at the end of the fifth lease year and at the end
of each lease year thereafter upon one hundred eighty (180) days prior written
notice to Landlord. Rent for the Option Space shall commence on the date the
Landlord delivers the Option Space to the Tenant free from other tenants and
occupants. The Option Space shall be leased on the same terms and conditions as
all other portions of the Demised Premises as provided herein; provided,
however, that Tenant's upfitting allowance related to the Option Space shall be
limited to S18.00 per rentable square foot for any space which has not been
upfitted previously add S 7.50 per rentable square foot for arty space which has
been previously upfitted, with both allowances subject to adjustment based upon
any percentage increase in the numerical level of the Consumer Price Index for
Urban Consumers - South, All Items (base year 1982-84= 100) as published by the
Bureau of Labor Statistics of the U.S. Department of Labor (the "Index");
provided, however, that such allowances shall not increase more than three
percent (3.0%) per annum (calculated on a cumulative basis) from December 31,
1994. If the base for the Index is changed so that 1982-84 prices &re no longer
taken as representing 100, an appropriate adjustment will be applied to the
published indices so as to rate them to the aforesaid base in which 1982-84
prices are taken as representing 100. In the event the Index is discontinued,
such other substantially similar government index or publication as chosen by
Landlord and Tenant for a reasonable replacement shall be used for such
adjustment.
Landlord shall not be prohibited from leasing space or providing other
options for space on the fourth floor of the Building for periods which conflict
with Tenant's expansion option. Notwithstanding anything mentioned above, the
actual delivery date of the Option Space may vary up to one hundred eighty (180)
days based upon obligations to the existing tenant(s). Additionally, Tenant will
act reasonably and in good faith to phase its occupancy requirements so as to
promote orderly vacating of the Option Space. Tenant shall pay rent on the
Option Space upon occupancy by Tenant and only for the portion of the Option
Space so occupied.
4.09. In addition to the option granted to Tenant pursuant to Section
4.08 hereunder, if, during the initial term or any in effect Option Period,
Tenant notifies the Landlord in writing of its need for additional space, the
Landlord will then notify Tenant in writing at least ninety (90) days before
additional space becomes available in the Building, and the Tenant shall have an
option, exercisable by written notice to the Landlord within thirty (30) days
after receipt of the Landlord's notice, to lease all or a portion (so long as
the remaining portion, in Landlord's reasonable opinion, is of such size and is
so configured as to constitute marketable and leasable space) of this additional
space at the same rate and on the same terms and conditions as the Demised
Premises. The provisions of Section 4.08 with respect to the commencement of
rent shall apply equally to the additional space leased by Tenant pursuant to
the provisions of this Section 4.09.
ARTICLE V. RENT AND ADJUSTMENTS TO RENT
5.01. Except as otherwise expressly provided herein, during the term of
this Lease, Tenant shall pay to Landlord, in equal monthly installments in
advance, the "Annual Minimum Rent" specified in Schedule 1, which rental is
based upon the total square feet of rentable area
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contained in the Demised Premises. Subject to Additional Provisions A and B of
Schedule I of this Lease, all monthly installments shall be due and payable on
the first day of each calendar month without any abatement, deduction or set off
whatsoever during the term of this Lease, except that the first monthly
installment shall be due and payable upon commencement of the term of the Lease;
however, if the Commencement Date falls on a day other than the first day of a
calendar month, the minimum rent for the period from the Commencement Date
through the last day of such month shall be calculated by dividing the Annual
Minimum Rent for the first lease year by 365 and multiplying the quotient by the
number of days from the Commencement Date to the last day of such month.
5.02. Subject to Additional Provision B of Schedule 1, for each
calendar year or portion thereof during the term of this Lease, Tenant also
covenants and agrees to pay to Landlord, in the manner hereafter specified as
additional rent, (i) Tenant's pro rata portion of the Operating Expenses
(hereafter defined) which exceeds the Base Amount (hereafter defined) multiplied
times the Total Rentable Area (hereafter defined) and (ii) Tenant's pro rata
portion of the Real Estate Taxes (hereafter defined) which exceed the Tax Base
Amount (hereafter defined) multiplied times the Total Rentable Area.
Except as set forth in Schedule 1, within ninety (90) days of the end
of each calendar year, Landlord shall provide Tenant with an itemized statement
as to the additional rent due from Tenant, which shall be calculated by stating
the total Operating Expenses and Total Real Estate Taxes for the calendar year,
dividing these amounts by the Total Rentable Area, subtracting the Base Amount
and the Tax Base Amount, respectively from the foregoing quotients, and
multiplying the differences by the number of square feet of rentable area in the
Demised Premises, or by the average daily space if the term of this Lease
commenced or ended during such calendar year or the size of the Demised Premises
changed during the calendar year. "Average daily space" as used in the preceding
sentence means the square footage calculated by adding the number of square feet
of rentable area in the Demised Premises for each day of the calendar year
during which the term of this Lease was in effect and dividing the sum by the
number of days in the calendar year. The statement shall also reflect the
installment payments of additional rent received by Landlord from Tenant as
described hereinbelow and indicate the amount (if any) due from the Tenant,
which amount shall be due and payable within thirty (30) days of the delivery of
the statement to Tenant. If a credit is due Tenant, such credit shall be applied
against future payments of Annual Minimum Rent or additional rent due from
Tenant so long as this Lease remains in effect, and if this Lease is no longer
in effect, remitted by Landlord to Tenant within thirty (30) days of delivery of
the statement to Tenant Landlord shall keep detailed books and records
accurately reflecting the cost of all items related to the calculation of
Operating Expenses and Real Estate Taxes as provided herein and shall provide
reasonable documentation upon the written request of Tenant as to the
calculation of the same. Such books and records shall be available for
reasonable inspection by Tenant during normal business hours at Landlord's
principal place of business or such other location as such books and records are
kept for a period of three (3) years after each statement as to the additional
rent due from Tenant is provided by Landlord.
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Subject to Additional Provisions A and B of Schedule I, during the term
of this Lease, Tenant shall pay to Landlord monthly installments of additional
rent as follows:
(a) On the first day of each month through the month in which the
Tenant receives the first annual statement referred to hereinabove, Tenant shall
pay to Landlord the Initial Operating Expense Installment Payment set forth in
Schedule I; and (b) On the first day of each full month following receipt of
each annual statement referred to hereinabove until receipt of the annual
statement for the next succeeding calendar year, Tenant shall pay to Landlord
one-twelfth (1/12) of the additional rent due as provided above with regard to
the Demised Premises for the calendar year referred to in such annual statement
(without adjustment based on average daily space for partial occupancy by
Tenant). The terms Base Amount,. Tax Base Amount. and Total Rentable Area. shall
have the meanings set forth in Schedule I
The term Real Estate Taxes shall mean all ad valorem real or personal
property taxes and use and occupancy taxes (excluding income taxes) related to
the land and the Building For the purpose of this Lease a tax assessment, levy
or charge (excluding income taxes) based wholly or partially as a capital levy
or otherwise on the rents received by Landlord, or a license fee measured by the
rent payable by Tenant to Landlord, or any other such additional or substitute
tax, assessment, levy, imposition or charge (excluding income taxes) as the part
thereof so measured or based shall be deemed to be included within the term
"Real Estate Taxes".
The term "Operating Expenses" shall mean all direct expenses, costs and
charges incurred by Landlord for the operation, maintenance and repair (.repair.
as used in connection with operating expenses shall not include alterations or
other capital expenditures as defined by GAAP] made by Landlord) of the land and
the Building (as a first-class office building) and shall include, but not be
limited to, the following:
(a) "Labor Costs" (hereinafter defined) for the services of the
following classes of employees performing services required in connection with
the operation, repair and maintenance of the Land and the Building:
(i) the Building superintendent, his assistants and the clerical staff
attached to the Building superintendent's office;
(ii) window cleaners and miscellaneous handymen;
(iii) cleaners and janitors employed in and about the Building for the
performance of services;
(iv) landscaping contractors;
(v) watchmen and persons engaged in patrolling and protecting the Land
and the Building;
(vi) carpenters, engineers, mechanics, electricians and plumbers
engaged in the operation, repair and maintenance of any part of the Building,
the plazas and sidewalks around the Land and
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the Building and the heating, air-conditioning, ventilating, plumbing,
electrical and elevator systems of the Building; and
(vii) personnel engaged exclusively in supervision of any of the
persons mentioned above.
(b) The cost of materials and supplies used in the operation, repair
and maintenance of the Land and the Building;
(c) The cost of replacement for tools and equipment used in the
operation, repair and maintenance of the Building;
(d) The amounts paid to managing agents for the Building, if any,
employed by Landlord (but the amount of management fees which Landlord includes
in Operating Expenses shall not exceed 3 % of the gross rental income related to
the Building), or for reasonable legal, accounting or other professional fees
(necessarily incurred in connection with the operation of the Building);
(e) Amounts charged to Landlord by contractors for services, materials
and supplies furnished in connection with the operation, repair and maintenance
of any part of the Building, and the Land, and the heating, air-conditioning,
ventilating, plumbing, electrical, elevator and other systems of the Land and
the Building;
(f) Amounts charged to Landlord by contractors for window cleaning, and
cleaning and janitorial services in and about the Land and the Building;
(g) Premiums paid by Landlord for All Risk Insurance for the Building,
including, without limitation, fire insurance, with such extended coverage,
vandalism, and malicious mischief coverage, and rent insurance coverage, of the
type and character usually earned by landlords of similar first-class buildings
and premiums paid for comprehensive general public liability insurance against
claims for bodily injury, death or property damage, and if carried by Landlord,
boiler and machinery insurance and war risk insurance, and such other insurance
as may from time to time be reasonably required by Landlord to protect Landlord
against other insurable hazards, which at the time are commonly insured against
in the case of premises similar to the Building;
(h) Water charges and sewer rents;
(i) The cost of utilities necessary for the operation, maintenance and
repair of the Land and the Building;
(j) The cost of electricity (including without limitation, fuel
adjustment charges, but excluding any amounts billed directly to tenants of the
Building) used to operate lighting fixtures, power appliances, machinery,
heating, ventilation and air-conditioning equipment and all equipment used in
connection with the operation, maintenance and repair of the Building and the
offices therein located; and
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(k) The cost of all taxes related to the operation, maintenance and
repair of the land and the Building, excluding Real Estate Taxes.
Operating Expenses shall be "net only," and for that purpose shall be
reduced by the amounts of any supplier reimbursement, credit, recoupment,
discount, credit reduction, or allowance received by Landlord in connection with
such expenses and shall exclude all tenant specific pass through items (e.g.
after hours HVAC). Anything to the contrary contained in this Lease
notwithstanding, to the extent that there is more than five (5%) percent of the
Total Rentable Area unoccupied during any calendar year, Operating Expenses
shall he calculated based upon expenses attributable to an assumed occupancy of
ninety-five (95 %) percent of the Total Rentable Area.
"Labor Costs" for purposes of calculating Operating Expenses shall mean
all expenses incurred by Landlord or on Landlord's behalf which shall be
directly related to employment of personnel for the Land and the Building,
including amounts incurred for wages, salaries and other compensation for
services, payroll, social security, unemployment and other similar taxes,
workmen's compensation insurance, disability benefits, pensions,
hospitalization, retirement plans and group insurance, uniforms and working
clothes and the cleaning thereof, and expenses imposed on or on behalf of the
Landlord pursuant to any collective bargaining agreement. In the event any
personnel do not devote their full time and attention to matters related to the
Building, all of the foregoing costs shall be appropriately prorated.
The following items shall be excluded from Operating Expenses:
(a) Labor Costs in respect of individual partners of Landlord or if a
partner or a successor of Landlord be a corporation, then in respect of officers
and executives of such partner or successor Landlord;
(b) Any insurance premium to the extent that Landlord is reimbursed for
such premium;
(c) The cost of any items for which Landlord is reimbursed by insurance
or otherwise compensated;
(d) The cost of any additions to the Building subsequent to the date of
original construction or any alterations or refurbishing of space leased to
other tenants of the Building;
(e) The cost of any maintenance or repair of interior improvements of
any tenant space (exclusive of normal janitorial services and replacement of the
Building standard items, e.g., light bulbs);
(f) Cost of any work or service performed for any tenant (including
Tenant) at such tenant's cost;
(g) Cost of installing, operating, and maintaining any specialty
service such as an observatory, broadcasting facility, retail store, sundry
shop, food service, newsstand, or
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concession, but only to the extent such costs exceed those which normally would
be expected to be incurred had such space been general office space;
(h) Cost of correcting defects in construction;
(i) Salaries of officers and executives of Landlord or any affiliated
entity;
(j) Cost of any items for which Landlord is reimbursed by insurance,
condemnation, or otherwise;
(k) Cost of any repair in accordance with Article X111, entitled
'Damage or Destruction', of this Lease;
(1) Interest on debt or amortization payments on any note or mortgage
and rental under any groundlease or other underlying lease;
(m) Any real estate brokerage commissions or other cost incurred in
procuring tenants or any fee in lieu of such commission;
(n) = and elevators, and rental payments floor equipment not used in
the operation or maintenance of the Building;
(o) Any expenses for repairs or maintenance which are covered by
warranties and service contracts, to the extent such maintenance and repairs are
made at no cost to landlord; and
(p) Legal expenses arising out of the construction of the improvements
on the Land or the enforcement of the provisions of any lease affecting the Land
or the Building, including this Lease.
If the Landlord is not furnishing any particular work or service (the
cost of which if performed by the Landlord would constitute an Operating
Expense) to a tenant who has undertaken to perform such work or service in lieu
of the performance thereof by Landlord, Operating Expenses shall be deemed for
the purposes of this section to be adjusted by an amount equal to the additional
Operating Expense which would reasonably have been incurred during such period
by the Landlord if it had at its own expense furnished such work or service to
such tenant.
5.03. Tenant shall, during each Tax Year, pay all taxes (if any)
assessed against improvements to the Demised Premises in excess of the generally
prevailing standard of improvements to office space in the Building. Tenant
agrees on request to furnish to Landlord, a list of the permanent leasehold
improvements not taxed as personal property owned by Tenant, together with the
cost thereof, and Tenant agrees to pay, when due, to Landlord, as additional
rent, an amount equal to the taxes assessed (if any) against such extraordinary
leasehold improvements, computed on the basis of the appraised value of such
improvements as determined by the taxing authority, adjusted to establish the
assessed value utilized by such taxing authority, multiplied by the rate of
taxation against real property for such Tax Year.
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5.04. All sums payable hereunder by Tenant, or which are at the expense
of Tenant, are deemed and considered to be rent, and, if not paid, Landlord
shall have with respect thereto and the rights and remedies provided for herein
and by law for the non-payment of rent.
5.05. Rent and all sums payable hereunder by Tenant to Landlord or by
Landlord to Tenant shall be paid promptly as and when the same shall become due
and payable without notice or demand except as expressly provided herein, and
without abatement, deduction or set off to such person or persons and at such
place as Landlord may from time to time designate in writing. Unless otherwise
specified, all sums due hereunder shall be remitted to the "Notice Address" of
the party to receive such payments, as set forth in Schedule I.
5.06. If this Lease terminates other than at the end of a calendar
year, the additional rent (if any) attributable to Operating Expenses and Real
Estate Taxes for the year during which the Lease terminates shall be prorated,
using the average daily space concept as defined in Section 5.02 and shall he
paid on demand by Tenant or any overage remitted to Tenant, as the case may be,
even though the term may have expired before the demand is made. Landlord may
make a reasonable estimate based on actual expenses of any sums to become due
under this clause (net of any such expenses paid by Tenant for such period) and
may make a written demand therefor at any time during the last two (2) months of
a term which is about to expire. Tenant shall pay the amount of said estimate
(net of any such expenses paid by Tenant for such period) or Landlord shall pay
to Tenant, subject to adjustment upwards or downwards, when all information
necessary for a final calculation shall be available.
5.07. In the event that any documentary stamp tax, or tax levied on the
rental, leasing or letting of the Demised Premises (excluding income taxes),
whether local, state, or federal, is required to be paid due to the recording
hereof, the cost thereof shall be borne by Tenant.
5.08. Any payment by Tenant or receipt by Landlord of a lesser amount
than the monthly rent stipulated in this Lease shall be deemed a payment on
account of the earliest rent due, and no endorsement or statement on any check
or on any letter accompanying any check or payment as rent shall be deemed an
accord and satisfaction and Landlord may accept such check or payment without
prejudice to its right to recover the balance of the rent or to pursue any other
remedy provided for in this Lease.
5.09. As security for Tenant's faithful performance of all of Tenant's
obligations hereunder and for Tenant's payment of any damages to which Landlord
may bc entitled, Tenant has herewith deposited with Landlord the "Security
Deposit" set forth in Schedule 1, to be returned within thirty (30) days after
the expiration or termination of this Lease if Tenant has performed all of
Tenant's obligations under this Lease. Landlord shall be entitled to intermingle
such deposit with its own funds and to use such sum for any purpose as it may
determine. The Security Deposit shall be deemed the property of Landlord, and
Tenant shall not be entitled to any interest on said deposit.
5.10. Anything to the contrary contained in this Lease notwithstanding,
in the event any payment of Rent or Additional Rent is more than fifteen (15)
days past due, an administrative charge equal to five (5%) percent of such past
due sum shall be due and payable by Tenant to
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Landlord, upon written demand. In addition, any sum more than thirty (30) days
past due shall bear interest at a per annum rate equal to the Prime Rate quoted
in The Wall Street Journal from time to time plus 200 basis points (or the
highest lawful rate allowable if less than such rate) until paid in full, with
said interest to be due and payable by Tenant to Landlord upon written demand.
ARTICLE VI. LANDLORD'S SERVICES
6.01. Landlord shall:
(a) maintain in reasonable condition and repair the roof, foundation,
structure, infrastructure, utilities, HVAC, other Building operating systems,
exterior and common areas of the Building;
(b) furnish reasonable amounts of heat and air-conditioning (.HVAC.) to
the Demised Premises from 8:00 a.m. until 6:00 p.m. on Monday through Friday
except holidays, and on Saturdays from 9:00 a.m. until 2:00 p.m. upon request.
After hours HVAC shall be provided by Landlord upon request of Tenant, so long
as all costs of providing such after hours service, as reasonably estimated by
Landlord, are borne by Tenant. Irrespective of the foregoing, as to each whole
floor occupied by Tenant, in lieu of Saturday HVAC hours, Tenant shall be
provided with three hundred (300) free hours of HVAC service per year (pro rated
for the first and last lease years) at such times as Tenant may request;
however, there shall be no carry over of any unused free hours from one calendar
year to the next. Chilled fluid lines shall be available in the Building to
permit Tenant to obtain supplemental air conditioning on a twenty-four (24) hour
basis, but Tenant shall be responsible for all installation and energy costs
associated therewith;
(c) provide sufficient elevator service for reasonable access to the
Demised Premises;
(d) furnish reasonable janitorial services for the Demised Premises;
(e) furnish a reasonable amount of electricity for normal office use in
the Demised Premises; however, Landlord's agreement to furnish electricity does
not include electricity for electrical equipment requiring voltage greater than
that supplied by the Building's standard receptacle circuits unless Landlord's
prior written consent is obtained, which consent shall not unreasonably be
withheld so long as Tenant is responsible for all costs of installation and
which consent shall be deemed to have been granted if such requirement is
contained in Exhibits! C or C-l of this Lease;
(f) furnish in the first floor lobby of the Building a directory of the
firm or business names of tenants of the Building: and
(g) provide access to hookups to any public or private right-of-ways
adjacent to the Land for utilities or other communications systems available to
Landlord or Tenant and accessible by Tenant by air or underground at Tenant's
sole cost and expense
6.02. If Landlord defaults in the performance or observance of any
provision of Paragraph 6.01 (except to the extent permitted under Paragraph
6.04), Tenant shall give
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Landlord notice specifying in what manner Landlord has defaulted and if such
default shall not be cured by Landlord within the period of time provided for
elsewhere in this Lease, and otherwise within thirty (30) consecutive days after
the delivery of such notice (except that if such default cannot be cured within
said thirty (30) day period, this period shall be extended for a reasonable
additional time, provided that Landlord commences to cure such default within
the thirty (30) day period and proceeds diligently thereafter to effect such
cure), Tenant may terminate this Lease or pursue any other remedy available at
law or in equity to Tenant; provided, however, that if the Demised Premises is
not supplied with utilities required pursuant to the terms of this Lease due to
circumstances within the control of Landlord for a period in excess of 24 hours
after of receipt by Landlord of Tenant's verbal notice of such failure, Tenant
may terminate this Lease or pursue any other remedy available at law or in
equity. No such termination shall relieve Landlord of its obligations under the
Lease, and such obligations shall survive any such termination. No action on the
part of Tenant shall limit or prejudice the right of Tenant to obtain the
maximum amount of damages allowed by any statute or rule of law related to any
such default by Landlord.
6.03. If, in Landlord's opinion, any Tenant shall:
(a) use any utility, including but not limited to electricity or water,
in an excessive, extravagant or unreasonable manner, Landlord may install meters
measuring the quantity of such utility used in the Demised Premises and Tenant,
on demand, shall pay Landlord (i) all costs incident to said installation and
necessary appurtenances thereto and (ii) additional rent equal to the cost of
the utility used at rates equal to the rate that the supplying utility company
with its own equipment would then charge Tenant for such service. If this method
of furnishing utilities to Tenant is utilized, an adjustment will be made to
Operating Expenses under Section 5.02 to reflect Tenant's payment of its own
utilities in such a manner as to avoid requiring Tenant to pay more than the
excess utilities and its ratable share of normal utilities usage included in
Operating Expenses; and
(b) require removal of refuse and rubbish in larger quantities or more
often than is reasonable in the rendering of janitorial service, Tenant on
demand shall pay the removal cost to Landlord.
(c) No action will be taken by Landlord under Section 6.03(a) or
6.03(b) without notice provided to Tenant and Tenant having the same opportunity
to cure as provided to Tenant pursuant to Article XIX of this Lease.
6.04. Landlord reserves the right, without liability or responsibility
to Tenant and without reduction or deduction of rent, to suspend or stop on a
temporary basis and without unreasonable hardship to Tenant in the conduct of
its business in the Demised Premises, from time to time, service of heating,
air-conditioning, elevator, plumbing, electrical or any other system or service
required to be furnished or rendered under the terms of this Lease, when such
shall become necessary due to accident, emergency, strike, repairs, alterations,
improvements, replacements, or any other cause, including laws, orders, or
regulations of any federal, state or municipal authority or inability of
Landlord to obtain electricity, or other suitable fuel.
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6.05. Landlord shall not be responsible for any maintenance or repair
of tenant upfitting of the Demised Premises (exclusive of janitorial services
and/or repair or replacement of the Base Building standard items, e.g., light
bulbs).
ARTICLE VII. MISCELLANEOUS COVENANTS OF TENANT
7.01. Tenant shall promptly correct any violation of and comply with
all applicable local, state and federal laws, ordinances, notices, permits, or
statements of occupancy, requirements, orders and regulations, now or hereafter
in effect, with respect to Tenant's conduct or use of the Demised Premises, an
