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EXHIBIT 10.4
LEASE AGREEMENT
(Single Tenant Office)
INDEX
-----
SECTION SECTION PAGE
------- ------- ----
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
i
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
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THIS LEASE AGREEMENT is made by and between LIBERTY PROPERTY LIMITED
PARTNERSHIP, a Pennsylvania limited partnership ("LANDLORD") with its address at
000 Xxxxx 00, Xxxxx 000, Xxxxxxx, XX 00000, and XXXXXX LEASING CORPORATION, a
corporation organized under the laws of Delaware ("TENANT") with its address at
000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxxx, XX 00000, 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 Xxxxxxxx
Xxxxxx Xxxx Xxxxx Xxxxxx,
XX 00000
(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)
Month of Term Annual Monthly Month of Term Annual Monthly
------------- ------ ------- ------------- ------ -------
* 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
*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
"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
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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
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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
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.
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(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 xxxxx
until the interrupted service is restored or Tenant conducts or is able to
reasonably conduct business in the Premises.
6
(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
7
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
8
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 pay, within 10 days of receipt of an
invoice, Landlord's reasonable attorneys' fees and costs in connection with the
review, processing and documentation of any transfer for which Landlord's
consent is requested.
19. SUBORDINATION; MORTGAGEE'S RIGHTS.
(a) This lease shall be subordinate to any first mortgage or other
primary encumbrance now or hereafter affecting the Premises. Although the
subordination is self-operative, within 15 days after written request, Tenant
shall execute and deliver any further instruments confirming such subordination
of this lease and any further instruments of attornment that may be desired by
any such mortgagee or Landlord. However, any mortgagee may at any time
subordinate its mortgage to this lease, without Tenant's consent, by giving
written notice to Tenant, and thereupon this lease shall be deemed prior to such
mortgage without
11
regard to their respective dates of execution and delivery; provided, however,
that such subordination shall not affect any mortgagee's right to condemnation
awards, casualty insurance proceeds, intervening liens or any right which shall
arise between the recording of such mortgage and the execution of this lease.
(b) It is understood and agreed that any mortgagee shall not be
liable to Tenant for any funds paid by Tenant to Landlord unless such funds
actually have been transferred to such mortgagee by Landlord.
(c)
20. RECORDING; TENANT'S CERTIFICATE. Tenant shall not record this lease or
a memorandum thereof without Landlord's prior written consent. Within 15 days
after Landlord's written request from time to time:
(a) Tenant shall execute, acknowledge and deliver to Landlord a
written statement certifying the Commencement Date and Expiration Date of this
lease, that this lease is in full force and effect and has not been modified and
otherwise as set forth in the form of estoppel certificate attached as Exhibit
"E" or with such modifications as may be necessary to reflect accurately the
stated facts and/or such other certifications as may be reasonably requested by
a mortgagee or purchaser. Tenant understands that its failure to execute such
documents may cause Landlord serious financial damage by causing the failure of
a financing or sale transaction.
(b) Tenant shall furnish to Landlord, Landlord's mortgagee,
prospective mortgagee or purchaser reasonably requested financial information
not more often than once in any 12-month period. In the event Tenant becomes a
publicly traded entity, the information provided will be that which is publicly
available.
21. SURRENDER; ABANDONED PROPERTY.
(a) Subject to the terms of Sections 9(b), 12(a) and 13(b), at the
expiration or termination of this lease, Tenant promptly shall yield up in the
same condition, order and repair in which they are required to be kept
throughout the Term, the Premises and all improvements thereto, and all fixtures
and equipment servicing the Building, ordinary wear and tear excepted.
(b) Upon or prior to the expiration or termination of this lease,
Tenant shall remove any personal property from the Property. Any personal
property remaining more than 10 days after the expiration or termination of this
lease (as extended by any month-to-month tenancy described in Section 21(c))
shall be deemed conclusively to have been abandoned, and Landlord, at Tenant's
expense, may remove, store, sell or otherwise dispose of such property in such
manner as Landlord may see fit and/or Landlord may retain such property as its
property. If any part thereof shall be sold, then Landlord may receive and
retain the proceeds of such sale and apply the same, at its option, against the
expenses of the sale, the cost of moving and storage and any Rent due under this
lease.
(c) If Tenant, or any person claiming through Tenant, shall
continue to occupy the Premises after the expiration or termination of this
lease or any renewal thereof, such occupancy shall be deemed to be under a
month-to-month tenancy under the same terms and conditions set forth in this
lease, except that the monthly installment of the Minimum Annual Rent during the
first 30 days of such continued occupancy shall be 125% of the amount applicable
to the last month of the Term and thereafter during such continued occupancy
shall be double the amount applicable to the last month of the Term. All
holdover charges shall be applied on a per diem basis for each day of holdover.
Anything to the contrary
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notwithstanding, any holding over by Tenant without Landlord's prior written
consent shall constitute a default hereunder and shall be subject to all the
remedies available to Landlord.
22. CURING TENANT'S DEFAULTS. If Tenant shall be in default in the
performance of any of its obligations hereunder, Landlord, without any
obligation to do so, in addition to any other rights it may have in law or
equity, may elect to cure such default on behalf of Tenant after written notice
and the expiration of applicable cure periods, if any, set forth in Section
23(c) (except that no such notice shall be required in the case of emergency) to
Tenant. Tenant shall reimburse Landlord upon demand for any reasonable sums paid
or reasonable costs incurred by Landlord in curing such default, including
interest thereon from the respective dates of Landlord's incurring such costs,
which sums and costs together with interest shall be deemed additional rent.
23. DEFAULTS - REMEDIES.
(a) DEFAULTS. It shall be an event of default:
(i) If Tenant does not pay in full when due any and all
Rent;
(ii) If Tenant fails to observe and perform or otherwise
breaches any other provision of this lease;
(iii) If Tenant abandons the Premises, which shall be
conclusively presumed if the Premises remain completely unoccupied for more than
30 consecutive days; or
(iv) If Tenant becomes insolvent or bankrupt in any sense
or makes a general assignment for the benefit of creditors or offers a
settlement to creditors, or if a petition in bankruptcy or for reorganization or
for an arrangement with creditors under any federal or state law is filed by or
against Tenant, or a xxxx in equity or other proceeding for the appointment of a
receiver for any of Tenant's assets is commenced, or if any of the real or
personal property of Tenant shall be levied upon; provided, however, that any
proceeding brought by anyone other than Tenant under any bankruptcy, insolvency,
receivership or similar law shall not constitute a default until such proceeding
has continued unstayed for more than 90 consecutive days.
(b) REMEDIES. Then, and in any such event, Landlord shall have the
following rights:
(i) To charge a late payment fee equal to 4% of any
amount owed to Landlord pursuant to this lease which is not paid within 5 days
after the due date.
(ii) To enter and repossess the Premises, by breaking open
locked doors if necessary and lawful, and remove all persons and all or any
property therefrom, by action at law or otherwise in accordance with law,
without being liable for prosecution or damages therefor, and Landlord may, at
Landlord's option, make alterations and repairs in order to relet the Premises
and relet all or any part(s) of the Premises for Tenant's account. Tenant agrees
to pay to Landlord on demand any deficiency that may arise by reason of such
reletting. In the event of reletting without termination of this lease, Landlord
may at any time thereafter elect to terminate this lease for such previous
breach. Landlord shall use commercially reasonable efforts to relet the Premises
in order to mitigate its damages hereunder, but shall not be required to prefer
the Premises over other space available for lease in the Building or in other
buildings owned by Landlord in the geographic area in which the Building is
located.
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(iii) To accelerate the whole or any part of the Rent for
the balance of the Term (less any credit then due to Tenant pursuant to Section
23(b)(ii) above), and declare the same to be immediately due and payable, such
accelerated amount to be reduced to present value at the rate of 6% per annum at
the time of actual payment.
(iv) To terminate this lease and the Term without any
right on the part of Tenant to save the forfeiture by payment of any sum due or
by other performance of any condition, term or covenant broken.
(c) GRACE PERIOD. Notwithstanding anything hereinabove stated,
neither party will exercise any available right because of any default of the
other, except those remedies contained in subsection (b)(i) of this Section,
unless such party shall have first given 10 days written notice thereof (in the
case of a default consisting of the failure to pay money) or 30 days written
notice thereof (in the case of a default consisting of something other than the
failure to pay money) to the defaulting party, and the defaulting party shall
have failed to cure the default within such period; provided, however, that:
(i) No such notice shall be required if Tenant fails to
comply with the provisions of Section 10, in the case of emergency as set forth
in Section 22 or in the event of any default enumerated in subsections (a)(iii)
and (iv) of this Section, and only 5 days written notice shall be required if
Tenant fails to comply with the provisions of Section 20(a).
(ii) Landlord shall not be required to give such 10 days
notice of monetary default more than 2 times during any 12 month period.
(iii) If the default consists of something other than the
failure to pay money which cannot reasonably be cured within 30 days, neither
party will exercise any right if the defaulting party begins to cure the default
within the 30 days and continues actively and diligently in good faith to
completely cure said default.
(iv) Tenant agrees that any notice given by Landlord
pursuant to this Section which is served in compliance with Section 27 shall be
adequate notice for the purpose of Landlord's exercise of any available
remedies.
(d) NON-WAIVER; NON-EXCLUSIVE. No waiver by Landlord of any breach
by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance
by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of
any rights and remedies with respect to such or any subsequent breach. Efforts
by Landlord to mitigate the damages caused by Tenant's default shall not
constitute a waiver of Landlord's right to recover damages hereunder. No right
or remedy herein conferred upon or reserved to Landlord is intended to be
exclusive of any other right or remedy provided herein or by law, but each shall
be cumulative and in addition to every other right or remedy given herein or now
or hereafter existing at law or in equity. No payment by Tenant or receipt or
acceptance by Landlord of a lesser amount than the total amount due Landlord
under this lease shall be deemed to be other than on account, nor shall any
endorsement or statement on any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of Rent due, or Landlord's right to
pursue any other available remedy.
(e) COSTS AND ATTORNEYS' FEES. If either party commences an action
against the other party arising out of or in connection with this lease, the
prevailing party shall be entitled to have and recover from the losing party
reasonable attorneys' fees, costs of suit, investigation expenses and discovery
costs, including costs of appeal.
14
24. REPRESENTATIONS OF TENANT. Tenant represents to Landlord and agrees
that:
(a) The word "TENANT" as used herein includes the Tenant named
above as well as its successors and assigns, each of which shall be under the
same obligations and liabilities and each of which shall have the same rights,
privileges and powers as it would have possessed had it originally signed this
lease as Tenant. Each and every of the persons named above as Tenant shall be
bound jointly and severally by the terms, covenants and agreements contained
herein. However, no such rights, privileges or powers shall inure to the benefit
of any assignee of Tenant immediate or remote, unless Tenant has complied with
the terms of Section 18 and the assignment to such assignee is permitted or has
been approved in writing by Landlord. Any notice required or permitted by the
terms of this lease may be given by or to any one of the persons named above as
Tenant, and shall have the same force and effect as if given by or to all
thereof.
(b) If Tenant is a corporation, partnership or any other form of
business association or entity, Tenant is duly formed and in good standing, and
has full corporate or partnership power and authority, as the case may be, to
enter into this lease and has taken all corporate or partnership action, as the
case may be, necessary to carry out the transaction contemplated herein, so that
when executed, this lease constitutes a valid and binding obligation enforceable
in accordance with its terms. Tenant shall provide Landlord with corporate
resolutions or other proof in a form acceptable to Landlord, authorizing the
execution of this lease at the time of such execution.
25. LIABILITY OF LANDLORD. The word "LANDLORD" as used herein includes the
Landlord named above as well as its successors and assigns, each of which shall
have the same rights, remedies, powers, authorities and privileges as it would
have had it originally signed this lease as Landlord. Any such person or entity,
whether or not named herein, shall have no liability hereunder after it ceases
to hold title to the Premises except for obligations already accrued (and, as to
any unapplied portion of Tenant's Security Deposit, Landlord shall be relieved
of all liability therefor upon transfer of such portion to its successor in
interest provided that Landlord or such transferee provides Tenant with written
notice of such transfer) and Tenant shall look solely to Landlord's successor in
interest for the performance of the covenants and obligations of the Landlord
hereunder which thereafter shall accrue. Neither Landlord nor any principal of
Landlord nor any owner of the Property, whether disclosed or undisclosed, shall
have any personal liability with respect to any of the provisions of this lease
or the Premises, and if Landlord is in breach or default with respect to
Landlord's obligations under this lease or otherwise, Tenant shall look solely
to the equity of Landlord in the Property for the satisfaction of Tenant's
claims. Notwithstanding the foregoing, no mortgagee or ground lessor succeeding
to the interest of Landlord hereunder (either in terms of ownership or
possessory rights) shall be (a) liable for any previous act or omission of a
prior landlord, or (b) subject to any rental offsets or defenses against a prior
landlord.
26. INTERPRETATION; DEFINITIONS.
(a) CAPTIONS. The captions in this lease are for convenience only
and are not a part of this lease and do not in any way define, limit, describe
or amplify the terms and provisions of this lease or the scope or intent
thereof.
(b) ENTIRE AGREEMENT. This lease represents the entire agreement
between the parties hereto and there are no collateral or oral agreements or
understandings between Landlord and Tenant with respect to the Premises or the
Property. No rights, easements or licenses are acquired in the Property or any
land adjacent to the Property by Tenant by implication or otherwise except as
expressly set forth in the provisions of this lease. This lease shall not be
modified in any manner except by an instrument in writing executed by the
parties. The masculine (or neuter) pronoun and the singular number shall include
the
15
masculine, feminine and neuter genders and the singular and plural number. The
word "INCLUDING" followed by any specific item(s) is deemed to refer to examples
rather than to be words of limitation. Both parties having participated fully
and equally in the negotiation and preparation of this lease, this lease shall
not be more strictly construed, nor any ambiguities in this lease resolved,
against either Landlord or Tenant.
(c) COVENANTS. Each covenant, agreement, obligation, term,
condition or other provision herein contained shall be deemed and construed as a
separate and independent covenant of the party bound by, undertaking or making
the same, not dependent on any other provision of this lease unless otherwise
expressly provided. All of the terms and conditions set forth in this lease
shall apply throughout the Term unless otherwise expressly set forth herein.
(d) INTEREST. Wherever interest is required to be paid hereunder,
such interest shall be at the highest rate permitted under law but not in excess
of 12% per annum.
(e) SEVERABILITY; GOVERNING LAW. If any provisions of this lease
shall be declared unenforceable in any respect, such unenforceability shall not
affect any other provision of this lease, and each such provision shall be
deemed to be modified, if possible, in such a manner as to render it enforceable
and to preserve to the extent possible the intent of the parties as set forth
herein. This lease shall be construed and enforced in accordance with the laws
of the state in which the Property is located.
(f) "MORTGAGE" AND "MORTGAGEE." The word "MORTGAGE" as used herein
includes any lien or encumbrance on the Premises or the Property or on any part
of or interest in or appurtenance to any of the foregoing, including without
limitation any ground rent or ground lease if Landlord's interest is or becomes
a leasehold estate. The word "MORTGAGEE" as used herein includes the holder of
any mortgage, including any ground lessor if Landlord's interest is or becomes a
leasehold estate. Wherever any right is given to a mortgagee, that right may be
exercised on behalf of such mortgagee by any representative or servicing agent
of such mortgagee.
(g) "PERSON." The word "person" is used herein to include a
natural person, a partnership, a corporation, an association and any other form
of business association or entity.
27. NOTICES. Any notice or other communication under this lease shall be in
writing and addressed to Landlord or Tenant at their respective addresses
specified at the beginning of this lease, except that after the Commencement
Date Tenant's address shall be at the Premises, (or to such other address as
either may designate by notice to the other) with a copy to any mortgagee or
other party designated in writing by Landlord. Each notice or other
communication shall be deemed given if sent by prepaid overnight delivery
service or by certified mail, return receipt requested, postage prepaid or in
any other manner, with delivery in any case evidenced by a receipt, and shall be
deemed received on the day of actual receipt by the intended recipient or on the
business day delivery is refused. The giving of notice by Landlord's attorneys,
representatives and agents under this Section shall be deemed to be the acts of
Landlord; however, the foregoing provisions governing the date on which a notice
is deemed to have been received shall mean and refer to the date on which a
party to this lease, and not its counsel or other recipient to which a copy of
the notice may be sent, is deemed to have received the notice.
28. SECURITY DEPOSIT. At the time of signing this lease, Tenant shall
deposit with Landlord $174,500.00 (the "Security Deposit") to be retained by
Landlord as cash security for the faithful performance and observance by Tenant
of the provisions of this lease. Tenant shall not be entitled to any interest
whatever on the Security Deposit. Landlord shall have the right to commingle the
Security Deposit with its other funds. Landlord may use the whole or any part of
the Security Deposit for the payment of any amount as to which Tenant is in
default hereunder or to compensate Landlord for any loss or damage it may
16
suffer by reason of Tenant's default under this lease. If Landlord uses all or
any portion of the Security Deposit as herein provided, within 20 days after
written demand therefor, Tenant shall pay Landlord cash in amount equal to that
portion of the Security Deposit used by Landlord. If Tenant shall comply fully
and faithfully with all of the provisions of this lease, the Security Deposit
shall be returned to Tenant after the Expiration Date and surrender of the
Premises to Landlord. Notwithstanding anything to the contrary herein contained,
the Security Deposit shall be held by Landlord in an interest-bearing bookkeeper
escrow account at Wachovia National Bank or other federally-insured banking
institution, until satisfaction of the contingency set forth in Section 37. Upon
satisfaction of such contingency, Landlord will no longer be required to hold
the Security Deposit in an interest-bearing escrow account and the immediately
preceding sentence of this Section 28 shall be of no further force or effect.
29. CONSTRUCTION OF THE BUILDING, THE OTHER BUILDING AND THE SPECIALTY
TENANT IMPROVEMENTS FOR THE PREMISES.
(a) The Building, a second building on the Property consisting of
one-story containing approximately 30,000 rentable square feet (the "Other
Building") and all site work and other improvements to be constructed in
connection therewith (including, without limitation, the lighting systems,
utility systems, life safety systems and fire suppression systems) (the "Base
Building Work") shall be constructed by Landlord, at Landlord's expense, in
accordance with the site plan, outline specifications and preliminary space plan
SK-2 prepared by Xxxxx Xxxxxxxx Architects dated October 10, 2003 attached
hereto as Exhibit "F" (the "Base Building Documents"), from which Landlord will
prepare, at Landlord's expense, the construction documents for the Building (the
"Base Construction Documents") which shall include architectural shell and core
area plans and structural steel plans. The specialty interior improvements to
the Premises relating principally to the computer room that are not reflected on
the Base Building Documents and any other items referenced as Specialty Tenant
Improvements on the Base Building Documents (the "Specialty Tenant
Improvements") shall be constructed by Landlord in accordance with detailed
specialty tenant improvement plans and specifications prepared at Tenant's
expense (the "Specialty Tenant Improvement Plans") subject to approval by
Landlord. The Other Building shall be under roof and enclosed no later than the
date of substantial completion of the Building, provided that it is understood
and agreed that Landlord shall not be required to construct interior
improvements to the Other Building except in conjunction with executed leases
with respect to space therein.
(b) (i) Within forty-five (45) days after the execution of this
lease by Landlord and Tenant, Landlord will provide to Tenant the Base
Construction Documents. Tenant shall have fifteen (15) business days after
receipt of the Base Construction Documents in which to review the Base
Construction Documents and to deliver to Landlord tenant improvement plans (the
"Tenant Improvement Plans") prepared at Tenant's expense (subject to a $50,000
allowance from Landlord) which shall include architectural floorplan, reflective
ceiling plan, telephone and electrical outlet locations and all other finish and
detail information necessary to complete the Premises (excluding related MEP
plans and fire protection plans) and the Specialty Tenant Improvement Plans as
prepared by Tenant's information technology vendor. The tenant improvements
identified on the Tenant Improvement Plans (excluding Specialty Tenant
Improvements) shall be constructed by Landlord at Landlord's expense.
Additionally, Tenant will provide written notice of Tenant's approval of the
Base Construction Documents, or its approval noted with any comments and
revisions to the Base Construction Documents. Tenant's approval of the Base
Construction Documents shall not be unreasonably withheld, conditioned or
delayed and Tenant agrees to use good faith when reviewing the Base Construction
Documents. If Tenant has comments requesting clarifications to the Base
Construction Documents, Landlord shall promptly provide written response
addressing those items of clarification which are reasonably requested by Tenant
and shall resubmit the revised portion of the plans and specifications to Tenant
for review.
17
Tenant shall have three (3) business days after receipt of the revised portions
of the Base Construction Documents to review such revisions. This process shall
continue until the Base Construction Documents have been approved by both
parties.
(ii) Following Landlord's receipt of the Tenant
Improvement Plans and the Specialty Tenant Improvement Plans, Landlord shall
have five (5) business days in which to review the Tenant Improvement Plans and
the Specialty Tenant Improvement Plans and to give to Tenant written notice of
Landlord's approval of the Tenant Improvement Plans and the Specialty Tenant
Improvement Plans or its approval noted with any comments and revisions, such
approval not to be unreasonably withheld, conditioned or delayed and Landlord
agrees to use good faith when reviewing the Tenant Improvement Plans and the
Specialty Tenant Improvement Plans. If Landlord has comments or clarifications
to the Tenant Improvement Plans or the Specialty Tenant Improvement Plans,
Tenant shall promptly provide written response addressing those items of
clarification which are reasonably requested by Landlord and shall resubmit the
revised portion of the Tenant Improvement Plans and the Specialty Tenant
Improvement Plans, if any, to Landlord for review. Landlord shall have three (3)
business days after receipt of the revised portions of the Tenant Improvement
Plans and the Specialty Tenant Improvement Plans to review such revisions. This
process shall continue until the Tenant Improvement Plans and the Specialty
Tenant Improvement Plans have been approved by both parties.
(iii) The Base Construction Documents, the Tenant
Improvement Plans and the Specialty Tenant Improvement Plans shall be
collectively referred to herein as the "Final Construction Documents". The Final
Construction Documents shall include an architectural floor plan and details,
reflected ceiling plan and all finish selections. In the event that Tenant
requests any additional Specialty Tenant Improvements or any changes to the
Final Construction Documents which would materially alter either the Premises,
the exterior appearance or basic nature of the Building, or the general scope of
work from that shown on the Final Construction Documents, Change Orders
regarding such addition or change shall be initiated pursuant to the process
described herein below. In the event Landlord changes the Base Construction
Documents which would materially alter the work contemplated on the Tenant
Improvement Plans or Specialty Tenant Improvement Plans, and such changes result
in added cost to Tenant, Landlord agrees to reimburse Tenant for such added cost
following receipt of bona fide documentation.
(c) All work shown on the Final Construction Documents shall be
constructed by Landlord in a good and workmanlike manner, shall contain no
hazardous or asbestos-containing material and shall comply, at the time of
substantial completion thereof, with (i) all local, state and federal laws,
ordinances, building codes (including any variances lawfully granted) and other
applicable requirements of duly constituted public authorities, including the
ADA and all environmental laws and regulations, (ii) the requirements of any
recorded documents applicable to the Property, and (iii) the terms of this lease
and the Final Construction Documents. Landlord shall be responsible for
obtaining all necessary building permits and other governmental permits and
approvals necessary for construction of the work shown on the Final Construction
Documents. Tenant shall cooperate with Landlord, at no cost to Tenant, in
Landlord's efforts to obtain such permits and other approvals. All costs
incurred in connection with performing the work shown on the Final Construction
Documents. All costs incurred in connection with performing the Specialty Tenant
Improvements, whether identified on the Base Building Documents, the Tenant
Improvement Plans or the Specialty Tenant Improvement Plans, shall be borne
solely by Tenant.
(d) Landlord shall have the right, from time to time, to make
reasonable and non-material changes/field adjustments in and to the Final
Construction Documents to the extent that the same shall be necessary or
desirable in order to adjust to actual field conditions or to cause the work
shown on the Final Construction Documents to comply with any applicable
requirements of public authorities and/or
18
requirements of insurance bodies. Tenant shall be notified of any such
changes/field adjustments and all such changes/field adjustments shall be noted
on the applicable plans or documents. Except for changes/field adjustments
(which may be made immediately but confirmed by written change order),
modifications to the Final Construction Documents must be made and accepted only
in writing as follows: within 5 business days of receipt by Landlord of Tenant's
written request to Landlord for a change order, Landlord shall advise Tenant in
writing if it approves of the requested change, which shall not be unreasonably
withheld, and, if so, provide Tenant with the following items: (i) a cover sheet
summarizing the cost of the change and advising if such change order will
increase project costs or result in delay of completion; (ii) itemization of the
contractor's costs (including line items per trade and unit costs); and (iii)
architect drawings, if applicable. If acceptable to Tenant, Tenant shall
promptly sign the cover sheet and return it to Landlord by fax (with a copy
thereof by overnight mail) and such documentation will constitute an amendment
to this lease. Within five (5) business days after completion of the aforesaid
documentation, Tenant shall increase the Deposit (as defined in subsection (e)
below) by the amount of any change order increase.
(e) Upon approval of the Final Construction Documents, Landlord or
Tenant shall obtain bids for the performance of the Specialty Tenant
Improvements from at least three (3) contractors mutually agreed upon by
Landlord and Tenant, one (1) of whom shall be the general contractor performing
the Base Building Work. Landlord and Tenant shall review the bids and mutually
agree on the bid to be accepted (the "Bid") and the contractor (the
"Contractor") to perform the Specialty Tenant Improvements. Landlord agrees to
complete the Specialty Tenant Improvements at Tenant's sole cost and expense
equal to the aggregate of "Tenant's Cost" which is hereby defined as (i) third
party out of pocket architectural, engineering and design costs for the
Specialty Tenant Improvements, and (ii) the costs properly charged to Landlord
by all contractors and subcontractors for performing construction of the
Specialty Tenant Improvements. Landlord shall not xxxx Tenant for any
construction management fee for Landlord's supervision of such construction.
Within five (5) business days after Landlord advises Tenant that Landlord has
obtained all permits and approvals required for the construction of the Base
Building Work, Tenant shall deposit the amount of the Bid with Landlord in
immediately available funds or deliver to Landlord an irrevocable letter of
credit in form and substance and from a Philadelphia area banking institution
satisfactory to Landlord in the amount of the Bid (the "Deposit"). The Deposit
shall be held in escrow by Landlord in an interest-bearing bank account and
shall be drawn upon by Landlord on a monthly basis to pay sums due to the
Contractor for work performed on the Specialty Tenant Improvements. Any unused
portion of the Deposit (including accrued interest thereon) shall be returned to
Tenant upon completion of the Specialty Tenant Improvements.
(f) All construction comprising the work shown on the Final
Construction Documents shall be commenced promptly after the date that Landlord
has received all permits and approvals for the construction thereof and Tenant
has made the Deposit with Landlord. The work shown on the Final Construction
Documents shall be substantially completed and ready for use and occupancy by
Tenant on or before the date specified in Section 1(c)(i) of this lease, subject
to Excusable Delays (as hereinafter defined). As used in this lease,
"substantial completion" shall mean the date that Landlord has delivered to
Tenant: (i) physical possession of, and access to, the Premises; and (ii)
evidence that the Premises may be lawfully occupied, and Landlord has completed
all of the work in accordance with the Final Construction Documents, subject
only to incomplete items which do not adversely affect in a material way or
materially interfere with Tenant's use and occupancy of the Premises, which
incomplete items shall be set forth on the Punch List (as defined in subsection
(g)). PROVIDED, HOWEVER, that the time for substantial completion shall be
extended for additional periods of time equal to the time lost by reason of
Force Majeure (as defined in subsection (h)) or Tenant Delay (as defined in
subsection (i)) (collectively, "Excusable Delays").
19
(g) At the time of substantial completion of the Premises,
Landlord, in consultation with Tenant, shall generate a Punch List of all
asserted defects or incomplete work items in Landlord's construction work (the
"Punch List"). Landlord shall use commercially reasonable efforts to complete
all items on the Punch List within thirty (30) days following the date of the
generation of the Punch List, unless the nature of the defect or variance or
incomplete work item listed therein is such that a longer period of time is
required to repair or correct the same or unless due to Force Majeure (as
defined in subsection (h)) or Tenant Delay (as defined in subsection (i)).
(h) For purposes hereof, "Force Majeure" shall mean time actually
lost by Landlord or Landlord's contractors, subcontractors or suppliers due
solely to governmental restrictions and limitations, scarcity, unavailability or
delay in obtaining fuel or materials, war or other national emergency,
accidents, floods, defective materials, fire damage or other casualties, adverse
weather conditions which reasonably prevent Landlord from pursuing construction
activities in a normal manner, or any other cause similar or dissimilar to the
foregoing beyond the reasonable control of Landlord or Landlord's contractors,
subcontractors or suppliers.
(i) For purposes hereof, the terms "Tenant Delay" or "Delay caused
by Tenant" shall mean delay in completion of construction of the Base Building
Work and Specialty Tenant Improvements caused by:
(i) delay (beyond the time frames set forth in Section
29(b)) by Tenant in submission or approval of the Tenant Improvement Plans,
Specialty Tenant Improvement Plans or of the Base Construction Documents or
interference with the Base Building Work or the Specialty Tenant Improvements;
and
(ii) any subsequent changes, modifications, or alterations
requested by Tenant to the Final Construction Documents, which reasonably cause
delay in the completion thereof; provided, however, that any change,
modification or alteration to the Final Construction Documents that result from
a change by Landlord shall not be a "Tenant Delay" or "Delay caused by Tenant".
For purposes of determining delay, the term Tenant shall include
Tenant's contractors, agents and employees. In the event that Landlord has made
a reasonable request for a certain approval or item to be provided by Tenant by
a certain date and Tenant fails to reply or provide said item by said date, no
further written notice need be provided by Landlord in the event that Tenant
fails to meet such deadline in order for Landlord to claim a Tenant Delay.
(j) On or before the date (the "Notice Date") which is three (3)
weeks prior to the projected date of substantial completion of the work shown on
the Final Construction Documents, Landlord shall notify Tenant of such projected
date and after the Notice Date, 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 workers compatible with the contractors and workers engaged
by Landlord, and Tenant obtains Landlord's prior consent.
(k) All Specialty Tenant Improvements shall be the property of
Tenant until the expiration or termination of the lease at which time the
Specialty Tenant Improvements, at Tenant's option, (i) may be removed from the
Premises in which event Tenant will repair any resulting damage, or (ii) may
remain on the Premises and become the property of Landlord.
20
30. ENVIRONMENTAL INFORMATION. At all times during and after the term of
this lease, Tenant shall furnish Landlord, upon request, with such information
with respect to Tenant's operations at the Premises as is necessary in order for
Landlord or any successor owner of the Premises to comply with the New Jersey
Industrial Site Recovery Act, N.J. Stat. Xxx. 13:1K-6 et seq. and other federal
and New Jersey environmental laws, regulations and ordinances, including without
limitation, affidavits to be submitted to the New Jersey Department of
Environmental Protection in connection with requests for letters of
non-applicability and negative declarations. Tenant's obligations hereunder
shall survive the termination of this Lease.
31. BROKERS. Tenant agrees that it has dealt with no brokers in connection
with this lease, except for Xxxxx & Xxxxx Company, Inc., whose commission shall
be paid by Landlord pursuant to separate agreement. Tenant agrees to indemnify
and hold Landlord harmless from any and all claims for commissions or fees in
connection with the Premises and this lease from any other real estate brokers
or agents with whom it may have dealt.
32. OPTION TO RENEW.
(a) Provided that Landlord has not given Tenant notice of default
more than two (2) times preceding the Expiration Date, that there then exists no
event of default by Tenant under this lease nor any event that with the giving
of notice and/or the passage of time would constitute a default, and that Tenant
is the sole occupant of the Premises, Tenant shall have the right and option,
exercisable by giving Landlord prior written notice thereof more than twelve
(12) months in advance of the Expiration Date, or the first extended Expiration
Date, as the case may be, to extend the term of this lease under the same terms
and conditions (except for minimum annual rent and this option to renew) as
herein set forth for two (2) additional terms of five (5) years each, the first
additional term to begin on the Expiration Date and the second additional term
to begin on the first extended Expiration Date.
(b) The minimum annual rent for the first year of each additional
term shall be equal to the greater of (i) the minimum annual rent then being
paid by Tenant hereunder, or (ii) the fair market rental value of the Premises
determined pursuant to subsection (c) hereof. The minimum annual rent for each
subsequent year of each additional term shall be equal to the greater of (A) the
minimum annual rent then being paid by Tenant hereunder, or (B) the amount which
reflects the fair market increases in rental value of the Premises determined
pursuant to subsection (c) hereof.
(c) For purposes of this Section 32, if Landlord and Tenant cannot
agree as to the fair market rental value and related annual fair market
increases in rental value of the Premises within thirty (30) days after receipt
of Tenant's notice to Landlord under subsection 32(a), the fair market rental
value and related annual fair market increases in rental value of the Premises
shall be determined by appraisal. Within ten (10) days after the expiration of
such thirty (30) day period, Landlord and Tenant shall give written notice to
the other setting forth the name and address of an appraiser designated by the
party giving notice. All appraisers selected shall be members of the American
Institute of Real Estate Appraisers and shall have had at least ten (10) years
continuous experience in the business of appraising office buildings in the
greater Philadelphia, Pennsylvania area. If either party shall fail to give
notice of such designation within the time period provided, then the party who
has designated its appraiser (the "Designating Party") shall notify the other
party (the "Non-Designating Party") in writing that the Non-Designating Party
has an additional ten (10) days to give notice of its designation, otherwise the
appraiser, if any, designated by the Designating Party shall conclusively
determine the fair market rental value and related annual fair market increases
in rental value of the Premises. If two appraisers have
21
been designated, such appraisers shall attempt to agree upon the fair market
rental value and related annual fair market increases in rental value of the
Premises. If the two appraisers do not agree on the fair market rental value and
related annual fair market increases in rental value of the Premises within
twenty (20) days of their designation, the two appraisers shall designate a
third appraiser. If the two appraisers shall fail to agree upon the identity of
a third appraiser within five (5) business days following the end of such twenty
(20) day period, then either Landlord or Tenant may apply to the American
Arbitration Association, or any successor thereto having jurisdiction, for the
settlement of the dispute as to the designation of the third appraiser and the
American Arbitration Association shall designate a third appraiser in accordance
with the Real Estate Valuation Arbitration Rules of the American Arbitration
Association. The three appraisers shall conduct such hearings as they may deem
appropriate, shall make their determination of fair market rental value and
related annual fair market increases in rental value of the Premises in writing
and shall give notice to Landlord and Tenant of such determination within twenty
(20) days after the appointment of the third appraiser. If the three appraisers
cannot agree upon the fair market rental value and related annual fair market
increases in rental value of the Premises, each appraiser shall submit in
writing to Landlord and Tenant the fair market rental value and related annual
fair market increases in rental value of the Premises as determined by such
appraiser. The fair market rental value and related annual fair market increases
in rental value of the Premises for the purposes of this paragraph shall be
equal to the arithmetic average of the two closest fair market rental values and
related annual fair market increases in rental value of the Premises submitted
by the appraisers. Each party shall pay its own fees and expenses in connection
with any appraiser selected by such party under this Section, and the parties
shall share equally all other expenses and fees of the arbitration, including
the fees and expenses charged by the third appraiser. The fair market rental
value and related annual fair market increases in rental value of the Premises
as determined in accordance with the provisions of this Section shall be final
and binding upon Landlord and Tenant.
33. SATELLITE DISH ANTENNA. Provided that Tenant is not in default under
this lease, Tenant shall have the right to install, maintain and repair a
satellite dish antenna (the "Antenna") on the Property under and subject to the
following conditions:
(a) Tenant shall comply with all Laws and Requirements and shall
obtain, and deliver to Landlord written evidence of, any approval(s) required
under any recorded covenants or restrictions applicable to the Property.
(b) Tenant shall obtain Landlord's prior approval of the location
of the Antenna on the Property and of the specifications for the Antenna. If
Landlord approves installation of the Antenna on the roof of the Building,
Tenant agrees to consult with Landlord's roofing contractor prior to
installation and strictly to comply with the roofing contractor's
recommendations and requirements. Tenant shall pay all costs incurred by
Landlord in connection with the Antenna including without limitation all
architectural, engineering, contractors' and legal fees.
(c) Tenant shall comply with the provisions of Sections 9(b)(i)
through (iv) of this lease.
(d) At least 3 business days prior to installation, Tenant shall
notify Landlord of the date and time of the installation. Tenant shall install
the Antenna only if Landlord is present with Tenant at the installation.
(e) Tenant shall maintain the Antenna in a safe, good and orderly
condition. The installation, maintenance, repair and removal of the Antenna
shall be performed at Tenant's sole expense in a manner which will not impair
the integrity of, damage or adversely affect the warranty applicable to, the
roof or any other portion of the Property.
22
(f) No later than the expiration or sooner termination of the
Term, at Tenant's sole expense, Tenant shall remove the Antenna and repair any
resulting damage.
(g) Tenant's indemnification of Landlord pursuant to Section 15 of
this lease also applies to the Antenna and Tenant's use of any portion of the
Property therefor. Without limiting the foregoing, Tenant solely shall be
responsible for any damages or injury caused by or in any way relating to the
Antenna, including, but not limited to, damage or injury caused by reason of the
Antenna collapsing or being blown from the roof or any other portion of the
Property.
34. ADDITIONAL SPACE IN OTHER BUILDING
(a) After the initial lease-up thereof, if and when any space in
the Other Building (individually, the "Additional Space") becomes available for
rental during the term of this lease and provided that Landlord has not given
Tenant notice of default more than two (2) times, that there then exists no
event of default by Tenant under this lease nor any event that with the giving
of notice and/or the passage of time would constitute a default, and that Tenant
is the sole occupant of the Premises, Tenant shall have the right of first offer
to lease all of the Additional Space, subject to the following:
(i) After the initial lease-up of the Additional Space,
Landlord shall notify Tenant when the Additional Space becomes available for
rental by any party other than the tenant then in occupancy of the Additional
Space and Tenant shall have five (5) business days following receipt of such
notice within which to notify Landlord in writing that Tenant is interested in
negotiating terms for leasing such Additional Space and to have its offer
considered by Landlord prior to the leasing by Landlord of the Additional Space
to a third party. If Tenant notifies Landlord within such time period that
Tenant is so interested, then Landlord and Tenant shall have fifteen (15) days
following Landlord's receipt of such notice from Tenant within which to
negotiate mutually satisfactory terms for the leasing of the Additional Space by
Tenant and to execute an amendment to this lease incorporating such terms or a
new lease for the Additional Space.
(ii) If Tenant does not notify Landlord within such five
(5) business days of its interest in leasing the Additional Space or if Tenant
does not execute such amendment or lease within such fifteen (15) days, if
applicable, then this right of first offer to lease such Additional Space will
lapse and be of no further force or effect at such time and Landlord shall have
the right to lease all or part of such Additional Space to any other party on
any terms and conditions acceptable to Landlord.
(iii) This right of first offer to lease the Additional
Space is personal to Tenant and is non-transferable to any assignee or sublessee
(regardless of whether any such assignment or sublease was made with or without
Landlord's consent) or other party.
(b) Landlord shall notify Tenant in writing of any Additional
Space which remains unleased as of the date which is 12 months after the
Commencement Date.
35. MOVING EXPENSES. Provided that there then exists no event of default by
Tenant under this lease nor any event that with the giving of notice and/or the
passage of time would constitute a default, Landlord will reimburse Tenant for
actual bona fide costs incurred by Tenant in relocating to the Premises, such
reimbursement not to exceed $50,000 and to be paid by Landlord to Tenant within
30 days after the later of (a) the date Tenant occupies the Premises for the
conduct of its business or (b) the date Landlord receives copies of bona fide
invoices for such costs incurred by Tenant and evidence of Tenant's payment
thereof. Reimbursable relocation costs may include, but not be limited to, (i)
costs
23
incurred with the deinstallation, moving, delivery and installation of furniture
and other office equipment, and (ii) wiring and cabling costs.
36. RESTRICTIONS ON CERTAIN LEASING ACTIVITIES BY LANDLORD.
(a) Provided Landlord has not given Tenant notice of default more
than two (2) times, that there then exists no event of default by Tenant under
this lease nor any event that with the giving of notice and/or the passage of
time would constitute a default, and that Tenant is the sole occupant of the
Premises, Landlord shall not, without Tenant's prior written consent, which
shall not be unreasonably withheld, conditioned or delayed:
(i) lease space at the Property to any person or entity
whose principal business shall be providing third party small and mid-ticket
equipment lease financing (up to $250,000.00)
(ii) lease space at the Property for use primarily for
retail sales to the public.
(b) The restrictions set forth in this Section shall continue only
for so long as Xxxxxx Leasing Corporation is the Tenant under this lease and the
benefits of this Section are not transferable to any assignee or sublessee
(regardless of whether any such assignment or sublease is made with or without
Landlord's consent) or other party.
37. CONTINGENCY. In the event Landlord is unable to obtain site plan
approval required or necessary for construction of the Building ("Site Plan
Approval") within 120 days after the date of execution of this lease by Landlord
and Tenant ("the Site Plan Approval Deadline") , either party shall have the
right to terminate this lease by written notice to the other party within 10
days after expiration of the Site Plan Approval Deadline; provided, however, if
Tenant gives such notice of termination, such termination shall not be effective
and shall be null and void if, within 15 days after Landlord's receipt of
Tenant's notice of termination, Landlord shall deliver written notice to Tenant
stating that Landlord has obtained the Site Plan Approval. In the event of such
termination, Landlord shall return the Security Deposit, together with interest
thereon, to Tenant and the parties shall have no further liability or obligation
to each other hereunder, except for any liabilities or obligations that are
expressly provided herein to survive such termination. Landlord shall apply for
Site Plan Approval promptly after the date of execution of this lease by
Landlord and Tenant and use commercially reasonable efforts to obtain same in a
timely manner.
38. PARKING. Tenant shall be entitled to use five (5) parking spaces per
1,000 rentable square feet in the Premises. Landlord shall designate and xxxx
space immediately outside of the Building's delivery entrance for delivery
purposes.
24
IN WITNESS WHEREOF, and in consideration of the mutual entry into this
lease and for other good and valuable consideration, and intending to be legally
bound, Landlord and Tenant have executed this lease.
Date signed: LANDLORD:
10/21/03 LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust, Sole General
Partner
By: /s/ Xxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Senior Vice President,
Regional Manager
Date signed: TENANT:
10/21/03 XXXXXX LEASING CORPORATION
Attest: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------- --------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Dir. of Facilities Title: Senior Vice President
25
EXHIBIT "A"
[ORIGINAL DOCUMENT INCLUDES A PLAN SHOWING THE PREMISES]
26
EXHIBIT "B"
LEASE COMMENCEMENT CERTIFICATE
Re: LEASE DATED ________________, 2003 FOR PREMISES LOCATED AT
XXXXXXXXXX XXXX XXX XXXXXXXX XXXXXX XXXX, XXXXX XXXXXX, XX
BETWEEN LIBERTY PROPERTY LIMITED PARTNERSHIP AS LANDLORD AND
XXXXXX LEASING CORPORATION AS TENANT ("LEASE")
Dear _______________:
This is to confirm the following with respect to the Lease:
COMMENCEMENT DATE: ___________________, 20___
EXPIRATION DATE: ___________________, 20___
SQUARE FEET LEASED: 50,000
As set forth in the Lease, Minimum Annual Rent and Annual Operating
Expenses are due on or before the Commencement Date for the period from the
Commencement Date until the first day of the next calendar month unless the
Commencement Date is the first day of the calendar month. Accordingly, the
following amounts are due on or before the Commencement Date:
APPORTIONED MINIMUM RENT: $______________
APPORTIONED OPERATING EXPENSES: $______________
TOTAL: $______________
Thereafter regular monthly payments will be due in the following
amounts until adjusted in accordance with the Lease:
MONTHLY RENT INSTALLMENT: $______________
MONTHLY OPERATING PAYMENT: $______________
TOTAL MONTHLY PAYMENT: $______________
If you disagree with any of the information set forth above, please
advise us in writing within five days of your receipt of this letter; otherwise
the Commencement Date and the Expiration Date of the Lease will be as set forth
above.
Sincerely,
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust, Sole General
Partner
By: _______________________________________
Name:
Title:
EXHIBIT "C"
BUILDING RULES
1. As stated in the lease, Tenant shall not use the Premises as a
"place of public accommodation" as defined in the Americans with Disabilities
Act of 1990, which identifies the following categories into one or more of which
a business must fall to be a "place of public accommodation":
a. Places of lodging (examples: hotel, motel)
b. Establishments serving food or drink (examples: bar,
restaurant)
c. Places of exhibition or entertainment (examples:
motion picture house, theater, stadium, concert hall)
d. Places of public gathering (examples: auditorium,
convention center, lecture hall)
e. Sales or rental establishments (examples: bakery,
grocery store, hardware store, shopping center)
f. Service establishments (examples: bank, laundromat,
xxxxxx shop, funeral parlor, hospital, gas station,
business offices such as lawyer, accountant,
healthcare provider or insurance office)
g. Stations used for specified public transportation
(examples: bus terminal, depot)
h. Places of public display or collection (examples:
museum, library, gallery)
i. Places of recreation (examples: park, zoo, amusement
park)
j. Places of education (examples: nursery, elementary,
secondary, private or other undergraduate or
postgraduate school)
k. Social service center establishments (examples:
day-care center, senior citizen center, homeless
shelter, food bank, adoption agency)
l. Places of exercise or recreation (examples: gym,
health spa, bowling alley, golf course)
2. Any sidewalks, lobbies, passages, elevators and stairways
shall not be obstructed or used by Tenant for any purpose other than ingress and
egress from and to the Premises. Landlord shall in all cases retain the right to
control or prevent access by all persons whose presence, in the reasonable
judgment of Landlord, shall be prejudicial to the safety, peace or character of
the Property.
3. The toilet rooms, toilets, urinals, sinks, faucets, plumbing
or other service apparatus of any kind shall not be used for any purposes other
than those for which they were installed, and no sweepings, rubbish, rags,
ashes, chemicals or other refuse or injurious substances shall be placed therein
or used in connection therewith or left in any lobbies, passages, elevators or
stairways.
4. Tenant shall comply with all safety, fire protection and
evacuation procedures and regulations established by Landlord or any
governmental agency. No person shall go on the roof without Landlord's
permission.
5. Skylights, windows, doors and transoms shall not be covered or
obstructed by Tenant, and Tenant shall not install any window covering which
would affect the exterior appearance of the Building, except as approved in
writing by Landlord. Tenant shall not remove, without Landlord's prior written
consent, any shades, blinds or curtains in the Premises.
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6. Without Landlord's prior written consent, Tenant shall not
hang, install, mount, suspend or attach anything from or to any sprinkler,
plumbing, utility or other lines. If Tenant hangs, installs, mounts, suspends or
attaches anything from or to any doors, windows, walls, floors or ceilings,
Tenant shall sand and spackle all holes and repair any damage caused thereby or
by the removal thereof at or prior to the expiration or termination of the
lease. Without Landlord's prior written consent, no walls or partitions shall be
painted, papered or otherwise covered or moved in any way or marked or broken;
nor shall any connection be made to electric wires for running fans or motors or
other apparatus, devices or equipment; nor shall machinery of any kind other
than customary small business machines be allowed in the Premises; nor shall
Tenant use any other method of heating, air conditioning or air cooling than
that provided by Landlord (with the exception of air purifiers, which shall be
permitted); nor shall any mechanics be allowed to work in or about the Building
other than those employed by Landlord.
7. Tenant shall not change any locks nor place additional locks
upon any doors and shall surrender all keys and passes at the end of the Term.
8. Tenant shall not use nor keep in the Building any matter
having an offensive odor, nor explosive or highly flammable material, nor shall
any animals other than seeing eye dogs in the company of their masters be
brought into or kept in or about the Premises.
9. If Tenant desires to introduce electrical, signaling,
telegraphic, telephonic, protective alarm or other wires, apparatus or devices,
Landlord shall direct where and how the same are to be placed, and except as so
directed, no installation boring or cutting shall be permitted. Landlord shall
have the right to prevent and to cut off the transmission of excessive or
dangerous current of electricity or annoyances into or through the Building or
the Premises and to require the changing of wiring connections or layout at
Tenant's expense, to the extent that Landlord may deem necessary, and further to
require compliance with such reasonable rules as Landlord may establish relating
thereto, and in the event of non-compliance with the requirements or rules,
Landlord shall have the right immediately to cut wiring or to do what it
considers necessary to remove the danger, annoyance or electrical interference
with apparatus in any part of the Building. All wires installed by Tenant must
be clearly tagged at the distributing boards and junction boxes and elsewhere
where required by Landlord, with the number of the office to which said wires
lead, and the purpose for which the wires respectively are used, together with
the name of the concern, if any, operating same.
10. Tenant shall not place weights anywhere beyond the safe
carrying capacity of the Building which is designed to normal office building
standards for floor loading capacity. Landlord shall have the right to exclude
from the Building heavy furniture, safes and other articles which may be
hazardous or to require them to be located at designated places in the Premises.
Tenant shall obtain Landlord's written consent prior to the installation of any
vending machines in the Premises, provided that Landlord hereby consents to the
installation of the vending machines set forth in the Base Building Documents.
11. The use of rooms as sleeping quarters is strictly prohibited
at all times.
12. Tenant shall have the right, at Tenant's sole risk and
responsibility, to use its proportional share of the parking spaces at the
Property as reasonably determined by Landlord. Tenant shall comply with all
parking regulations promulgated by Landlord from time to time for the orderly
use of the vehicle parking areas, including without limitation the following:
Parking shall be limited to automobiles, passenger or equivalent vans,
motorcycles, light four wheel pickup trucks and (in designated areas) bicycles.
No vehicles shall be left in the parking lot overnight. Parked vehicles shall
not be used for vending or any other business or other activity while parked in
the parking areas. Vehicles shall be parked only in striped parking spaces,
except for loading and unloading, which shall occur solely in zones marked for
such purpose, and be so
C-2
conducted as to not unreasonably interfere with traffic flow within the Property
or with loading and unloading areas of other tenants. Employee and tenant
vehicles shall not be parked in spaces marked for visitor parking or other
specific use. All vehicles entering or parking in the parking areas shall do so
at owner's sole risk, and Landlord assumes no responsibility for any damage,
destruction, vandalism or theft. Tenant shall cooperate with Landlord in any
measures implemented by Landlord to control abuse of the parking areas,
including without limitation access control programs, tenant and guest vehicle
identification programs, and validated parking programs, provided that no such
validated parking program shall result in Tenant being charged for spaces to
which it has a right to free use under its lease. Each vehicle owner shall
promptly respond to any sounding vehicle alarm or horn, and failure to do so may
result in temporary or permanent exclusion of such vehicle from the parking
areas. Any vehicle which violates the parking regulations may be cited, towed at
the expense of the owner, temporarily or permanently excluded from the parking
areas, or subject to other lawful consequence.
13. Tenant shall not smoke in the Building which Landlord has
designated as a non-smoking building.
14. Canvassing, soliciting and distribution of handbills or any
other written material, and peddling in the Building are prohibited, and Tenant
shall cooperate to prevent same.
15. Tenant shall provide Landlord with a written identification of
any vendors engaged by Tenant to perform services for Tenant at the Premises
(examples: security guards/monitors, telecommunications installers/maintenance).
Tenant shall permit Landlord's employees and contractors and no one else to
clean the Premises unless Landlord consents in writing. Tenant assumes all
responsibility for protecting its Premises from theft and vandalism and Tenant
shall see each day before leaving the Premises that the windows and the doors
are closed and securely locked.
16. To the extent Tenant does not occupy the entire Building,
Landlord shall provide Tenant with the move-in and move-out policies for the
Building with which Tenant shall comply. Throughout the Term, no furniture,
packages, equipment, supplies or merchandise of Tenant will be received in the
Building, or carried up or down in the elevators or stairways, except during
such hours as shall be designated by Landlord, and Landlord in all cases shall
also have the exclusive right to prescribe the method and manner in which the
same shall be brought in or taken out of the Building.
17. Tenant shall not place oversized cartons, crates or boxes in
any area for trash pickup without Landlord's prior approval. Landlord shall be
responsible for trash pickup of normal office refuse placed in ordinary office
trash receptacles only. If required by Laws and Requirements, Landlord shall be
responsible for pickup of recyclable items placed in recycling receptacles
provided by Landlord. Excessive amounts of trash or other out-of-the-ordinary
refuse loads will be removed by Landlord upon request at Tenant's expense.
Landlord and Tenant shall mutually agree upon the location of the outdoor trash
containers, subject to governmental restrictions and approvals.
18. Tenant shall cause all of Tenant's Agents to comply with these
Building Rules.
19. Landlord reserves the right to rescind, suspend or modify any
rules or regulations and to make such other rules and regulations as, in
Landlord's reasonable judgment, may from time to time be needed for the safety,
care, maintenance, operation and cleanliness of the Property. Notice of any
action by Landlord referred to in this paragraph, given to Tenant, shall have
the same force and effect as if originally made a part of the foregoing lease.
New rules or regulations will not, however, be unreasonably inconsistent with
the proper and rightful enjoyment of the Premises by Tenant under the lease.
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20. These Building Rules are not intended to give Tenant any
rights or claims in the event that Landlord does not enforce any of them against
any other tenants or if Landlord does not have the right to enforce them against
any other tenants and such non-enforcement will not constitute a waiver as to
Tenant.
21. Tenant shall be deemed to have read these Building Rules and
to have agreed to abide by them as a condition to Tenant's occupancy of the
Premises.
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EXHIBIT "D"
[ORIGINAL DOCUMENT INCLUDES CLEANING SPECIFICATIONS]
EXHIBIT "E"
TENANT ESTOPPEL CERTIFICATE
Please refer to the documents described in Schedule 1 hereto, (the
"Lease Documents") including the "Lease" therein described; all defined terms in
this Certificate shall have the same meanings as set forth in the Lease unless
otherwise expressly set forth herein. The undersigned Tenant hereby certifies
that it is the tenant under the Lease. Tenant hereby further acknowledges that
it has been advised that the Lease may be collaterally assigned in connection
with a proposed financing secured by the Property and/or may be assigned in
connection with a sale of the Property and certifies both to Landlord and to any
and all prospective mortgagees and purchasers of the Property, including any
trustee on behalf of any holders of notes or other similar instruments, any
holders from time to time of such notes or other instruments, and their
respective successors and assigns (the "Mortgagees") that as of the date hereof:
1. The information set forth in attached Schedule 1 is true and
correct.
2. Tenant is in occupancy of the Premises and the Lease is in
full force and effect, and, except by such writings as are identified on
Schedule 1, has not been modified, assigned, supplemented or amended since its
original execution, nor are there any other agreements between Landlord and
Tenant concerning the Premises, whether oral or written, except as set forth in
Schedule 1.
3. All conditions and agreements under the Lease to be satisfied
or performed by Landlord have been satisfied and performed.
4. Tenant is not in default under the Lease Documents, Tenant has
not received any notice of default under the Lease Documents, and, to Tenant's
knowledge, there are no events which have occurred that, with the giving of
notice and/or the passage of time, would result in a default by Tenant under the
Lease Documents.
5. Tenant has not paid any Rent due under the Lease more than 30
days in advance of the date due under the Lease and Tenant has no rights of
setoff, counterclaim, concession or other rights of diminution of any Rent due
and payable under the Lease except as set forth in Schedule 1.
6. To Tenant's knowledge, there are no uncured defaults on the
part of Landlord under the Lease Documents, Tenant has not sent any notice of
default under the Lease Documents to Landlord, and there are no events which
have occurred that, with the giving of notice and/or the passage of time, would
result in a default by Landlord thereunder, and that at the present time Tenant
has no claim against Landlord under the Lease Documents (other than for
Landlord's continued performance of its obligations under the Lease Documents).
7. Except as expressly set forth in the Lease Documents and Part
G of Schedule 1, there are no provisions for any, and Tenant has no, options
with respect to the Premises or all or any portion of the Property.
8. Except as set forth on Part M of Schedule 1, no action,
voluntary or involuntary, is pending against Tenant under federal or state
bankruptcy or insolvency law.
9. The undersigned has the authority to execute and deliver this
Certificate on behalf of Tenant and acknowledges that all Mortgagees will rely
upon this Certificate in purchasing the Property or extending credit to Landlord
or its successors in interest.
10. This Certificate shall be binding upon the successors, assigns
and representatives of Tenant and any party claiming through or under Tenant and
shall inure to the benefit of all Mortgagees.
IN WITNESS WHEREOF, Tenant has executed this Certificate this _____ day
of ___________, 20____.
_________________________________________________________
Name of Tenant
By:______________________________________________________
Title:____________________________________________________
SCHEDULE 1 TO TENANT ESTOPPEL CERTIFICATE
Lease Documents, Lease Terms and Current Status
A. Date of Lease:
B. Parties:
1. Landlord:
2. Tenant d/b/a:
C. Premises known as:
D. Modifications, Assignments, Supplements or Amendments to Lease or other
Agreements concerning the Premises:
E. Commencement Date:
F. Expiration of Current Term:
G. Options:
H. Security Deposit Paid to Landlord: $
I. Current Fixed Minimum Rent (Annualized): $
J. Current Additional Rent (and if applicable, Percentage
Rent)(Annualized): $
K. Current Total Rent: $
L. Square Feet Demised:
M. Tenant's Bankruptcy or other Insolvency Actions:
EXHIBIT "F"
[ORIGINAL DOCUMENT INCLUDES BASE BUILDING SPECIFICATIONS]
