EXHIBIT 99.1
LEASE AGREEMENT
By and between
EASTPARK GROUP II L.L.C.
LESSOR
AND
ABB POWER T&D COMPANY INC
LESSEE
Dated as of May 6, 1997
(C) 1997 Capital Associates. All rights reserved.
ARTICLE 1
LEASED PREMISES
1.01 Leased Premises ..................................................1
ARTICLE 2
BASIC LEASED PROVISIONS
2.01 Basic Leased Provisions...........................................1
ARTICLE 3
TERM AND POSSESSION
3.01 Term .............................................................2
3.02 Commencement .....................................................2
3.03 Lessee's Delay ...................................................2
3.04 Lessee's Possession ..............................................2
3.05 Confirmation of Dates ............................................2
3.06 Holdover .........................................................2
ARTICLE 4 RENT AND SECURITY DEPOSIT
4.01 Base Rent.........................................................2
4.02 Payment of Rent...................................................2
4.03 Intentionally Deleted ............................................2
4.04 Intentionally Deleted ............................................2
4.05 Intentionally Deleted ............................................3
4.06 Net Lease ........................................................3
4.07 Intentionally Deleted ............................................3
4.08 Late Charge ......................................................3
ARTICLE 5
SERVICES
5.01 Services......... ................................................3
5.02 Interruption of Services .........................................3
5.03 Additional Charges ...............................................3
5.04 Sewer Easement ...................................................4
ARTICLE 6
USE AND OCCUPANCY
6.01 Use...............................................................4
6.02 Care of the Leased Premises ......................................4
6.03 Entry for Repairs and Inspection .................................4
6.04 Compliance with Laws .............................................4
6.05 Intentionally Deleted ............................................5
6.06 Peaceful Enjoyment ...............................................5
ARTTICLE 7
ALTERATIONS AND REPAIRS
7.01 Alterations ......................................................5
7.02 Repairs and Maintenance by Lessee ................................5
7.03 Maintenance/Service Contract .....................................6
ARTICLE 8
CONDEMNATION, CASUALTY, INSURANCE AND INDEMNITY
8.01 Condemnation .....................................................6
8.02 Damages from Certain Causes ......................................6
8.03 Fire Cause .......................................................6
8.04 Insurance Policies ...............................................7
8.05 Hold Harmless ....................................................7
8.06 Waiver of Subrogation Rights .....................................7
8.07 Limitation of Lessor's Personal Liability ........................7
Page 2
ARTICLE 9
LESSOR'S LIEN, DEFAULT, REMEDIES AND SUBORDINATION
9.02 Default by Lessee ................................................8
9.03 Non Waiver .......................................................8
9.04 Attorneys' Fees ..................................................8
9.05 Subordination; Estoppel Certificate ..............................8
9.06 Attornment .......................................................8
ARTICLE 10
ASSIGNMENT AND SUBLEASE
10.01 Sublease .........................................................9
10.02 Assignment by Lessor .............................................9
ARTICLE 11
NOTICES AND MISCELLANEOUS
11.01 Notices ..........................................................9
11.02 Miscellaneous ...................................................10
ARTICLE 12
ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES
12.01 ENTIRE AGREEMENT AND LIMITATION OF WARRENTIES.......................12
EXHIBITS
A-1 Schematic PLAN(s) OF THE Leased Premises
A-2 The Land
B Acceptance of Leased Premises Memorandum
C Work Letter Agreement
D Technical Data
E Development Schedule ,
F Form of Estoppel Certificate
G Renewal Options
H Intentionally Deleted
I Letter of 'Credit
J Preliminary Space Plan
K Modifications to the Shell Condition
Page 3
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into on this
6th day of MAY , 1997 by and between Eastpark Group II, L.L.C., a North Carolina
limited liability company ("Lessor"), and ABB Power T&D Company Inc., a Delaware
Corporation ("Lessee"), on the terms and conditions set forth below.
ARTICLE 1
LEASED PREMISES
1.01 Leased Premises. Lessor leases to Lessee and Lessee leases from
Lessor the space (the "Leased Premises") set forth in Subsections (a) and (b) of
the Basic Lease Provisions below and shown on the schematic plan(s) attached
hereto as Exhibit A-l upon the terms and conditions set forth in this Lease. The
building in which the Leased Premises are located, the land on which the
building is located (described ON EXBIBITA-2 attached hereto), the parking
facilities and all improvements and appurtenances to the building are
collectively referred to as the "Building". The Building and any larger complex
of which the Building is a part are collectively referred to as the "Project".
ARTICLE 2
BASIC LEASE PROVISIONS
2.01 Bask Lease Provisions. The following provisions set forth various
basic terms of this Lease and are sometimes referred to as the "Basic Lease
Provisions".
(a) Building Name: Rogers 2
Address: ___ South Rogers Lane (address to be verified)
Raleigh, North Carolina 27610
(b) Floor(s) Rentable Area: Ground
58,926 square feet
(c) Total Rentable Area of Building: 58,926 square feet
(d) Monthly Base Rent: $35,583.33/Month (Months 1-7)
$41,935.67/Month (Months 8-12)
$43,193.74/Month (Months 13-24)
$44,489.55/Month (Months 25-36)
$45,824.24/Month (Months 37-48)
$47,198.97/Month (Months 49-60)
$48,614:94/Month (Months 61-72)
$50,073.38/Month (Months 73-84)
$51,575.59/Month (Months 85-86)
(e) Parking 280 spaces (minimum)
Monthly Rent per Parking Space: $0.00
(f) Term: Seven (7) Years and Two (2) Months
Target Commencement Date: December 15, 1997
Target Expiration Date: February 28, 2005
(See EXHIBIT B. for confirmation of the actual Commencement Date and Expiration
Date of this Lease.)
(h) Security Deposit None
(i) Permitted Use: Any lawful purpose including,
but not limited to office, light
manufacturing and distribution
(j) Addresses for notices and other communications under this
Lease:
Lessor: Lessee:
Eastpark Group II, L.L.C. ABB Power T&D Company Inc.
c/o Capital Associates 201 South Rogers Lane
1100 Crescent Green, Suite 115 Raleigh, NC 27610
Cary, NC275H ATTN: Controller's Dept.
ATTN: Thomas R. Huff
With a copy to:
ABB Power T&D Company Inc.
1021 Main Campus Drive
Page 1
Raleigh, NC 27606 - ATTN;
Legal Dept.
(k) Lessee's Broker: Commercial Carolina Corporation
ARTICLE 3
TERM AND POSSESSION
3.01 TERM. This Lease shall be and continue in full force and effect
for the term set forth in Subsection 2.01(f). Subject to the remaining
provisions of this Article, the Term shall commence on the Target Commencement
Date shown in Subsection 2.01 (g) and shall expire, without notice to Lessee, on
the Target Expiration Date shown in Subsection 2.01(g); Such term, as it may be
modified, renewed and extended, is herein called the "Term".
3.02 COMMENCEMENT. Subject to Section 3 .03. hereof, if on the Target
Commencement Date any of the work described in EXHIBIT C that is required to be
performed by Lessor at Lessor!s expense to prepare the Leased Premises for
occupancy has not been substantially completed, or if Lessor is unable to tender
possession of the Leased Premises to Lessee on the specified date due to any
other reason beyond the reasonable control of Lessor, the hereinafter defined
Commencement Date (and commencement of installments of Base Rent) shall be
postponed until the work to be performed in the Leased Premises at Lessor's
expense is substantially completed, and the postponement shall operate to extend
the Expiration Date in order to give full effect to the stated duration of the
Term. Except as otherwise provided in item 10 in Exhibit C the deferment of
installments of Base Rent shall be Lessee's exclusive remedy for post ponement
of the Commencement Date, and Lessee shall have no, and waives any, claim
against Lessor because of any such delay. If requested in writing by Lessee,
Lessor shall provide a certificate of substantial completion from Lessor's
architect and a certificate of occupancy from the City of Raleigh for the Leased
Premises, effective as of the Commencement Date.
3.03 LESSEE'S DELAY. No delay in the completion of the Leased Premises
resulting from delay or failure on the part of Lessee in furnishing information
or other matters required in EXHIBIT .C. and no delay resulting from the
completion of work, if .any, that is to be performed at Lessee's expense
pursuant to EXHIBIT C shall delay the Commencement Date, Expiration Date or
commencement of payment of Rent (as defined in Subsection 4.02 below).
3.04 LESSEE'S POSSESSION. Subject to Section 7 OF EXHIBIT C attached
hereto, if, prior to the Commencement Date, Lessee shall enter into possession
of all or any part of the Leased Premises, the Term, the payment of monthly
installments of Base Rent and all other obligations of Lessee to be performed
during the Term shall commence on, and the Commencement Date shall be deemed to
be, the date of such entry; provided, no such early entry shall operate to
change the Expiration Date. Lessor and Lessee hereby agree that Lessee's entry
onto the Leased Premises and its commencement of work thereon, shall not
constitute possession under this Section 3,04.
3.05 CONFIRMATION OF DATES. The actual commencement date ("Commencement
Date") and actual expiration date ("Expiration Date") shall be confirmed by
Lessee by execution of the Acceptance of Leased Premises Memorandum attached
hereto as EXHIBIT B.
3.06 HOLDOVER. If Lessee shall remain in possession of the Leased
Premises after the expiration or earlier termination of this Lease, Lessee shall
be deemed a tenant-at-sufferance, terminable at any time on one (1) day's
notice, and shall pay daily rent at 150% of the per day Rent payable with
respect to the last full calendar month immediately prior to the end of the Term
or termination of this Lease, but otherwise shall be subject to all of the
obligations of Lessee under this Lease. Additionally, Lessee shall pay to Lessor
all damages (including consequential damages) sustained by Lessor as a result of
the holding over by Lessee.
ARTICLE 4
RENT AND SECURITY DEPOSIT
4.01 BASE RENT. Lessee agrees to pay to Lessor rent ("Base Rent")
throughout the Term in the amount of the Monthly Base Rent set forth in
Subsection 2.01 (d) subject to adjustment as provided in this Lease. Monthly
Base Rent shall be payable in the amount set forth in Subsection 2.01(d)
("Monthly Base Rent") in advance and without demand, on the first day of each
calendar month during the Term. If the Commencement Date is not the first day of
a month, Lessee shall be required to pay on the Commencement Date a pro rata
portion of the MontUy Base Rent for the first partial month of the Term.
4.02 PAYMENT OF -RENT. As used in this Lease, "Rent" shall mean the
Base Rent, Additional Rent (defined below) and all other amounts required to be
paid by Lessee in this Lease. The Rent shall be paid at the times and in the
amounts provided herein in legal tender of the United States of America to
Lessor at its address specified in Subsection 2.0l(j) above, or to such other
person or at such other address as Lessor may from time to time designate in
writing. The Rent shall be paid without notice, demand, abatement, deduction or
offset except as may be expressly set forth in this Lease,
4.03 INTENTIONALLY DELETED.
4.04 INTENTIONALLY DELETED. .
Page 2
4.05 INTENTIONALLY DELETED. .
4.06 NET LEASE. It Is the intention of Lessor and Lessee that, except
for the costs and expenses specifically provided for herein to the contrary, all
costs, expenses and obligations of every kind relating directly or indirectly in
any way, foreseen or unforeseen, to Lessee's use, occupancy, possession,
maintenance, repair and replacement of the Leased Premises, or any part thereof,
which may arise or become due the Term be paid by Lessee and that Lessor
shall be indemnified by Lessee therefrom. Notwithstanding the foregoing, Lessor
shall pay all expenses for structural repair of the roof deck, exterior walls,
structural steel, floor slab, foundations, utility services from the
right-of-way to the building exterior, and paving that do not constitute
Lessee's repairs and maintenance obligations pursuant to Section 7.02 and are
not covered by warranty as more specifically described In Section 8 of Exhibit C
attached hereto, excluding any structural repairs for damage caused by Lessee,
Its agents, contractors or employees or resulting from Information or
specifications provided by Lessee to Lessor or Lessor's agents, contractors or
employees (hereinafter collectively referred to In this Lease as "Extraordinary
Structural Expense Items").
4.07 INTENTIONALLY DELETED.
4.08 LATE CHARGE, If Lessee fails or refuses to pay any installment of
Rent within five (5) business days after its due date, Lessor, at Lessor's
option, shall be entitled to collect a late charge of five percent (5%) of the
amount of the late payment to compensate Lessor for the additional expense
Involved in handling delinquent payments and not as interest. If the payment of
a late charge required by this Section Is found to constitute interest
notwithstanding the contrary intention of Lessor and Lessee, the late charge
shall be limited to the maximum amount of Interest that lawfully may be
collected by Lessor under applicable law, and if any payment is determined to
exceed such lawful amount, the excess shall be applied to any unpaid Rent then
due and payable hereunder and/or credited against the next succeeding
installment of Rent payable hereunder. If all Rent payable hereunder has been
paid In full, any excess shall be refunded to Lessee. Lessee shall reimburse
Lessor for any processing fees charged to Lessor and paid by Lessor as a result
of Lessee's checks having been returned for Insufficient funds. This provision
shall not be deemed to condone the late payment of any monetary obligations, and
shall not be construed as giving Lessee an option to pay late by paying the late
charge. Instead, all funds are due at the times specified in this Lease without
any grace period.
ARTICLE 5
SERVICES
5.01 SERVICES. From and after the Commencement Date, Lessee covenants
and agrees to pay or cause to be paid directly to the supplier all rents,
charges and rates for all utility services related to Lessee's use of the Leased
Premises, including, without limitation, gas, electricity, water, sewer,
telephone and the like, Including all utilities necessary for heating and air
conditioning the Leased Premises. If Lessee fails to pay any utility bills when
due, Lessor shall have the right, after giving Lessee twenty. (20) days written
notice of Its failure to pay such utility bills, to thereafter pay such
delinquent utility bills. Lessee shall reimburse Lessor, within twenty (20) days
of receipt of Lessor's invoice, for the amount of such delinquent utility bills
paid by Lessor together with interest on the sums advanced at the rate of the
lesser of fourteen percent (14%) (but not less than the prime interest rate plus
two (2) percent) per annum or the highest rate allowed by applicable law. Such
sums shall be added to the Rent next due hereunder and shall become Additional
Rent for the purposes hereof.
.5.02 INTERRUPTION OF SERVICES, Except as may be caused by the
negligence of Lessor or Lessor's contractors, Lessor shall have no liability to
Lessee for disruption, Interruption or curtailment, of any utility service to
the Leased Premises, whether or not furnished by Lessor, and in no event shall
such disruption, interruption or curtailment constitute constructive eviction or
entitle Lessee to an abatement of rent or other charges, Notwithstanding
anything to the contrary contained herein, If such services are interrupted and
require repair of Extraordinary Structural Expense Items as set forth in Section
4.06, then Lessor shall commence and complete repair of such Items with due
diligence after notification by Lessee, even if such notice occurs after normal
business hours. If Lessor fails to commence and complete repairs with due
diligence, then Lessee may make any necessary repairs to such Extraordinary
Structural Expense Items and Lessor shall reimburse Lessee for all actual
reasonable expenses.
5.03 ADDITIONAL CHARGES. In the event that any charge or fee Is
required after the Commencement Date by either the City of Raleigh or the State
of North Carolina, or by any agency, subdivision or instrumentality thereof, or
by any utility company furnishing services or utilities to the Leased Premises,
as a condition precedent to furnishing or continuing to furnish utilities or.
services to the Leased Premises, such charge or fee shall be deemed to be a
utility charge payable by Lessee. The provisions of this shall include, but not
be limited to, any charges or fees for present or future water or sewer capacity
to serve the Leased Premises, any charges for the underground installation of
gas or other utilities or services, and other charges relating to the extension
of or change In the facilities necessary to provide the Leased Premises with
adequate utility services. In the event that Lessor has paid any such charge or
fee after the Commencement Date, Lessee shall reimburse Lessor for such utility
charge with the payment thereof to be Additional Rent for purposes hereof.
Lessor hereby represents and warrants that, to Its knowledge as of the date
hereof, It Is not aware that the City of Raleigh or the State of North Carolina,
or any agency, subdivision or instrumentality thereof-or any utility company
furnishing utilities or services to the Leased Premises Is contemplating such a
charge or fee. Lessee shall pay a pro rata share of all charges or fees for
items which are capital In nature. Such share shall be determined by dividing
the number of years remaining in the Term, including any extensions or renewals
already exercised by Lessee, by the remaining years of useful life of the
Building, which the parties be twenty (20) years from the Commencement Date. If
any such pro rata share is paid by Lessee prior to Lessee's exercise of any
renewal hereunder and Lessee thereafter elects to renew the Lease, Lessee shall
pay or reimburse Lessor for an additional pro rata of all charges or fees for
items which are capital in nature at the time of Lessee's election based upon
the number of years in the renewal term and determined as otherwise set forth in
this Notwithstanding the foregoing, Lessee shall pay all charges or fees for
capital Items which are required because of the nature of Lessee's use of the
Leased Premises.
Page3
Notwithstanding anything to the contrary, Lessor is obligated to provide water,
sewer, gas, and electric services on the Commencement Date adequate to satisfy
the requirements of the Work Letter Agreement in Exhibit C: provided however,
Lessee shall pay all costs, including any security deposits, associated with
transferring utility services from Lessor or Lessor's contractor to Lessee,
5.04 SEWER EASEMENT. Lessee hereby acknowledges that the City of
Raleigh owns a sewer easement adjacent to the Building and that additional sewer
lines may be installed during the Term. Lessor shall pay air costs not paid by
the City of Raleigh, if any, to restore the property to its original condition
after completion of such installation. Furthermore, Lessor and Lessee shall use
their best efforts to cooperate with each other and with the City of Raleigh in
order to coordinate the installation of the sewer lines in such a way as to
minimize any damage or disruption of Lessee's business. However, Lessor shall
have no liability to Lessee for any damage or disruption of its business as a
result of the installation of additional sewer lines, and in no event shall any
such damage or disruption constitute constructive eviction or entitle Lessee to
an abatement of Rent or other charges. Lessor hereby represents and warrants
that, to its knowledge, as of the date hereof, there are no other sanitary sewer
easements other than the sanitary sewer easement shown on Exhibit A-2. which is
incorporated herein by reference in its entirety.
ARTICLE 6
USE AND OCCUPANCY
6.01 USE. The Leased Premises are to be used and occupied by Lessee
(and its permitted assignees and subtenants) solely for the purpose specified in
Subsection 2.01(i) and for no other purpose. Lessee agrees not to occupy or use,
or permit any portion of the Leased Premises to be occupied or used for any
business or purpose which is unlawful, disreputable or deemed to be
extra-hazardous. Lessee further agrees to conduct its business and control its
agents, employees, invitees and visitors in such manner as not to create any
nuisance, or interfere with, annoy or disturb any adjoining owner, tenant, or
Lessor in its operation of the Building. Lessor acknowledges that Lessee is a
manufacturing company.
6.02 CARE OF THE LEASED PREMISES, (a) Lessee shall not commit or allow
to be committed any waste or damage to any portion of the Leased Premises or the
Building nor permit or suffer any overloading of the floors or other use of the
improvements that would place an undue stress on the same or any portion thereof
beyond that for which the same was designed, and, at the termination of this
Lease, by lapse of time or otherwise, Lessee shall deliver up the Leased
Premises to Lessor in as a good condition as existed on the date of possession
by Lessee, ordinary wear and tear excepted. Upon such termination of this Lease,
Lessor shall have the right to re-enter and resume possession of the Leased
Premises.
(b) Lessee covenants not to use, suffer or permit the Leased
Premises, or any portion thereof, to be used by Lessee, any third party or the
public in such manner as might reasonably tend to impair Lessor's title to the
Leased Premises, or any portion thereof, or in such manner as might reasonably
make possible a claim or claims of adverse usage or adverse possession by the
public, as such, or third persons, or of implied dedication of the Leased
Premises, or any portion thereof. Lessee shall have no authority, express or
implied, to create or place any lien or encumbrance of any kind or nature
whatsoever upon, or in any manner to bind, the interest of Lessor in the Leased
Premises for any claim in favor of any person dealing with Lessee including
those who may furnish materials or perform labor for any construction or
repairs, and each such claim shall affect and each such lien shall attach to, if
at all, only the interest of Lessee in the Leased Premises. Lessee covenants and
agrees that it will pay or cause to be paid all sums legally due and payable by
it on account of any labor performed; or materials furnished in connection with
any work performed as authorized by or on behalf of Lessee on the Leased
Premises and that it will save and hold Lessor harmless from any and all loss,
cost or expense based on or arising out of asserted claims or liens against the
Leased Premises or Lessee's interest therein or against the rights, titles and
interests of the Lessor in the Leased Premises or under the terms of this Lease,
6.03 ENTRY FOR REPAIRS AND INSPECTION. Lessee shall permit Lessor and
its contractors, agents and representatives to enter into and upon any part of
the Leased Premises at all reasonable hours to inspect the same or show the same
to prospective tenants or purchasers, and for any other purpose as Lessor may
deem necessary or desirable. Lessee shall not be entitled to any abatement or
reduction of Rent by reason of any such entry. Notwithstanding the foregoing,
Lessee has the right to exclude any competitor of Lessee from Lessee's
manufacturing and assembly process within the Leased Premises. In addition,
Lessor agrees that Lessor will not knowingly permit photographs or videos to be
taken of Lessee's manufacturing and assembly process within the Leased Premises
without Lessee's prior written approval, such approval not to be unreasonably
withheld. Photographs taken of the exterior of the Building and any generic
areas inside of the Leased Premises shall not be a violation of the foregoing
provision.
6.04 COMPLIANCE WITH LAWS. Except as herein below set forth regarding
compliance of the physical structure of the Building with the applicable
requirements of the Americans with Disabilities Act and the implementing
regulations (the "ADA"), Lessee shall comply with and Lessee shall cause its
visitors, employees, contractors, agents and invitees to comply with, all laws,
ordinances, orders, rules and regulations (state, federal, municipal and other
agencies or bodies having any jurisdiction thereof) relating to the use,
condition or occupancy of the Leased Premises, including, without limitation,
all local, state and federal environmental laws. With regard to the physical
structure of the Building, Lessor agrees to use good faith and due diligence to
undertake those actions that are "readily achievable" (as such term is defined
in the ADA) in order to attempt to bring the physical structure of the Building
into compliance with the applicable requirements of the ADA in effect as of the
Commencement Date, unless the Building's failure to be in compliance with the
applicable requirements of the ADA is due to information or specifications
supplied by Lessee in the Technical Data or otherwise, in which event, Lessee
shall pay the cost of bringing the physical structure of the Building into
compliance with the applicable requirements of the ADA, but only to the extent
that such Lessee-supplied Technical Data has caused the Building to be in
non-compliance. If it is determined that for any reason, other than any act or
omission of Lessee, Lessor shall have failed to cause the physical structure of
the Building to have been brought into compliance with the ADA as of the
Commencement Date (to not less than the minimum applicable standards required
under applicable regulations then in effect), then Lessor, as its sole
obligation, will take the action(s) necessary to cause the physical structure of
the Building to so comply, and Lessee acknowledges and agrees that Lessor has
Page 4
and shall have no other obligation or liability whatsoever to Lessee, or to
anyone claiming by or through Lessee regarding any failure of the Leased
Premises or the activities therein to comply with the applicable requirements of
the ADA, Following the Commencement Date, if new laws and/or regulations or
subsequent interpretation or re-interpretation of existing laws and/or
regulations results in the failure of the physical structure of the building
exterior to comply with applicable provisions of the ADA, then Lessee shall be
obligated to pay a pro rata share of the cost of bringing the physical structure
of the building exterior into such compliance. Such share shall be determined by
dividing the number of years remaining in the Term, including any extensions or
renewals already exercised by Lessee, by the remaining years of useful life of
the Building, which the parties agree shall be twenty (20) years from the
Commencement Date. If any such pro rata share is paid by Lessee prior to
Lessee's exercise of any renewal option hereunder and Lessee thereafter elects
to renew the Lease, Lessee shall pay or reimburse Lessor for an additional pro
rata share of all charges or fees for items which are capital in nature at the
time of Lessee's election based upon the number of years in the renewal term and
determined as otherwise set forth in this Section _6.04. Following the
Commencement Date, Lessor shall have no obligation with regard to the failure of
the building interior to comply with applicable provisions of the ADA due to
subsequent new laws and/or regulations or interpretation or re-interpretation of
existing laws and/or regulations.
6.05 INTENTIONALLY DELETED
6.06 PEACEFUL ENJOYMENT. Lessor covenants that Lessee shall and may
peacefully have, hold and enjoy the Leased Premises, subject to the terms of
this Lease, provided Lessee pays the Rent and other sums required to be paid by
Lessee and performs all of Lessee's covenants and agreements herein contained.
It is understood and agreed that this covenant shall be binding upon Lessor and
its successors only with respect to breaches occurring during its and their
respective ownership of Lessor's interest in the Building. Lessor shall not be
responsible for the acts or omissions of any third party that may interfere with
Lessee's use and enjoyment of the Leased Premises.'
ARTICLE 7
ALTERATIONS AND REPAIRS
7.01 ALTERATIONS. Lessee shall make no material alterations,
installations, additions or improvements to the Leased Premises without Lessor's
prior written consent, which consent shall not be unreasonably withheld or
delayed. For purposes of this Section 7.01. a material alteration, installation,
addition or improvement to the Leased Premises would include, without
limitation, any exterior alteration; any demolition or construction of interior
millwork, partitions, doors or ceilings; or any modification of plumbing, fire
protection, HVAC or electrical systems. For purposes of this Section 7.01, a
material alteration, installation, addition or improvement to the Leased
Premises would not include, among other things, adding communication outlets,
shifting lay-in light fixtures, repainting walls and frames (but not doors), and
installing wallcovering. All such work shall be designed and made in a manner
satisfactory to Lessor. All alterations, installations, additions and
improvements (including, without limitation, paneling, partitions, millwork and
fixtures; but excluding Lessee's furniture and equipment, telephone and public
address equipment, master clock and security equipment, and similar equipment
special to Lessee which costs were paid for or reimbursed by Lessee) made by or
for Lessee to the Leased Premises shall remain upon and be surrendered with the
Leased Premises and become the property of Lessor at the expiration or
termination of this Lease or the termination of Lessee's right to possession of
the Leased Premises; provided, Lessor may require Lessee to remove any or all of
such alterations or Extra Work, as defined in EXHIBIT C upon the expiration or
termination of this Lease or the termination of Lessee's right to possession of
the Leased Premises in order to restore the Leased Premises to a condition
consistent with the original Technical Data, as defined in EXHIBIT C. Lessee
shall bear the costs of removal of any alterations or Extra Work required to be
removed by Lessor or of Lessee's property from the Leased Premises and of all
resulting repairs to the Leased Premises. All of such alterations, Extra Work
and property shall be removed by the Expiration Date. All work performed by
Lessee with respect to the Leased Premises shall: (a) not alter the exterior
appearance of the Building or adversely affect the structure, safety, systems or
services of the Building; (b) comply with all Building safety, fire and other
codes and governmental and insurance requirements; (c) be completed promptly and
in a good and workmanlike manner; (d) be performed, using Lessee's best efforts,
in such a manner that does not cause interference or disharmony with any labor
used by Lessor, Lessor's contractors or mechanics or by any other tenant or such
other tenant's contractors or mechanics; and (e) not cause any mechanic's,
materialman's or other similar liens to attach to Lessee's leasehold estate.
Lessee shall not permit, or be authorized to permit, any liens (valid or
alleged) or other claims to be asserted against Lessor or Lessor's rights,
estates and interests with respect to the Building or this Lease in connection
with any work done by or on behalf of.Lessee, and Lessee shall indemnify and
hold Lessor harmless against any such liens.
7.02 REPAIRS AND MAINTENANCE BY LESSEE. Lessee, at its sole cost and
expense, throughout the term of this Lease, covenants and agrees to take good
care of the Leased Premises, and shall keep the same in good order, condition
and repair, and irrespective of such agreement to repair, shall make and perform
all routine maintenance thereof and all necessary repairs thereto, interior and
exterior, structural and nonstructural, ordinary and extraordinary, foreseen and
unforeseen, of every nature, kind and description, excluding repairs for
Extraordinary Structural Expense Items as set forth in Section 4.06. Further,
Lessee shall keep the Leased Premises safe for human occupancy and use. When
used in this Subsection 7.02. "repairs" shall include all necessary
replacements, renewals, alterations, additions and betterments, and Lessee's
repair and maintenance obligations shall include, without limitation, mulching,
watering, fertilizing, cutting, pruning and replacing landscaping; caulking
joints at concrete tilt-wall panels, soffits, fascias and storefront door and
window frames; painting concrete tilt-wall panels and steel bollards, stairs,
doors and frames; cleaning doors and windows; cleaning, caulking, patching,
sealing, and striping of sidewalks and paving (to the extent that paving failure
is not due primarily to failure of the subgrade); and patching and repair of the
roof membrane and flashing. Lessee's duty to maintain the heating and air
conditioning systems shall specifically include the duty to inspect such
systems, replace filters as recommended and to perform other recommended
periodic servicing. Lessee shall be solely responsible for any janitorial
service to the Lease Premises. All repairs made by Lessee shall be at least
equal in quality and cost to the original work and shall be made by Lessee in
accordance with all laws, ordinances and regulations, whether heretofore or
hereafter enacted. The necessity for or adequacy of maintenance and
Page 5
repairs shall be measured by the standards which are appropriate for
Improvements of similar construction and class, provided that Lessee shall in
any event make all repairs necessary to avoid any structural damage or. other
damage or injury to the Leased Premises. Lessee's obligations hereunder are
subject to the terms of Section 8 of EXHIBIT C to this Lease, All repairs for
Extraordinary Structural Expense Items, as set forth in Section 4.06, shall be
made by Lessor or at Lessor' expense in A timely manner. In addition, Lessor
will give Lessee reasonable advance written notice of any repair or replacement
which may materially interfere with Lessee's business activities in the Leased
Premises and shall work with Lessee to schedule same in a manner designed to
minimize any such Interference.
7.03 MAINTENANCE/SERVICE CONTRACT. Lessee; at its own cost and expense,
covenants and agrees to enter into regularly scheduled preventive
maintenance/service contracts with maintenance contractors for servicing all
heating and air conditioning systems, fire alarm systems, and fire sprinkler
systems. Each maintenance contractor and contract must be approved in advance by
Lessor, such approval not to be unreasonably withheld and given within ten (10)
business days following Lessee's written request. The service contract must (i)
Include all services suggested by the equipment manufacturer within the
operation/maintenance manual; (ii) become effective (and a copy thereof
delivered to Lessor) within thirty (30) days of the date Lessee takes possession
of the Leased Premises; and (Hi) provide that in the event this Lease expires or
Is earlier terminated for any reason whatsoever that said contract shall be
immediately terminable by Lessor or Lessee without any cost, expense or other
liability on the part of Lessor.
7.04 LESSEE'S WAIVER OF CLAIMS AGAINST LESSOR. Except for Extraordinary
Structural Expense Items as set forth in Section 4.06 and ADA expenses as set
forth in Section 6.04, Lessor shall not be required to furnish any services or
facilities or to make any repairs or alterations in, about or to the Leased
Premises or any improvements hereafter erected thereon; provided, however, that
if it is determined that the Leased Premises materially violates any rule, code
ordinance of any federal, state or local government having proper jurisdiction
over the Leased Premises that was In effect as of the Commencement Date, Lessor
shall be solely responsible for all costs associated with any alteration or
modification to the Leased Premises that causes the Leased Premises to be in
compliance with such rule, code or ordinance. Lessee hereby assumes the full and
sole responsibility for the condition, operation, repair, replacement,
maintenance management of the Leased Premises and all Improvements hereafter
erected thereon, and Lessee hereby waives any rights created by any law now or
hereafter in force to make repairs to the Leased Premises or Improvements
hereafter erected thereon at Lessor's expense.
7.05 LESSOR'S RIGHT TO EFFECT REPAIRS, If Lessee should fall to perform
any of its -obligations under this Lease, then Lessor. may, if it so elects, in
addition to any other remedies provided herein, effect such repairs and
maintenance, upon ten (10) days prior written notice to Lessee, during which
period Lessee shall have the right to cure any such failure. Any expended by
Lessor in effecting such repairs and maintenance shall be due and payable, on
demand, supported by documentation verifying actual costs, together with an
additional charge of fifteen percent (15%).
ARTICLE 8
CONDEMNATION, CASUALTY, INSURANCE AND INDEMNITY
8.01 CONDEMNATION. If all or substantially all of the Leased Premises
is taken by virtue of eminent domain or for any public or quasi-public use or
purpose, this Lease shall terminate on the date the condemning authority takes
possession. If only a part of the Leased Premises Is so taken, this Lease shall,
at the election of Lessor, either (i) terminate on the date the condemning
authority takes possession by giving notice thereof to Lessee within thirty (30)
days after the date of such taking of possession or (ii) continue in full force
and effect as to that part of the Leased Premises not so taken and Base Rent
with respect to any portion of the Leased Premises or condemned shall be reduced
or abated on' a square footage of net rentable area basis.. Each party-shall
have the right to pursue any condemnation award attributable to that party.
Lessee shall have no, and waives any, claim against Lessor for the value of any
unexpired term.
8.02 DAMAGES FROM CERTAIN CAUSES. Lessor shall not be liable or
responsible to Lessee for any loss or damage to any properly or person
occasioned by theft, fire, act of God, public enemy, Injunction, riot, strike,
insurrection,- war, court order, requisition order of governmental body or
authority, or any cause beyond Lessor's control, or for any damage.or
inconvenience which may arise through repair or alteration of any part of the
Building.
8.03 FIRE CLAUSE. Lessee covenants and agrees that, In case of damage
to or destruction of any of the improvements in, on or about the Leased Premises
after the Commencement Date of this Lease, by fire or otherwise, It shall, at
Its sole cost and expense, promptly restore, repair, replace and rebuild the
same as nearly as possible to the condition that the same were in immediately
prior to such damage or destruction with such changes or alterations (made in
conformity with Article 7 hereof) as may be reasonably acceptable to- Lessor or
required by law. Lessee shall forthwith give Lessor written notice, of such
damage or destruction upon the occurrence thereof and shall specify in such
notice, in reasonable detail, the extent thereof. Such restoration, repairs,
replacements, rebuilding, changes and alterations, Including the cost of
temporary repairs or the protection of the Leased Premises, or any portion
thereof, pending completion thereof are sometimes hereinafter referred, to as
the "Restoration". If the net amount of the insurance proceeds (after deduction
of all costs, expense's and fees related to recovery of the Insurance proceeds)
recovered and held by Lessor' Is reasonably deemed insufficient by Lessor to
complete the Restoration (exclusive of Lessee's personal property and trade
fixtures which shall be restored, repaired, or rebuilt out of Lessee's separate
funds), Lessee shall, upon Lessor's written request, provide sufficient
evidence, in Lessor's sole opinion, of Lessee's ability to pay all remaining
amounts necessary for the Restoration and shall thereafter pay such amounts when
due. Notwithstanding the foregoing, Lessor may, at its option, elect either to
rebuild the Leased Premises at Lessee's expense, or, if all or substantially all
of the Leased Premises are destroyed, to terminate this Lease upon sixty (60)
days prior written notice to Lessee.
Page 6
8.04 INSURANCE POLICIES. Lessee shall maintain (i) policies of
insurance covering damage to the Leased Premises and all tenant improvements
provided by Lessor or at Lessor's expense in the amount of not less than one
hundred percent (100%) of the replacement cost new thereof providing protection
against all perils included within the classification of fire and extended
coverage, including endorsements for vandalism, malicious mischief, and fire
sprinkler leakage; (ii) a policy or policies of comprehensive general liability
insurance, such insurance to afford minimum protection (which may be effected by
primary and/or excess coverage) of not less than $3,000,000 for personal' injury
or death in any one occurrence and of not less than $1,000,000 for property
damage in any one occurrence; and (iii) a policy or policies of
loss-of-rent/business interruption insurance covering the full amount of Rent
due under this Lease for a period of twelve (12) months from the date of the
interruption. Lessee shall maintain standard fire and extended coverage
insurance on its leasehold improvements and all other additions and improvements
(including fixtures) made by Lessee. All insurance policies, required or elected
to be maintained by Lessee shall (a) be issued by and binding upon solvent
insurance companies licensed to conduct business in the State of North Carolina
and rating level "A" and Class "XII" or better by A.M. Best, (b) have all
premiums fully paid on or before the due dates, (c);.name Lessor (and/or any
mortgagee, if so notified by Lessor in writmg) as an additional insured and loss
payee, (d) provide that they shall not be cancelable and/or the coverage
thereunder shall not be changed or reduced without at least thirty (30) days
advance written notice to Lessor, and (e) include a deductible of not more than
$25,000. Lessee shall deliver to Lessor certified copies of all certificates of
insurance in a form satisfactory to Lessor not less than thirty (30) days prior
to the Commencement Date or the expiration of current policies. Lessee
represents that Lessee has and agrees to maintain throughout the Term an on-site
safety officer, who, on a regular basis, schedules and has conducted inspections
by a fire marshall.
8.05 HOLD HARMLESS. (a) Lessor shall not be liable to Lessee, its
agents, servants, employees, contractors, customers or invitees, for any damage
to person or properly caused by (i) the Leased Premises or related improvements
or appurtenances or any part thereof becoming out of repair or by defect in or
failure of pipes of wiring, or by the backing up on drains or by the bursting or
leaking of pipes, faucets or plumbing fixtures or by gas, water, steam,
electricity or oil leaking, escaping or flowing into the Building unless caused
by the negligence of Lessor, its employees, contractors or agents; or (ii) any
act, omission or neglect of Lessee, its agents, servants, employees,
contractors, customers and invitees or any other persons whatsoever, and Lessee
agrees to indemnify and hold harmless Lessor and its partners, members, agents,
directors, managers, officers, and employees from all liability and claims for
any such damage, including, without limitation, court costs, actual reasonable
attorneys' fees and reasonable costs of investigation. Lessor shall indemnify
and save Lessee harmless against and from any and all claims, suits, demands,
actions, fines, damages and liabilities, and all costs and expenses thereof
(including without limitation, actual reasonable attorneys' fees) arising out of
injury to persons (including death) or property occurring in, on or about, or
arising out of the Leased Premises if caused or occasioned by any acts or'
omissions on the part of the Lessor, its agents, contractors, employees,
invitees or licensees; provided, however, Lessor shall not be liable for any
damage arising from acts or omissions of co-tenants or other occupants of the
Building or for any unauthorized or criminal acts of third parties.
(b) If either Lessor or Lessee becomes aware of any loss,
claim, demand, penalty, fine, damage, response cost, "or liability
("Indemnifying Event") to which it believes it is entitled to indemnification
under this Section 8.05 or Section 11.02(i) it shall promptly notify the other
party by sending such notice by certified or other controlled mail' to those
individuals or entities identified in Section 2.01 (j) The indemnitor shall have
sole control over the investigation, defense, remediation, or settlement of any
Indemnifying Event so long as the indemnitor acts in good faith with respect to
the rights, duties and obligations of the indemnitee; provided, however, in any
matter for which the indemnitee may ultimately have full or partial
responsibility, the indemnitee may, in its sole discretion, decide to
participate in the investigation, defense, remediation or settlement thereof at
its own initial expense, subject to the right to seek . reimbursement of actual
reasonable attorneys and consultants' fees and expenses, court costs, and all
other out-of-pocket costs in the event that it is found to be an Indemnifying
Event. Such fees, costs and expenses shall be limited to those directly incurred
or suffered by the indemnitee to the. enforcement of the indemnitee's rights
with respect to an accrued Indemnifying Event obligation. Upon reasonable
notice, the shall provide the indemnitor or shall be allowed reasonable access
to the Leased Premises to perform any obligations under this Section 8.05 or
Section 11.02(i).
(c) Without limiting any of. the foregoing, under no
circumstances shall either party be liable, to the other for any consequential
damages (including, but not limited to, loss of business, profits, business
opportunities, goodwill, loss of use of the Leased Premises, business
interruption, or any cost or expense related thereto) incurred or suffered by
Lessor or Lessee under Section 8.05(a) or Section 11.02 (i).
8.06 WAIVER OF SUBROGATION RIGHTS. Anything in this Lease to the
contrary notwithstanding, Lessor and Lessee each hereby waives to the extent
that such waiver will not invalidate any insurance policy maintained by Lessee,
any and all rights of recovery, claims, actions or causes of action, against the
other, its agents, servants, partners, members, shareholders, officers, managers
and employees, for any loss or damage that may occur to the Leased Premises or
the Building, or any improvements thereto, or any personal property of party
therein, by reason of fire, the elements, and any other cause which is insured
against under the terms of the fire and coverage insurance policies referred to
in. Section 8.04 hereof, to the extent that such loss or is recovered under said
insurance policies, regardless of cause or origin, including negligence of the
other party hereto/ its agents, officers, partners, members, managers,
shareholders, servants or employees, and covenants that no insurer shall hold
any right of subrogation such party. If the respective insurers of Lessor and
Lessee do not permit such a waiver without an appropriate endorsement to such
party's insurance policy, Lessor and Lessee covenant and agree to notify the
insurers of the waiver set- forth herein and to secure from each such insurer an
appropriate endorsement to its respective insurance policy concerning such
waiver.
8.07 LIMITATION OF LESSOR'S PERSONAL LIABILITY. Lessee agrees to look
solely to Lessor's interest in the Building and the Land for the recovery of any
judgment against Lessor, and Lessor, its partners, officers, members, managers,
directors and employees, shall never be personally liable for any such judgment.
The provisions contained in the foregoing sentence are not intended to, and
shall not, limit any right that Lessee might otherwise have to obtain injunctive
relief against Lessor or Lessor's successors in interest or any
Page 7
suit or action in connection with enforcement or collection of amounts which may
become owing or payable under or on.account of liability insurance maintained by
Lessor.
ARTICLE 9
LESSOR'S LIEN, DEFAULT, REMIDIES AND SUBORDINATION
9.01 INTENTIONALLY DELETED
9.02 DEFAULT BY LESSEE. If Lessee shall default in the payment of
any Rent or other sum to be paid by Lessee under this Lease when due; or Lessee
shall default in the performance of any of the other covenants or conditions
(including without limitation- maintenance of the Letter of Credit required
under Section 9.07) which Lessee is required to observe and to perform under
this Lease and such default shall continue for twenty (20) days after written
notice to Lessee; or the interest of Lessee under this Lease shall be levied on
under execution or other legal process; or any petition shall be filed by or
against Lessee to declare Lessee a bankrupt or to delay, reduce or modify
Lessee's, debts or obligations; or Lessee is declared insolvent according to
law; or any assignment of Lessee's property shall be made for the benefit of
creditors; or if a receiver or trustee is appointed for Lessee or its property;
or Lessee shall vacate or abandon the Leased Premises or any part thereof at any
time during the Term for a period of fifteen (15) or more continuous days,
provided, however, that Lessee shall not be considered to have vacated or
abandoned the Leased Premises as long as Lessee continues to pay Rent and
fulfill all other obligations under this Lease regardless, of whether Lessee is
continuously occupying the Leased Premises or not; or Lessee is a corporation
and Lessee shall cease to exist as a corporation in good standing in the state
of its incorporation; or Lessee is a partnership or other entity and Lessee
shall be dissolved or otherwise liquidated; then Lessor may treat the occurrence
of any one or more of the foregoing' events as a breach of this- Lease
(provided, no such levy, execution, legal process or petition filed Lessee shall
constitute a breach of this Lease if Lessee shall contest the same by
appropriate proceedings and shall remove or vacate the within sixty (60) days
from the date of its creation, service or filing). Thereupon, at Lessor's option
and in addition to all other rights and remedies provided at law or in equity,
Lessor may terminate this Lease and repossess the Leased Premises and be
entitled to recover as damages a sum of money equal to the total of (a) the cost
of recovering the Leased Premises (including attorneys' fees and costs of suit),
(b) the unpaid Rent earned at the time, of termination, (c) the balance of the
Rent for the remainder of the Term, (d) any other sum of money, and damages owed
by Lessee to Lessor and interest on (a) (b), (c) and (d) above at the rate of
the lesser of fourteen percent (14%) (but not less than the prime interest rate
plus 2%) per annum or the highest rate allowed by applicable law. At Lessor's
sole option, Lessor or Lessor's lender may invoke payment of said damages, in
whole or in part, by drawing down the Letter of Credit required under Section
9.07. The provisions of this Section 9.02 and of Section 9.07 shall survive the
expiration or earlier termination of this Lease.
9.03 NON WAIVER. Failure of Lessor to declare any default immediately
upon occurrence thereof, or delay in taking any action in connection therewith,
shall not waive such default and Lessor shall have the right to declare any such
default at any time, and take such action as might be lawful or authorized
hereunder, either in law or in equity.
9.04 ATTORNEYS' FEES. In the event either party defaults in the
performance- of any of the terms, agreements or conditions contained in this
Lease and the other parly places the enforcement or interpretation of this
Lease, or any part thereof, or the collection of any Rent due or to become due
hereunder, or recovery of the possession of the. Leased Premises, in the hands
of an attorney who files suit upon the same, the non-prevailing party agrees to
pay the prevailing party's actual reasonable attorney's fees, court costs and
expenses.
9.05 SUBORDINATION ESTOPPEL CERTIFICATE. This Lease is and shall be
subject and subordinate to any and all ground or similar leases affecting the
Building, and to ail mortgages which may now or hereafter encumber or affect the
Building and to. all renewals, modifications, consolidations, replacements and
extensions of any such leases and mortgages; provided, at the option of any such
lessor or mortgagee, this Lease shall be superior to the lease or mortgage of
such lessor or mortgagee. The provisions of this Section be self-operative and
shall require no further consent or agreement by Lessee. Lessee agrees, however,
to execute and return any estoppel certificate; subordination, non-disturbance
and attornment agreement; consent or other agreement reasonably requested by any
such lessor or mortgagee, or by Lessor, within ten (10) days after receipt of
same, including, without limitation, an estoppel certificate in substantially
the form attached hereto as Exhibit F Lessee shall, at the request of Lessor or
any mortgagee of Lessor secured by a lien on the Building, furnish such
mortgagee and/or lessor with written notice of any default or breach by Lessor
at least sixty (60) days prior to the exercise by Lessee of any rights and/or
remedies of Lessee hereunder arising out of such default or breach.
Notwithstanding anything to the contrary contained in this paragraph, Lessee
shall only be obligated to subordinate its rights and interests under the Lease
(including, but not limited to, accepting this Lease subject and subordinate to
any recorded first mortgage, or deed of lien presently existing or hereafter
created upon the Leased Premises) if the holder of any recorded first mortgage
or deed of trust lien Lessee a non-disturbance agreement providing that Lessee
shall have the right to remain in possession of the Leased Premises in
accordance with the terms of the Lease so long as Lessee is not in default
hereunder,
9.06 ATTORNMENT.. If any ground or similar lease or mortgage is
terminated or foreclosed, Lessee shall, upon request, attorn to the Lessor under
such lease or the mortgagee or purchaser at such foreclosure sale, as the case
may be, and execute instrument(s) confirming such attornment. In the event of
such a termination or foreclosure and upon Lessee's attornment as aforesaid,
Lessee will automatically become the tenant of the successor to Lessor's
interest without change in the terms or provisions of this' Lease; provided,
such successor to Lessor's interest shall not be bound by (i) any payment of
rent for more than one month in advance except prepayments for security
deposits, if any, or (ii) any amendments or modifications of this Lease made
after the date of termination or foreclosure without the prior written consent
of such lessor or mortgagee. .
Page 8
9.07 LETTER OF CREDIT/GUARANTY. During the initial Term, and for a
period of at least sixty (60) days thereafter. Lessee shall either (i) provide
and maintain for the benefit of Lessor and Lessor's lender an unconditional and
irrevocable letter of credit from a domestic bank with a Standard & Poor's
rating of at least an "A" (the "Letter of Credit") and in the form attached
hereto as Exhibit I, or otherwise in a form acceptable to Lessor and Lessor's
lender, or (ii) cause ABB Asea Brown Boveri Limited to execute a Guaranty in a
form acceptable to Lessee, Lessor and Lessor's lender. Lessor hereby represents
to Lessee that to the best of its knowledge, the form contained in EXHIBIT I
attached hereto has been pre-approved by Lessor's construction and interim
lender, Branch Bank and Trust Company, for the duration of such loan. The Letter
of Credit shall be provided by Lessee on the date that this Lease is executed.
The amount of the Letter of Credit shall be $1,116,544.00 during the first year
of the Lease and shall decline annually thereafter as shown in the following
schedule:
Initial Term:
First Year Amount $1,116,544.00
Second Year Amount 1,042,487.00
Third Year Amount 961,884.00
Fourth Year Amount 874,156.00
Fifth Year Amount 778,673.00
Sixth Year Amount 674,751.00
Seventh Year Amount 561,643.00
.
In the event that the Letter of Credit is subject to periodic (but not less than
annual) renewal, then Lessee shall renew the Letter of Credit not less than
ninety (90) days prior to the scheduled renewal date. Furthermore, both Lessee
and the issuer of said Letter of Credit shall immediately provide written notice
in the event that .said Letter of Credit is not in fact renewed ninety (90) days
prior to the scheduled renewal date. Failure to renew said Letter of Credit or
to provide notice of failure to renew within the required period shall
constitute an event of default hereunder.
ARTICLE 10
ASSIGNMENT AND SUBLEASE
10.01 SUBLEASE. Lessee shall not, voluntarily, by operation of law,
or otherwise, sublease the Leased Premises or any part thereof, or allow any
person other than Lessee, its employees, agents, servants and invitees, to
occupy or use the Leased Premises or any portion thereof, without the express
prior written consent of Lessor, such consent not to be unreasonably withheld.
Lessee shall not have the right to otherwise, assign, transfer, mortgage, pledge
or encumber this Lease or the Leased Premises. If Lessee desires to sublet the
Leased Premises or any part thereof, Lessee shall give Lessor written notice of
such desire at least sixty (60) days in advance of the date on which Lessee
desires to make such sublease. Lessor shall then have a period of thirty (30)
days following receipt of such notice within which to notify Lessee in writing
that Lessor elects (a) to terminate this Lease as to the space so affected as of
the date so specified by Lessee, in which event Lessee shall be relieved of all
further obligations hereunder as to such space, or (b) to permit Lessee to
sublet such space (provided, however, if the rent agreed upon between Lessee and
sublessee is greater than the Monthly Rent that Lessee must pay Lessor, such
excess rent shall be deemed additional rent owed by Lessee and payable to Lessor
in the manner that Lessee pays the Rent hereunder), or (c) to refuse to consent
to Lessee's subleasing such space to continue this Lease in foil force and
effect as to the entire Leased Premises. If Lessor should fail to notify Lessee
in writing of such election within the thirty (30) day period, Lessor shall be
deemed to have elected option (c) above. - No subletting by Lessee shall relieve
Lessee of any obligations under this Lease, and Lessee shall remain fully liable
hereunder. If Lessee is not a public company that is registered on a national
stock exchange or that is required to register its stock with the Securities and
Exchange Commission under Section 12(g) of the Securities and Act of 1934, any
change in a majority of the voting rights or other controlling rights or
interests" of Lessee shall be deemed an for the purposes hereof. Notwithstanding
the foregoing, Lessee shall have the right to assign this Lease or sublet all or
any portion of the Leased Premises to an Affiliate without Lessor's consent or
to an entity which purchases Lessee's or to an entity which with or is
consolidated with Lessee. For purposes of this paragraph, the term "Affiliate"
shall mean an entity which controls, is controlled by or under common control
with Lessee. There can be no assignment or subletting to an Affiliate or other
entity hereunder, however, unless this Lease and the Letter, of Credit referred
to in Section 9.07 are in full force effect without any breach or default on the
part of the Lessee. If Lessee makes any assignment, sublease, mortgage, pledge
or encumbrance, with or without Lessor's written consent, Lessee will remain
primarily liable for the performance of all terms of this Lease and the Letter
of Credit referred to in Section 9.07.
-10.02 ASSIGNMENT BY LESSOR. Lessor shall have the right to transfer
and assign, in whole or in part, all its rights and obligations hereunder and in
the Building and all other property referred to herein, and in such event and
upon such transfer (any such transferee to have the benefit of, and be subject
to, the provisions of Section 6.06 and Section 8.07 hereof) no -further
liability or obligation shall thereafter accrue against Lessor under this
Lease,.
ARTICLE 11
NOTICES AND MISCELLANEOUS
11.01 NOTICES Except as otherwise provided in this Lease, any
statement, notice, or other communication which Lessor or Lessee may desire or
is required to give to the other shall be in writing and shall be deemed
sufficiently given or rendered if hand delivered, or if sent by registered or
certified mail, postage prepaid, return receipt requested, to the addresses for
Lessor and Lessee set forth in Subsection 2.01 (j) or at such other address(es)
as either party shall designate from time to time by ten (10) days prior
written, notice to the other party. . .
Page 9
11.02 MISCELLANEOUS. (a) This Lease shall be binding upon and inure to
the benefit of the legal representatives, successors and assigns of Lessor, and
shall be binding upon and inure to the benefit of Lessee, its legal
representatives and successors. Pronouns of any shall include the other genders,
and either the singular or the plural shall include the other,
(b) All rights and remedies of Lessor under this Lease shall
be cumulative and none shall exclude any other rights or remedies allowed by
law. This Lease is declared to be a North Carolina contract, and all of the
..terms thereof shall be construed according to the laws of the State of North
Carolina.
(c) This Lease may not be altered changed or amended, except
by an instrument in writing executed by all parties hereto. Further, the terms
and provisions of this Lease shall not be construed against or in favor of a
party hereto merely because such party is the "Lessor" or the "Lessee" hereunder
or such party or its counsel is the draftsman of this Lease.
(d) . The terms and provisions of EXHIBITS A-1, A-2. B, C, D,
E, F, G, H, I, J, AND K described herein and attached hereto are hereby a part
hereof for all purposes, provided, however, that, unless otherwise expressly
stated, in the event of a conflict between the terms of this Lease and the terms
of any Exhibit attached hereto, the terms of this Lease shall control.
(e) If Lessee is a corporation, partnership or other entity,
Lessee warrants that all consents and approvals required of third parties for
the execution, delivery and performance of this Lease have been obtained and
that Lessee has the right and authority to enter into and perform its covenants
contained in this Lease.
(f) (Intentionally Deleted)
(g) If any term or provision of this Lease, or the application
thereof to any person or circumstance, shall to any extent be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each provision of this Lease
shall be valid and shall be enforceable to the extent permitted by law,
notwithstanding the invalidity of any other provision hereof.
(h) If applicable in the jurisdiction where the Leased
Premises are situated, Lessee shall pay and be liable for all rental, sales and
use taxes or other similar taxes, if any, levied or imposed by any city, state,
county or other governmental body having authority, such payments to be in
addition to all. other payments required to be paid to Lessor by Lessee under
the terms of this Lease, Any such payment shall be paid concurrently with the
payment of the rent upon which the tax is based as set forth above.
(i) Lessee has disclosed to Lessor and Lessor acknowledges
that Lessee's use of the Leased Premises may involve the use of Hazardous
Materials, as hereinafter defined. Any Hazardous Material permitted on the
Leased Premises, and all containers therefor, shall be used, kept, stored, and
disposed of in a manner that complies with all federal, state, and local laws or
regulations applicable to the Hazardous Material. Lessee shall not discharge,
leak, or emit, or permit to be discharged, leaked, or emitted, any material into
the atmosphere, ground, sewer system, or any body of water, if such discharge,
leak or emission (as is reasonably determined by the Lessor, or any governmental
authority) is in violation of applicable law or would require Lessor or Lessee
to take any remedial action or may adversely affect (a) the health, welfare, or
safety of persons, whether located on the Leased Premises or elsewhere or (b)
the condition, use, or enjoyment of the Building or any other real or personal
property. Lessee shall make available to Lessor, upon Lessor's written request,
Lessee's then current listings and quantities of Hazardous Material stored at
the Leased Premises. Lessee shall provide any other related information
reasonably requested by Lessor or Lessor's lender. As used herein, the term
"Hazardous Material" means (a) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act of 1976, as time to time, and regulations
promulgated thereunder; (b) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended from time to time, and regulations promulgated thereunder; (c) any oil,
products, and their by-products; (d) any substance that is toxic, ignitable,
reactive or corrosive, and (e) any substance that is or becomes regulated by any
federal, state, or local government authority. Lessee hereby that it shall be
fully liable for all costs and related to the use, storage and disposal of
Hazardous Material kept on the Leased Premises by the Lessee, and the Lessee
shall give immediate notice to the Lessor of any violation or potential
violation of the provisions of this Section 11.02 (i). Lessee shall defend,
indemnify, and hold harmless Lessor and its agents, from and. against any and
all claims, demands, penalties, fines, liabilities, settlements, damages, costs,
or expenses (including, without limitation, actual reasonable attorneys'. . and
consultants' fees, court costs, and litigation expenses) of whatever kind or
nature related to (a) the presence, disposal, release, or threatened release of
any such Hazardous Material that is on, from, or affecting the soil, water,
vegetation, buildings, personal property, persons, animals or otherwise; (b) any
personal injury (including, wrongful death) or property damage (real or
personal) arising out of or related to such Hazardous Material; (c) any lawsuit
brought or threatened, settlement reached, or government order related to such
Hazardous Material; or (d) any violation of any laws applicable thereto, with
regard to the immediately foregoing clauses (a) through (d), arising out of the
use, storage or disposal of Hazardous Material kept on the Leased Premises by
Lessee. Without limitation of the foregoing, if Lessee causes or permits the
presence of any Hazardous Material on the Leased Premises that results in
contamination which is in violation of applicable law or would require Lessor or
Lessee to take any remedial action, Lessee shall promptly, at its sole expense,
take any and all required actions to return the Leased Premises to the condition
necessary to comply with environmental standards of the appropriate federal,
state or local government agency or political subdivision. Lessee shall not be
prevented or prohibited hereunder from taking such remedial action as it
reasonably believes to be required by applicable law or any regulatory
authority. Lessee shall promptly notify Lessor of any such remedial action.
Lessee and Lessor agree that, at Lessors option, environmental testing be
completed immediately prior to the expiration of the Term to determine that no
contamination has occurred during the Term. If the test results indicate that
contamination has been introduced into the soil or ground water on or under the
Leased Premises and that such contamination has been caused by Lessee, then
Lessee shall promptly take all actions at Lessee's sole expense as are necessary
to return the Leased Premises to the condition necessary to comply with
environmental standards of the appropriate federal, state or local government
agency or political subdivision. Lessor may also conduct annual environmental
testing if Lessor deems such testing necessary. All costs of any environmental
testing hereunder shall be paid by Lessee if any contamination
Page 10
of the soil or ground water is found to have been caused by Lessee, or by Lessor
if no such contamination is found. The provisions of this Section 11.02 (i)
shall be in addition to any other obligations and. liabilities Lessee may have
to Lessor at law or equity and shall survive the transactions contemplated
herein and shall survive the expiration or earlier termination of this Lease.
(j) Lessee is prohibited from recording this Lease and may
record a memorandum thereof only with the prior written consent of Lessor.
(k) Lessor agrees to provide Lessee with 280 parking spaces
within the Leased Premises at no additional charge. In the event that Lessee
adds active loading docks, then the number of parking spaces shall be reduced
accordingly.
(1) "Square feet" or "square foot" as used in this Lease is the approximate
gross area of the Building
(m) Lessor agrees to pay to the Broker(s) named in Subsection 2.01(k) a
real estate broker a real estate brokerage commission only as set forth in
separate listing and/or commission agreement(s) between Lessor and the named
Broker(s). Lessor and Lessee each hereby represent and warrant to the other that
they have not employed any other agents, brokers or other parties in connection
with this Lease, and each agrees that it shall hold the other harmless from and
against any and all claims of all other agents, brokers or other parties
claiming by, through or under the respective indemnifying party.
(n) As part of the Tenant Improvement set forth in EXHIBIT C
attached hereto, Lessor shall permit Lessee to have signage on the building or
on the ground; provided, however, any such signage shall comply with the rules,
regulations, and ordinances of any governmental entity having proper
jurisdiction over the Building and Project.
Page 11
ARTICLE 12
ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES
12.01 ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES. LESSEE
AND LESSOR AGREE THAT THIS LEASE AND THE EXHIBITS ATTACHED HERETO CONSTITUTE THE
ENTIRE AGEEMENT OF THE PARTIES AND ALL PRIOR CORRESPONDENCE, MEMORANDA,
AGREEMENTS AND UNDERSTANDINGS (WRITTEN AND ORAL) ARE MERGED INTO AND SUPERSEDED
BY THIS LEASE AND THERE ARE AND NO VERBAL REPRESENTATIONS, WARRENTIES,
UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES MADE BY LESSOR OR LESSEE IN
CONNECTION WITH THIS LEASE. LESSEE AND LESSOR FURTHER AGREE THAT THERE ARE NO,
AND LESSEE EXPRESSLY WAIVES ANY AND ALL WARRANTIES WHICH EXTEND BEYOND THOSE
EXPRESSLY SET FORTH IN THIS LEASE OR IMPLIED WARRANTIES OF MERCHANTABILITY,
HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT
OF THE LEASE.
IN TESTIMONY WHEREOF, the parties hereto have executed this Lease as of the date
aforesaid.
LESSOR:
Eastpark Group II, L.L.C., a North
Carolina limited liability company (SEAL)
By: Capital Associates Limited
Partnership, Manager (SEAL)
By: /S/ Hugh D. Little
---------------------------------------------
LESSEE:
ABB Power T&D Company Inc., a Delaware
Corporation
By: /S/ John G. Reckleff
---------------------------------------------
Name: John G. Reckleff
-----------------------------------
Title: VP
------------------------------------------
Page 12
EXHIBIT A-1
SCHEMATIC PLAN(S) OF THE LEASED PREMISES
Page 13
TOPOGRAPHIC SURVEY OF
LOT 67, ROGERS PARK
Page 14
EXHIBIT B
ACCEPTANCE OF LEASED PREMISES MEMORANDUM
Lessor and Lessee hereby agree that:
1. Except for those Items shown on the attached "punch list, which Lessor
shall use its best efforts to remedy within _______ (_) days after the
date hereof, Lessor has fully completed the construction work required
of Lessor under the terms of the Lease and the Work Letter attached as
Exhibit C. thereto.
2. The Leased Premises are tenantable, Lessor has no further obligation
"for construction (except as specified above), and'Lessee acknowledges
that the Leased Premises are satisfactory in all respects. - .
3. The Commencement Date of the Lease is hereby-agreed to be
______________ 19__.
4. The Expiration Date of the Lease is hereby agreed to be ________, 19 ;
provided, however, that if the Commencement Date Is other than the
first day of the month, the Expiration Date shall nevertheless be the
last day of the last . month of the Term. All other terms and
conditions of the Lease are hereby ratified and acknowledged to be
unchanged. - '. . Agreed and Executed this ____ day of ____________, 19
LEESSEE: ABB Power T&D Company Inc., a
Delaware Corporation
By:
Name
Title
(Corporate Seal) .
ATTEST:
By:
------------------------
Page 15
Exhibit C
Work Letter Agreement
1. Tenant Improvement Allowance: Lessor shall provide Lessee with a tenant
improvement allowance in the amount of One Million Four Hundred
Fourteen Thousand Two Hundred Twenty-Four Dollars ($1,414,224.00) (the
"Allowance") to pay for all costs incurred by Lessor for the
construction of any tenant improvements to the shell condition of the
Leased Premises as set forth below.
2. Shell Condition: Lessor shall, at its sole cost and expense, perform or
have performed, all work necessary to construct, or supply the
necessary inventory to complete, the Leased Premises to its shell
condition. The "shell condition" of the Leased Premises shall consist
of the items enumerated under the sections "Sitework" and "Building"
and the corresponding exhibits attached thereto in Exhibit D. Technical
Data, of the Lease, which is incorporated herein by reference in its
entirety. In constructing the shell condition, Lessor hereby warrants
that Lessor shall use quality materials and construction techniques
normally utilized in constructing a shell building, and related
sitework, of this type. Any improvements made to the shell condition of
the Leased Premises shall be deemed "Tenant Improvements". Lessee has
already notified Lessor, and Lessor has already agreed to modify the
shell condition as shown in Exhibit K attached to the Lease and
described as follows: (i) change round columns to rectangular columns
like those at 13000 Weston Parkway - $14,228.00, (ii) change the
soffits over the storefront on the three diagonal corners (only) from
one foot to approximately five feet deep like those at 13000 Weston
Parkway - $37,840.00, (iii) add 8' x 9' aluminum windows on the rear
(in the future dock door locations) - $1,495.00 EACH, and (iv) add 6' x
6' aluminum windows on the ends - unit price to be determined. The
changes described above, and adding landscape irrigation if elected by
Lessee, to the shell condition shall be deemed Tenant Improvements and
shall be paid for out of the Allowance.
3. Design: Lessor shall cause an architect and one or more engineers, each
of whom shall be designated by Lessor at its sole discretion, to
prepare architectural, plumbing, mechanical, and electrical plans
sufficiently detailed for pricing, approval and construction of the
Tenant Improvements ("the Detailed Plans"). All partitions, doors,
hardware, ceiling tile, window coverings, plumbing, HVAC, lighting
fixtures, switches, outlets and life safety items shall be designed in
Lessor's standard manner. Carpet, paint, wall covering, and millwork
shall be designed in Lessor's standard manner, unless otherwise
directed by Lessee. Lessee may request Tenant Improvements over and
above those normally constructed or provided by Lessor, and Lessor
shall approve Lessee's request for such Tenant Improvements, provided
that they will not interfere with the operation of the Building, affect
the outside appearance of the Building, or adversely affect the
Building's structural, plumbing, mechanical, or electrical systems.
Lessee shall furnish to Lessor all information and technical data
reasonably necessary for the preparation of the Detailed Plans in a
reasonable time from the date of Lessor's request therefore, so as not
to delay the design, pricing, approval, and construction of the Tenant
Improvements. Notwithstanding anything to the contrary contained
herein, Tenant Improvements to be paid for from the Allowance shall
include plumbing, fire protection, HVAC, and electrical infrastructure
reasonably necessary for future multi-tenant occupancy. Tenant
Improvements to be paid for from the Allowance shall also be generic
and not special purpose, and suitable for reuse by future tenants of a
multi-tenant "flex" building, as reasonably determined by Lessor and
Lessee. For example, the preliminary plan attached to the Lease as
Exhibit J is deemed to be generic and not special purpose, and is
deemed to be suitable for reuse by future tenants of a ---------
multi-tenant "flex" building. Notwithstanding anything to the contrary
contained herein, the cost of the design (architectural and
engineering) and construction of any Tenant Improvements (i) which are
not generic and which are special purpose ("Extra Work"), or (ii) which
exceed the amount of the Allowance, shall be paid for by Lessee upon
receipt of Lessor's invoice therefor, and shall not be paid out of the
Allowance.
4. Construction: Lessor shall cause a general contractor or contractors
designated by Lessor at its sole discretion, to price and to construct
the Tenant Improvements. Lessor will use its best efforts to coordinate
construction of the Tenant Improvements with construction of the shell
condition, so that the Allowance can be used efficiently; provided,
however, that such obligation is contingent upon Lessee providing all
information and making all decisions with respect to the design and
construction of the Tenant Improvements in a timely manner.
5. Approval of Detailed Plans and Cost: Prior to commencing construction
of the Tenant Improvements, Lessor shall submit to Lessee for Lessee's
approval (i) the Detailed Plans, and (ii) an itemized cost statement
for the design and construction the Tenant Improvements. Such cost
statement shall not include any mark-up for Lessor, but shall include
the actual cost to Lessor of any materials or fixtures to be utilized,
all that have been or will be purchased directly by Lessor. Such cost
statement shall include all costs associated with any contractor's
general conditions, permits, taxes, insurance, and fees. Within ten
(10) business days after its receipt of the cost statement and the
Detailed Plans, Lessee shall approve the Detailed Plans and cost
statement in writing, subject to any modifications or changes in the
Detailed Plans requested by Lessee. Notwithstanding anything to the
contrary contained herein, if the cost of constructing the Tenant
Improvements as approved by Lessee exceeds the Allowance, then Lessee
shall pay Lessor the amount of such excess cost within ten (10)
business days of receipt of Lessor's invoice therefor. If the cost of
constructing the Tenant Improvements as approved by Lessee is less than
the Allowance, Lessee shall not be entitled to any refund; provided,
however, that at any time during the initial Lease Term, Lessor shall
apply any remaining portion of the Allowance to any additional Tenant
Improvements, or alterations thereto, made by Lessee during the initial
Term of the Lease, until the full amount of the Allowance has been
spent.
6. Delay. The Commencement Date, Expiration Date, and commencement of
installments of Monthly Base Rent will not be postponed or delayed as a
result of:
a. Lessee's failure to furnish information in accordance with
Paragraph 3;
Page 16
b. Lessee's failure to approve the Detailed Plans in accordance with
Paragraph 5;
c. Lessee's failure to approve the cost statement and any excess cost
as provided in Paragraph 5;
d. Changes to the Detailed Plans requested or caused by Lessee after
Lessee's approval of the Detailed Plans in accordance with
Paragraph 5;
e. Lessee's failure to adhere to the Development Schedule, set forth
in Exhibit E, herein, or;
f. Any other delay from any other cause attributable to Lessee, its
agents, consultants, contractors, subcontractors or employees.
7. Lessee's Access to Leased Premises. Lessor will permit Lessee and its
agents reasonable access to the Leased Premises during normal business
hours prior to the date specified for the Commencement Date so that
Lessee may perform itself or through its own contractors, who have been
approved in advance by Lessor, such work as Lessee may desire to
prepare the Leased Premises for its use, including, without limitation,
setting up office furniture and equipment. This license to enter prior
to the Commencement Date is conditioned on the following:
a. Lessee or Lessee's contractors working in harmony and not
interfering with Lessor's contractors or with any other lessee or
its contractors; and
b. Lessee delivering to Lessor prior to commencement of any work in
the Leased Premises by Lessee or its contractors, and at least 30
days prior to the expiration of any policy, satisfactory
certificates of insurance for each contractor evidencing worker's
compensation and comprehensive general liability insurance for
bodily injury and property damage in amounts, with companies, and
on forms satisfactory to Lessor.
If at anytime the entry by Lessee or its contractors, in Lessor's sole
judgment, causes disharmony or interference with Lessor's construction
activities in the Leased Premises or with any other lease, Lessor may
withdraw this license by giving written notice to Lessee. If Lessor
withdraws this license, Lessee shall immediately cause its contractors
to cease operations in and withdraw from the Leased Premises until
Lessor completes its work. Any entry by Lessee or its contractors is
subject to all of the terms, covenants, provisions, and conditions of
the Lease except the covenant to pay Monthly Rent. Lessor shall not be
liable in any way for any injury, loss, or damage that may occur to
Lessee, its employees, contractors, agents or to any of Lessee's tenant
improvements made prior to the Commencement Date, which are made solely
at Lessee's risk. Lessee shall indemnify, defend, and hold harmless
Lessor and its contractors, Building manager, agents and employees from
any and all claims, demands, and actions arising from activities of
Lessee and its contractors, workmen, mechanics, agents and employees.
8. Warranties. For a period of one (1) year after the date of substantial
completion or the Commencement Date, whichever occurs first, Lessor
shall cause the repair or replacement of any defects in material or
workmanship in the Building or Tenant Improvements installed by Lessor
and shall pay all reasonable costs of enforcing any warranty, guaranty
or bond covering or agreeing to remedy such defect (a "Warranty"). On
the first anniversary or the date of substantial completion or the
Commencement Date, whichever occurs first, Lessor shall assign any and
all rights of Lessor in and to any Warranty in effect for items the
repair, replacement, and/or maintenance of which Lessee has assumed
responsibility under this Lease. Lessor shall thereafter assist Lessee
in the enforcement of any such Warranty(ies) assigned to Lessee. The
obligations of Lessor set forth above are contingent upon Lessee
notifying Lessor of the existence of any such defect as soon as
reasonably practicable after the date Lessee discovers such defect.
LESSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO IMPLIED WARRANTIES OF MERCHANT-ABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, IN CONNECTION WITH THE TENANT IMPROVEMENTS EXCEPT
AS EXPRESSLY SET FORTH IN THIS SECTION 8. The Lessee's sole remedy for
the breach of any applicable warranty shall be the remedy set forth in
this Section 8. Lessee agrees that no other remedy, including without
limitation, incidental or consequential damages for lost profits,
injury to person or property or any other incidental or consequential
loss shall be available to Lessee.
9. Compliance with Certain Requirements. At any time before, during, and
after construction, Lessor may require changes to the Detailed Plans in
order to comply with applicable building codes, other governmental
requirements, and insurance requirements. Neither Lessor's nor Lessee's
approval of the Detailed Plans is a warranty that the Detailed Plans
comply with applicable building codes, other governmental requirements,
and insurance requirements.
10. Delay. Lessee and Lessor recognize that time is of the essence and that
Lessee will suffer financial loss if the Building and Leased Premises
are not substantially completed and a certificate of occupancy for the
Leased Premises is not obtained by the Target Commencement Date, as
extended for any Excused Delay (as defined below). The parties also
recognize the delay, expense and difficulty involved in proving actual
loss suffered by Lessee if the Building is not substantially completed
and a certificate of occupancy is not obtained for the Leased Premises
by the Target Commencement Date, as extended for any Excused Delay (as
defined below). Therefore, if the Building is not substantially
completed and a certificate of occupancy is not obtained for the Leased
Premises on or before January 1, 1998, then Lessor hereby agrees to pay
to Lessee as liquidated damages and not as a penalty, One Thousand
Dollars ($1,000.00) for each calendar day after the Target Commencement
Date, as extended for any Excused Delay (as defined below), that the
Building is not substantially completed and a certificate of occupancy
is not obtained for the Leased Premises; provided, however, that one
(1) business day shall be added to the Target Commencement Date for
every day of delay caused by (i) inability to obtain or delay in
obtaining any required approval permit or license from any governmental
authority or private entity having proper jurisdiction; (ii) Lessee's
failure to provide in a timely manner necessary information, decisions,
review and approvals, including any action
Page 17
or inaction by Lessee described in Section 6 of this Work Letter, (iii)
inclement weather (no time for weather related delays is included in the
construction time); (iv) war, riot, labor and material shortage, strikes and
acts of God; and (v) any other event not due to Lessor's negligence
(individually and collectively an "Excused Delay").
Page 18
EXHIBIT D
TECHNICAL DATA
SITEWORK
Paving and walks as generally shown on the attached site plan. Exhibit
D-1.
Curb and gutter in front, but not in back.
Grading to balance cut and fill.
Piped storm drainage on front.
Surface storm drainage on back, including runoff from downspouts.
Domestic water service (3" line and 2" meter) stubbed off just inside
of building.
Fire water service (size as required) for fire hydrants and stubbed off
just inside of building of building for ordinary hazard fire
sprinkler system
Sanitary sewer service (6") stubbed off just inside of building.
Two (2) four-inch (4") conduits for telecommunications stubbed off just
inside of building.
Electrical service stubbed off just inside of building.
Gas service stubbed off just inside of building.
No signage is included. No landscaped irrigation is included.
Landscaping will meet or exceed City ordinance.
BUILDING
Floor plan as generally shown on the attached Exhibit D-2.
Elevation as generally shown on the attached Exhibit D-3.
16'-0 Clear height.
Spread footings to support structure.
Structure composed of beams, columns, and joists.
Metal roof deck is 1.5", type B", 22ga., painted.
Slab on grade is 5" thick (3000 PSI concrete), with stone base and wire
mesh.
Architectural tilt panels are 5-1/2" thick (3000 PSI concrete)
with reveals.
Included is 15 each, 20" round columns to support the spandrel panels
at storefronts.
R-14.3 insulation, with single ply (45 mil), and ballast roof (not a
Factory Mutual roof system).
No rear doors are included (dock area), or access steps.
Tilt panels will be texture painted (Trico-plex).
344 LF of 1'-0 wide sheetrock/framing soffit is included above the
storefronts. (Also 1'-6" fascia).
344 LF of 9'-0 high storefront (STD metal framing, and anodized
aluminum).
32 ea., 6' x 6' windows are included on front. None on back.
Items specifically not included:
Interior wall insulation (building walls are uninsulated).
Plumbing.
Sprinkler (fire).
HVAC.
Electrical.
Roof slopes from front to back with exposed gutters and downspouts on
back. No parapet on back. Front has 1'0" high parapet above roof. HVAC
equipment installed on the roof may be visible from public streets.
Three storefront entrances are included. Each may be either a single
door or a pair of doors. Horizontal architectural reveals as generally
shown on the building elevation attached as EXHIBIT D-3.
Page 19
EXHIBIT D-L
SITE PLAN
Page 20
EXHIBIT D-2
FLOOR PLAN
Page 21
EXHIBIT D-3
ELEVATION
Page 22
EXHIBIT E
DEVELOPMENT SCHEDULE
Page 23
EXHIBIT F
FORM OF ESTOPPEL CERTIFICATE
The undersigned_________________________________________"Lessee", in
consideration of One Dollar ($1.00) and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, hereby certifies to
________________________________________ ("Lessor"), [the holder or prospective
holder of any mortgage covering the property] (the "Mortgagee") and [vendee
under any contract of sale with respect to the Property] (the "Purchaser") as
follows:
1. Lessee and Lessor executed a certain Lease Agreement (the "Lease"),
dated ____________________, 19____,
covering the building located at_________________________________ known as and
by the street number ___________________________________________ (the "Leased
Premises"), for a term commencing on _________________________, 19_____ , and
expiring on ________________________________________________.
2. The Lease is in full force and effect and has not been modified,
changed, altered or amended in any respect.
3. Lessee has accepted and is now in possession of the Leased Premises
and is paying the full Rent under the Lease.
4. The Base Rent payable under the Lease is $___________________ per
month. The Base Rent and all Additional Rent and other charges required to be
paid under the Lease have been paid for the period up to and including
___________________.
5. No Rent under the Lease has been paid for more than thirty (30) days
in advance of its due date.
6. All work required under the Lease to be performed by Lessor has been
completed to the full satisfaction of Lessee.
7. There are no defaults existing under the Lease on the part of either
Lessor or Lessee.
8. There is no existing basis for Lessee to cancel or terminate the
Lease.
9. As of the date hereof, there exist no valid defenses, offsets,
credits, deductions in rent or claims against the enforcement of any of the
agreements, terms, covenants or conditions of the Lease.
10. Lessee affirms that any dispute with Lessor giving rise to a claim
against Lessor is a claim under the Lease only and is subordinate to the rights
of the holder of all first lien mortgages on the Leased Premises and shall be
subject to all the terms, conditions and provisions thereof. Any such claims are
not offsets to or defenses against enforcement of the Lease.
11. Lessee affirms that any dispute with Lessor giving rise to a claim
against Lessor is a claim under the Lease only and is subordinate to the rights
of the Purchaser pursuant to any contract of sale. Any such claims are not
offsets to or defenses against enforcement of the Lease.
12. Lessee affirms that any claims pertaining to matters in existence at
the time Lessee took possession and which are known to or which were then
readily ascertainable by Lessee shall be enforced solely by money judgment
and/or specific performance against the Lessor named in the Lease and may not be
enforced as an offset to' or defense against enforcement of the Lease.
13. There are no actions, whether voluntary or otherwise, pending
against or contemplated by Lessee under the bankruptcy laws of the United States
or any state thereof.
14. There has been no material adverse change in Lessee's financial
condition between the date hereof and the date of the execution and delivery of
the Lease.
15. Lessee acknowledges that Lessor has informed Lessee that an
assignment of Lessor's interest in the Lease has been or will be made to the
Mortgagee and that no modification, revision, or cancellation of the Lease or
amendments thereto shall be effective unless a written consent thereto of the
Mortgagee is first obtained, and that until further notice payments under the
Lease may continue as heretofore.
16. Lessee acknowledges that Lessor has informed Lessee that Lessor has
entered into a contract to sell the Property to Purchaser and that no
modification, revision or cancellation of the Lease or amendments thereto shall
be effective unless a written consent thereto of the Purchaser has been
obtained.
Page 24
17. This certification is made to induce Purchaser to consummate a
purchase of the Property and to induce Mortgagee to make and maintain a mortgage
loan secured by the Property and/or to disburse additional funds to Lessor under
the terms of its agreement with Lessor, knowing that said Purchaser and
Mortgagee rely upon the truth of this certificate in making and/or maintaining
such purchase or mortgage or disbursing such funds, as applicable.
18. Except as modified herein, all other provisions of the Lease are
hereby, ratified and confirmed.
LESSEE:
ABB Power T&D Company Inc., a Delaware
Corporation
By: ______________________________
Name: ____________________________
Title: ___________________________
(Corporate Seal) Date: _____________________________
ATTEST:
By: ______________________
Page 25
EXHIBIT G
RENEWAL OPTIONS
As long as Lessee is not in default in the' performance of any of the
covenants or conditions of this Lease at the time of exercise of each renewal
option or at the time of commencement of each renewal term, each as described
below, Lessee shall have the option to renew the Term of this Lease for two (2)
successive periods of five (5) additional years each (the first five (5) years,
the "First Renewal Term" and the second five (5) years, the "Second Renewal
Term", each a "Renewal Term"). Lessee shall exercise each of such options to
renew by delivering written notice of such election to Lessor at least twelve
(12) months prior to the expiration of the initial Term and, if applicable, the
First Renewal Term. The renewal of this Lease shall be upon the same terms and
conditions of this Lease, except as follows:
(a) (I) The Monthly Base Rent for the first year of the First Renewal
Term shall be determined in the last month of the final year of the initial
Lease Term and shall be an amount equal to the Monthly Base Rent for months
eight (8) through twelve (12) of the Lease as set forth in Section 2.01(d of the
Lease, escalated by the cumulative change in the Consumer Price Index - U.S.
City Average-All Items-Clerical and Wage Earner (1982 - 84 = 100) as published
by the Bureau, of Labor Statistics United States Department of Labor (the "CPI
from the fourth (4th) month immediately preceding the first full month of the
initial Lease Term to the third (3rd) to the last month in the last year of the
initial Lease Term, as expressed in the following formula:
[[(CPI 1-CPI 0)/(CPI 0)] + 1.0] times [ the Monthly Base Rent
for months eight (8) through twelve (12) of the Lease), where
CPI 1 = CPI for the month that is three (3) months prior to the
expiration of the initial Lease Term
CPI 0 = CPI for the month that is four (4) months prior to the
first full month of the initial Lease Term.
The resulting figure will be the amount of the Monthly Base Rent for the first
year of the First Renewal Term. For example, if the initial Lease Term ends on
February 28, 2005, then the applicable CPI would be the index published for the
month of November, 2004. In addition, if the initial Lease Term begins on
December 15, 1997, and the first full month is January, 1998, then the
applicable CPI would be the index published for the month of September, .1997.
Therefore, for purposes of determining the Monthly Base Rent for the first year
of the First Renewal Term, the cumulative change in the CPI would be measured
from September, 1997 through November, 2004.
(ii) The Monthly Base Rent for the first year of the Second Renewal Term shall
be determined in the last month of the final year of the First Renewal Term and
shall be an amount equal to the Monthly Base Rent for months eight (8) through
twelve (12) of the Lease as set forth in Section 2.0 1(d of the Lease, escalated
by the cumulative change in the CPI from the fourth (4th) month immediately
preceding the first full month of the initial Lease Term to the third (3rd) to
the last month in the last year of the First Renewal Term, as expressed in the
following formula:
[[(CP1 1 - CPI 0)/(CPI 0)] + 1.0] times [ Monthly Base Rent for
months eight (8) through twelve (12) of the Lease], where
CPI 1 = CPI for the month that is three (3) months prior to the
expiration of the First Renewal Term
CPI 0 = CPI for the month that is four (4) months prior to the
first month of the initial Lease Term.
The resulting figure will be the amount of the Monthly Base Rent for
the first year of the Second Renewal Term.
(b) The Monthly Base Rent for years two (2) through five (5) of the First
Renewal Term, and for years two (2) through five (5) of the Second Renewal Term
shall each be determined in the last month of the previous lease year and shall
be an amount equal to the Monthly Base Rent for the then current lease year
escalated by the change in the CPI from the third (3rd)' to the last month of
the previous lease year to the third (3rd) to the last month of the current
lease year, as expressed in the following formula:
[[(CPI 1 - CPI 0)/(CPI 0)] + 1 .0] times [the Monthly Base Rent
for the current lease year], where
CPI 1= CPI for the month that is three (3) months prior to the
expiration of the current lease year
CPI 0=CPI for the month that is three (3) months prior to the
expiration of the previous lease year.
The resulting figure will be the amount of the Monthly Base Rent for
the following lease year.
(c) Notwithstanding the foregoing, the Monthly Base Rent for the first year of
either Renewal Term shall not be less than the Monthly Base Rent for the
preceding year.
(d) Lessee shall have no option to renew this Lease beyond the expiration of the
Second Renewal Term.
Page 26
(e) Lessee shall not have the right to assign its renewal rights beyond the
initial Term to any sublessee of the Leased Premises, nor may any such sublessee
exercise such renewal rights beyond the initial Term.
(f) The Leased Premises shall be provided in its then existing condition (on an
"as is" basis) at the time each renewal term commences.
(g) If (a) the CPI ceases using the l982-84 base, or (b) a substantial change is
made in the number of items used in determining the CPI and Lessor and Lessee
agree that the CPI no longer accurately reflects the purchasing power of the US
dollar, or (c) the publication of the CPI shall be discontinued for any reason,
the Bureau of Labor Statistics shall be requested to furnish a new index
comparable to the CPI together with information which will make possible the
conversion to the new index in computing the Monthly Base Rent for the years
described above. If for any reason the Bureau of Labor Statistics does not
furnish such an index and such information, Lessor shall select and thereafter
use such other index, or comparable statistics on the cost of living, as shall
be computed and published by an agency of the United States, or by a responsible
financial periodical or recognized authority. If no new index is selected as
provided herein, then the Monthly Base Rent for the years described above shall
thereafter be increased by an amount equal to three percent (3%) of the Monthly
Base Rent payable in the prior lease year of the Term.
Page 27
EXHIBIT H
Intentionally Deleted
Page 28
EXHIBIT I
LETTER OF CREDIT
(FOR FORM ONLY)
(PAGE 1 OF 3)
Page 29
EXHIBIT I
LETTER OF CREDIT
(FOR FORM ONLY)
(PAGE 2 OF 3)
Page 30
EXHIBIT I
LETTER OF CREDIT
(FOR FORM ONLY)
(PAGE 3 OF 3)
Page 31
EXHIBIT J
PRELIMINARY SPACE PLAN
Page 32
EXHIBIT K
MODIFICATION TO THE SHELL CONDITION
(PAGE 1 OF 3)
Page 33
EXHIBIT K
MODIFICATION TO THE SHELL CONDITION
(PAGE 2 OF 3)
Page 34
EXHIBIT K
MODIFICATION TO THE SHELL CONDITION
(PAGE 3 OF 3)
Page 35
STATE OF NORTH CAROLINA
LEASE ASSIGNMENT,
WAKE COUNTY ASSUMPTION AND MODIFICATION
AGREEMENT
THIS LEASE ASSIGNMENT, ASSUMPTION AND MODIFICATION AGREEMENT (the
"Agreement") dated the 1st day of May, 2003, is made by and among ABB INC., a
Delaware corporation, formerly known as both ABB Automation, Inc. and ABB Power
T&D Company ("Assignor"), ELSTER ELECTRICITY, LLC, a Delaware limited liability
company authorized to conduct business in the State of North Carolina
("Assignee" or "Tenant") and EASTPARK GROUP II, L.L.C., a North Carolina limited
liability company (known as Lessor in the Lease, but to be referred to as
"Landlord" hereinafter).
WHEREAS, Assignor, as the tenant thereunder, and Landlord entered into
that certain Lease Agreement dated May 6, 1997 (the "Lease"), pursuant to which
Assignor agreed to lease from Landlord approximately 58,926 square feet of flex
space at the building located at 208 South Rogers Lane, Raleigh, North Carolina
27610 (the "Leased Premises" or the "Building'). (The Lease is incorporated
herein by reference in its entirety. Terms used and not otherwise defined herein
shall have the meanings ascribed to them in the Lease); and
WHEREAS, Assignee purchased all of the assets and assumed all of the
liabilities of the meters division of Assignor, including the Lease, effective
as of December 4, 2002 (the "Transfer"); and
WHEREAS, Assignor desires to assign all of its right, title and
interest in and to the Lease to Assignee, effective December 4, 2002; and
WHEREAS, Assignee desires to assume all of the duties, liabilities and
obligations of the Lease effective December 4, 2002, and Landlord desires to
consent to such assignment; and
WHEREAS Tenant desires to exercise its option to extend the Term of the
Lease for the Building for a seven (7) year and three (3) month period from the
Effective Date (as defined below), but on the terms and conditions contained
herein and not as set forth in EXHIBIT G of the Lease; and
WHEREAS, Landlord and Tenant desire to amend the Lease by (i) extending
the Term for a period of seven (7) years and three (3) months from the Effective
Date of this Agreement, (ii) resetting the Base Rent, (iii) setting forth a new
Renewal Option, and (iv) setting forth the amount of the Letter of Credit to be
provided by Tenant, all on the terms and conditions contained herein; and
WHEREAS, Assignor desires to consent to the amendments and
modifications set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, which are
incorporated herein by reference, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Effective as of December 4, 2002, Assignor hereby assigns, delegates,
transfers and conveys to Assignee all of Assignor's right, title and interest in
and to the Lease and Assignee accepts such assignment, delegation, transfer and
conveyance from Assignor.
2. Effective as of December 4, 2002, and in reliance on the
representations, warranties and covenants set forth herein and in the Lease,
Assignee hereby assumes the Lease from Assignor and covenants to perform and
fulfill all of Assignor's duties, liabilities and obligations under the Lease.
3. Effective as of December 4, 2002, Landlord hereby consents to the
assignment to and assumption of the Lease by Assignee as set forth in this
Agreement, and Landlord acknowledges that this Agreement constitutes an
amendment to the Lease substituting Assignee for Assignor under the Lease for
all purposes, except that Assignor, in accordance with the terms of this
Agreement, shall remain liable for the performance of all obligations under the
Lease arising or accruing on or before February 28, 2005 (the "Release Date"),
the date on which the original term of the Lease was to expire, including but
not limited to the payment of all Rent and other sums due to Landlord if
Assignee fails to make any such payment(s) when due.
4. Until the Release Date (i) Assignee may not amend or modify the Lease
without notice to, and express written consent of, Assignor and (ii) any
amendment or modification made without Assignor's express written consent first
obtained shall be null and void and without force and effect.
5. Assignor indemnifies and agrees to hold Assignee harmless from and
against any claims, defaults by Assignor or liabilities (including, without
limitation, leasing commissions, court costs and attorneys' fees) under the
Lease first arising or accruing before, or any events under the Lease resulting
from a default by Assignor or any act or failure to act on the part of Assignor
first occurring before December 4, 2002, and further indemnifies Assignee for
any loss, cost of expense as a result of any misrepresentation in any
representation, warranty or certificate made by Assignor in this Assignment.
Assignee indemnifies and agrees to hold Assignor harmless from and against any
claims, defaults by Assignee or other liabilities (including, without
limitation, court costs and attorneys' fees) under the Lease resulting from a
default by Assignee or any act or failure to act on the part of
Assignee first arising or accruing on or after, or any events under the Lease
first occurring on or after, December 4, 2002.
6. Landlord agrees that if Assignee defaults under the Lease on or
before the Release Date, Landlord will give Assignor notice of such default and
the same period for Assignor to cure any such default, as set forth in the
Lease.
7. Landlord acknowledges that except as referenced above, prior to this
Agreement there have been no amendments, modifications or supplements to the
Lease.
8. Landlord acknowledges that the Lease is in full force and effect.
9. Landlord acknowledges that, to the best knowledge of Landlord, as of
December 4, 2002 Assignor was the tenant under the Lease, with the sole and
exclusive right to use and occupy the Leased Premises thereunder, was in
possession of the Leased Premises thereof, and had the right pursuant to the
terms of the Lease to enter into an assignment of the lease with the consent of
the Landlord.
10. Effective as of May 1, 2003 (the "Effective Date"), the Lease is
hereby amended to reflect Tenant's extension of the Term for seven (7) years and
three (3) months from the Effective Date of May 1, 2003.
(a) Landlord and Tenant further acknowledge and agree that effective
as of the Effective Date (May 1, 2003), the Annual Base Rent for
the Building shall be reset as set forth below. Therefore,
effective as of the Effective Date, Sub-Section 2.01(d) of the
Lease (Basic Lease Provisions) is hereby deleted in its entirety
and replaced with the following:
Subsection 2.01(d) Commencing May 1, 2003, the Annual Base Rent for the
Building shall be reset to equal Five Hundred Three Thousand Four
Hundred Forty-nine Dollars and Sixty-eight Centers ($503,449.68), and
that from the Effective Date through the end of the Term, as such has
been revised herein, the Annual Base Rent shall be as follows:
(Base Rent chart appears on the following page.)
-----------------------------------------------------------------------------------------------------------
Price Per
Square Square
Dates Foot Feet Annual Base Rent Monthly Base Rent
--------------------------------- ----------------- ------------ --------------------- --------------------
5/1/03 through 4/30/04 $8.54 58,926 $503,449.68 $41,954.14
--------------------------------- ----------------- ------------ --------------------- --------------------
5/1/04 through 4/30/05 $8.80 58,926 $518,553.12 $43,212.76
--------------------------------- ----------------- ------------ --------------------- --------------------
5/1/05 through 4/30/06 $9.06 58,926 $534,109.68 $44,509.14
--------------------------------- ----------------- ------------ --------------------- --------------------
5/1/06 through 4/30/07 $9.34 58,926 $550,132.92 $45,844.41
--------------------------------- ----------------- ------------ --------------------- --------------------
5/1/07 through 4/30/08 $9.62 58,926 $566,636.88 $47,219.74
--------------------------------- ----------------- ------------ --------------------- --------------------
5/1/08 through 4/30/09 $9.90 58,926 $583,635.96 $48,636.33
--------------------------------- ----------------- ------------ --------------------- --------------------
5/1/09 through 4/30/10 $10.20 58,926 $601,145.04 $50,095.42
--------------------------------- ----------------- ------------ --------------------- --------------------
5/1/10 through 7/31/10 $10.51 58,926 $619,179.36 $51,598.28
--------------------------------- ----------------- ------------ --------------------- --------------------
(b) Tenant shall continue to be responsible for Additional Rent payments
as provided in the Lease;
(c) Effective as of the Effective Date, Subsection 2.01(f) of the Lease
(Term) is hereby deleted in its entirety and replaced with the following:
"Subsection 2.01(f) Term: 12 Years and 6 Months"; and
(d) Effective as of the Effective Date, the second (2nd) line of
Subsection 2.01(g) of the Lease (Expiration Date) is hereby deleted in its
entirety and replaced with the following: "Subsection 2.01(g) Expiration Date of
July 31, 2010".
11. Landlord acknowledges and agrees that effective as of the Release
Date, Assignor shall be automatically released and fully discharged under this
Lease and will no longer have any liability under the Lease, except with respect
to any damages arising or accruing on or before the Release Date for which
Assignor is liable.
12. Landlord acknowledges and agrees that the Letter of Credit Landlord
is currently holding pursuant to the Lease for the Building shall remain in
place through ninety (90) days following the Release Date. Landlord and Tenant
further acknowledge and agree that Tenant shall provide Landlord with a new
Letter of Credit in form acceptable to Landlord and Tenant on or before March 1,
2005, in the amounts set forth below:
--------------------------------------------------------------------------------------------
Dates Amount of Letter of Credit
-------------------------------------------- -----------------------------------------------
3/1/05 through 2/28/06 $1,157,238.00
-------------------------------------------- -----------------------------------------------
3/1/06 through 2/28/07 $1,054,421.00
-------------------------------------------- -----------------------------------------------
3/1/07 through 2/29/08 $944,395.00
-------------------------------------------- -----------------------------------------------
3/1/08 through 2/28/09 $778,181.00
-------------------------------------------- -----------------------------------------------
3/1/08 through 2/28/10 $551,050.00
-------------------------------------------- -----------------------------------------------
3/1/10 through 10/31/10 $206,392.00
-------------------------------------------- -----------------------------------------------
Landlord and Tenant acknowledge and agree that the Letter of Credit
shall remain in place through the entire Term of the Lease, as such may be
extended pursuant to EXHIBIT G-1, as set forth therein, and for ninety (90) days
beyond the expiration of the Term.
13. Landlord and Tenant acknowledge and agree that the Term of the Lease
has been renewed and extended, as set forth herein. Therefore, effective as of
the Effective Date, EXHIBIT G of the Lease is hereby amended by deleting the
renewal options set forth therein, and inserting the Renewal Option as set forth
in and defined in EXHIBIT G-1, which is attached hereto and incorporated herein
by reference in its entirety.
14. Assignor acknowledges that, as of the date hereof, to the best
knowledge of Assignor, Landlord has complied with all of Landlord's obligations
to be performed under the Lease, Landlord is not in default thereunder and
Assignor has no claims against Landlord thereunder.
15. Landlord acknowledges that, as of the date hereof, to the best
knowledge of Landlord, Assignor has complied with all of Assignor's obligations
to be performed under the Lease, Assignor is not in default thereunder and
Landlord has no claims against Assignor thereunder.
16. Landlord acknowledges that all Base Rent and any Additional Rent due
and owing under the Lease as of the date hereof have been paid.
17. Landlord acknowledges that no Base Rent or Additional Rent has been
prepaid for more than one(1) month in advance.
18. Within ten (10) days after a written request therefor by Assignee,
Landlord agrees, without further consideration or expense, to use its best
efforts to cause the holder of any Deed of Trust encumbering the Leased Premises
to execute and deliver to Assignee a customary non-disturbance and attornment
agreement in form acceptable to Assignee.
19. Each of the parties to this Agreement hereby acknowledges that this
Agreement shall be effective as of December 4, 2002 (with the parties'
acknowledgement that this is not the "Effective Date" as defined in Section 10
of this Agreement), even though it was not executed until the Execution Date.
20. This Agreement is declared to be a North Carolina contract, and all
of the terms herein shall be construed according to the laws of the State of
North Carolina.
21. Any and all notices that are or may be required to be given pursuant
to the terms of this Agreement or the Lease shall be sent by Registered or
Certified Mail, Return Receipt Requested, to the parties hereto at their
respective addresses.
Landlord:
Eastpark Group II, L.L.C. Assignee: Assignor:
c/o Capital Associates Elster Electricity, LLC ABB, Inc.
1100 Crescent Green, Suite 115 208 Rogers Lane 501 Merritt 7
Cary, North Carolina 27511 Raleigh, North Carolina 27610 Norwalk, CT 06851
Attn: Thomas R. Huff Attn: John Southerland Attn: A.P. Karlbereg
(919) 233-9901 (919) 212-5049 Ph: (203) 750-2211
For Accounts Payable:
Elster Electricity, LLC
201 Rogers Lane
Raleigh, North Carolina 27610
Attn: Accounts Payable
22. Except as hereinabove modified, the original terms and conditions of
the Lease shall remain in full force and effect.
23. This Agreement shall be binding upon the parties, their
representatives, heirs, successors and assigns.
24. This Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which taken together shall constitute
one and the same instrument.
25. Contemporaneously with execution of this Agreement, Landlord and
Tenant hereby agree to execute, in recordable form, that certain Memorandum of
Lease attached hereto and incorporated herein by reference as EXHIBIT A.
26. Assignor hereby consents and approves all of the amendments and
modifications to the Lease contained in this Agreement.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
and year first written above.
Assignor:
ABB Inc., a Delaware corporation
By:_/s/A.P. Karlbert_______________________________
Name: _____________________________
Title: Assistant Secretary
Assignee/Tenant:
Elster Electricity, LLC, a Delaware limited liability
company
By: /s/ Raymond Schmitt
Name: _____________________________
Title: VP & CFO
Landlord:
Eastpark Group II, L.L.C., a North Carolina limited
liability company
By: Capital Associates Limited Partnership,
a North Carolina limited partnership,
Manager
By: /s/ Hugh D. Little
General Partner
EXHIBIT A
MEMORANDUM OF LEASE
- -----------------------------------------------------------------------------
Prepared by and return to: Trent E. Jernigan, Womble Curlyle Sandridge & Rice,
PLLC One West Fourth Street, Winston-Salem, NC 27101
NORTH CAROLINA )
)
WAKE COUNTY )
THIS MEMORANDUM OF LEASE made this ___ day of ________, 2003, by and
between EASTPARK GROUP, II, L.L.C., a North Carolina limited liability company,
hereinafter referred to as "Landlord", and ELSTER ELECTRICITY, LLC, a Delaware
limited liability company, hereinafter referred to as "Tenant".
W I T N E S S E T H:
WHEREAS, ABB Inc., formerly known as both ABB Automation, Inc. and ABB
Power T&D Company, as tenant ("Assignor"), and Landlord entered into a certain
Lease dated May 6, 1997 ("Lease");
WHEREAS, Landlord, Assignor and Tenant entered into that certain Lease
Agreement, Assumption and Modification Agreement dated the __ day of _________,
2003 ("Agreement").
NOW, THEREFORE, in consideration specified in said Lease and Agreement,
the parties hereto do hereby enter into this Memorandum of Lease in accordance
with the provisions of General Statute 47-118. The terms of said original Lease
are as follows:
(1) The term of the Lease as extended by the Agreement shall expire on
July 31, 2010. The Agreement provides for one (1) additional renewal term of
five (5) years, creating a final expiration date of July 31, 2015;
(2) The real estate which is the subject of the Lease as amended by the
Amendment is that certain 58,926 square feet of flex space in the building
located at 208 South Rogers Lane, Raleigh, North Carolina 27610; and
(3) The remaining provisions set forth in the Lease and the Agreement
entered into between the hereinabove referenced parties are hereby incorporated
into this Memorandum of Lease the same as if herein set out.
EXECUTION PAGES TO FOLLOW
IN TESTIMONY WHEREOF, the parties hereto have caused this Memorandum of
Lease to be executed.
LANDLORD:
EASTPARK GROUP II, L.L.C.
By: Capital Associates Limited Partnership, a
North Carolina limited partnership, Manager
By: __________________________
Hugh D. Little, General Partner
TENANT:
ELSTER ELECTRICITY, LLC
By:________________________________
Name: _____________________________
Title: ______________________________
STATE OF NORTH CAROLINA )
COUNTY OF _______________ )
I, ___________________________, a Notary Public of _____________
County, State of North Carolina, do hereby certify that
__________________________, Manager of EASTPARK GROUP, II, L.L.C., a North
Carolina Limited Liability Company, personally appeared before me this day and
acknowledged the due execution of the foregoing instrument for and on behalf of
said limited liability company.
WITNESS my hand and notarial seal or stamp, this ___ day of
_______________,
------------------------------------
Notary Public
My Commission Expires:
- --------------------------
[Notarial Seal/Stamp]
- -----------------------------------------------------------------------------
STATE OF NORTH CAROLINA )
COUNTY OF _______________ )
I, ___________________________, a Notary Public of _____________
County, State of North Carolina, do hereby certify that
__________________________, Member of ELSTER ELECTRICITY, LLC, a Delaware
Limited Liability Company, personally appeared before me this day and
acknowledged the due execution of the foregoing instrument for and on behalf of
said limited liability company.
WITNESS my hand and notarial seal or stamp, this ___ day of
_______________,
------------------------------------
Notary Public
My Commission Expires:
- --------------------------
[Notarial Seal/Stamp]
EXHIBIT G-1
RENEWAL OPTION
As long as Tenant is not in default in the performance of its covenants
under this Lease at the time of exercise of this renewal option or at the time
of commencement of the renewal, then Tenant is granted the option to renew the
Term of this Lease for a period of five (5) additional years (the "Renewal
Term"), to commence at the expiration of the Term of this Lease. Tenant shall
exercise its option to renew by delivering written notice of such election to
Landlord at least twelve (12) months prior to the expiration of the Term. The
renewal of this Lease shall be upon the same terms and conditions of this Lease,
except (a) the Base Rent during the Renewal Term shall be the current rental
rate Tenant is then paying, escalated by three percent (3%) per year commencing
with the scheduled escalation (May 1st) during the first (1st) year of the
Renewal Term, and continuing for each year thereafter (May 1st of each
subsequent year) during the Renewal Term, (b) Tenant shall have o option to
renew this Lease beyond the expiration of the Renewal Term, (c) Tenant shall not
have the right to assign its renewal rights to any subtenant of the Leased
Premises or assignee of the Lease, nor may any such subtenant or assignee
exercise such renewal rights, (d) the leasehold improvements will be provided in
their then existing condition (on an "as it" basis) at the time the Renewal Term
commences, and(e) the amount of the Letter of Credit during the Renewal Term
shall be as follows (and remain in place for ninety [90] days beyond the end of
the Renewal Term):
--------------------------------------------------------------------------------------------------
Dates Amount of Letter of Credit
--------------------------------------------------- ----------------------------------------------
8/1/10 through 7/31/11 $1,341,555.00
--------------------------------------------------- ----------------------------------------------
8/1/11 through 7/31/12 $1,222,363.00
--------------------------------------------------- ----------------------------------------------
8/1/12 through 7/31/13 $1,094,812.00
--------------------------------------------------- ----------------------------------------------
8/1/13 through 7/31/14 $902,125.00
--------------------------------------------------- ----------------------------------------------
8/1/14 through 10/31/15 $638,818.00
--------------------------------------------------- ----------------------------------------------