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EXHIBIT 10.17
UAI TECHNOLOGY, INC.
OFFICE LEASE
THIS LEASE ("Lease") is made 7/1/98, 199_, between UAI TECHNOLOGY,
INC. ("Landlord") and UNITED THERAPEUTICS CORPORATION ("Tenant"). Landlord is a
Corporation, organized under the laws of Delaware, with principal offices at 00
Xxxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx Xxxx, XX 00000 (the "Premises"). Tenant is a
Corporation, organized under the laws of DELAWARE , with principal offices
located at 0 XXXXX XXXXX, XXXXXXXX XXXXXXXX XXXX, XX 00000.
ARTICLE 1
PREMISES
1.01 PREMISES. Landlord leases to Tenant offices in the Premises as outlined on
the Floor Plan attached as Exhibit A. The Rental Space consists of approximately
4,600 square feet of rentable space. Tenant will have primary access to space
identified in Exhibit A and identified as Section I or Section II. Tenant shall
have shared access to space identified as Section III. Primary access shall mean
access which is available for the exclusive use of Tenant. Shared access shall
mean space which will be shared by the Tenant and the Landlord and available for
use by both. The Building is shown as Exhibit B and is located on the land
described in Exhibit C ("Land"). The Premises contain the fixtures,
improvements, and other property now installed plus any Landlord Improvements
required by Section 4.05 and Exhibit D.
1.02 COMMON AREAS. Tenant and its agents, employees, and invitees have the
non-exclusive right with others designated by Landlord to the free use of the
common areas ("Common Areas") in the Building and on the Land for the Common
Areas' intended and normal purpose. Common Areas include, sidewalks, parking
areas and driveways located outside Building I, as identified in Exhibit B, and
hallways, public bathrooms, common entrances, lobby, and other similar public
areas and access ways identified in Sections I, II and III on Exhibit A.
Landlord may change the Common Areas if the changes do not materially and
unreasonably interfere with Tenant's access to or use of the Premises.
ARTICLE II
USE
Tenant shall use the Premises for general office use, unless Landlord gives its
advance written consent to another use. Landlord warrants that applicable laws,
ordinances, regulations, and restrictive covenants permit the Premises to be
used for general offices. Tenant shall not create a nuisance or use the Premises
for any immoral or illegal purposes. Tenant shall not use the space for any
scientific experimentation, except for such processes that are performed
completely by computer, without the use of any prohibited substances, as
referenced in section 7.04 below. Tenant will inform all its employees, and when
applicable, visitors, of appropriate usage of space as defined in this section
and in other sections of this Lease. Tenant will be directly responsible for any
violation of any terms of usage of Premises by any parties associated with
Tenant.
ARTICLE III
TERM
The Lease begins ("Commencement Date") on the earlier of:
(a) The date Tenant takes possession and occupies the
Premises; or
(b) After (i) the Premises are substantially completed according
to Section 4.01, (ii) Landlord gives the notice required by
Section 4.02, (iii) Landlord is ready, willing and able to
deliver actual possession of the Premises, and (ii) the
Target Date set in Section 4.01 has arrived.
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Except as provided in Section 5.02 below, the Lease ends ("Expiration Date") at
11:59 p.m. on the last day of the calendar month of June, three (3) years
following the Commencement Date, unless terminated earlier under this Lease.
Within thirty (30) days after the Commencement Date, the parties shall confirm
in writing the Commencement and Expiration Dates.
ARTICLE IV
COMPLETION OF PREMISES
4.01 SUBSTANTIAL COMPLETION. Landlord shall use its best efforts to
substantially complete the Premises by July 1, 1998 ("Target Date").
Substantially complete means completing Landlord's Improvements (Section 4.05
and Exhibit D) so that Tenant can use the Premises for their intended purposes.
4.02 NOTICE. Landlord shall give Tenant at least ten (10) days advance notice of
the estimated substantial completion date if different from the Target Date. If
the estimated substantial completion date changes at any time after Landlord
gives notice, then Landlord shall give ten (10) days advance notice of the new
estimated substantial completion date.
4.03 INSPECTION AND PUNCHLIST. Within 30 days after the Commencement Date, the
parties shall inspect the Premises, have all systems demonstrated, and prepare a
punchlist. The punchlist shall list incomplete, minor, or insubstantial details
of construction; necessary mechanical adjustments; and needed finishing touches.
Tenant's acceptance of possession of the Premises after such inspection shall be
conclusive evidence that the Premises were in good order and satisfactory
condition, except for any punchlist items. Landlord reserves the right to
inspect and reasonably approve Tenant's improvements.
4.04 DELAYED POSSESSION. Tenant may cancel this Lease if Landlord cannot deliver
actual possession of the substantially complete Premises by ninety (90) days
after the Target Date. To cancel, Tenant must give notice to Landlord within
sixty (60) days after the expiration of such ninety (90) day period and before
Landlord gives notice to Tenant that the Premises are substantially complete.
The ninety (90) day period above shall be extended in the time equal to any
period of delay caused by Tenant. Within thirty (30) days after cancellation,
Landlord shall return to Tenant prepaid consideration including Rent and
deposits, and neither party shall have any further rights or obligations under
this Lease.
4.05 LANDLORD IMPROVEMENTS. Landlord, at its expense, shall make improvements to
the Premises in accord with Exhibit D ("Landlord Improvements"). The Landlord
Improvements shall be completed in a good and workmanlike manner and comply with
all applicable laws, ordinances, rules, and regulations of governmental
authorities.
ARTICLE V
RENT AND SECURITY
5.01 BASE RENT. Tenant shall pay to Landlord Base Rent during the Term, as
follows:
Section I, consisting of approximately 2,800 square feet,
including allocated shared space shown on Exhibit A
Annual rent of $46,200, monthly rent of $3,850
Section II, consisting of approximately 1,800 square feet,
including allocated shared space shown on Exhibit A
Annual rent of $29,700, monthly rent of $2,475
The Base Rent shall be paid:
(a) without advance notice, demand, offset, or deduction;
(b) by the first day of each month during the Term; and
(c) to Landlord at its address set forth in Section 13.03 or
as Landlord may specify in writing to Tenant.
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If the Term does not begin on the first day or end on the last day of a month,
the Base Rent for that partial month shall be prorated by multiplying the
monthly Base Rent by a fraction, the numerator of which is the number of days of
the partial month included in the Term and the denominator of which is the total
number of days in the full calendar month.
If Tenant fails to pay part or all of the Base Rent by the fifth (5th) day of
the month due, it is past due, the Tenant shall also pay:
(a) a late charge equal to four percent (4%) of the unpaid Base
Rent and Additional Rent, plus
(b) interest at eighteen percent (18%) per annum or the maximum
then allowed by applicable law, whichever is less, on the
remaining unpaid balance, retroactive to the date originally
due until paid.
5.02 SPECIAL TERMINATION PROVISION FOR SECTION II. Upon six (6) months written
notice from Landlord to Tenant, Landlord may require Tenant to vacate offices
and associated common areas located in Section II of Exhibit A. All obligations
of Tenant for renting such space would be terminated upon Tenant's vacating said
space as of such termination date, or earlier date if agreed to by Landlord.
5.03 CPI ADJUSTMENT. The Base Rent shall be subject to upward adjustments, based
on the Consumer Price Index, one year after the Commencement Date of this Lease
and at the end of each subsequent year, during the term of this Lease in
accordance with the following provisions:
(a) The index to be used for this adjustment shall be the
Consumer Price Index (U.S., All Urban Consumers, All Items,
1982-84 equaling a base of 100, as published by the U.S.
Department of Labor, Bureau of Labor Statistics, Washington,
D.C.).
(b) The Base Period Consumer Price Index shall be subtracted
from the Adjustment Period Consumer Price Index; the
difference shall be divided by the Base Period Consumer
Price Index. This quotient shall then be multiplied by the
Base Rent. The result shall added to the Base Rent. This
arithmetical sum shall then be the Adjusted Base Rent for
such immediately succeeding leasehold year which shall be
paid in monthly installments.
(c) If the Consumer Price Index is, at any time during the term
of this Lease, discontinued or no longer published, then the
most nearly comparable published measure of inflation, as
determined by Landlord in its sole discretion, shall be
substituted for the purpose of this calculation.
5.04 EXPENSE AND TAX ESCALATIONS. Base Rent shall be adjusted on each
anniversary of the Commencement Date by increasing the Base Rent paid during the
preceding year by an amount equal to the Tenant's pro rata share of the increase
of Operating Expenses and Real Estate Taxes as defined hereinafter.
(a) TAXES. Should the percentage rate for Real Estate Taxes on
the space occupied by Tenant increase in any calendar year,
then Tenant shall pay to Landlord, as additional rent, an
amount equal to Tenant's Proportion of the amount by which
Taxes for any calendar year were in excess of the amount
that said Taxes would have been had it not been for such
increase..
(b) OTHER EXPENSES. Should the per-square-foot cost for Other
Expenses associated with operating the Premises (including
but not limited to Janitorial Services, Utilities, Building
Maintenance, Grounds Maintenance, Insurance, and other
services directly related to the operations of the Premises)
increase, then Tenant shall pay to Landlord, as additional
rent, an amount equal to Tenant's Proportion of the amount
by which Other
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Expenses for any calendar year were in excess of the amount
that said Other Expenses would have been if the increase had
not taken place.
5.05 PERSONAL PROPERTY TAX. Before delinquency Tenant shall pay taxes assessed
during the Term against trade fixtures or personal property placed by Tenant in
the Premises. If these taxes are assessed against the Building, Tenant shall pay
its share of the taxes to Landlord within ten (10) days after receiving
Landlord's written statement setting forth the amount of taxes applicable to
Tenant's property and the basis for the charge to Tenant. Tenant's failure to
pay within the ten-day period shall entitle Landlord to the same remedies it has
upon Tenant's failure to pay Base Rent or Additional Rent.
5.06 SECURITY DEPOSIT. The Tenant has deposited one month's rent, as defined in
Section 5.01 above (Security Deposit) with Landlord to secure Tenant's
performance of its Lease obligations. If Tenant defaults Landlord may, after
giving five (5) days advance notice to Tenant, without prejudice to Landlord's
other remedies, apply part or all of the Security Deposit to cure Tenant's
default. If Landlord so uses part or all of the Security Deposit, then Tenant
shall within ten (10) days after written demand, pay Landlord the amount used to
restore the Security Deposit to its original amount. Landlord may mix the
Security Deposit with its own funds, and the Security Deposit shall not earn
interest thereon. Any part of the Security Deposit not used by Landlord as
permitted by this paragraph shall be returned to Tenant within thirty (30) days
after the Lease ends.
ARTICLE VI
AFFIRMATIVE OBLIGATIONS
6.01 COMPLIANCE WITH LAWS.
(a) LANDLORD'S COMPLIANCE. Landlord warrants, that on the
Commencement Date, the Premises will comply with all
applicable laws, ordinances, rules, and regulations of
governmental authorities ("Applicable Laws"). During the
Term, Landlord shall comply with all Applicable Laws
regarding the Premises and Building except to the extent
Tenant must comply under Section 6.01(b).
(b) TENANT'S COMPLIANCE. Tenant shall comply with all Applicable
Laws (i) regarding the physical condition of the Premises,
but only to the extent the Applicable Laws pertain to the
particular manner in which Tenant uses the Premises; or (ii)
that do not relate to the physical condition of the Premises
but relate to the lawful use of the Premises and with which
only the occupant can comply, such as laws governing maximum
occupancy, workplace smoking, and illegal business
operations, such as gambling. Notwithstanding the foregoing,
Tenant shall comply with any requirements imposed under the
Americans with Disabilities Act of 1990 ("ADA") which relate
exclusively to the Premises.
6.02 SERVICES AND UTILITIES.
(a) SERVICES. Landlord shall provide at its expense, subject to
reimbursement under Section 5.04:
(i) Heating, ventilation, and air conditioning
("HVAC") for the Premises during business hours to
maintain temperatures for comfortable use and
occupancy;
(ii) Janitorial services to the Premises (all business
days, Monday through Friday);
(iii) Hot and cold water sufficient for drinking,
lavatory, toilet, and ordinary cleaning purposes;
(iv) Electricity to the Premises at all times that
provides electric current in reasonable amounts
necessary for normal office use, lighting, and
HVAC;
(v) Replacement of lighting tubes, lamp ballasts, and
bulbs;
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(vi) Extermination and pest control when necessary; and
(vii) Maintenance of Common Areas in a manner consistent
with other comparable office buildings in the
Raleigh, North Carolina area. The maintenance
shall include cleaning, HVAC, illumination, snow
shoveling, deicing, repairs, replacements, lawn
care, and landscaping.
(b) BUSINESS HOURS. "Business Hours" means:
(i) Monday through Friday, 8:00 a.m. through
5:30 p.m., and
(ii) excludes the following holidays or the days on
which the holidays are designated for observance:
New Year's Day, Memorial Day, July Fourth, Labor
Day, Thanksgiving Day, and Christmas Day.
(c) 24 HOUR ACCESS. Tenant, its employees, agents, and invitees
shall have access to the Premises, twenty-four (24) hours a
day, seven (7) days a week. During non business hours Landlord
may restrict access by requiring persons to show a badge or
identification card issued by Landlord. Landlord shall not be
liable for denying entry to any person unable to show the
proper identification. Landlord may temporarily close the
Building if required in an emergency. Landlord shall use its
best efforts to close the Building during non business hours
only. If, however, the Building must be closed during business
hours, then the Base Rent and Additional Rent shall xxxxx
during any closing that lasts more than twenty-four (24)
hours.
(d) EXTRA SERVICES. Landlord, shall have the right to monitor the
Tenant's use of electricity consumption within the Premises.
Whenever Landlord knows that any tenant (including Tenant) is
using extra services because of either non business-hours use
or high electricity consumption installations, Landlord may
directly charge that tenant for the extra use and exclude
those charges from Operating Expenses. Extra services include:
(i) NON BUSINESS-HOURS USE. Electricity required by
Tenant during non business hours shall be supplied
upon reasonable advance verbal notice. If more
than one tenant directly benefits from these
services then the cost shall be allocated
proportionately between or among the benefiting
tenants based upon the amount of time each tenant
benefits and the square footage each leases.
(ii) EXCESS UTILITY USE. Tenant shall not place or
operate in the Premises any electrically operated
equipment or other machinery, other than
typewriters, personal computers, adding machines,
reproduction machines, and other machinery and
equipment normally used in offices, unless Tenant
receives Landlord's advance written consent.
Landlord shall not unreasonably withhold or delay
its consent, but Landlord may require payment for
the extra use of electricity caused by operating
this equipment or machinery. Landlord may require
that special, high electricity consumption
installations of Tenant such as computer or
reproduction facilities (except personal computers
or normal office photocopy machines) be separately
sub-metered for electrical consumption at Tenant's
cost.
(iii) PAYMENT. Tenant's charges for the utilities
provided under (i) and (ii) above shall be one
hundred percent (100%) of Landlord's actual cost
of labor and utilities and shall be Additional
Rent.
Tenant's failure to pay the charges in (i) and
(ii) above within thirty (30) days of receiving
a proper and correct invoice shall entitle
Landlord to the same remedies it has upon
Tenant's failure to pay Base Rent.
(e) INTERRUPTION OF SERVICES. Landlord does not warrant that any
services Landlord supplies will not be interrupted. Services
may be interrupted because of accidents, repairs, alterations,
improvements, or any reason beyond the reasonable control of
Landlord, and such an interruption shall not:
(i) be considered an eviction or disturbance of
Tenant's use and possession of the Premises;
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(ii) make Landlord liable to Tenant for damages;
(iii) xxxxx Base Rent or Additional Rent; or
(iv) relieve Tenant from performing Tenant's Lease
obligations.
6.03 REPAIRS AND MAINTENANCE.
(a) TENANT'S CARE OF PREMISES. Tenant shall:
(i) keep the Premises and fixtures in good order;
(ii) make repairs or replacements to the Premises or
Building needed because of Tenant's misuse or
negligence, except to the extent that the repairs
or replacements are covered by Landlord's
insurance or the insurance Landlord is required to
carry under this Lease, whichever is greater;
(iii) repair and replace special equipment or decorative
treatments installed by or at Tenant's request and
that serve the Premises only, except
(1) to the extent the repairs or
replacements are needed because of
Landlord's misuse or primary
negligence, and are not covered by
Tenant's insurance or the insurance
Tenant is required to carry under
this Lease, whichever is greater; or
(2) if the Lease is terminated under
Article IX (Loss of Premises); and
(iv) not commit waste.
(b) LANDLORD'S REPAIRS. Except for repairs and replacements that
Tenant must make under paragraph 6.03(a), Landlord shall pay
for and make all other repairs and replacements to the
Premises, Common Areas and Building (including Building
fixtures and equipment). Landlord shall make the repairs and
replacements to maintain the Building in a condition
consistent with other comparable office buildings in the
Raleigh, North Carolina area. This maintenance shall include
the roof, foundation, exterior walls, interior structural
walls, all structural components, and all systems, such as
mechanical, electrical, HVAC, and plumbing.
(c) TIME FOR REPAIRS. Repairs or replacements required under
Sections 6.03(a) or 6.03(b) shall be made within a
reasonable time (depending on the nature of the repair or
replacement needed) after receiving notice or having actual
knowledge of the need for a repair or replacement.
(d) SURRENDERING THE PREMISES. Upon the Expiration Date or
earlier termination of this Lease, Tenant shall surrender
the Premises to Landlord in the same condition that the
Premises were in on the Commencement Date except for:
(i) ordinary wear and tear;
(ii) damage by the elements, fire, and other casualty
unless Tenant would be required to repair under
paragraph 6.03(a);
(iii) condemnation;
(iv) damage arising from any cause not required to be
repaired or replaced by Tenant; and
(v) alterations as permitted by this Lease unless
consent was conditioned on their removal.
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On surrender Tenant shall remove from the Premises its
personal property, trade fixtures, and any alterations
required to be removed under Section 7.01 and repair any
damage to the Premises caused by the removal. Any items not
removed by Tenant as required above shall be considered
abandoned. Landlord may dispose of abandoned items as
Landlord chooses and xxxx Tenant for the cost of their
disposal, minus any revenues received by Landlord for their
disposal.
Should Premises not be in the same condition as they were on
the Commencement Date, except as provided above, Tenant
shall be required to take steps necessary to restore said
condition. Should Tenant not perform such measures, Landlord
reserves the right to perform any required repairs to bring
Premises back to said condition at Tenant's expense.
Landlord may use funds held as Tenant's Security Deposit for
payment of such repair. However, if such repairs are in
excess of the amount of Security Deposit, Tenant will be
responsible for paying to Landlord the amount still owed.
ARTICLE VII
NEGATIVE OBLIGATIONS
7.01 ALTERATIONS.
(a) DEFINITIONS. "Alterations" means alterations, additions,
substitutions, installations, changes, and improvements, but
excludes minor decorations and the Improvements Landlord is to
make under Section 4.05 and Exhibit D.
(b) CONSENT. Tenant shall not make Alterations without the
Landlord's advance written consent.
(c) CONDITIONS OF CONSENT. Landlord may condition its consent in
Section 7.01(b) on all or any part of the following:
(i) Tenant shall furnish Landlord with reasonably detailed
plans and specifications of the alterations as requested
by Tenant.
(ii) The Alterations shall be performed and completed-
(1) in accord with the submitted plans and
specifications approved by Tenant and Landlord.
(2) in a workmanlike manner,
(3) in compliance with all applicable laws,
regulations, rules, ordinances, and other
requirements of governmental authorities,
(4) using new materials and installations at least
equal in quality to the original Building
materials and installations,
(5) by not disturbing the quiet possession of the
other tenants,
(6) by not interfering with the construction,
operation, or maintenance of the Building, and
(7) with due diligence;
(iii) tenant shall use workers and contractors who Landlord
employs or approves in writing, which approval shall not
be unreasonably withheld or unduly delayed;
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(iv) Tenant shall modify plans and specifications
because of reasonable conditions set by Landlord
after reviewing the plans and specifications;
(v) Tenant's contractors shall carry builder's risk
insurance in an amount then customarily carried by
prudent contractors and workers' compensation
insurance for its employees in statutory limits,
naming Landlord as an additional insured, to the
extent its interest may appear;
(vi) Tenant's workers or contractors shall work in
harmony and not unreasonably interfere with
Landlord's workers or contractors or other tenants
and their workers or contractors;
(vii) Tenant shall, at Landlord's sole option, supply a
lien and completion bond, bank letter of credit,
or other security satisfactory to Landlord, in an
amount equal to the estimated cost to insure
Landlord against materials and mechanics' liens
and against completion of the Alterations;
(viii) Tenant shall give Landlord at least fifteen (15)
days advance notice before beginning any
alterations so that Landlord may post or record
notices of nonresponsibility;
(ix) Upon demand Tenant shall give Landlord evidence
that it complied with any condition set by
Landlord;
(x) If Tenant completes alterations, Tenant shall give
Landlord complete as-built mylar drawings of the
Alterations after they are finished; and
(xi) Tenant shall remove any unusual additions,
alterations and repair any damage from their
removal by the Expiration Date.
(d) PAYMENT AND OWNERSHIP OF THE ALTERATIONS. Alterations made
under this paragraph shall be at Tenant's expense. The
Alterations shall belong to Landlord when this Lease ends
except for those Alterations required by Landlord to be
removed by Tenant, if any, under Section 7.01(c)(xi).
Nevertheless, Tenant may remove its trade fixtures, furniture,
equipment, and other personal property if Tenant promptly
repairs any damage caused by their removal.
7.02 ASSIGNMENT AND SUBLEASING.
(a) CONSENT REQUIRED. Tenant shall not transfer, mortgage,
encumber, assign, or sublease all or part of the Premises
without Landlord's advance written consent. Notwithstanding
the foregoing, Tenant may assign or sublease all or part of
the Premises without first obtaining Landlord's consent to (i)
any entity, directly controlling, controlled by or under
common control of Tenant, or (ii) to any corporation with
which Tenant may merge or consolidate or to any corporation
with which it may transfer all or substantially all of its
assets.
7.03 EMPLOYMENT LAW REQUIREMENTS
(a) Tenant shall take such precautions as to ensure business
practices appropriate with all applicable employment laws.
Tenant shall promptly respond to any charges by Landlord,
other tenants of the Premises, or civil authorities in regard
to complaints against any and all types of employment law
violations. Tenant agrees to hold Landlord harmless from any
and all claims or violations of employment law by employees or
agents of Tenant.
7.04 HAZARDOUS MATERIALS AND ANIMAL TESTING.
(a) No hazardous materials of any kind, including but not limited
to any biochemical materials, anything regarded as a toxic
material, and anything radioactive, are permitted within the
Premises or on any property owned by Landlord.
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(b) No animal testing or experimentation is permitted on the
Premises or on any property owned by Landlord.
ARTICLE VIII
INSURANCE
8.01 INSURANCE.
(a) LANDLORD'S BUILDING INSURANCE. Landlord shall keep the
Building, including the Landlord Improvements insured against
damage and destruction by fire, earthquake, vandalism, and
other perils in the amount of the full replacement value of
the Building, as the value may exist from time to time.
(b) PROPERTY INSURANCE. Each party shall keep its personal
property and trade fixtures in the Premises and Building
insured with "all risks" insurance in an amount to cover one
hundred percent (100%) of the replacement cost of the property
and fixtures. Tenant shall also keep any non-Building-standard
improvements made to the Premises at Tenant's request insured
to the same degree as Tenant's personal property. Tenant's
property insurance shall also provide for business
interruption/extra expense coverage in sufficient amounts.
(c) LIABILITY INSURANCE. Each party shall maintain contractual and
comprehensive general liability insurance, including limits of
no less than $1,000,000 per occurrence/$2,000,000 aggregate
per location subject to no deductible contractual liability
covering the indemnities specified herein. This policy must be
written on an occurrence basis.
Policy shall be endorsed to name Landlord as additional
insured. Definition of additional insured shall include all
Partners, Officers, Directors, Employees, agents and
representatives of the named entity including its managing
agent. Further, coverage for the additional insured shall
apply on a primary basis irrespective of any other
insurance, whether collectible or not.
(d) WORKERS COMPENSATION AND EMPLOYEE LIABILITY INSURANCE.
Affording coverage under the Workers Compensation laws of the
State of North Carolina and Employers Liability coverage
subject to a limit of no less than $100,000 each employee,
$100,000 each accident, $500,000 policy limit.
(e) UMBRELLA LIABILITY INSURANCE. Tenant shall maintain umbrella
liability insurance at not less than a $3,000,000 limit
providing excess coverage over all limits and coverage noted
in Sections 8.01.c and 8.01.d above. This policy shall be
written on an occurrence basis.
(f) WAIVER OF SUBROGATION. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant hereby waive and release
each other of and from any and all right of recovery, claim,
action or cause of action, against each other, their agents,
officers and employees, for any loss or damage that may occur
to the Premises, improvements to the Building, or personal
property within the Building, by reason of fire or the
elements, regardless of cause or origin, including negligence
of Landlord or Tenant and their agents, officers and
employees. Landlord and Tenant agree immediately to give their
respective insurance companies which have issued policies of
insurance covering all risk of direct physical loss, written
notice of the terms of the mutual waivers contained in this
Section, and to have the insurance policies properly endorsed,
if necessary, to prevent the invalidation of the insurance
coverage by reason of the mutual waivers. The waiver does not
apply to claims caused by a party's willful misconduct.
If despite a party's best efforts it cannot find an
insurance company meeting the criteria in Section 8.01(f)
that will give the waiver at reasonable commercial rates,
then it shall give notice to the other party within thirty
(30) days after the Commencement Date. The other party shall
then have thirty (30) days to find an insurance company that
will issue the waiver. If the other party also cannot find
such an insurance company, then both parties shall be
released from their obligations to obtain the waiver.
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(g) INCREASE IN INSURANCE. If due to Tenant's particular use of
the Premises, Landlord's insurance rates are increased, Tenant
shall pay the reasonable and direct increase. In addition, the
amounts of coverage required by this Lease are subject to
review by Landlord at the end of each Adjustment Period. At
each review, if necessary to maintain the same level of
coverage that existed on the Commencement Date, the amounts of
coverage shall be increased to the lesser of:
(i) the amounts of coverage carried by prudent
landlords and tenants of comparable office
buildings in the Raleigh, North Carolina area; or
(ii) twenty-five percent (25%) higher than the previous
insurance amounts.
(h) INSURANCE CRITERIA. Insurance policies required by this Lease
shall:
(i) be issued by insurance companies licensed to do
business in the state of North Carolina with
general policyholder's ratings of at least A and a
financial rating of at least XI in the most
current Best's Insurance Reports available on the
date of this Lease;
(ii) name the non procuring party as an additional
insured as its interest may appear (other
landlords or tenants may also be added as
additional insurers in a blanket policy);
(iii) provide that the insurance not be canceled or
materially changed in the scope or amount of
coverage unless thirty (30) days' advance notice
is given to the non procuring party;
(iv) be primary policies - not as contributing with, or
in excess of, the coverage that the other party
may carry;
(v) be permitted to be carried through a "blanket
policy" or "umbrella" coverage;
(vi) have property deductibles not greater than $5,000;
and
(vii) be maintained during the entire Term.
(i) EVIDENCE OF INSURANCE. By the Commencement Date and upon
each renewal of its insurance policies, Tenant shall give
copies of certificates of insurance to Landlord. The
certificate shall specify amounts, types of coverage, the
waiver of subrogation, and the insurance criteria listed in
Section 8.01(f). The policies shall be renewed or replaced
and maintained by Tenant. If Tenant fails to give the
required certificate within thirty (30) days after the
notice of demand for it, Landlord may obtain and pay for
that insurance, but is not obligated to do so, and receive
reimbursement from the party required to have the insurance.
8.02 INDEMNIFICATION.
(a) TENANT'S INDEMNITY. Tenant indemnifies, defends, and holds
Landlord harmless from claims, including but not limited to
claims:
(i) for personal injury, death, or property damage;
(ii) for incidents occurring in or about the Premises
or Building; and
(iii) caused by the negligence or willful misconduct of
Tenant, its agents, employees, or invitees.
When the claim is caused by the joint negligence or willful
misconduct of Tenant and Landlord or Tenant and a third party
unrelated to Tenant, except Tenant's agents, employees, or
invitees, Tenant's duty to defend, indemnify, and hold
Landlord harmless shall be in proportion to Tenant's allocable
share of the joint negligence or willful misconduct.
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(b) LANDLORD'S INDEMNITY. Landlord indemnifies, defends, and holds
Tenant harmless from claims:
(i) for personal injury, death, or property damage;
(ii) for incidents occurring in or about the Premises
or Building; and
(iii) caused by the negligence or willful misconduct of
Landlord, its agents, employees, or invitees.
When the claim is caused by the joint negligence or willful
misconduct of Landlord and Tenant or Landlord and a third
party unrelated to Landlord, except Landlord's agents,
employees, or invitees, Landlord's duty to defend, indemnify,
and hold Tenant harmless shall be in proportion to Landlord's
allocable share of the joint negligence or willful misconduct.
(c) RELEASE OF CLAIMS. Notwithstanding Section 8.02(a) and (b),
the parties release each other from any claims either party
("Injured Party") has against the other to the extent the
claim is covered by the Injured Party's insurance.
8.03 LIMITATION OF LANDLORD'S LIABILITY.
(a) TRANSFER OF PREMISES. If the Building is sold or transferred,
voluntarily or involuntarily, Landlord's Lease obligations and
liabilities accruing after the transfer shall be the sole
responsibility of the new owner, and
(i) the new owner expressly agrees in writing to
assume Landlord's obligations; and
(ii) the Tenant's funds in the hands of Landlord, such
as the Security Deposit, shall be given to the new
owner.
(b) LIABILITY FOR MONEY JUDGMENT. If Landlord, its employees,
officers, directors or partners are ordered to pay Tenant a
money judgment because of Landlord's default, Tenant's sole
remedy to satisfy the judgment shall be to execute against
Landlord's interest in the Building and Land. Under no
circumstance will Landlord, or its officers, directors,
partners or employees be personally liable for any money
judgment.
ARTICLE IX
LOSS OF PREMISES
9.01 DAMAGES.
(a) DEFINITION. "Relevant Space" means:
(i) the Premises, excluding Tenant's fixtures
installed by or at the request of Tenant;
(ii) access to the Premises; and
(iii) any part of the Building that provides essential
services to the Premises.
(b) REPAIR OF DAMAGE. If the Relevant Space is damaged in part or
whole from any cause and the Relevant Space can be
substantially repaired and restored within sixty (60) days
from the date of the damage using standard working methods and
procedures, Landlord shall at its expense promptly and
diligently repair and restore the Relevant Space to
substantially the same condition as existed before the damage.
This repair and restoration shall be made within sixty (60)
days from the date of the damage unless the delay is due to
causes beyond Landlord's reasonable control.
If the Relevant Space cannot be repaired and restored within
the sixty (60) day period, then either party,
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may, within thirty (30) days after determining that the
repairs and restoration cannot be made within sixty (60) days,
cancel the Lease by giving notice to the other party.
Nevertheless, if the Relevant Space is not repaired and
restored within one year from the date of the damage, then
Tenant may cancel the Lease at any time within thirty (30)
days after the sixty (60) day period. Tenant shall not be able
to cancel this Lease if its willful misconduct causes the
damage unless Landlord is not promptly and diligently
repairing and restoring the Relevant Space.
(c) DETERMINING THE EXTENT OF DAMAGE. If the parties cannot agree
in writing whether the repairs and restoration will take more
than one year to make, then the determination will be made by
Landlord's architect. Landlord will make its best effort to
determine damage within ten (10) business days of an
occurrence.
(d) ABATEMENT. Unless the damage is caused by Tenant's willful
misconduct, the Base Rent and Additional Rent shall xxxxx in
proportion to that part of the Premises that is unfit for use
in Tenant's business. The abatement shall consider the nature
and extent of interference to Tenant's ability to conduct
business in the Premises and the need for access and essential
services. The abatement shall continue from the date the
damage occurred until ten (10) business days after Landlord
completes the repairs and restoration to the Relevant Space or
the part rendered unusable and notice to Tenant that the
repairs and restoration are completed, or until Tenant again
uses the Premises or the part rendered unusable, whichever is
first.
(e) TENANT'S PROPERTY. Notwithstanding anything else in this
Article IX, Landlord is not obligated to repair or restore
damage to Tenant's trade fixtures, furniture, equipment, or
other personal property, or any Tenant improvements.
(f) DAMAGE TO BUILDING. If:
(i) more than twenty percent (20%) of the Building is
damaged and the Landlord decides not to repair and
restore the Building;
(ii) any mortgagee of the Building shall not allow
adequate insurance proceeds for repair and
restoration;
(iii) the damage is not covered by Landlord's insurance;
or
(iv) the Lease is in the last twelve (12) months of its
Term, then Landlord may cancel this Lease. To
cancel, Landlord must give notice to Tenant within
thirty (30) days after the Landlord knows of the
damage. The notice must specify the cancellation
date, which shall be at least thirty (30) but not
more than sixty (60) days after the date notice is
given.
(g) CANCELLATION. If either party cancels this Lease as permitted
above, then this Lease shall end on the day specified in the
cancellation notice. The Base Rent, Additional Rent, and other
charges shall be payable up to the cancellation date and shall
account for any abatement. Landlord shall promptly refund to
Tenant any prepaid, unaccrued Base Rent and Additional Rent,
accounting for any abatement, plus Security Deposit, if any,
less any sum then owing by Tenant to Landlord.
9.02 CONDEMNATION.
(a) DEFINITIONS. The terms "eminent domain," "condemnation,"
"taken," and the like in Section 9.02 include takings for
public or quasi-public use and private purchases in place of
condemnation by any authority authorized to exercise the power
of eminent domain.
(b) ENTIRE TAKING. If the entire Premises or the portions of the
Building required for reasonable access to, or the reasonable
use of, the Premises are taken by eminent domain, this Lease
shall automatically end on the earlier of:
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(i) the date title vests; or
(ii) the date Tenant is dispossessed by the condemning
authority.
(c) PARTIAL TAKING. If the taking of a part of the Premises
materially interferes with Tenant's ability to continue its
business operations in substantially the same manner and space
then Tenant may terminate this Lease on the earlier of:
(i) the date when title vests;
(ii) the date Tenant is dispossessed by the condemning
authority; or
(iii) sixty (60) days following notice to Tenant of the
date when vesting or dispossession is to occur.
If there is a partial taking and this Lease continues, then
the Lease shall end as to the part taken and the Base Rent and
Additional Rent shall xxxxx in proportion to the part of the
Premises taken and Tenant's pro rata share shall be equitably
reduced.
(d) TERMINATION BY LANDLORD. If title to a part of the Building
other than the Premises is condemned, and in the Landlord's
reasonable opinion, the Building should be restored in a
manner that materially alters the Premises, Landlord may
cancel this Lease by giving notice to Tenant. Cancellation
notice shall be given within sixty (60) days following the
date title vested. This Lease shall end on the date specified
in the cancellation notice, which date shall be at least
thirty (30) days but not more than ninety (90) days after the
notice is given.
(e) RENT ADJUSTMENT. If the Lease is canceled as provided in
Sections 9.02(b), (c), or (d), then the Base Rent, Additional
Rent, and other charges shall be payable up to the
cancellation date, and shall account for any abatement.
Landlord, considering any abatement, shall promptly refund to
Tenant any prepaid, unaccrued Base Rent and Additional Rent
plus Security Deposit, if any, less any sum then owing by
Tenant to Landlord.
(f) REPAIR. If the Lease is not canceled as provided for in
Sections 9.02(b), (c), or (d), then Landlord at its expense
shall promptly repair and restore the Premises to the
condition that existed immediately before the taking, except
for the part taken, to render the Premises a complete
architectural unit, but only to the extent of the:
(i) condemnation award received for the damage; and
(ii) the Landlord's original obligation under Section
4.05 and Exhibit D.
(g) AWARDS AND DAMAGES. Landlord reserves all rights to damages
paid because of any partial or entire taking of the Premises.
Tenant assigns to Landlord any right Tenant may have to the
damages or award. Further, Tenant shall not make claims
against Landlord or the condemning authority for damages.
Notwithstanding anything else in this Paragraph 9.02(g),
Tenant may claim and recover from the condemning authority a
separate award for Tenant's moving expenses, business
dislocation damages, Tenant's personal property and fixtures,
the unamortized costs of leasehold improvements paid for by
Tenant, excluding the Landlord's Improvements, and any other
award that would not substantially reduce the award payable to
Landlord. Each party shall seek its own award, as limited by
this provision, at its own expense, and neither shall have any
right to the award made to the other.
(h) TEMPORARY CONDEMNATION. If part or all of the Premises are
condemned for a limited period of time ("Temporary
Condemnation"), this Lease shall remain in effect. The Base
Rent and Additional Rent and Tenant's obligations for the part
of the Premises taken shall xxxxx during the Temporary
Condemnation in
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proportion to the part of the Premises that Tenant is unable
to use in its business operations as a result of the Temporary
Condemnation. Landlord shall receive the entire award for any
Temporary Condemnation.
ARTICLE X
DEFAULT
10.01 TENANT'S DEFAULT.
(a) DEFAULTS. Each of the following constitutes a default
("Default"):
(i) Tenant's failure to pay Base Rent or Additional
Rent within five (5) days after it is past due and
payable;
(ii) Tenant's failure to pay Base Rent or Additional
Rent by the due date, at any time during a
calendar year in which Tenant has already received
two (2) notices of its failure to pay Base Rent or
Additional Rent by the due date;
(iii) Tenant's failure to observe any of the material
terms of the Lease Agreement. If Tenant shall
violate any of the material terms of Section 7.04
above, Tenant will be required to immediately cure
such violation. If such violation is not cured,
Landlord may require Tenant to evacuate space, and
may have the option to terminate this Lease
Agreement. Tenant will be responsible for all
costs incurred by Landlord in attempting to cure
any violation under Section 7.04 above.
(iv) Tenant's failure to perform or observe any other
material Tenant obligation after a period of
thirty (30) business days or the additional time,
if any, that is reasonably necessary to promptly
and diligently cure the failure, after it receives
notice from Landlord setting forth in reasonable
detail the nature and extent of the failure and
identifying the applicable Lease provision(s);
(v) Tenant's abandoning or vacating the Premises;
(vi) Tenant's failure to vacate or stay any of the
following within sixty (60) days after they occur:
(1) a petition in bankruptcy is filed by or
against Tenant;
(2) Tenant is adjudicated as bankrupt or
insolvent;
(3) a receiver, trustee, or liquidator is
appointed for all or a substantial part
of Tenant's property; or
(4) Tenant makes an assignment for the
benefit of creditors.
10.02 LANDLORD'S REMEDIES.
(a) REMEDIES. Landlord in addition to the remedies given in this
Lease or under the law, may do any one or more of the
following if Tenant commits a material Default under Section
10.01:
(i) end this Lease, and Tenant shall then surrender
the Premises to Landlord;
(ii) enter and take possession of the Premises either
with process of law and remove Tenant, with or
without having ended the Lease; and
(iii) alter locks and other security devices at the
Premises with process of law.
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Tenant waives claims for damages by reason of Landlord's
reentry, repossession, or alteration of locks or other
security devices and for damages by reason of any legal
process.
(b) NO SURRENDER. Landlord's exercise of any of its remedies or
its receipt of Tenant's keys shall not be considered an
acceptance or surrender of the Premises by Tenant. A surrender
must be agreed to in writing signed by both parties.
(c) RENT. If Landlord terminates this Lease or Tenant's right to
possess the Premises because of a material Default, Landlord
may hold Tenant liable for Base Rent, Additional Rent, and
other indebtedness accrued to the date the Lease expires or is
terminated. Tenant shall also be liable for the Base Rent,
Additional Rent and other indebtedness that otherwise would
have been payable by Tenant during the remainder of the Term
had there been no material default, reduced by any sums
Landlord receives by reletting the Premises during the Term.
(d) OTHER EXPENSES. Tenant shall also be liable for that part of
the following sums paid by Landlord and attributable to that
part of the Term ended due to Tenant's Default:
(i) reasonable broker's fees incurred by Landlord for
reletting part or all of the Premises prorated for
that part of the reletting Term ending
concurrently with the then current Term of this
Lease;
(ii) the cost of removing and storing Tenant's
property;
(iii) other necessary, reasonable and direct expenses
incurred by Landlord in enforcing its remedies,
including, without limitation, reasonable
attorneys fees.
(e) PAYMENT. Tenant shall pay the sums due in Sections 10.02(c)
and (d) within thirty (30) days of receiving Landlord's proper
and correct invoice for the amounts.
(f) RELETTING. Landlord may relet for a shorter or longer period
of time than the Lease Term and make any necessary repairs or
alterations. Landlord may relet on any reasonable terms
including a reasonable amount of free rent.
10.03 SELF-HELP. If Tenant defaults, Landlord may, without being obligated and
without waiving the Default, cure the Default, and may enter the Premises to do
so. Tenant shall pay Landlord, upon demand, as Additional Rent, all costs,
expenses and disbursements incurred by Landlord.
10.04 SURVIVAL. The remedies permitted by this Article X and the parties'
indemnities in Section 8.02 shall survive the Expiration Date or earlier
termination of this Lease.
10.05 TENANT'S REMEDIES. If Landlord shall default in the performance of any
material covenant to be performed under this Lease, then
(i) if the default is not cured by Landlord within five days of written
request from Tenant, Landlord shall be responsible for the
necessary, reasonable and direct expenses incurred by Tenant in
correcting such default and
(ii) if, in connection with the enforcement of the Tenant's rights or
remedies, the Tenant shall incur fees and expenses for services
rendered, and Tenant shall prevail in litigation, then such fees and
expenses shall be immediately reimbursed by Landlord. If Landlord
shall prevail in litigation then such fees and expenses shall be
immediately reimbursed by Tenant.
ARTICLE XI
NON DISTURBANCE
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11.01 SUBORDINATION.
(a) MORTGAGES. Subject to Section 11.01(b), this Lease is
subordinate to prior or subsequent mortgages covering the
Building.
(b) FORECLOSURES. If any mortgage is foreclosed, then:
(i) This Lease shall continue;
(ii) Tenant's quiet possession shall not be disturbed
if Tenant is not in Default;
(iii) Tenant will attorn to and recognize the mortgagee
or purchaser at foreclosure sale (Successor
Landlord) as Tenant's landlord for the remaining
Term; and
(iv) The Successor Landlord shall not be bound by:
(1) any payment of Base Rent or Additional
Rent for more than one month in advance,
except the Security Deposit and free
rent, if any, specified in the Lease,
(2) any amendment, modification, or ending
of this Lease without Successor
Landlord's consent after the Successor
Landlord's name is given to Tenant
unless the amendment, modification, or
ending is specifically authorized by the
original Lease and does not require
Landlord's prior agreement or consent,
and
(3) any liability for any act or omission of
a prior Landlord.
(c) SELF-OPERATING. This Section 11.01 is self-operating. However,
Tenant shall promptly execute and deliver any documents needed
to confirm this arrangement.
11.02 ESTOPPEL CERTIFICATE.
(a) OBLIGATION. Tenant shall from time to time, within ten (10)
business days after receiving a written request from Landlord,
execute and deliver to Landlord a written statement which may
be relied upon by Landlord and any third party with whom the
Landlord is dealing and which shall certify:
(i) the accuracy of the Lease document;
(ii) the Commencement and Expiration Dates of the
Lease;
(iii) that the Lease is unmodified and in full effect or
in full effect as modified, stating the date and
nature of the modification;
(iv) whether to the Tenant's knowledge the Landlord is
in default or whether the Tenant has any claims or
demands against Landlord, and, if so, specifying
the Default, claim, or demand; and
(v) to other correct and reasonably ascertainable
facts that are covered by the Lease terms.
(b) REMEDY. The Tenant's failure to comply with its obligations in
Section 11.02(a) shall be a Default, except that the cure
period for this Default shall be five (5) business days after
the Tenant receives notice of the Default.
11.03 QUIET POSSESSION. If Tenant is not in default, and subject to the Lease
terms, Landlord warrants that Tenant's peaceable and quiet enjoyment of the
Premises shall not be disturbed by anyone claiming by or through Landlord.
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ARTICLE XII
LANDLORD'S RIGHTS
12.01 RULES.
(a) RULES. Tenant, its employees and invitees, shall comply with:
(i) the Rules attached as Exhibit E; and
(ii) reasonable modifications and additions to the
Rules adopted by Landlord.
(b) CONFLICT WITH LEASE. If a Rule issued under Section 12.01(a)
conflicts with or is inconsistent with any Lease provision,
the Lease provision controls.
(c) ENFORCEMENT. Although Landlord is not responsible for another
tenant's failure to observe the Rules, Landlord shall not
unreasonably enforce the Rules against Tenant.
12.02 MECHANIC'S LIENS.
(a) DISCHARGE LIEN. Tenant shall, within twenty (20) days after
receiving notice of any mechanic's lien for material or work
claimed to have been furnished to the Premises on Tenant's
behalf and at Tenant's request:
(i) discharge the lien; or
(ii) post a bond equal to the amount of the disputed
claim with companies reasonably satisfactory to
Landlord.
If Tenant posts a bond, it shall contest the validity of the
lien. Tenant shall indemnify, defend, and hold Landlord
harmless from losses incurred from these liens.
(b) LANDLORD'S DISCHARGE. If Tenant does not discharge the lien or
post the bond within the twenty (20) day period, Landlord may
pay any amounts, including interest and legal fees, to
discharge the lien. Tenant shall then be liable to Landlord
for the amounts paid by Landlord as Additional Rent.
(c) CONSENT NOT IMPLIED. This Section 12.02 is not a consent to
subject Landlord's property to these liens.
12.03 RIGHT TO ENTER.
(a) PERMITTED ENTRIES. Landlord and its agents, servants, and
employees may enter the Premises at reasonable times, and at
any time if an emergency, without charge, liability, or
abatement of Base Rent, to:
(i) examine the Premises;
(ii) make repairs, alterations, improvements, and
additions either required by the Lease or
advisable to preserve the integrity, safety, and
good order of part or all of the Premises or
Building;
(iii) provide janitorial and other services required by
the Lease;
(iv) comply with Applicable Laws;
(v) show the Premises to prospective lenders or
purchasers;
(vi) post notices of non responsibility;
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(vii) remove any Alterations made by Tenant in violation
of Section 7.01; and
(viii) post "For Sale" signs and, during the one hundred
twenty (120) days immediately before this Lease
ends, post "For Lease" signs.
(b) ENTRY CONDITIONS. Notwithstanding Section 12.03(a), entry is
conditioned upon Landlord:
(i) giving Tenant at least twenty-four (24) hours
advance notice, except in an emergency;
(ii) promptly finishing any work for which it entered;
and
(iii) causing the least practical interference to
Tenant's business.
12.04 HOLDOVER.
(a) HOLDOVER STATUS. If Tenant continues occupying the Premises
after the Term ends ("Holdover") then:
(i) if the Holdover is with Landlord's written
consent, it shall be a month-to-month tenancy,
terminable on thirty (30) days advance notice by
either party.
(ii) if the Holdover is without Landlord's written
consent, then Tenant shall be a
tenant-at-sufferance. Tenant shall pay by the
first day of each month twice the amount of Base
Rent and Additional Rent due in the last full
month immediately preceding the Holdover period
and shall be liable for any damages suffered by
Landlord because of Tenant's Holdover, Landlord
shall retain its remedies against Tenant who holds
over without written consent.
(b) HOLDOVER TERMS. The Holdover shall be on the same terms and
conditions of the Lease except:
(i) the Term;
(ii) Base Rent and Additional Rent;
(iii) the extension Term is deleted;
(iv) the Quiet Possession provision is deleted;
(v) Landlord's obligation for services and repairs is
deleted; and
(vi) consent to an assignment or sublease may be
unreasonably withheld and delayed.
12.05 SIGNS. Tenant shall not place or have placed any other signs, listings,
advertisements, or any other notices anywhere in the Building or on the Premises
without Landlord's prior written consent, such consent not to be unreasonably
withheld or delayed. Landlord will provide direction signs for Tenant on the 00
Xxxxxxxxx Xxxxx campus.
12.06 RIGHT TO RELOCATE. If the demised Premises comprise less than fifty
percent (50%) of the floor where located, Landlord, at its option, may
substitute for the Demised Premises other space (hereafter called "Substitute
Premises") within the project before the commencement date or at any time during
the term or any extension of their lease. Insofar as reasonably possible, the
Substitute Premises shall have a comparable square foot area, configuration, and
amenities substantially similar to the Demised Premises.
Landlord shall give Tenant at least ninety (90) days written notice of its
intention to relocate Tenant to the Substitute Premises. This notice will be
accompanied by a floor plan of the Substitute Premises. After such notice,
Tenant Shall have ten (10) days within which to agree with Landlord on the
proposed new space and reasonable rent adjustments as may
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be appropriate and unless such agreement is reached within such period of time,
this lease shall terminate at the end of the ninety (90) day period of time
following the aforesaid notice. In the event suitable substitute space is not
available after Landlord's written notice then either party may terminate this
lease with sixty (60) days advance written notice.
Landlord agrees to construct or alter, at its own expense, the Substitute
Premises as expeditiously as possible so that they are in substantially the same
condition that the Demised Premises were in immediately prior to the relocation.
Landlord shall have the right to reuse the fixtures, improvements, and
alterations used in the Demised Premises. Tenant agrees to occupy the Substitute
Premises as soon as Landlord's work is substantially completed.
Landlord shall pay Tenant's reasonable cost of moving Tenant's furnishings,
trade fixtures, and inventory to the Substitute Premises. Except as provided
herein, Tenant agrees that all of the obligations of this lease, including the
payment of rent, will continue despite Tenant's location. Tenant's rent shall
xxxxx from the date the Demised Premises are closed until the date the
Substitute Premises are open for business. Tenant agrees to use all reasonable
efforts to open for business in the Substitute Premises as quickly as is
reasonably possible under the circumstance.
Except as provided above, Landlord shall not be liable or responsible in any way
for damages or injuries suffered by Tenant pursuant to the relocation in
accordance with this provision including, but not limited to, loss of goodwill,
business, or profits.
ARTICLE XIII
MISCELLANEOUS
13.01 BROKER'S WARRANTY. The parties warrant that XXXXXXX AND CO. is the only
broker they dealt with on this Lease. The party who breaches this warranty shall
defend, hold harmless, and indemnify the non breaching party from any claims or
liability arising from the breach. Landlord is solely responsible for paying the
commission of XXXXXXX & CO.
13.02 ATTORNEY'S FEES. In any litigation between the parties regarding this
Lease, the losing party shall pay to the prevailing party all reasonable
expenses and court costs including attorneys' fees incurred by the prevailing
party. A party shall be considered the prevailing party if:
(a) it initiated the litigation and substantially obtains the
relief it sought, either through a judgment or voluntary
action before (after it is scheduled) trial or judgment;
(b) the other party withdraws its action without substantially
obtaining the relief it sought; or
(c) it did not initiate the litigation and judgment is entered for
either party, but without substantially granting the relief
sought.
13.03 NOTICES. Unless a Lease provision expressly authorizes verbal notice, all
notices under this Lease shall be in writing and sent by registered or certified
mail, postage prepaid, as follows:
To Tenant: United Therapeutics Corporation (mailing address)
ATTN: Xx. Xxxxxx Xxxxxxxx
X.X. Xxx 00000
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000
and
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To Landlord: UAI Technology, Inc.
ATTN: Xxxxxx X. Xxxxx
PO Box 13628, 00 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000
Either party may change these persons or addresses by giving notice as provided
above. Tenant shall also give required notices to Landlord's mortgagee after
receiving notice from Landlord of the mortgagee's name and address. Notice shall
be considered given and received on the latest original delivery or attempted
delivery date as indicated on the postage receipt(s) of all persons and
addresses to which notice is to be given.
13.04 PARTIAL INVALIDITY. If any Lease provision is invalid or unenforceable to
any extent, then except that provision, the remainder of this Lease shall
continue in effect and be enforceable to the fullest extent permitted by law.
13.05 WAIVER. The failure of either party to exercise any of its rights is not a
waiver of those rights. A party waives only those rights specified in writing
and signed by the party waiving its rights.
13.06 BINDING ON SUCCESSORS. This Lease shall bind the parties' heirs,
successors, representatives, and permitted assigns.
13.07 GOVERNING LAW. This Lease shall be governed by the laws of the state in
which the Building is located.
13.08 LEASE NOT AN OFFER. Landlord gave this Lease to Tenant for review. It is
not an offer to lease. This Lease shall not be binding unless signed by both
parties and an originally signed counterpart is delivered to Tenant by JUNE
30, 1998.
13.09 RECORDING. Recording of this Lease is prohibited except as allowed in this
paragraph. At the request of either party, the parties shall promptly execute
and record, at the cost of the requesting party, a short form memorandum
describing the Premises and stating this Lease's Term, its Commencement and
Expiration Dates, and other information the parties agree to include.
13.10 SURVIVAL OF REMEDIES. The parties' remedies shall survive the expiration
or termination of this Lease when caused by the Default of the other party.
13.11 AUTHORITY OF PARTIES. Each party warrants that it is authorized to enter
into the Lease, that the person signing on its behalf is duly authorized to
execute the Lease, and that no other signatures are necessary.
13.12 BUSINESS DAYS. Business day means Monday through Friday inclusive,
excluding holidays identified at Section 6.02(b). Throughout this Lease,
wherever "days" are used the term shall refer to calendar days. Wherever the
term "business days" is used the term shall refer to business days.
13.13 ENTIRE AGREEMENT. This Lease contains the entire agreement between the
parties about the Premises and Building. Except for the Rules for which Section
12.01(a) controls, this Lease shall be modified only by a writing signed by both
parties.
13.14 DEFINITION OF LEASE. This Lease consists of the following:
(a) Title Page;
(b) Table of Contents;
(c) Articles I through XIII;
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(d) Signature Page;
(e) Exhibits A through E.
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease
the day and year first above written.
LANDLORD: UAI TECHNOLOGY, INC.
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SIGNATURE:
/s/ Xxxx X. Xxxxxxxx
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XXXX X. XXXXXXXX
DATE: 7/2/98
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WITNESS: NAME: /s/ X.X.
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TITLE: Controller
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DATE: 7/2/98
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TENANT: UNITED THERAPEUTICS CORPORATION
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SIGNATURE:
/s/ Xxxxxx Xxxxxxxx
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XX. XXXXXX XXXXXXXX
DATE: 6/22/98
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WITNESS: NAME: /s/ Xxxxxx Xxxxxxxxxx
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TITLE: Admin. Assistant
------------------------------
DATE: 7/7/98
--------------------------------
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EXHIBIT C
LAND
BEGINNING at an existing iron pipe located in the westernmost right-of-way line
of X.X. Xxxxxxxxx Drive, marking the northeasternmost corner of the property
described herein and having the North Carolina Grid Coordinates of N 787,
877.83, E 2, 035, 943.91; thence along and with the westernmost right-of-way
line to X.X. Xxxxxxxxx Drive South 00(Degree) 49' 42" East 157.40 feet to an
existing iron pipe; thence along with the westernmost right-of-way line to X.X.
Xxxxxxxxx Drive South 01(Degree) 29' 40" East 527.60 feet to an existing
concrete monument marking the easternmost point of the former southern border of
a 10.462 acre tract, the property of UAI Technology, Inc.; thence along and with
the westernmost right-of-way line of X.X. Xxxxxxxxx Drive South 01(Degree) 29'
40" East 316.40 feet to an existing concrete monument; thence along and with the
northernmost line of other property of the Research Triangle Foundation of North
Carolina South 88(Degree) 30' 20" West 695.60 feet to an existing concrete
monument located in the easternmost line of the aforesaid property now or
formerly of X.X. Xxxx; thence along and with the easternmost line of the
aforesaid property of X.X. Xxxx, North 01(Degree) 07' 15" East 316.73 feet to an
existing iron pipe marking the westernmost point of the former southern border
of a 10.462 acre tract, the property of UAI Technology, Inc.; thence along and
with the eastern line of the property now or formerly of X.X. Xxxx, North
01(Degree) 04' 57" East 270.96 feet to an existing iron pipe; thence along and
with the eastern line of other property of Research Trianlge Foundatin of North
Carolina North 01(Degree) 23' 04" East 414.83 feet to an existing iron pipe;
thence along and with the southern line of other property of Research Triangle
Foundation of North Carolina North 88(Degree) 30' 20" East 649.96 feet to the
point and place of BEGINNING, as shown on a plat and survey thereof entitled
"Recombination and Foundation Survey - U.A.I. Technology, Inc." date May 3, 1991
by Boney and Associates, Inc. Engineering and Surveying, Raleigh, N.C. The
southern five acres of this property is shown on a plat and survey recorded in
Plat Book 124, Page 200 Durham County Registry. The northern 10.462 acres of
this property is shown on a plat and survey recorded in Plat Book 106, Page 32,
Durham County Registry. And Plat Book 124, Page 200 Durham County Registry.
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EXHIBIT D
LANDLORD IMPROVEMENTS
- Locks on office doors, to be provided at Tenant's expense.
- Landlord will provide keys for entry into main door of building.
- A separate agreement regarding existing furniture and phone system
will be made between Landlord and Tenant.
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EXHIBIT E
RULES AND REGULATIONS
(1) ACCESS TO COMMON AREAS OF THE PROPERTY. Landlord may from time to time
establish security controls for the purpose of regulating access to the
common areas of the property. Tenant shall abide by all such security
regulations so established and agrees to always leave clear access for
vehicular traffic through all parking lots, loading areas and driveways.
(2) PROTECTING DEMISED PREMISES. Before leaving the Demised Premises
unattended, Tenant shall close and securely lock all doors or other means
of entry to the Demised Premises.
(3) BUILDING DIRECTORIES. The directories of the building shall be used
exclusively for the display of the name and location of tenants only and
will be provided at the expense of Landlord. Any company names and/or name
changes requested by Tenant to be displayed in the directories must be
approved by Landlord and, if approved, will be provided at the sole
expense of Tenant.
(4) LARGE ARTICLES. Furniture, freight and other large or heavy articles may
be brought into the building in a manner so as to not damage the property
and always at Tenant's sole responsibility. All damage done to the
building, its furnishings, fixtures or equipment by moving or maintaining
such furniture, freight or articles shall be repaired at the expense of
Tenant.
(5) SIGNS. Tenant shall not paint, display, inscribe, maintain or affix any
sign, placard, picture, advertisement, name, notice, lettering or
direction on any part of the outside or inside of the building or on the
Premises, or on any part of the inside of the Demised Premises which can
be seen from the outside of the Demised Premises, without the written
consent of Landlord, and then only such name or names or matter and in
such color, size, style, character and material as shall be first approved
by Landlord in writing. Landlord reserves the right to remove at Tenant's
expense all matter other than that above provided for without notice to
Tenant.
(6) COMPLIANCE WITH LAWS. Tenant shall comply with all applicable laws,
ordinances, governmental orders or regulations and applicable orders or
directions from any public office or body having jurisdiction, whether now
existing or hereinafter enacted with respect to the Demised Premises and
the use or occupancy thereof. Tenant shall not make or permit any use of
the Demised Premises which directly or indirectly is forbidden by law,
ordinance, governmental regulations or order or direction of applicable
public authority, or which may be dangerous to person or property.
(7) HAZARDOUS MATERIALS. Tenant shall not use or permit to be brought into the
Demised Premises or the building any flammable oils or fluids, or any
explosive or other articles deemed hazardous to persons or property, or do
or permit to be done any act or thing which will invalidate or which if
brought in would be in conflict with any insurance policy covering the
building or its operation, or the Demised Premises, or any part of either,
and will not do or permit to be done anything in or upon the Demised
Premises, or bring or keep anything therein, which shall not comply with
all rules, orders, regulations or requirements of any organization,
bureaus, department or body having jurisdiction with respect thereto (and
Tenant shall at all times comply with all such rules, orders, regulations
or requirements), or which shall increase the rate of insurance on the
building, its appurtenances, contents or operation. Tenant shall not bring
onto the Premises any biological, radioactive, or chemical substances.
(8) DEFACING DEMISED PREMISES AND OVERLOADING. Tenant shall not place anything
or allow anything to be placed in the Demised Premises near the glass or
any door, partition, wall or window which may be unsightly from outside
the Demised Premises. Tenant shall not place or permit to be placed any
article of any kind on any window ledge or on the exterior walls; blinds,
shades, awnings or other forms of inside or outside window ventilators or
similar devices shall not be placed in or about the outside windows in the
Demised Premises except to the extent that the character, shape, color
material and make thereof is approved by Landlord. Tenant shall not do any
painting or decorating in the Demised Premises or install any floor
coverings in the Demised Premises or make, paint, cut or drill into, or in
any way deface any part of the Demised Premises or building without in
each instance obtaining the prior written consent of Landlord. Tenant
shall not overload any floor or part thereof in the Demised Premises, or
any facility in the building or
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any public corridors or elevators therein by bringing in or removing any
large or heavy articles and, Landlord may direct and control the location
of safes, files, and all other heavy articles and, if considered necessary
by Landlord, require supplementary supports at Tenant's expense of such
material and dimensions necessary to properly distribute the weight.
(9) OBSTRUCTION OF PUBLIC AREAS. Tenant shall not, whether temporarily,
accidentally or otherwise, allow anything to remain in, place or store
anything in, or obstruct in any way, any sidewalk, court, passageway,
entrance, or shipping area. Tenant shall lend its full cooperation to keep
such areas free from all obstruction and in a clean and sightly condition,
and move all supplies, furniture and equipment as soon as received
directly to the Demised Premises, and shall move all such items and waste
(other than waste customarily removed by building employees) that are at
any time being taken from the Demised Premises directly to the areas
designated for disposal. All courts, passageways, entrances, exits,
elevators, escalators, stairways, corridors, halls and roofs are not for
the use of the general public and Landlord shall in all cases retain the
right to control and prevent access thereto by all persons whose presence
in the judgment of Landlord shall be prejudicial to the safety, character,
reputation and interest of the building and its tenants provided, however,
that nothing herein contained shall be construed to prevent such access to
persons with whom Tenant deals within the normal course of Tenant's
business unless such persons are engaged in illegal activities.
(10) ADDITIONAL LOCKS. Tenant shall not attach or permit to be attached
additional locks or similar devices to any door or window, change any
existing locks or the mechanism thereof, or make or permit to be made any
keys for any door other than those provided by Landlord. Upon termination
of this lease or of Tenant's possession, Tenant shall surrender all keys
to the Demised Premises. Tenant shall be solely responsible for the costs
of all locks and keys other than the original set in the premises as of
the date of occupancy.
(11) COMMUNICATIONS OR UTILITY CONNECTIONS. If Tenant desires signal, alarm or
other utility or similar service connections installed or changed, Tenant
must first obtain approval of Landlord, and such installation shall be at
Tenant's expense. Tenant shall not install in the Demised Premises any
equipment which requires a substantial amount of electrical current
without the advance written consent of Landlord. Tenant shall ascertain
from Landlord the maximum amount of load or demand for or use of
electrical current which can safely be permitted in the Demised Premises,
taking into account the capacity of the electric wiring in the building
and the Demised Premises, taking into account the capacity of the electric
wiring in the building and the Demised Premises and the needs of other
tenants in the building, and shall not in any event connect a greater load
than that which is safe.
(12) OFFICE OF THE BUILDING. Service requirements of Tenant will be attended to
only upon application at the Landlord Services office. Employees of
Landlord shall not perform any work outside of their duties unless under
special instructions from Landlord. Tenant shall appoint a single person
to serve as liaison between Tenant and Landlord for purposes of service
requirements.
(13) RESTROOMS. The restrooms, toilets, urinals, vanities and the other
apparatus shall not be used for any purpose other than that for which they
were constructed and no foreign substance of any kind whatsoever shall be
thrown therein and the expense of any breakage, stoppage or damage
resulting from the violation of this rule shall be borne by Tenant who, or
whose employees or invitees, shall have caused it.
(14) INTOXICATION. Landlord reserves the right to exclude or expel from the
building any person who, in the judgment of Landlord, is intoxicated or
under the influence of liquor or drugs, or who shall in any manner do any
act in violation of any of the rules and regulations of the building.
(15) NUISANCES AND CERTAIN OTHER PROHIBITED USES. Tenant shall not (a) install
or operate any internal combustion engine, boiler, machinery,
refrigerating, heating or air conditioning apparatus in or about the
Demised Premises; (b) engage in any mechanical business, utilize any
article or thing, or engage in any service in or about the Demised
Premises or building, except those ordinarily embraced within the
permitted use of the Demised Premises specified in Article 7; (c) use the
Demised Premises for housing, lodging, or sleeping purposes; (d) place any
antennae on the roof or on or in any part of the inside or outside of the
building other than the inside of the Demised Premises, or place a musical
or sound producing instrument or device inside or outside the Demised
Premises which may be heard outside the Demised Premises; (e) use any
illumination or power for the operation of any equipment or device other
than electricity; (f)
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operate any electrical device from which may emanate electrical waves
which may interfere with or impair radio or television broadcasting or
reception from or in the building or elsewhere; (g) bring or permit to be
in the building complex any bicycle or other vehicle, or dog (except in
the company of a blind person) or other animal or bird; (h) make or permit
any objectionable noise or odor to emanate from the Demised Premises; (i)
disturb, solicit or canvass any occupant of the building; (j) do anything
in or about the Demised Premises tending to create or maintain a nuisance
or do any act tending to injure the reputation of the building; (k)
perform any scientific experimentation or other processes, whether or not
these experiments or processes required any laboratory equipment.
(16) SOLICITATION. Tenant shall not make any room-to-room canvass to solicit
business from other tenants in the building and shall not exhibit, sell or
offer to sell, use, rent or exchange any products or services in or from
the Demised Premises unless ordinarily embraced within the Tenant's use of
the Demised Premises specified herein and specific authority granted in
the lease agreement.
(17) ENERGY CONSERVATION. Tenant shall not waste electricity, water, heat or
air conditioning and agrees to cooperate fully with Landlord to assure the
most effective operation of the building's heating and air conditioning,
and shall not allow the adjustment (except by Landlord's authorized
building personnel) or any controls.
(18) BUILDING SECURITY. Tenant must follow routine security procedures as set
forth by Landlord, and inform all employees of such policies.
(19) PARKING. Parking is in designated parking areas only. There should be no
vehicles in "no parking" zones or at curbs. Handicapped spaces are for
handicapped persons and the Police Department will ticket unauthorized
(unidentified) cars in handicapped spaces. No vehicles may be abandoned or
repaired on the property, and vehicles requiring extended parking should
be identified to Landlord.
(20) JANITORIAL SERVICE. Tenants will remove excessive trash from inside and
outside their premises and shall deposit same in the dumpsters provided by
Landlord. Any large volume of trash resulting from delivery of furniture,
equipment, etc., should be removed by the delivery company, Tenant, or
Landlord at Tenant's expense. Any requests for extraordinary trash removal
should be directed to Landlord Services office.
(21) Landlord reserves the right to make such other reasonable Rules and
Regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Building and the Land, and for the
preservation of good order therein.
(22) TENANTS USE RESTRICTED TO AREAS RENTED. Tenant shall inform all employees
that its use of the Premises is restricted to those areas listed in
Section 1.01 above. No employees, agents, visitors, or any other persons
affiliated with Tenant shall have access to areas except those
specifically listed in Section 1.01.
(23) WEAPONS. No weapons or firearms may be carried onto the Premises at any
time.
(24) SMOKING. Smoking is not allowed on the Premises.
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