<PAGE>
.
.
.
EXHIBIT 10.4
LEASE AGREEMENT
(Single Tenant Office)
<TABLE>
<CAPTION>
INDEX
-----
SECTION
SECTION
PAGE
-------
-------
----
<S>
<C>
1. SUMMARY OF TERMS AND CERTAIN
DEFINITIONS........................................... 1
2.
PREMISES...........................................................................
2
3. ACCEPTANCE OF
PREMISES.............................................................
2
4. USE;
COMPLIANCE....................................................................
2
5.
TERM...............................................................................
3
6. MINIMUM ANNUAL
RENT................................................................
3
7. OPERATION OF PROPERTY; PAYMENT OF
EXPENSES......................................... 3
8.
SIGNS..............................................................................
7
9. ALTERATIONS AND
FIXTURES...........................................................
8
10. MECHANICS'
LIENS...................................................................
8
11. LANDLORD'S RIGHT OF
ENTRY..........................................................
8
12. DAMAGE BY FIRE OR OTHER
CASUALTY...................................................
9
13.
CONDEMNATION.......................................................................
9
14. NON-ABATEMENT OF
RENT..............................................................
10
15.
INDEMNIFICATION....................................................................
10
16. WAIVER OF
CLAIMS...................................................................
10
17. QUIET
ENJOYMENT....................................................................
10
18. ASSIGNMENT AND
SUBLETTING..........................................................
10
19. SUBORDINATION; MORTGAGEE'S
RIGHTS.................................................
11
20. RECORDING; TENANT'S
CERTIFICATE....................................................
12
21. SURRENDER; ABANDONED
PROPERTY......................................................
12
22. CURING TENANT'S
DEFAULTS...........................................................
13
23. DEFAULTS -
REMEDIES................................................................
13
24. REPRESENTATIONS OF
TENANT..........................................................
15
25. LIABILITY OF
LANDLORD..............................................................
15
26. INTERPRETATION;
DEFINITIONS........................................................
15
27.
NOTICES............................................................................
16
28. SECURITY
DEPOSIT...................................................................
16
</TABLE>
i
<PAGE>
<TABLE>
<S>
<C>
29. CONSTRUCTION OF THE BUILDING, THE OTHER
BUILDING AND THE SPECIALTY TENANT
IMPROVEMENTS FOR THE
PREMISES......................................................
17
30. ENVIRONMENTAL
INFORMATION..........................................................
21
31.
BROKERS............................................................................
21
32. OPTION TO
RENEW....................................................................
21
33. SATELLITE DISH
ANTENNA.............................................................
22
34. ADDITIONAL SPACE IN OTHER
BUILDING.................................................
23
35. MOVING
EXPENSES....................................................................
23
36. RESTRICTIONS ON CERTAIN LEASING
ACTIVITIES BY LANDLORD............................. 24
37.
CONTINGENCY........................................................................
24
38.
PARKING............................................................................
24
</TABLE>
ii
<PAGE>
THIS LEASE AGREEMENT is made by and between LIBERTY PROPERTY
LIMITED
PARTNERSHIP, a Pennsylvania limited
partnership ("LANDLORD") with its address at
901 Route 73, Suite 100, Marlton, NJ 08053,
and MARLIN LEASING CORPORATION, a
corporation organized under the laws of
Delaware ("TENANT") with its address at
124 Gaither Drive, Suite 170, Mount Laurel,
NJ 08054, and is dated as of the
date on which this lease has been fully
executed by Landlord and Tenant.
1.
SUMMARY OF TERMS AND CERTAIN DEFINITIONS.
(a)
"PREMISES":
Approximate rentable square feet: 50,000
(Section 2)
Suite:
_________
(b)
"BUILDING":
Approximate rentable square feet: 50,000
(Section 2)
Location:
Fellowship Road and Pleasant
Valley Road Mount Laurel,
NJ 08054
(c) "TERM":
One
hundred one (101) months plus any partial
(Section 5) month from the Commencement Date until the first
day of the first full calendar month during the
Term
(i)
"COMPLETION DATE": Thirteen (13) months from the date
of this lease.
(ii)
"COMMENCEMENT DATE": See Section 5
(iii)
"EXPIRATION DATE": See Section 5
(d) MINIMUM
RENT (Section 6) & OPERATING EXPENSES (Section 7)
<TABLE>
<CAPTION>
Month of Term
Annual
Monthly
Month of Term
Annual
Monthly
-------------
------
-------
-------------
------
-------
<S>
<C>
<C>
<C>
<C>
<C>
* 1-5
$
-
$
0.00
49-60
$760,843.95
$63,403.66
6-12
$
-
$56,333.33
61-72
$783,669.26
$65,305.77
13-24
$696,280.00
$58,023.33
73-84
$807,179.33
$67,264.94
25-36
$717,168.40
$59,764.03
85-96
$831,394.70
$69,282.89
37-48
$738,683.45
$61,556.95
97-101
$
-
$71,361.38
</TABLE>
*TENANT SHALL PAY MONTHLY INSTALLMENTS OF
ANNUAL OPERATING EXPENSES AND SHALL BE
RESPONSIBLE FOR ALL UTILITIES DURING MONTHS
1 THROUGH 5
(ii)
ESTIMATED "ANNUAL OPERATING EXPENSES": $324,000.00
(Three Hundred Twenty-Four Thousand and
00/100 Dollars), payable in monthly
installments of $27,000.00 (Twenty-Seven
Thousand and 00/100 Dollars), subject
to adjustment (Section 7(a))
(e)
"PROPORTIONATE SHARE" (Section 7(a)): 100% (Ratio of
approximate rentable square feet in the
Premises to approximate rentable square
feet in the Building), or as calculated in
Section 7(a) for allocations of
certain Operating Expenses based upon
treating the Development, or any portion
thereof, as a single unified project.
(f) "USE"
(Section 4): General office purposes (excluding any
"place of public accommodation")
(g) "SECURITY
DEPOSIT" (Section 28): $174,500.00 (One Hundred
Seventy-Four Thousand Five Hundred and
00/100 Dollars)
(h) CONTENTS:
This lease consists of the Index, pages 1 through 24
containing Sections 1 through 38 and the
following, all of which are attached
hereto and made a part of this lease:
Exhibits:
"A" - Plan
showing Premises
"B" -
Commencement Certificate Form
<PAGE>
"C" - Building
Rules
"D" - Cleaning
Schedule
"E" - Estoppel
Certificate Form
"F" - Base
Building Documents
2.
PREMISES. Landlord hereby leases to Tenant and Tenant hereby
leases
from Landlord the Premises as shown on
attached Exhibit "A" within the Building
(the Building and the lot on which it is
located, the "PROPERTY"), together with
the non-exclusive right with Landlord and
other occupants of the Building to use
all areas and facilities provided by
Landlord for the use of all tenants in the
Property including any lobbies, hallways,
driveways, sidewalks and parking,
loading and landscaped areas (the "COMMON
AREAS").
3.
ACCEPTANCE OF PREMISES. Landlord shall perform the work required
in
Section 29 hereof. Tenant's occupancy of
the Premises shall constitute
acceptance of such work by Landlord,
subject to completion by Landlord of the
Punch List (as defined in Section 29).
Tenant and its Agents shall have the
right, at Tenant's own risk, expense and
responsibility, at all reasonable times
prior to the Commencement Date, to enter
the Premises for the purpose of taking
measurements and installing its furnishings
and equipment; provided that Tenant
does not interfere with or delay the work
to be performed by Landlord, Tenant
uses contractors and workmen compatible
with the contractors and workmen engaged
by Landlord, and Tenant obtains Landlord's
prior written consent.
4. USE;
COMPLIANCE.
(a) PERMITTED
USE. Tenant shall occupy and use the Premises for
and only for the Use specified in Section
1(f) above and in such a manner as is
lawful, reputable and will not create any
nuisance or otherwise interfere with
any other tenant's normal operations or the
management of the Building. Without
limiting the foregoing, such Use shall
exclude any use that would cause the
Premises or the Property to be deemed a
"place of public accommodation" under
the Americans with Disabilities Act (the
"ADA") as further described in the
Building Rules (defined below). All Common
Areas shall be subject to Landlord's
exclusive control and management at all
times. Tenant shall not use or permit
the use of any portion of the Common Areas
for other than their intended use.
(b)
COMPLIANCE. From and after the Commencement Date, Tenant shall
comply promptly, at its sole expense,
(including making any alterations or
improvements) with all laws (including the
ADA), ordinances, notices, orders,
rules, regulations and requirements
regulating the Property during the Term
which impose any duty upon Landlord or
Tenant with respect to Tenant's use,
occupancy or alteration of, or Tenant's
installations in or upon, the Property
including the Premises, (as the same may be
amended, the "LAWS AND
REQUIREMENTS") and the building rules
attached as Exhibit "C", as amended by
Landlord from time to time, (the "BUILDING
RULES"). Provided, however, that
Tenant shall not be required to comply with
the Laws and Requirements with
respect to the footings, foundations,
structural steel columns and girders
forming a part of the Property unless the
need for such compliance arises solely
out of Tenant's use, occupancy or
alteration of the Property, or by any act or
omission of Tenant or any employees,
agents, contractors, licensees or invitees
("AGENTS") of Tenant. With respect to
Tenant's obligations as to the Property,
other than the Premises, at Landlord's
option and at Tenant's expense, Landlord
may comply with any repair, replacement or
other construction requirements of
the Laws and Requirements and Tenant shall
pay to Landlord all reasonable costs
thereof as additional rent.
(c)
ENVIRONMENTAL. Tenant shall comply, at its sole expense, with
all Laws and Requirements as set forth
above, all manufacturers' instructions
and all requirements of insurers relating
to the treatment, production, storage,
handling, transfer, processing,
transporting, use, disposal and release of
hazardous
2
<PAGE>
substances, hazardous mixtures, chemicals,
pollutants, petroleum products, toxic
or radioactive matter (the "RESTRICTED
ACTIVITIES"). Tenant shall deliver to
Landlord copies of all Material Safety Data
Sheets or other written information
prepared by manufacturers, importers or
suppliers of any chemical and all
notices, filings, permits and any other
written communications from or to Tenant
and any entity regulating any Restricted
Activities.
(d) NOTICE. If
at any time during or after the Term, Tenant
becomes aware of any inquiry, investigation
or proceeding regarding the
Restricted Activities or becomes aware of
any claims, actions or investigations
regarding the ADA, Tenant shall give
Landlord written notice, within 10 business
days after first learning thereof,
providing all available information and
copies of any notices.
5.
TERM. The Term of this lease shall commence on the later of (i)
the
Completion Date or (ii) the date of
substantial completion of the improvements
to be constructed by Landlord under Section
29, but in any event no later than
the date on which Tenant occupies the
Premises (the "COMMENCEMENT DATE") and
shall end at 11:59 p.m. on the last day of
the Term as described in subsection
1(c) (the "EXPIRATION DATE"), without the
necessity for notice from either
party, unless sooner terminated in
accordance with the terms hereof; provided
however, if the date of substantial
completion is delayed by Tenant, the Term
shall commence as if the Premises were
substantially complete on the Completion
Date, as extended for reasons other than
those caused by Tenant. Landlord shall
confirm the Commencement Date and the
Expiration Date by executing a lease
commencement certificate in the form
attached as Exhibit "B". In the event
substantial completion of the work shown on
the Final Construction Documents (as
defined in Section 29) does not occur on or
before the date which is fourteen
(14) months after the date of this lease,
as such date shall be extended for
Excusable Delays (as defined in Section 29)
(such date, as may be extended, the
"Penalty Date"), Tenant shall be entitled
to a credit of one (1) day's Minimum
Annual Rent for each day thereafter until
substantial completion is achieved,
and the Term of this lease shall be
extended by the number of days between the
Penalty Date and the date of substantial
completion of the work shown on the
Final Construction Documents , (as defined
in Section 29), the monthly
installment of Minimum Annual Rent during
such extended period to be the amount
applicable to the last month prior to such
extended period. The credit to which
Tenant may be entitled pursuant to this
Section shall be applied to the Minimum
Annual Rent due starting in month 6 of the
Term (i.e., after the initial five
(5) months of the Term which is the period
in which no Minimum Annual Rent is
due and payable).
6.
MINIMUM ANNUAL RENT. Tenant agrees to pay to Landlord the
Minimum
Annual Rent in equal monthly installments
in the amount set forth in Section
1(d) (as increased at the beginning of each
lease year as set forth in Section
1(d)), in advance, on the first day of each
calendar month during the Term,
without notice, demand or setoff, at
Landlord's address designated at the
beginning of this lease unless Landlord
designates otherwise; provided that rent
for the first full month shall be paid on
the Commencement Date. If the
Commencement Date falls on a day other than
the first day of a calendar month,
the rent shall be apportioned pro rata on a
per diem basis for the period from
the Commencement Date until the first day
of the following calendar month and
shall be paid on or before the Commencement
Date. As used in this lease, the
term "LEASE YEAR" means the period from the
Commencement Date through the
succeeding 12 full calendar months
(including for the first lease year any
partial month from the Commencement Date
until the first day of the first full
calendar month) and each successive 12
month period thereafter during the Term.
7.
OPERATION OF PROPERTY; PAYMENT OF EXPENSES.
(a) PAYMENT OF
OPERATING EXPENSES. Tenant shall pay to Landlord
the Annual Operating Expenses in equal
monthly installments in the amount set
forth in Section 1(d) (prorated for any
partial month), from the Commencement
Date and continuing throughout the Term on
the first day of each
3
<PAGE>
calendar month during the Term, as
additional rent, without notice, demand or
setoff; provided that the monthly
installment for the first full month shall be
paid on the Commencement Date. Landlord
shall apply such payments to the annual
operating costs to Landlord of operating
and maintaining the Property during
each calendar year of the Term, which costs
may include by way of example rather
than limitation: insurance premiums, fees,
impositions, costs for repairs,
maintenance, service contracts, management
and administrative fees, governmental
permits, overhead expenses, costs of
furnishing water, sewer, gas, fuel,
electricity, other utility services,
janitorial service (unless provided by
Tenant pursuant to Section 7(f) hereof),
trash removal, security services,
landscaping and grounds maintenance, and
the costs of any other items directly
attributable to operating or maintaining
any or all of the Property excluding
any costs which under generally accepted
accounting principles are capital
expenditures; provided, however, that
annual operating costs also shall include
the annual amortization (over an assumed
useful life of ten years) of the costs
(including financing charges) of building
improvements made by Landlord to the
Property that (1) are required by any
governmental authority or (2) have the
effect of reducing operating expenses or
(3) are required for the safety of
tenants in the Building. Operating Expenses
shall also not include (A) costs for
repair, replacement and general maintenance
paid by proceeds of insurance or
directly by Tenant or by other tenants or
third parties, (B) interest,
amortization or other payments on loans to
Landlord (except as expressly
otherwise set forth herein), (C)
depreciation, (D) leasing and other
commissions, (E) legal expenses for
services other than those to benefit
Building tenants generally, and (F) costs
of renovating or otherwise improving
space for occupants of the Development (as
defined below) or vacant leaseable
space in the Development (as defined
below). The amount of the Annual Operating
Expenses set forth in Section 1(d)
represents Landlord's estimate of Tenant's
share of the estimated operating costs
during the first calendar year of the
Term on an annualized basis; from time to
time Landlord may adjust such
estimated amount if the estimated operating
costs increase. Tenant's obligation
to pay the Annual Operating Expenses
pursuant to this Section 7 shall survive
the expiration or termination of this
lease. The Building is intended to be part
of a two building development on the
Property (the "Development"). Landlord may,
at its option, treat the entire
Development, or any portion thereof, as a single
unified project for purposes of determining
and allocating certain Operating
Expenses that relate to the entire
Development, such as impositions. In such
event, such Operating Expenses as Landlord
elects to allocate based on the
entire Development shall include the
aggregate amount thereof for both buildings
on the Property and their attendant common
areas included in the unified
project, and Tenant's Proportionate Share
with respect to such Operating
Expenses shall be equal to a fraction, the
numerator of which is the number of
rentable square feet of the Premises and
the denominator of which is the number
of rentable square feet of both buildings
on the Property. Notwithstanding the
foregoing, Landlord shall not use the
single unified project method for
determining and allocating any Operating
Expenses that are specific to the
interior, structure or roof of any
Building.
(i)
COMPUTATION OF TENANT'S SHARE OF ANNUAL OPERATING
COSTS. After the end of each calendar year
of the Term, Landlord shall compute
Tenant's share of the annual operating
costs described above incurred during
such calendar year by (A) calculating an
appropriate adjustment, using generally
accepted accounting principles, to avoid
allocating to Tenant or to any other
tenant (as the case may be) those specific
costs which Tenant or any other
tenant has agreed to pay; (B) calculating
an appropriate adjustment, using
generally accepted accounting principles,
to avoid allocating to any vacant
space those specific costs which were not
incurred for such space; and (C)
multiplying the adjusted annual operating
costs by Tenant's Proportionate Share.
(ii)
RECONCILIATION. By April 30th of each year (and as
soon as practical after the expiration or
termination of this lease or at any
time in the event of a sale of the
Property), Landlord shall provide Tenant with
a statement of the actual amount of such
annual operating costs for the
preceding calendar year or part thereof.
Landlord or Tenant shall pay to the
other the amount of any deficiency or
overpayment then due from one to the
other. Tenant shall have the right to
inspect the books and records
4
<PAGE>
used by Landlord in calculating the annual
operating costs within 60 days of
receipt of the statement during regular
business hours after having given
Landlord at least 48 hours prior written
notice; provided, however, that Tenant
shall make all payments of additional rent
without delay, and that Tenant's
obligation to pay such additional rent
shall not be contingent on any such
right.
(b)
IMPOSITIONS. As used in this lease the term "impositions"
refers to all levies, taxes (including
sales taxes and gross receipt taxes) and
assessments, which are applicable to the
Term, and which are imposed by any
authority or under any law, ordinance or
regulation thereof, or pursuant to any
recorded covenants or agreements, and the
reasonable cost of contesting any of
the foregoing, upon or with respect to the
Property or any part thereof, or any
improvements thereto. Tenant shall pay to
Landlord with the monthly payment of
Minimum Annual Rent any imposition imposed
directly upon this lease or the Rent
(defined in Section 7(g)) or amounts
payable by any subtenants or other
occupants of the Premises, or against
Landlord because of Landlord's estate or
interest herein.
(i) Nothing
herein contained shall be interpreted as
requiring Tenant to pay any income, excess
profits or corporate capital stock
tax imposed or assessed upon Landlord,
unless such tax or any similar tax is
levied or assessed in lieu of all or any
part of any imposition or an increase
in any imposition.
(ii)
If it shall not be lawful for Tenant to reimburse
Landlord for any of the impositions, the
Minimum Annual Rent shall be increased
by the amount of the portion of such
imposition allocable to Tenant, unless
prohibited by law.
(C)
INSURANCE.
(i) PROPERTY.
Landlord shall keep in effect insurance
against loss or damage to the Building or
the Property by fire and such other
casualties as may be included within fire,
extended coverage and special form
insurance covering the full replacement
cost of the Building (but excluding
coverage of Tenant's personal property in,
and any alterations by Tenant to, the
Premises), and such other insurance as
Landlord may reasonably deem necessary or
as may be reasonably required from
time-to-time by any mortgagee.
(ii)
LIABILITY. Tenant, at its own expense, shall keep in
effect comprehensive general public
liability insurance with respect to the
Premises and the Property, including
contractual liability insurance, with such
limits of liability for bodily injury
(including death) and property damage as
reasonably may be required by Landlord from
time-to-time, but not less than a
combined single limit of $1,000,000 per
occurrence and a general aggregate limit
of not less than $2,000,000 (which
aggregate limit shall apply separately to
each of Tenant's locations if more than the
Premises); however, such limits
shall not limit the liability of Tenant
hereunder. The policy of comprehensive
general public liability insurance also
shall name Landlord and Landlord's agent
as insured parties with respect to the
Premises, shall be written on an
"occurrence" basis and not on a "claims
made" basis, shall provide that it is
primary with respect to any policies
carried by Landlord and that any coverage
carried by Landlord shall be excess
insurance, shall provide that it shall not
be cancelable or reduced without at least
30 days prior written notice to
Landlord and shall be issued in form
reasonably satisfactory to Landlord. The
insurer shall be a responsible insurance
carrier which is authorized to issue
such insurance and licensed to do business
in the state in which the Property is
located and which has at all times during
the Term a rating of no less than A
VII in the most current edition of Best's
Insurance Reports. Tenant shall
deliver to Landlord on or before the
Commencement Date, and subsequently
renewals of, a certificate of insurance
evidencing such coverage and the waiver
of subrogation described below.
5
<PAGE>
(iii)
WAIVER OF SUBROGATION. Landlord and Tenant shall have
included in their respective property
insurance policies waivers of their
respective insurers' right of subrogation
against the other party. If such a
waiver should be unobtainable or
unenforceable, then such policies of insurance
shall state expressly that such policies
shall not be invalidated if, before a
casualty, the insured waives the right of
recovery against any party responsible
for a casualty covered by the policy.
(iv)
INCREASE OF PREMIUMS. Tenant agrees not to knowingly
do anything or fail to do anything which
will increase the cost of Landlord's
insurance or which will prevent Landlord
from procuring policies (including
public liability) from companies and in a
form satisfactory to Landlord. If any
breach of the preceding sentence by Tenant
causes the rate of fire or other
insurance to be increased, Tenant shall pay
the amount of such increase as
additional rent promptly upon being
billed.
(d) REPAIRS
AND MAINTENANCE; COMMON AREAS; BUILDING MANAGEMENT.
(i) Tenant at
its sole expense shall maintain the
Premises in a neat and orderly
condition.
(ii)
Landlord, shall make all necessary repairs to the
Premises, the Common Areas and any other
improvements located on the Property,
provided that Landlord shall have no
responsibility to make any repair until
Landlord receives written notice or has
actual knowledge of the need for such
repair. Landlord shall operate and manage
the Property and shall maintain all
Common Areas and any paved areas
appurtenant to the Property in a clean and
orderly condition. Landlord reserves the
right to make alterations to the Common
Areas from time to time.
(iii)
Notwithstanding anything herein to the contrary,
repairs and replacements to the Property
including the Premises made necessary
solely by Tenant's use, occupancy or
alteration of, or Tenant's installation in
or upon the Property or by any act or
omission of Tenant or its Agents shall be
made at the sole expense of Tenant to the
extent not covered by any applicable
insurance proceeds paid to Landlord. Tenant
shall not bear the expense of any
repairs or replacements to the Property
arising out of or caused by any other
tenant's use, occupancy or alteration of,
or any other tenant's installation in
or upon, the Property or by any act or
omission of any other tenant or any other
tenant's Agents.
(e) UTILITIES;
ACCESS.
(i) Tenant
shall pay to Landlord or the utility provider,
as the case may be, its Proportionate Share
for water, sewer, gas, electricity,
heat, power, telephone and other
communication services and any other utilities
supplied to or consumed in or on the
Premises. If Tenant shall require
electricity or install electrical equipment
including but not limited to
electrical heating, refrigeration
equipment, electronic data processing
machines, or machines or equipment using
current in excess of that which is
identified in the Final Construction
Documents (as defined in Section 29), which
will in any way materially increase the
amount of electricity usually furnished
for use as general office space, Tenant
will obtain Landlord's prior written
approval and will pay for the resulting
additional direct expense, including the
expense resulting from the installation of
such equipment and meters, as
additional rent promptly upon being billed.
Landlord shall not be responsible or
liable for any interruption in utility
service, nor shall such interruption
affect the continuation or validity of this
lease; provided however, in the
event that any utility service is not
delivered for a period in excess of three
(3) consecutive business days solely as a
result of the negligence or willful
misconduct of Landlord, and if Tenant is
unable to reasonably use the Premises
for the conduct of its business by reason
thereof, Rent shall thereafter abate
until the interrupted service is restored
or Tenant conducts or is able to
reasonably conduct business in the
Premises.
6
<PAGE>
(ii)
Except in the case of emergencies, Tenant shall have
access to the Premises 24 hours per day, 7
days per week (security card access
only after business hours). As part of the
Base Building Work (as defined in
Section 29) provided by Landlord, the main
entrance to the Building will have a
keypad, security camera and telephone
system to provide for after-hours access
for Tenant's visitors into which Tenant
will be permitted, at its own expense,
to integrate its own internal security
system.
(f) JANITORIAL
SERVICES. Landlord will provide Tenant with trash
removal and janitorial services pursuant to
a cleaning schedule attached as
Exhibit "D". In the event such janitorial
services are not performed in a manner
comparable to those performed at buildings
of the same quality in the geographic
area in which the Property is located, then
Tenant shall notify Landlord thereof
in writing and if Landlord fails to cause
such janitorial services to meet such
standards within 30 days thereafter, Tenant
shall have the right to undertake to
provide its own janitorial services for the
Premises in which event Annual
Operating Expenses will be reduced by the
amount that Landlord had allocated to
Tenant for janitorial services when such
services were provided by Landlord.
(g) "RENT."
The term "RENT" as used in this lease means the
Minimum Annual Rent, Annual Operating
Expenses and any other additional rent or
sums payable by Tenant to Landlord pursuant
to this lease, all of which shall be
deemed rent for purposes of Landlord's
rights and remedies with respect thereto.
Tenant shall pay all Rent to Landlord
within 30 days after Tenant is billed,
unless otherwise provided in this lease,
and interest shall accrue on all sums
due but unpaid.
(h) HVAC. The
Building's heating, ventilation and air conditioning
("HVAC") system will consist of Trane roof
mounted Variable Air Volume systems
with comfort zones every 1,500 square feet
and programmable thermostats (linked
to a centralized control system) provided
throughout the Building.
(i) LIFE
SAFETY. The Premises will be fully sprinklered, with all
heads turned upward in Tenant areas and all
horns and strobes at the core areas
will be installed as part of the Base
Building Work (as defined in Section 29).
All required changes or installations of
horns, strobes and sprinklers shall be
at Landlord's cost except those required
changes or installations of horns,
strobes and sprinklers required by the
Specialty Tenant Improvements (as defined
in Section 29) or required due to the acts
or omissions of Tenant or its Agents,
which shall be at Tenant's cost.
(j) TECHNOLOGY
INFRASTRUCTURE. As part of the Base Building Work
(as defined in Section 29), Landlord will,
at its expense, install and reserve
for Tenant's use four 4" PVC conduits
linking the main mechanical/electrical
rooms for each building in the Development.
Landlord will also arrange for fiber
optic cable inside the Building to which
Tenant can connect.
8.
SIGNS. Landlord, at Landlord's expense, will place Tenant's name
and
suite number on or beside the entrance door
to the Premises. Except for signs
which are located wholly within the
interior of the Premises and not visible
from the exterior of the Premises, no signs
shall be placed on the Property
without the prior written consent of
Landlord. Subject to Landlord obtaining all
required governmental permits and approvals
therefor, Landlord will also place
Tenant's name, together with the names of
other occupants of the Property, on
the planned monument signs to be located on
Pleasant Valley Road and Fellowship
Road. Provided Tenant is not in default and
is the sole occupant of the
Building, Tenant's name will be located on
the top of such monument signs (above
the names of any other tenants) and will
cover at least 50% of the available
space on each such monument sign. Provided
that Tenant remains the sole occupant
of the Building and subject to the
requirements of this Section 8 and Tenant
obtaining all required governmental permits
and approvals therefor, Tenant shall
have the right, at its sole cost and
expense, to place a sign on the Building
listing Tenant's name at a location to be
mutually determined by Landlord
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and Tenant. All signs installed by Tenant
shall be maintained by Tenant in good
condition and Tenant shall remove all such
signs at the termination of this
lease and shall repair any damage caused by
such installation, existence or
removal.
9.
ALTERATIONS AND FIXTURES.
(a) Subject to
Section 10, Tenant shall have the right to install
its trade fixtures in the Premises,
provided that no such installation or
removal thereof shall affect any structural
portion of the Property nor any
utility lines, communications lines,
equipment or facilities in the Building
serving any tenant other than Tenant. At
the expiration or termination of this
lease and at the option of Landlord or
Tenant, Tenant shall remove such
installation(s) and, in the event of such
removal, Tenant shall repair any
damage caused by such installation or
removal; if Tenant, with Landlord's
written consent, elects not to remove such
installation(s) at the expiration or
termination of this lease, all such
installations shall remain on the Property
and become the property of Landlord without
payment by Landlord.
(b) Except for
non-structural changes which do not exceed $10,000
in the aggregate, Tenant shall not make or
permit to be made any alterations to
the Premises without Landlord's prior
written consent, such consent not to be
unreasonably withheld or delayed. Tenant
shall pay the costs of any required
architectural/engineering reviews. In
making any alterations, (i) Tenant shall
deliver to Landlord the plans,
specifications and necessary permits, together
with certificates evidencing that Tenant's
contractors and subcontractors have
adequate insurance coverage naming Landlord
and Landlord's agent as additional
insureds, at least 10 days prior to
commencement thereof, (ii) such alterations
shall not impair the structural strength of
the Building or any other
improvements or reduce the value of the
Property or affect any utility lines,
communications lines, equipment or
facilities in the Building serving any tenant
other than Tenant, (iii) Tenant shall
comply with Section 10 and (iv) the
occupants of the Building and of any
adjoining property shall not be disturbed
thereby. All alterations to the Premises by
Tenant shall be the property of
Tenant until the expiration or termination
of this lease; at that time all such
alterations shall remain on the Property
and become the property of Landlord
without payment by Landlord unless Landlord
gives written notice to Tenant to
remove the same, in which event Tenant will
remove such alterations and repair
any resulting damage. At Tenant's request
prior to Tenant making any
alterations, Landlord shall notify Tenant
in writing, whether Tenant is required
to remove such alterations at the
expiration or termination of this lease.
10. MECHANICS'
LIENS. Tenant shall pay promptly any contractors and
materialmen who supply labor, work or
materials to Tenant at the Property and
shall take all steps permitted by law in
order to avoid the imposition of any
mechanic's lien upon all or any portion of
the Property. Should any such lien or
notice of lien be filed for work performed
for Tenant other than by Landlord,
Tenant shall bond against or discharge the
same within 10 days after Tenant has
notice that the lien or claim is filed
regardless of the validity of such lien
or claim. Nothing in this lease is intended
to authorize Tenant to do or cause
any work to be done or materials to be
supplied for the account of Landlord, all
of the same to be solely for Tenant's
account and at Tenant's risk and expense.
Throughout this lease the term "MECHANIC'S
LIEN" is used to include any lien,
encumbrance or charge levied or imposed
upon all or any portion of, interest in
or income from the Property on account of
any mechanic's, laborer's,
materialman's or construction lien or
arising out of any debt or liability to or
any claim of any contractor, mechanic,
supplier, materialman or laborer and
shall include any mechanic's notice of
intention to file a lien given to
Landlord or Tenant, any stop order given to
Landlord or Tenant, any notice of
refusal to pay naming Landlord or Tenant
and any injunctive or equitable action
brought by any person claiming to be
entitled to any mechanic's lien.
11. LANDLORD'S
RIGHT OF ENTRY. Tenant shall permit Landlord and its Agents
to enter the Premises at all reasonable
times following reasonable notice
(except in the event of an emergency), for
the purpose of
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inspection, maintenance or making repairs,
alterations or additions as well as
to exhibit the Premises for the purpose of
sale or mortgage and, during the last
12 months of the Term, to exhibit the
Premises to any prospective tenant.
Landlord will make reasonable efforts not
to inconvenience Tenant in exercising
the foregoing rights, but shall not be
liable for any loss of occupation or
quiet enjoyment thereby occasioned.
12. DAMAGE BY
FIRE OR OTHER CASUALTY.
(a) If the
Premises or Building shall be damaged or destroyed by
fire or other casualty, Tenant promptly
shall notify Landlord and Landlord,
subject to the conditions set forth in this
Section 12, shall repair such damage
and restore the Premises to substantially
the same condition in which they were
immediately prior to such damage or
destruction, but not including the repair,
restoration or replacement of the fixtures
or alterations installed by Tenant.
Landlord shall notify Tenant in writing,
within 30 days after the date of the
casualty, if Landlord anticipates that the
restoration will take more than 180
days from the date of the casualty to
complete; in such event, either Landlord
or Tenant may terminate this lease
effective as of the date of casualty by
giving written notice to the other within
10 days after Landlord's notice.
Further, if a casualty occurs during the
last 12 months of the Term or any
extension thereof and Landlord anticipates
that restoration will take more than
90 days from the date of the casualty to
complete, Landlord may terminate this
lease unless Tenant has the right to extend
the Term pursuant to this lease and
does so within 30 days after the date of
the casualty.
(b) Landlord
shall maintain a 12 month rental coverage endorsement
or other comparable form of coverage as
part of its fire, extended coverage and
special form insurance. Tenant will receive
an abatement of its Minimum Annual
Rent and Annual Operating Expenses to the
extent the Premises are rendered
untenantable, such abatement to be in the
proportion that the number of rentable
square feet rendered untenantable bears to
the total number of rentable square
feet in the Premises.
13.
CONDEMNATION.
(a)
TERMINATION. If (i) all of the Premises are taken by a
condemnation or otherwise for any public or
quasi-public use, (ii) any part of
the Premises is so taken and the remainder
thereof is insufficient for the
reasonable operation of Tenant's business
or (iii) any of the Property is so
taken, and, in Landlord's reasonable
opinion, it would be impractical or the
condemnation proceeds are insufficient to
restore the remainder of the Property,
then this lease shall terminate and all
unaccrued obligations hereunder shall
cease as of the day before possession is
taken by the condemnor.
(b) PARTIAL
TAKING. If there is a condemnation and this lease has
not been terminated pursuant to this
Section, (i) Landlord shall promptly
restore the Building and the improvements
which are a part of the Premises to a
condition and size as nearly comparable as
reasonably possible to the condition
and size thereof immediately prior to the
date upon which the condemnor took
possession and (ii) the obligations of
Landlord and Tenant shall be unaffected
by such condemnation except that there
shall be an abatement of the Minimum
Annual Rent and Annual Operating Expenses
based upon the portion of the Building
or the Premises subject to the
condemnation.
(c) AWARD. In
the event of a condemnation affecting Tenant, Tenant
shall have the right to make a claim
against the condemnor for moving expenses
and business dislocation damages to the
extent that such claim does not reduce
the sums otherwise payable by the condemnor
to Landlord. Except as aforesaid and
except as set forth in (d) below, Tenant
hereby assigns all claims against the
condemnor to Landlord.
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(d) TEMPORARY
TAKING. In the event of a temporary taking of the
Building or Premises, the Minimum Annual
Rent and Annual Operating Expenses for
the portion of the Building or Premises
subject to such taking shall be abated
for the entire length of such taking.
Landlord shall be entitled to all proceeds
of any award for such a temporary taking up
to an amount equal to the Minimum
Annual Rent and Annual Operating Expenses
abated in connection with such
temporary taking, with any excess being
paid to Tenant.
14.
NON-ABATEMENT OF RENT. Except as otherwise expressly provided in
this
lease, there shall be no abatement or
reduction of the Rent for any cause
whatsoever, and this lease shall not
terminate, and Tenant shall not be entitled
to surrender the Premises.
15.
INDEMNIFICATION.
(a) Subject to
Sections 7(c)(iii) and 16, Tenant will protect,
indemnify and hold harmless Landlord and
its Agents from and against any and all
claims, actions, damages, liability and
expense (including reasonable fees of
attorneys, investigators and experts) in
connection with loss of life, personal
injury or damage to property in or about
the Premises or arising out of the
occupancy or use of the Premises by Tenant
or its Agents or occasioned wholly or
in part by any act or omission of Tenant or
its Agents, whether prior to, during
or after the Term, except to the extent
such loss, injury or damage was caused
by the negligence or willful misconduct of
Landlord or its Agents. In case any
action or proceeding is brought against
Landlord and/or its Agents by reason of
the foregoing, Tenant, at its expense,
shall resist and defend such action or
proceeding, or cause the same to be
resisted and defended by counsel (reasonably
acceptable to Landlord and its Agents)
designated by the insurer whose policy
covers such occurrence or by counsel
designated by Tenant and approved by
Landlord and its Agents. Tenant's
obligations pursuant to this Section 15 shall
survive the expiration or termination of
this lease.
(b) Subject to
Sections 7(c)(iii) and 16, Landlord will protect,
indemnify and hold harmless Tenant and its
Agents from and against any and all
claims, actions, damages, liability and
expense (including reasonable fees of
attorneys, investigators and experts) in
connection with loss of life, personal
injury or damage to property caused to any
person in or about the Premises
occasioned wholly or in part by the
negligence or willful misconduct of Landlord
or its Agents, except to the extent such
loss, injury or damage was caused by
the negligence or willful misconduct of
Tenant or its Agents. In case any action
or proceeding is brought against Tenant
and/or its Agents by reason of the
foregoing, Landlord, at its expense, shall
resist and defend such action or
proceeding, or cause the same to be
resisted and defended by counsel (reasonably
acceptable to Tenant and its Agents)
designated by the insurer whose policy
covers such occurrence or by counsel
designated by Landlord and approved by
Tenant and its Agents. Landlord's
obligations pursuant to this Section shall
survive the expiration or termination of
this lease.
16. WAIVER OF
CLAIMS. Landlord and Tenant each hereby waives all claims for
recovery against the other for any loss or
damage which may be inflicted upon
the property of such party even if such
loss or damage shall be brought about by
the fault or negligence of the other party
or its Agents; provided, however,
that such waiver by Landlord shall not be
effective with respect to any
liability of Tenant described in Sections
4(c) and 7(d)(iii).
17. QUIET
ENJOYMENT. Landlord covenants that Tenant, as long as Tenant is
performing all of its covenants, agreements
and conditions under this lease,
shall have quiet and peaceful possession of
the Premises as against anyone
claiming by or through Landlord, subject,
however, to the exceptions,
reservations and conditions of this
lease.
18. ASSIGNMENT
AND SUBLETTING.
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(a)
LIMITATION. Tenant shall not transfer this lease, voluntarily
or by operation of law, without the prior
written consent of Landlord which
shall not be unreasonably withheld or
delayed. However, Landlord's consent shall
not be required in the event of any
transfer by Tenant to an affiliate of Tenant
which is at least as creditworthy as Tenant
as of the date of this lease and
provided Tenant delivers to Landlord the
instrument described in Section
(c)(iii) below, together with a
certification of such creditworthiness by Tenant
and such affiliate. For purposes of this
Section 18(a), "affiliate" shall
include a parent of Tenant, a subsidiary
owned or controlled by Tenant or
Tenant's parent, a successor to Tenant by
merger, consolidation or
reorganization or the purchaser of all or
substantially all of the stock or
assets of Tenant. Any transfer not in
conformity with this Section 18 shall be
void at the option of Landlord, and
Landlord may exercise any or all of its
rights under Section 23. A consent to one
transfer shall not be deemed to be a
consent to any subsequent transfer.
"Transfer" shall include any sublease,
assignment, license or concession
agreement, change in ownership or control of
Tenant, mortgage or hypothecation of this
lease or Tenant's interest therein or
in all or a portion of the Premises.
(b) OFFER TO
LANDLORD. Tenant acknowledges that the terms of this
lease, including the Minimum Annual Rent,
have been based on the understanding
that Tenant physically shall occupy the
Premises for the entire Term. Therefore,
upon Tenant's request to transfer all or a
portion of the Premises, at the
option of Landlord, Tenant and Landlord
shall execute an amendment to this lease
removing such space from the Premises,
Tenant shall be relieved of any liability
with respect to such space and Landlord
shall have the right to lease such space
to any party, including Tenant's proposed
transferee.
(c)
CONDITIONS. Notwithstanding the above, the following shall
apply to any transfer, with or without
Landlord's consent:
(i) As of the
date of any transfer, Tenant shall not be
in default under this lease nor shall any
act or omission have occurred which
would constitute a default with the giving
of notice and/or the passage of time.
(ii)
No transfer shall relieve Tenant of its obligation to
pay the Rent and to perform all its other
obligations hereunder. The acceptance
of Rent by Landlord from any person shall
not be deemed to be a waiver by
Landlord of any provision of this lease or
to be a consent to any transfer.
(iii) Each
transfer shall be by a written instrument in
form and substance satisfactory to Landlord
which shall (A) include an
assumption of liability by any transferee
of all Tenant's obligations and the
transferee's ratification of and agreement
to be bound by all the provisions of
this lease, (B) afford Landlord the right
of direct action against the
transferee pursuant to the same remedies as
are available to Landlord against
Tenant and (C) be executed by Tenant and
the transferee.
(iv)
Tenant shall
