EXHIBIT 10.3
AGREEMENT OF LEASE
between
NEWTOWN OFFICE DEVELOPMENT III, L.P
("Landlord")
and
3-DIMENSIONAL PHARMACEUTICALS, INC.
("Tenant")
Version Date: August 8, 2001
TABLE OF CONTENTS
1. PREMISES, TERM AND PURPOSE................................................2
2. RENT......................................................................3
3. OPERATING EXPENSES........................................................4
4. COMPLETION OF IMPROVEMENTS AND COMMENCEMENT OF RENT.......................9
5. TENANT COVENANTS AS TO CONDITION OF PREMISES, AND
COMPLIANCE WITH LAWS; LANDLORD COVENANTS.................................10
6. TENANT IMPROVEMENTS, ALTERATIONS AND INSTALLATIONS.......................11
7. VARIOUS NEGATIVE COVENANTS BY TENANT.....................................12
8. VARIOUS AFFIRMATIVE COVENANTS OF TENANT AND LANDLORD.....................13
9. BUILDING DIRECTORY AND SIGNAGE...........................................13
10. CASUALTY AND INSURANCE...................................................13
11. INDEMNIFICATION..........................................................16
12. NON-LIABILITY OF LANDLORD................................................16
13. REMEDIES AND TERMINATION UPON TENANT DEFAULT.............................16
14. REMEDIES CUMULATIVE; NON-WAIVER BY LANDLORD..............................19
15. SERVICES; ELECTRIC ENERGY AND GAS........................................19
16. SUBORDINATION............................................................23
17. LANDLORD'S CURE OF TENANT'S DEFAULT......................................23
18. NOTICES..................................................................24
19. QUIET ENJOYMENT..........................................................24
20. SECURITY DEPOSIT.........................................................24
21. ACCESS TO PREMISES.......................................................24
22. BROKERAGE................................................................25
23. PARKING..................................................................25
24. LANDLORD'S INABILITY TO PERFORM..........................................25
25. CONDEMNATION.............................................................25
26. ASSIGNMENT AND SUBLETTING................................................26
28. ENVIRONMENTAL MATTERS....................................................29
29. PARTIES BOUND............................................................30
30. MISCELLANEOUS............................................................31
31. RIGHT OF FIRST OFFER.....................................................32
32. CONDOMINIUM DOCUMENTS....................................................33
Exhibit A Floor Plan of Demised Premises
Exhibit A-1 Site Plan
Exhibit B Tenant Improvement Work
Exhibit B-1 Preliminary Outline Specification
Exhibit C Rules and Regulations
Exhibit D Building Holidays
Exhibit E Cleaning Specifications
Exhibit F Xxxxxxx Pharmaceutical Space
-i-
LEASE AGREEMENT DATED August 8, 2001, BETWEEN NEWTOWN OFFICE DEVELOPMENT III,
L.P., a Pennsylvania limited partnership ("Landlord"), having an office at GSB
Building, Suite 401, One Belmont Avenue, Bala Cynwyd, PA 19004 and 3-DIMENSIONAL
PHARMACEUTICALS, INC., ("Tenant"), a Delaware corporation, having an address at
Eagleview Corporate Center, Suite 104, 000 Xxxxxxxx Xxxxx, Xxxxx, XX 00000
("Lease").
PREAMBLE
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DEFINITIONS.
In addition to other terms elsewhere defined in this Lease, the following
terms whenever used in this Lease should have only the meanings set forth in
this Preamble, unless such meanings are expressly modified, limited or expanded
elsewhere herein.
1. Premises or Demised Premises: Outlined on the floor plan annexed hereto
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and made a part hereof as Exhibit A consisting of approximately 20,509 square
feet of Gross Rentable Area on the third floor, together with all fixtures,
equipment, improvements and installations attached thereto, in the building,
known as Building Three having approximately 59,628 square feet of Gross
Rentable Area (the "Building") in the Lower Makefield Corporate Center ("Park")
located at Interstate I-95 and Route 000, Xxxxx Xxxxxxxxx Xxxxxxxx,
Xxxxxxxxxxxx. As per the Condominium Documents (defined in Section 32 below)
governing the Park, the Building is Unit 7 of the Park.
2. Initial Term: Five (5) years, two months from the Commencement Date
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3. Commencement Date: The date that rent commences in accordance with
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Exhibit B of the Lease
4. INTENTIONALLY DELETED
5. Fixed Rent Commencement Date: The Commencement Date.
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6. Expiration Date: November 30, 2006.
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7. Permitted Use: General office use.
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8. Fixed Rent: $522,979.50 per year payable in consecutive, equal monthly
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installments of $43,581.62 during the first twelve (12) months after the Fixed
Rent Commencement Date. During the Initial Term the Fixed Rent shall be
increased each year thereafter by $0.50 per rentable square foot commencing on
the first anniversary of the Fixed Commencement Date.
9. Late Charge: Four percent (4%) of the amount of the payment due.
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10. Tenant's Proportionate Share: Thirty four and thirty nine one
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hundredths percent (34.39%) which Landlord and Tenant agree is the proportion
which the rentable area of the Premises bears to the total rentable area of the
Building.
11. Base Year Expense Stop: $5.10 per square foot of Rentable Area.
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12. Tenant Electric Amount: $1.25 per square foot of rentable area per
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annum until adjusted as provided in Section 15 of the Lease.
13. Base Building Gas and Electric Amount: $1.00 per rentable square foot
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per annum, until adjusted as provided in Section 15 of the Lease.
14. Security Deposit: $130,744.86.
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15. Designated Brokers: Aegis Property Group and The Staubach Company.
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16. Tenant Improvement Work: as set forth in and in accordance with
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Exhibit B attached hereto and made a part hereof.
17. Term: The Initial Term and Renewal Term as to which Tenant has
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exercised its rights pursuant to section 1(b) below.
NOW, THEREFORE, for good and valuable consideration, the adequacy and receipt of
which are hereby acknowledged, and intending to be legally bound, the parties
hereto agree as follows:
1. Premises, Term and Purpose.
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(a) Landlord does hereby lease to Tenant, and Tenant does hereby
lease from Landlord, the Demised Premises located in the Building for the Term
commencing on the Commencement Date and ending on the Expiration Date, or such
earlier date upon which the Term may expire or be terminated pursuant to the
provisions of this Lease or pursuant to Law.
(b) Provided no Event of Default by Tenant shall exist and this
Lease shall be in effect, Tenant shall have the right to extend the Term hereof
for one (1) five (5) year renewal term (the "Renewal Term"). In order to
exercise its right to the Renewal Term, Tenant shall give Landlord written
notice of exercise ("Renewal Notice") no later than nine (9) months prior to the
end of the Term. During the exercised Renewal Term, all of the terms and
conditions of the Lease shall continue in full force and effect, except for
provisions which, by their nature, relate only to the Initial Term and except
that the Fixed Rent shall be the Fair Market Rent (herein defined), as
determined herein. Fair Market Rent shall be such base rental as would be agreed
upon by willing and knowledgeable parties, neither of whom were acting under
compulsion, taking into account marketing expenses, brokerage commissions and
tenant improvement costs that Landlord will not have to pay in connection with
the Renewal Term.
Within 30 days following Landlord's receipt of Tenant's
Renewal Notice, Landlord shall advise Tenant in writing of Landlord's
determination of the Fair Market Rent (the "Initial Determination"). The Initial
Determination shall be the Fair Market Rent unless Tenant
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shall within 15 days of Tenant's receipt of the Initial Determination reject the
Initial Determination by written notice to Landlord. Tenant shall, together with
its notice of rejection, either (i) terminate the Lease as of the end of the
Term, or (ii) elect that Landlord and Tenant shall each, within 15 days of
Landlord's receipt of Tenant's rejection, designate an independent certified
appraiser to act on their respective behalf and shall jointly select a third
independent certified appraiser to act as arbiter. If Landlord and Tenant are
unable to agree upon an arbiter within such 15-day period, the two designated
appraisers shall agree upon an arbiter within 15 days following the date the
last one of the two was appointed. Within 30 days of their appointment, each
designated appraiser shall establish a Fair Market Rent and within 15 days
thereafter, the arbiter shall select one of the two determinations and the
determination so selected shall be the Fair Market Rent for the Renewal Term. In
the event a final determination of the Fair Market Rent has not been established
as of the commencement of the Renewal Term, the Initial Determination shall be
deemed to be the Fair Market Rent until the Fair Market Rent is determined,
subject to retroactive adjustment upon receipt of the arbiter's determination.
(c) The Demised Premises shall be used by Tenant for the Permitted
Use and for no other use or purpose. Tenant shall not use or occupy the Demised
Premises or any part thereof, for any purpose deemed unlawful, or
extra-hazardous on account of fire or other casualty, or for any purposes which
shall impair the character of the Building. Except for those Landlord is
obligated to obtain as specifically set forth herein, Tenant, at its sole cost
and expense shall obtain any consents, licenses, permits or approvals required
to conduct its business at the Demised Premises.
(d) The "Common Areas" of the Building shall be those parts of the
Building and other improvements designated by Landlord from time to time for the
common use of all tenants, including among other facilities, halls, lobbies,
delivery passages, drinking fountains, public toilets, and the like, and the
"Common Areas of the Park" shall be all parking lots, service buildings or
similar improvements operated, owned or maintained, in whole or in part, by
Landlord or by the condominium association of the Park of which Landlord is a
part ("Condominium Association"), and all parkways, drives, greenspaces, parks,
fountains or other facilities owned, operated or maintained, in whole or in
part, by Landlord or the Condominium Association, or otherwise made available by
Landlord or the Condominium Association for use by all tenants of the Building
or Park, whether used in conjunction with the use of such space by the occupants
of other buildings in the Park or used exclusively by tenants of the Building,
all of which facilities shall be subject to Landlord's reasonable management and
control and shall be operated and maintained for the benefit of all tenants in a
first class manner in compliance with all applicable governmental requirements.
Tenant, and its employees and invitees, shall have the non-exclusive right to
use the Common Areas of the Building and Park, such use to be in common with
Landlord, other tenants of the Building and Park and other persons entitled to
use the same.
2. Rent.
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(a) Intentionally deleted.
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(b) The Rent reserved under this Lease for the Term hereof shall be
and consist of (a) the Fixed Rent payable in equal monthly installments in
advance to be paid on the first day of each and every calendar month from and
after the Fixed Rent Commencement Date (except that Tenant shall pay the first
monthly installment of Fixed Rent upon signing this Lease), plus (b) such
additional rent ("Additional Rent") in an amount equal to Tenant's Proportionate
Share of Excess Expenses (as such terms are defined in Paragraph 3 of this
Lease) and all separate charges for services and utilities expressly provided in
Paragraph 15 hereof, and any other charges as shall become due and payable
hereunder, which Additional Rent shall be payable as hereinafter provided, all
to be paid to Landlord at its office stated above, or such other place as
Landlord may designate, in lawful money of the United States of America;
provided, however, that if the Fixed Rent Commencement Date shall occur on a
date other than the first calendar day of a month, the rent for the partial
month commencing on the Fixed Rent Commencement Date shall be appropriately
pro-rated on the basis of the monthly rent payable during the first year of the
Term.
(c) Tenant does hereby covenant and agree promptly to pay the Fixed
Rent, Additional Rent and any other charges herein reserved as and when the same
shall become due and payable, without demand therefor, and without any set-off
or deduction whatsoever. All Additional Rent and other charges payable
hereunder, which are not due and payable on a monthly basis during the Term,
unless otherwise specified herein, shall be due and payable within twenty (20)
days of delivery by Landlord to Tenant of notice to pay the same.
(d) In the event that any payment of Fixed Rent, Additional Rent or
any other charges shall not be paid within ten (10) days after the due date for
same provided herein, Tenant shall pay, together with such payment, the Late
Charge. In addition, such unpaid amount shall bear interest until paid beginning
on the tenth day after the due date at the prime rate established by First Union
Bank plus three percent (3%), per annum.
3. Operating Expenses.
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(a) For purposes of this Section, the following definitions shall
apply:
(i) "Base Year Expenses" shall mean the Base Year Expense Stop
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multiplied by the square feet of Rentable Area held for lease in the Building.
(ii) "Lease Year" shall mean each twelve month period from the
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Commencement Date occurring during the Term.
(iii) "Real Estate Taxes" shall mean all taxes, assessments,
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general and special, ordinary as well as extraordinary, charges (including, but
not limited to, water and sewer rents and charges), levies, impositions and
payments wholly or partly in lieu thereof however denominated, now or hereafter
in effect, which are or may be imposed upon or made liens upon the Building or
the land appurtenant thereto. Real Estate Taxes shall not include net income,
excess profit, excise, franchise, estate, succession or inheritance taxes,
provided however that if, due to a change in the method of taxation or
assessment, any franchise, income, profit, gross receipts or other tax, however
designated, shall be substituted by the applicable taxing authority
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in whole or in part, for the Real Estate Taxes now or hereafter imposed on the
Building or the land appurtenant thereto, such franchise, income, profit, gross
receipts or other tax shall be deemed to be included in the term "Real Estate
Taxes". If any assessments are permitted by the assessing authority to be paid
in installments, Landlord shall do so and only the applicable annual installment
shall be included in Real Estate Taxes for a given year. Real Estate Taxes shall
be reduced by the amount of any real estate tax refund or credit received by
Landlord. Provided Tenant has timely paid its share, Real Estate Taxes shall not
include any interest or penalties imposed as a result of Landlord's lateness or
failure to pay taxes and assessments when due or any realty transfer or similar
taxes imposed on Landlord.
(iv) "Building Expenses" shall mean (i) Real Estate Taxes and
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(ii) the total of all the actual costs and expenses paid or incurred by Landlord
with respect to the management, operation, maintenance, and repair of the
Building and the services provided tenants therein, (excepting electrical energy
and gas expenses paid directly by tenants (including Tenant) as Base Building
Gas and Electric Amounts and Tenant's Proportionate Share of Building Gas and
Electric pursuant to Section 15 of this Lease and equivalent provisions of other
leases) including, but not limited to, the cost and expenses incurred for and
with respect to: all utilities, including without limitation, water, common area
lighting, sewer and waste disposal; air conditioning, ventilation and heating
(subject to the deduction hereinafter described); lobby maintenance and
cleaning; elevators; protection and security (to the extent provided by Landlord
without any obligation to do so); interior landscape and lobby decoration; all
repairs, replacements and improvements (except in tenant spaces) which are
appropriate for the continued operation of the Building in a first-class manner;
maintenance and painting or other floor and wall covering of non-tenant areas;
fire, all risk coverage, boiler and machinery, sprinkler, apparatus, public
liability and property damages, rental and plate glass insurance and any
insurance required by a mortgagee; supplies; wages, salaries, disability
benefits, pensions, hospitalization, retirement plans, group insurance, and
other employee benefits respecting employees of the Landlord and/or its
management company located at the Building for the time period spent at the
Building up to and including the Building manager; expenses imposed on the
Landlord and/or its management company pursuant to law or to any collective
bargaining agreement with respect to such employees; workmen's compensation
insurance, payroll, social security, unemployment and other similar taxes with
respect to such employees; professional and consulting fees; legal and auditing
fees; the expenses, including payments to attorneys and appraisers, incurred by
Landlord in connection with any application or proceeding wherein Landlord
obtains or seeks to obtain reduction or refund of the Real Estate Taxes payable
or paid upon or against the Project; costs incurred by Landlord of compliance
with any governmental law, rule or regulation enacted after the date of this
Lease, management fees of the Building (not to exceed 5% of Rent) and any other
expenses of any other kind whatsoever reasonably incurred in managing,
operating, maintaining and repairing the Building and the Project. If the
Building is less than ninety-five percent (95%) occupied at any time during any
calendar year (or portion thereof), such expenses shall be adjusted to the
extent necessary to reflect ninety-five percent (95%) occupancy throughout such
twelve (12) month period (provided, however, that such adjustment shall not
result in Landlord collecting more from Tenant for any item than would be
collected for such item if the Building were 95% occupied).
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(v) "Park Expenses" shall mean the Landlord's Share of the
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total of all costs and expenses paid or incurred with respect to the management,
operation, maintenance, and repair of the Common Areas of the Park and the
services provided tenants therein, including without limitation, exterior
landscape and garden maintenance and cleaning; snow and ice removal, parking lot
maintenance, repair and repaving and lighting of the parking lot and costs of
maintaining easements areas granted to governmental bodies. For purposes of this
Section 3, Landlord's Share of Park Expenses shall be allocated among the
buildings comprising the Park, prorata based upon the square footage of each
building in relation to the total square footage constructed, or such other
equitable means as Landlord may reasonably determine.
It is agreed, however, that the Building Expenses and Park Expenses
shall exclude or have deducted from them, as the case may be and as shall be
appropriate:
a. leasing commissions;
b. salaries, benefits and other compensation and taxes
for executives above the grade of Building manager;
c. Building start-up or opening expenses;
d. expenditures for capital improvements except those
which under generally applied real estate practice are expensed or regarded as
deferred expenses and except for capital expenditures required by law (unless
required to correct non-compliance with legal requirements in effect when this
Lease is executed) in any of which cases the cost thereof shall be included in
Expenses for the calendar year in which the costs are incurred and subsequent
calendar years, on a straight line basis amortized over an appropriate period
not exceeding ten years, with an interest factor equal to the prime commercial
lending rate publicly announced by First Union Bank or its successor, as its
"prime rate" (hereinafter referred to as the "Prime Rate"), at the time of
Landlord's having actually incurred said expenditure;
e. amounts received by Landlord through proceeds of
insurance to the extent the proceeds are compensation for expenses which were
previously included or would currently be included in expenses hereunder;
f. cost of repairs or replacements incurred by reason of
fire or other casualty, to the extent which Landlord is compensated therefor
through proceeds of insurance or should have been compensated if Landlord had
purchased the insurance required hereunder, or caused by the exercise of the
right of eminent domain;
g. advertising, and promotional expenditures and other
such expenditures associated with obtaining tenants;
h. legal fees for disputes and negotiations with tenants
and legal and auditing fees, other than legal and auditing fees reasonably
incurred in connection with the preparation of statements required pursuant to
additional rent or lease escalation provisions;
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i. costs and expenses of providing above-standard
service to any tenant of the Building (e.g., overtime HVAC, supplemental and
chilled water, extra cleaning) in excess of that required under this Lease to be
provided to Tenant free of separate or additional charge;
j. any taxes and penalties in excess of those which
would have been payable had they been paid on a timely basis; taxes or
assessments and any related interest or penalties, other than sales taxes on
amounts otherwise includable in Building Expenses or Park Expenses; ground lease
rents; depreciation, amortization and debt service and other financing expenses;
k. any amount paid to any affiliate of Landlord or of
any of its agents, in excess of the amount that would have been incurred on an
open market basis in the absence of such affiliation; all general corporate
overhead of Landlord or of any of its agents; provided however, nothing
contained herein will affect or diminish Tenant's covenant to pay the management
fee set forth above;
l. all costs and expenses relating to any retail space
or to any dining, athletic or recreational facility, or any antenna or other
equipment not serving Tenant;
m. all charitable or political contributions;
n. all costs and expenses relating to sculptures,
paintings, fountains (except for the existing fountain located in the Common
Areas of the Park) and other works of art;
(b) If Landlord shall purchase any item of capital equipment or make
any capital expenditure designed to result in savings or reductions in Building
Expenses then the costs for same shall be included in Building Expenses. The
costs of such capital equipment or capital expenditures are to be included in
Expenses for the calendar year in which the costs are incurred and subsequent
calendar years, on a straight line basis amortized over such period of time as
reasonably can be estimated as the time in which such savings or reductions in
Expenses are expected to equal Landlord's costs for such capital equipment or
capital expenditure, with an interest factor equal to the Prime Rate, at the
time of Landlord's having actually incurred said costs. If Landlord shall lease
any such item of capital equipment designed to result in savings or reductions
in Building Expenses, then the rentals and other costs paid pursuant to leasing
shall be included in Building Expenses for the calendar year in which they were
incurred.
(c) If during all or part of any calendar year, Landlord shall not
furnish any particular item(s) of work or service (which would constitute an
Expense hereunder) to portions of the Building, due to the fact that
construction of the Building is not completed, or such portions are not at least
95% occupied or leased or because such item of work or service is not required
or desired by the tenant of such portion, or such tenant is itself obtaining and
providing such item of work or service, or for other reasons, for the purposes
of computing the Additional Rent payable under this Section 3, the amount of the
Expenses for such item for such period shall be increased by an amount equal to
the additional operating and maintenance expenses which
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would reasonably have been incurred during such period by Landlord if it had, at
its own expense, furnished such item of work or service to such portion of the
Building (provided however that no such increase shall result in Landlord
collecting more for such item from Tenant than it would if Building were 95%
occupied.)
(d) In the event that any facilities, services or utilities used in
connection with the Building are provided from or together with another office
building owned or operated by Landlord, or vice versa, the cost incurred by
Landlord in connection with such facilities, services or utilities shall be
allocated between the buildings on an equitable basis reasonably determined by
Landlord.
(e) In the event (i) that the Commencement Date shall occur on a day
other than the first day of a calendar year, (ii) that the date of the
expiration or other termination of this Lease shall be a day other than the last
day of a calendar year, or (iii) of any increase or decrease (as herein
provided) in the Area of the Demised Premises or in the Gross Rentable Area of
the Building, then in each such event in applying the provisions of this Section
3 with respect to any calendar year in which such event shall have occurred,
appropriate adjustments shall be made to reflect the occurrence of such event on
a basis consistent with the principles underlying the provisions of this Section
3, taking into consideration the portion of such calendar year which shall have
elapsed prior to the Fixed Rent Commencement Date, the date of such expiration
or other termination or the date of such increase or decrease.
(f) Tenant shall be responsible for Tenant's Proportionate Share of
Projected Excess Expenses (as hereinafter defined) during the Term as herein
provided and to the extent actual expenses exceed Projected Excess Expanses
following an end of the calendar year accounting, Tenant's Proportionate Share
of such difference as hereinafter provided.
(i) For each calendar year, Landlord shall send to Tenant an
itemized statement, in reasonable detail no later than April 1, of projected
excess Building Expenses and Park Expenses, for the applicable calendar year
over the Base Year Expenses ("Projected Excess Expenses") and shall indicate
what the estimated amount of Tenant's Proportionate Share of Projected Excess
Expenses shall be, said amounts to be paid in equal monthly installments
(rounded to the nearest whole dollar) in advance on the first day of each month
by Tenant as Additional Rent, commencing on the first anniversary of the
Commencement Date.
(ii) Following the end of each calendar year, Landlord shall
use reasonable efforts to send to Tenant no later than April 1 of the following
year an itemized statement in reasonable detail of actual expenses incurred for
the prior calendar year showing Tenant's Proportionate Share of Projected Excess
Expenses due from Tenant. In the event the amount prepaid by Tenant exceeds the
amount that was actually due based upon actual year end cost, then Landlord
shall credit an amount equal to the overcharge to the payment or payments of
Additional Rent next coming due hereunder. In the event Landlord has
undercharged Tenant then Landlord shall provide Tenant with an invoice stating
the additional amount due, which amount shall be paid in full by Tenant within
twenty (20) days of receipt. Provided that Tenant shall have paid Tenant's
Proportionate Share of Projected Excess Expenses, as billed by Landlord, in full
for any calendar year, Tenant shall have the right to audit the calculation of
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Tenant's Proportionate Share of Projected Excess Expenses for such calendar year
within ninety (90) days after Tenant's receipt of the statement described in
this Subparagraph (ii) from Landlord with respect to such calendar year. Such
audit shall be conducted at Landlord's offices during regular business hours and
upon at least five (5) business days notice to Landlord. Tenant acknowledges and
agrees that upon the termination or sooner expiration of this Lease Tenant shall
remain liable for Tenant's Proportionate Share of Projected Excess Expenses
notwithstanding the fact that the statement described in this Subsection (ii)
from Landlord with respect to such calendar year is delivered after the
termination or sooner expiration of this Lease.
(g) Each and every of the amounts payable by Tenant pursuant to
Subsections 3(f)(i) and 3(f)(ii) above, whether requiring lump sum payment or
constituting projected monthly amounts, shall for all purposes be treated and
considered as Additional Rent and the failure of Tenant to pay the same as and
when due in advance and without demand shall have the same effect as failure to
pay any installment of the Fixed Rent and shall afford Landlord all the remedies
provided in this Lease therefor, including, without limitation, the Late Charge
as provided in Paragraph 2(d) of this Lease.
4. Completion of Improvements and Commencement of Rent.
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(a) Landlord agrees to allow Tenant to construct the improvements
and other work in and to the Demised Premises in accordance with the terms,
conditions and provisions of Exhibit B, attached hereto and made a part hereof
("Tenant Improvement Work"). Landlord's allowance amount for the Tenant
Improvement Work is Twenty Five and 00/100 Dollars ($25.00) per rentable square
foot of the Demised Premises ("Improvement Allowance"). The total cost of the
Tenant Improvement Work in excess of the Improvement Allowance shall be at
Tenant's sole cost and expense. If Tenant makes any changes to the final
approved Plans (as defined in Exhibit B), Tenant shall bear any additional
construction or other expense to Landlord caused directly or indirectly by any
change requested by Tenant to said Plans and Landlord shall advise Tenant while
approving such changes (where required), of the nature of any additional work or
any additional expenses caused thereby and identify generally the additional
costs as soon as reasonably possible thereafter. Tenant shall pay Landlord (from
the Tenant Improvement Allowance or otherwise) for any such expense within
fifteen (15) days after request for payment by Landlord.
(b) The Base Building shall be the building delivered in accordance
with Exhibit B-1 ("Base Building"). If and when Tenant shall take actual
possession of the Demised Premises, it shall be conclusively presumed that the
same are in satisfactory condition, except as to those items of work remaining
to be performed by Landlord pursuant to Exhibit B, or any items of work set
forth on a "Punch List" to be submitted by Tenant to and acknowledged by
Landlord in writing upon substantial completion (subject nevertheless to
additional disclosures during the course of Tenant Improvement Work) and
completed within thirty days of Substantial Completion of the Base Building
(except those items not disclosed by Tenant until after the initial submission
process, which minor items shall be completed within thirty days of submission
to Landlord); provided, however, nothing contained herein shall be deemed a
waiver of Tenant's right to object to any latent defects in the Base Building or
other items not discoverable by Tenant at such time.
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5. Tenant Covenants As To Condition of Premises, and Compliance with Laws;
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Landlord Covenants.
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(a) In the event that the Building or any of the equipment affixed
thereto or stored therein should be damaged as a result of any negligent or
willful act of Tenant or its agents, servants, employees or, invitees (the
latter when in the Premises or under the control of Tenant or with respect to
contractors, when employed by Tenant, Tenant shall, upon demand, pay to Landlord
the cost of all required repairs, including structural repairs. Landlord shall
perform, or cause to be performed, all such maintenance and repairs and Tenant
shall pay to Landlord the costs incurred therefor immediately upon demand as
Additional Rent. Tenant shall commit no act of waste and shall take good care of
the Demised Premises and the equipment affixed thereto and stored therein,
(except that for which Landlord is responsible hereunder) shall maintain the
Demised Premises in good condition and state of repair, and at the end or
certain expiration of the term hereof, shall deliver up the Demised Premises in
good order and condition, damage from casualty, damage due to Landlord's failure
to perform Landlord's maintenance and repair obligations hereunder, and wear and
tear from a reasonable use thereof excepted, and, after the removal of those
alterations, improvements or additions required to be made by Tenant, Tenant
shall restore the Premises to the condition such Premises were in prior to the
making or installation of such removed alteration, improvement or addition.
(b) Upon Landlord's approval of such alterations, improvements or
additions, Tenant shall not be required, unless Landlord requires the removal of
the same as a condition to approval thereof, to remove the initial Tenant
Improvements; provided, however, Tenant shall not be required to remove any
standard items which are installed as part of the Tenant Improvement Work.
Tenant, at Tenant's expense, shall promptly comply with all laws, rules,
regulations and ordinances, of all governmental authorities or agencies having
jurisdiction over the Demised Premises, and of all insurance bodies (including,
without limitation, the Board of Fire Underwriters), at any time duly issued or
in force, applicable to the Demised Premises or any part thereof or to Tenant's
use thereof ("Laws").
(c) To the extent not otherwise specifically provided for elsewhere
in this Lease, Landlord shall maintain and repair in good order and condition
the public and Common Areas of the Park and the Premises, sidewalks, parking
areas, ingress, egress and access ways, the roof, exterior, load bearing columns
and structural integrity of the slab floors and foundation of the Building,
system and utilities serving the Premises and Building windows and perform all
the obligations of a unit owner under the Condominium Documents. The cost of
providing such maintenance or repairs shall be at the cost and expense of
Landlord or Tenant as the case may be, as set forth in Paragraph 3 of this
Lease.
6. Tenant Improvements, Alterations and Installations.
--------------------------------------------------
(a) All fixtures, equipment, improvements, alterations, and
installations which are attached to the Demised Premises, and any additions and
appurtenances made by Tenant or on Tenant's behalf by Landlord or another
contractor to the Demised Premises exclusive of Tenant's cubicles and other
trade fixtures ("Improvements") shall become the property of Landlord upon
installation. Not later than the last day of the Term, Tenant shall, at its
expense, remove from the
10
Demised Premises all of its personal property and such Improvements as Landlord
shall elect in writing to Tenant at the time the Improvements are approved for
installation. Tenant, at its sole cost and expense, shall repair any and all
injury or damage to the Demised Premises done by or in connection with the
installation or removal of such Improvements. The foregoing undertaking shall
survive the expiration or sooner termination of this Lease and surrender of the
Demised Premises. Any equipment, fixtures, goods or other property of Tenant,
not removed by Tenant upon the termination of this Lease, or upon any quitting,
vacating or abandonment of the Demised Premises by Tenant, or upon Tenant's
eviction, shall be considered as abandoned and Landlord shall have the right,
without any notice to Tenant, to sell or otherwise dispose of the same, at the
expense of Tenant, and Landlord shall not be accountable to Tenant for any part
of the proceeds of such sale, if any. Landlord may have any such property stored
at Tenant's sole risk and expense.
(b) Tenant's plans and specifications for the Tenant Improvement
Work shall be produced to Landlord as set forth in Exhibit B. Any changes
thereto shall be submitted to Landlord for approval, which approval Landlord
agrees shall not be unreasonably withheld or conditioned and shall be approved,
denied or consented upon, as the case may be, within five business days after
receipt thereof by Landlord. After the completion of Tenant Improvement Work and
the issuance of a certificate of occupancy (temporary or permanent) therefor, no
nonstructural alterations, installations, additions or improvements shall be
made by Tenant without Landlord's express prior written approval, which Landlord
agrees shall not be unreasonably withheld, conditioned or delayed if the
proposed nonstructural alterations will not adversely affect the operation of
the plumbing, HVAC, mechanical or electric systems of the Premises or the
Building ("Building Systems") or be visible to the common areas of the Building
or Common Areas of the Park; provided however, Landlord's consent shall not be
required for nonstructural alterations costing less than $25,000 unless the same
are visible to the common areas of the Building or Common Areas of the Park or
adversely affect Building Systems. No structural alterations, installations,
additions or improvements or nonstructural alterations that will adversely
affect the Building Systems or that are visible to the Building or Common Areas
of the Park shall be made by Tenant without Landlord's express prior written
approval, which Landlord shall grant or deny in its sole and absolute
discretion. Tenant shall give Landlord prior written notice of any proposed
alterations, installations, additions or improvements (hereinafter collectively,
called "Alterations" and each an "Alteration"). Tenant shall deliver to Landlord
copies of proposed plans and as-built plans, if any, upon completion of any and
all Alterations. All Alterations shall be done at Tenant's sole expense and the
making thereof shall not interfere with the use of the Building by other tenants
or disturb harmonious labor relations with Landlord's employees, agents,
contractors or subcontractors. In the event that Tenant, its employees, agents,
contractors or subcontractors conflict or interfere with labor employed by
Landlord, its contractors or subcontractors, or in the event that any work
stoppage, jurisdictional labor dispute or other interference with Landlord, or
Landlord's employees, agents, contractors or subcontractors occurs, of which
Landlord shall be the sole and absolute judge, Landlord shall have the right to
require Tenant, upon written demand, to remove or cause the removal forthwith of
all Tenant's contractors and subcontractors from the Demised Premises, and
Tenant agrees to comply with such demand immediately. In the event Tenant fails
to comply with such demand immediately, and thereby causes a delay in the
general construction program
11
of the Building or the Land, or the completion of Tenant Improvement Work
required to be done in the Demised Premises, Tenant shall be deemed to be in
default of this Lease entitling Landlord to all of its rights hereunder and at
law. Tenant agrees to indemnify, defend and hold harmless Landlord from any and
all costs, expenses, claims, causes of action, damages and liabilities of any
type or nature whatsoever (including, but not limited to attorneys' fees and
costs of litigation) arising out of or relating to the negligent or wrongful
actions of Tenant, its contractors, agents or employees, any delay caused
thereby or any breach of any covenant pursuant to this paragraph. Nothing herein
contained shall be construed as constituting the permission of Landlord for a
mechanic or subcontractor to file a lien claim against the Demised Premises and
Tenant agrees immediately to secure the removal of any such lien which a
contractor purports to file against said premises by payment or otherwise
pursuant to law. All such Alterations shall be effected in compliance with all
applicable laws, ordinances, rules and regulations of governmental bodies having
or asserting jurisdiction over the Demised Premises.
7. Various Negative Covenants by Tenant. Tenant agrees that it shall not,
-------------------------------------
without Landlord's prior written consent:
(a) Do anything in or near the Demised Premises which will increase
the rate of fire insurance on the Building; provided, however, the Landlord
agrees that the Permitted Use hereunder shall not increase the rate of fire
insurance on the Building;
(b) Permit the accumulation of waste or refuse matter in the Demised
Premises except in containers provided therefor;
(c) Mortgage, hypothecate, pledge or encumber this Lease in whole or
in part;
(d) Permit any signs, lettering or advertising matter to be erected
or attached to the Demised Premises; or
(e) Encumber or obstruct the Common Areas surrounding the Demised
Premises or within the interior or exterior of the Building nor cause same to be
encumbered or obstructed, nor encumber or obstruct any access ways to the
Demised Premises, nor cause same to be encumbered or obstructed.
8. Various Affirmative Covenants of Tenant and Landlord. Tenant covenants
-----------------------------------------------------
and agrees that Tenant will:
(a) Tenant agrees that it will at any time and from time to time,
execute, acknowledge and deliver to Landlord, or to anyone Landlord shall
designate, a tenant estoppel certificate in a form reasonably acceptable to
Landlord, Tenant and financial institutions requesting the same relating to
matters customarily included in tenant estoppel certificates within fifteen (15)
days of receipt of Landlord's request accompanied by such certificate; Landlord
agrees that it will at any time and from time to time, execute, acknowledge and
deliver to Tenant, or to anyone Tenant shall designate, a landlord estoppel
certificate in a form reasonably acceptable to Tenant, Landlord and financial
institutions requesting the same relating to matters customarily included
12
in landlord estoppel certificates within fifteen (15) days of receipt of
Tenant's request accompanied by such certificate.
(b) Tenant will faithfully observe and comply with the rules and
regulations annexed hereto and made a part hereof as Exhibit C and such
additional rules and regulations as Landlord hereafter at any time or from time
to time may communicate in writing to Tenant, and which, in the reasonable
judgment of Landlord, shall be necessary or desirable for the reputation,
safety, care or appearance of the Building, or the preservation of good order
therein, or the operation or maintenance of the Building, or the equipment
thereof, or the comfort of tenants or others in the Building; provided, however,
that in the case of any conflict between the provisions of this Lease and any
such rule or regulation, the provisions of this Lease shall control. Nothing
contained in this Lease shall be construed to impose upon Landlord any duty or
obligation to enforce the rules and regulations or the terms, covenants or
conditions in any other lease as against any other tenant, and Landlord shall
not be liable to Tenant for violation of any rule or regulation by any other
tenant, its employees, agents, visitors, invitees, subtenants or licensees;
provided, however Landlord agrees to enforce the rules and regulations
consistently against all tenants.
9. Building Directory and Signage. Tenant shall not affix any sign to the
------------------------------
Building or place any sign so that it can be seen from outside of the Building
or the Demised Premises, except that Tenant shall be entitled to have its name
and/or logo placed on the entrance monument appurtenant to the Building if such
complies with the sign criteria delivered by Landlord to Tenant or is approved
by Landlord. Landlord will, at the request of Tenant, maintain listings on the
directory located within the Building and on the monument in front of the
Building of the name of Tenant. Landlord shall not be required to list the names
of any individuals on said Building directory.
10. Casualty and Insurance.
----------------------
(a) In the event of partial (being 20% or greater of the total area
of the Building) or total destruction of the Demised Premises by reason of fire
or any other cause, Tenant shall immediately notify Landlord of same. Landlord
shall thereafter notify Tenant of the estimated time to restore and rebuild,
subject to the then existing mortgagee's consent thereto and availability of
insurance proceeds, the Demised Premises, and Tenant shall contribute an amount
in proportion to the total expenses of rebuilding the Tenant Improvements which
it originally contributed to the Tenant Improvements, unless Landlord elects by
notice to Tenant within ninety (90) days of said destruction to terminate all
material leases of the Building and not restore and rebuild the Building, and,
in such case, this Lease shall terminate; provided however, in the event
Landlord estimates that restoration and rebuilding of the Premises will take
longer than nine (9) months, Tenant or Landlord may within five (5) days after
receipt of such time estimation (as applicable) terminate the Lease whereupon
this Lease shall be null and void and neither party except as expressly provided
herein shall have any further rights, liabilities or obligations hereunder;
provided however, if the casualty occurs during the last year of the Term and
Tenant has not exercised its renewal right hereunder, either party will have the
right to terminate the Lease by sending written notice of such termination to
the other within ten (10) days of Tenant's receipt of the notice from Landlord
described above. Such notice is to specify a termination date
13
no less than fifteen (15) days after its transmission. During the period of time
after the casualty that Tenant is unable to occupy the Demised Premises or any
portion thereof for its intended purpose, the Rent shall be abated, pro rata for
such time the same remains untenantable.
(b) Each party hereto, and anyone claiming through or under them by
way of subrogation, waives and releases any cause of action it might have
against the other party and their respective employees, officers, members,
partners, trustees and agents, on account of any loss or damage that is insured
against under any insurance policy providing property or casualty coverage
required to be obtained hereunder (to the extent that such loss or damage is
recoverable under such insurance policy) that covers the Park, Building or
Premises, Landlord's or Tenant's fixtures, personal property, leasehold
improvements or business. Each party hereto agrees that it will cause its
insurance carrier for all such policies carried by it or on its behalf to
endorse all applicable policies waiving the carrier's right of recovery under
subrogation or otherwise against the other party. During any period while such
waiver of right of recovery is in effect, each party shall look solely to the
proceeds of such policies for compensation for loss, to the extent such proceeds
are paid under such policies or would have been paid had the policies been
maintained as required hereunder. All indemnities herein are subject to
Section10(b) and Section 30(k)
(c) Tenant shall, at Tenant's sole cost and expense, but, except to
the extent prohibited by law with respect to workmen's compensation insurance,
for the mutual benefit of Landlord and Tenant and any Additional Insured (as
hereinafter defined) or any other additional insured as Landlord may from time
to time determine including the lessors under any ground leases or underlying
leases and any mortgagees, maintain or cause to be maintained (a) commercial
general liability insurance, including but not limited to, premises, bodily
injury, personal injury and contractual liability, coverages for any and all
injury resulting from any act or omission on the part of Tenant or Tenant's
contractor's, licensees, agents, visitors or employees, on or about the Demised
Premises including such claims arising out of the construction of improvements
on the Demised Premises, such insurance to afford protection to the limit of not
less than Two Million Dollars ($2,000,000.00) single limit; (b) workmen's
compensation insurance to the extent required by the laws of the Commonwealth of
Pennsylvania and (c) special cause of loss coverage on all of Tenant's personal
property, including, but not limited to, standard fire and extended coverage
insurance with vandalism and malicious mischief endorsements on all Tenant's
improvements and alterations in or about the Demised Premises, to the extent of
their full replacement value. In the event Landlord, at any time during the term
of the Lease, reasonably determines that Tenant's insurance coverage is
inadequate, based upon the coverages being required by landlords of comparable
buildings in the general geographic area of the Building, Landlord shall have
the right to require Tenant to increase its insurance coverage. All such
insurance shall, to the extent permitted by law, name Landlord, and BR
Management Corporation, and their successors and assigns as additional insureds
(the "Additional Insureds") and shall be written by a good and solvent insurance
carrier authorized to do business in the Commonwealth of Pennsylvania. Any of
the foregoing Additional Insureds may be changed at any time notice is given as
provided in Section 18 herein. Landlord makes no representation that the limits
of liability specified to be carried by Tenant pursuant to this Section 10 are
adequate to protect Tenant. If Tenant believes that any of such insurance
coverage is inadequate, Tenant will obtain such additional insurance coverage as
Tenant deems adequate, at Tenant's sole expense.
14
(d) Prior to the Commencement Date, and at least thirty (30) days
prior to the expiration date of any policy, Tenant shall furnish evidence of
such insurance and payment of premiums thereon to Landlord. Such insurance shall
be in form satisfactory to Landlord and without limitation, shall provide that
no cancellation or lapse thereof or change therein shall be effective until
after thirty (30) days written notice to Landlord at the address specified in
Section 18 of this Lease. Tenant waives all rights of recovery against Landlord
and the Additional Insureds for any loss, damages, or injury of any nature
whatsoever to property or persons for which the Tenant is insured..
(e) Each insurance policy required to be maintained under this Lease
shall state that with respect to the interest of Landlord and the Additional
Insureds the insurance maintained pursuant to each such policy shall not be
invalidated by any action or inaction of Tenant and shall insure Landlord and
the Additional Insureds regardless of any breach or violation of any warranties,
declarations, conditions or exclusions by Tenant (other than non-payment of
premium).
(f) Each insurance policy required to be maintained under this Lease
shall state that all provisions of each such insurance policy, except for the
limits of liability, shall operate in the same manner as if a separate policy
had been issued to each person or entity insured thereunder.
(g) Each insurance policy required to be maintained under this Lease
shall state that the insurance provided thereunder is primary insurance without
any right of contribution from any other insurance which may be carried by or
for the benefit of Landlord and the Additional Insureds.
(h) [Intentionally Deleted].
(i) Failure of Tenant to maintain any of the insurance required
under this Lease or to cause to be provided in any insurance policy the
requirements set forth in this Section 10, shall constitute a default under this
Lease without any notice being required by Landlord.
11. Indemnification. (a) Tenant shall indemnify, defend and hold harmless
---------------
Landlord, from and against any expense (including, without limitation, legal and
collection fees), loss, liability or damages suffered or incurred as a result of
or in connection with (i) any breach by Tenant of its obligations contained in
this Lease or (ii) its negligent acts or the negligent acts of its agents,
servants, invitees, contractors or employees.
(b) Landlord shall indemnify, defend and hold harmless
Tenant, the Additional Insureds, any mortgagee, and any lessor under any
underlying leases or ground leases, from and against any expense (including,
without limitation, legal and collection fees), loss, liability or damages
suffered or incurred as a result of or in connection with (i) any breach by
Landlord of its obligations contained in this Lease or (ii) its negligent acts
or the acts of its agents, servants, invitees, contractors or employees.
15
12. Non-Liability of Landlord. Except as otherwise provided in Section
-------------------------
11(b) and except where caused by gross negligence or willful misconduct of
Landlord, Landlord and Tenant agree Landlord shall not be liable for (and Tenant
shall make no claim for) any property damage which may be sustained by Tenant or
any other person, as a consequence of the failure, breakage, leakage,
inadequacy, defect or obstruction of the water, plumbing, steam, sewer, waste or
soil pipes, roof, drains, leaders, gutters, valleys, downspouts, or the like or
of the electrical, gas, power, conveyor, refrigeration, sprinkler, air
conditioning or heating systems, elevators or hoisting equipment; or by reason
of the elements; or resulting from the carelessness, negligence or improper
conduct on the part of any other tenant of Landlord or of the Landlord or
Landlord's or this or any other tenant's agents, employees, guests, licensees,
invitees, subtenants, assignees or successors except for the willful misconduct
of Landlord; or attributable to any interference with, interruption of or
failure of any services or utilities to be furnished or supplied by Landlord,
except if the same results from Landlord's gross negligence. Tenant shall give
Landlord prompt written notice of the occurrence of any events set forth in this
Section 12.
13. Remedies and Termination Upon Tenant Default.
--------------------------------------------
(a) In the event that:
(i) Tenant shall default in the payment of (i) any Fixed Rent
or (ii) any Additional Rent or other charge payable monthly hereunder by Tenant
to Landlord, on any date upon which the same becomes due, and such default shall
continue for five (5) days after notice thereof from Landlord to Tenant after
the same becomes due; provided however, Landlord shall not be required to tender
notice of said default after the second default by Tenant hereunder in any one
calendar year; or
(ii) Tenant shall default in the payment of any Additional
Rent or any other charge payable hereunder which is not due and payable
hereunder on a monthly basis, on any date upon which the same becomes due, and
such default shall continue for five (5) days after Landlord shall have given to
Tenant a written notice specifying such default; or
(iii) Tenant shall default in the due keeping, observing or
performing of any covenant, agreement, term, provision or condition of Paragraph
1(c) of this Lease on the part of Tenant to be kept, observed or performed, and
if such default shall continue and shall not be remedied by Tenant within 5 days
after Landlord shall have given to Tenant a written notice specifying the same;
or
(iv) INTENTIONALLY DELETED
(v) Tenant shall default in the due keeping, observing or
performing of any other covenant, agreement, term, provision or condition of
this Lease on the part of Tenant to be kept, observed or performed, and if such
default shall continue and shall not be remedied by Tenant within thirty (30)
days after Landlord shall have given to Tenant a written notice specifying the
same; provided, however, that if the subject breach is not susceptible to cure
within thirty (30) days, then within such additional time, if any, as is
reasonably necessary to
16
effectuate such cure, so long as Landlord has commenced such cure within the
initial thirty (30) day period and diligently pursues such cure to completion;
or
(vi) Should Tenant be evicted by summary proceedings or
otherwise;
then, Landlord may, in addition to any other remedies herein contained, as may
be permitted by law, without being liable for prosecution therefor, or for
damages, re-enter the Demised Premises and the same have and again possess and
enjoy; and as agent for Tenant or otherwise, re-let the Demised Premises and
receive the rents therefor and apply the same, first to the payment of such
expenses, reasonable attorney fees and costs, as Landlord may have been put to
in re-entering and repossessing the same and in making such repairs and
alterations as may be necessary; and second to the payment of the rents due
hereunder. Tenant shall remain liable for such rents as may be in arrears and
also the rents as may accrue subsequent to the re-entry by Landlord, to the
extent of the difference between the rents reserved hereunder and the rents, if
any, received by Landlord during the remainder of the unexpired term hereof,
after deducting the aforementioned expenses, fees and costs; the same to be paid
as such deficiencies arise and are ascertained each month. Landlord, at its
option, may require Tenant to pay in a single lump sum payment at the time of
such termination or re-entry as the case may be, a sum which represents the
present value (using a discount rate at the then prime rate per annum) of the
excess of the aggregate of the Fixed Rent which would have been payable by
Tenant for the period commencing with such termination or re-entry, as the case
may be, and ending on the originally fixed Expiration Date of the Term, over the
aggregate rental value of the Demised Premises for the same period.
(b) Upon the occurrence of any of the contingencies set forth in the
preceding clause, or should Tenant be adjudicated a bankrupt, insolvent or
placed in receivership, or should proceedings be instituted by or against Tenant
for bankruptcy, insolvency, receivership, agreement of composition or assignment
for the benefit of creditors which are not dismissed within sixty (60) days, or
if this Lease or the estate of Tenant hereunder shall pass to another by virtue
of any court proceedings, writ of execution, levy, sale, or by operation of law,
Landlord may, if Landlord so elects, at any time thereafter, terminate this
Lease and the term hereof, upon giving to Tenant or to any trustee, receiver,
assignee or other person in charge of or acting as custodian of the assets or
property of Tenant, five (5) days notice in writing, of Landlord's intention so
to do. Upon the giving of such notice, this Lease and the term hereof shall end
on the date fixed in such notice as if the said date was the date originally
fixed in this Lease for the expiration hereof; and Landlord shall have the right
to remove all person, goods, fixture and chattels therefrom, by force or
otherwise without liability for damages.
(c) Tenant further waives the right to any notices to quit as may be
specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951,
as amended, or any similar or successor provision of law, and agrees that five
(5) days notice shall be sufficient in any case where a longer period may be
statutorily specified.
(d) Additional Remedies. In addition to, and not in lieu of any of
-------------------
the foregoing rights granted to Landlord:
17
(i) WHEN THIS LEASE OR TENANT'S RIGHT OF POSSESSION SHALL BE
TERMINATED BY COVENANT OR CONDITION BROKEN, OR FOR ANY OTHER REASON, EITHER
DURING THE TERM OF THIS LEASE OR ANY RENEWAL OR EXTENSION THEREOF, AND ALSO WHEN
AND AS SOON AS THE TERM HEREBY CREATED OR ANY EXTENSION THEREOF SHALL HAVE
EXPIRED, IT SHALL BE LAWFUL FOR ANY ATTORNEY AS ATTORNEY FOR TENANT TO FILE AN
AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN ACTION TO CONFESS JUDGMENT IN
EJECTMENT AGAINST TENANT AND ALL PERSONS CLAIMING UNDER TENANT, WHEREUPON, IF
LANDLORD SO DESIRES, A WRIT OF EXECUTION OR OF POSSESSION MAY ISSUE FORTHWITH,
WITHOUT ANY PRIOR WRIT OF PROCEEDINGS, WHATSOEVER, AND PROVIDED THAT IF FOR ANY
REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED THE SAME SHALL BE DETERMINED
AND THE POSSESSION OF THE PREMISES HEREBY DEMISED REMAIN IN OR BE RESTORED TO
TENANT, LANDLORD SHALL HAVE THE RIGHT UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS,
OR UPON THE TERMINATION OF THIS LEASE AS HEREINBEFORE SET FORTH, TO BRING ONE OR
MORE ACTION OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF THE
SAID PREMISES.
(ii) In any action to confess judgment in ejectment, Landlord
shall first cause to be filed in such action an affidavit made by it or someone
acting for it setting forth the facts necessary to authorize the entry of
judgment, of which facts such affidavit shall be conclusive evidence, and if a
true copy of this Lease (and of the truth of the copy such affidavit shall be
sufficient evidence) be filed in such action, it shall not be necessary to file
the original as a warrant of attorney, any rule of Court, custom or practice to
the contrary notwithstanding.
(iii) TENANT WAIVER. TENANT SPECIFICALLY ACKNOWLEDGES THAT
TENANT HAS VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WAIVED CERTAIN DUE PROCESS
RIGHTS TO A PREJUDGMENT HEARING BY AGREEING TO THE TERMS OF THE FOREGOING
PARAGRAPHS REGARDING CONFESSION OF JUDGMENT. TENANT FURTHER SPECIFICALLY AGREES
THAT IN THE EVENT OF DEFAULT, LANDLORD MAY PURSUE MULTIPLE REMEDIES INCLUDING
OBTAINING POSSESSION PURSUANT TO A JUDGMENT BY CONFESSION AND EXECUTING UPON
SUCH JUDGMENT.
(e) Upon the abandonment of the Premises or any portion thereof by
Tenant prior to the Expiration Date, Landlord shall have the right, whether or
not an Event of Default hereunder has occurred, to enter into and take
possession of such abandoned space and retrofit such space for a subsequent
tenant and such taking of possession and making of alterations to such space by
Landlord shall not be deemed to be a surrender of the space by Tenant or an
acceptance of surrender by Landlord unless and until a replacement tenant begins
regular payment of base rent for such space.
14. Remedies Cumulative; Non-Waiver By Landlord. The various rights,
-------------------------------------------
remedies, options and elections of Landlord, expressed herein, are cumulative,
and the failure of Landlord
18
to enforce strict performance by Tenant of the conditions and covenants of this
Agreement to exercise any election or option or to resort or have recourse to
any remedy herein conferred or the acceptance by Landlord of any installment of
rent after any breach by Tenant, in any one or more instances, shall not be
construed or deemed to be a waiver or a relinquishment for the future by
Landlord of any such conditions and covenants, options, elections or remedies,
but the same shall continue in full force and effect. Tenant waives trial by
jury in any action or proceeding arising out of this Lease.
15. Services; Electric Energy and Gas.
---------------------------------
(a) Landlord will: (i) supply heat for the warming of the Demised
Premises and the public portions of the Building during Business Hours in the
cold season in accordance with Exhibit B-1; (ii) furnish to, and distribute in,
the Demised Premises air conditioning during Business Hours when it may be
required for the comfortable occupancy of the Demised Premises by Tenant in
accordance with Exhibit B-1; (iii) provide snow and ice removal or treatment for
the parking area, sidewalks and driveways in a reasonably expeditious manner
consistent with class "A" office space; and (iv) provide refuse removal from a
dumpster to be provided for the Building on site to be used for normal paper
waste attendant to an office building. Landlord shall also supply water, sewer,
base building life safety systems, and first class maintenance of common areas.
"Business Hours" as used in this Lease, means 7:30 A.M. to 5:30 P.M. on
weekdays, 9:00 A.M. to 12:00 P.M. on Saturdays, and not including Sundays and
those legal holidays listed in Exhibit D annexed hereto and made a part hereof.
Landlord will clean the Demised Premises in accordance with the cleaning
schedule annexed hereto as Exhibit E. Except as otherwise provided in
Subsections 15(d) and (h), the cost of the services and utilities provided
pursuant to this Subsection 15(a) is included in Building Expenses as defined in
Subsection 3(a).
(b) Landlord will provide to Tenant overtime services and utilities
when and to the extent requested by Tenant in accordance with reasonable rules
and regulations to be provided by Landlord. If Tenant shall utilize Building
HVAC after Business Hours, Tenant shall pay to Landlord, as Additional Rent, an
overtime HVAC charge which charge shall cover all costs and expenses of Landlord
in providing such overtime services, including, without limitation, the cost of
the utility usage, and any employee and administrative costs related to such
services, if any. Such charge shall constitute a direct charge to Tenant and not
an Expense pursuant to Section 3.
(c) Landlord reserves the right, without liability to Tenant and
without constituting any claim of constructive eviction, to stop or interrupt
any heating, lighting, ventilating, air conditioning, gas, steam, power,
electricity, water or other service and to stop or interrupt the use of any
Building facilities at such times as may be reasonably necessary and for as long
as may reasonably be required by reason of accidents, strikes, safety concerns
or the making of repairs, alterations or improvements, or inability (other than
due to failure to pay by Landlord) to secure a proper supply of fuel, gas,
steam, water electricity, labor or supplies, or by reason of any other similar
or dissimilar cause beyond the reasonable control of Landlord. No such stoppage
or interruption shall entitle Tenant to any diminution or abatement of rent or
other compensation nor shall this Lease or any of the obligations of Tenant be
affected or reduced by
19
reason of any such stoppage or interruption; provided, however if the Demised
Premises becomes inaccessible or untenantable solely as a result of Landlord's
gross negligence or willful breach of any provision of this Lease and Tenant
ceases the conduct of its business therein for a period in excess of five (5))
business days, then following the expiration of such five-day period and
continuing thereafter until the date Tenant resumes the conduct of its business
in the Demised Premises or the date on which the same is once again accessible
or untenantable, whichever occurs earlier, the Fixed Rent payable hereunder
shall be abated; provided further, if any such service herein provided is
interrupted or stopped for a period exceeding twenty (20) days, is caused by the
negligent acts (or omissions) of Landlord or its agents or employees, and
renders the Premises untenantable, then Fixed Rent and Additional Rent hereunder
shall xxxxx thereafter and continue until the resumption thereof.
(d) Landlord shall furnish the electric energy that Tenant shall
require in the Premises. Tenant shall pay to Landlord as Additional Rent the
cost of all electric energy furnished to Tenant at the Premises, other than for
heating and air conditioning purposes as hereafter provided. Additional Rent for
such electric energy shall be calculated and payable as follows:
(i) As part of the Tenant Improvement Work, Tenant shall
install a submeter to measure the electricity used in the Premises (except for
HVAC); notwithstanding the foregoing Tenant shall pay Landlord for the estimated
cost to Landlord of such electricity, including rate increases as provided for
in Section 15(d)(iii). Tenant shall pay the Landlord the estimated costs of such
electric energy as so calculated on a monthly basis beginning on the
Commencement Date, as Additional Rent, together with the payment of Fixed Rent.
For the first year after the Commencement Date the estimated cost shall be
calculated on the basis of the Tenant Electric Amount and thereafter estimates
shall be based on the prior year's actual usage. In the event the amount prepaid
by Tenant exceeds the amount that was actually due based upon actual year end
cost, then Landlord shall credit an amount equal to the overcharge to the
payment or payments of Additional Rent next coming due hereunder or, if the
excess exceeds one month's Additional Rent, Landlord shall pay the difference to
Tenant in cash within twenty (20) days. In the event Landlord has undercharged
Tenant then Landlord shall provide Tenant with an invoice stating the additional
amount due, which amount shall be paid in full by Tenant within twenty (20) days
of receipt. Tenant acknowledges and agrees that upon the termination or sooner
expiration of this Lease Tenant shall remain liable for any underpayment of
Tenant's electricity costs hereinabove described, and Landlord shall remain
liable for any refund to Tenant on account of any overpayment by Tenant,
notwithstanding the fact that the statement described in this Subsection from
Landlord with respect to such calendar year is delivered after the termination
or sooner expiration of this Lease.
(ii) Tenant's use of electric energy in the Premises shall not
at any time exceed the capacity of any of the electrical conductors and
equipment serving the Premises. In order to insure that such capacity is not
exceeded and to avoid possible adverse effect upon the electric service to the
Building, Tenant shall not, without Landlord's prior written consent in each
instance, connect any additional fixtures, appliances or equipment to the
electric distribution
20
system which cause the capacity to be exceeded or make any alteration or
addition to the electric system of the Premises existing on (or planned by
Tenant and disclosed to Landlord as of) the Commencement Date. If Tenant
furnishes Landlord a sufficiently detailed description of Tenant's proposed
electrical equipment and the capacity thereof prior to Commencement Date and in
accordance with the requirements of Exhibit B, completion of Improvements,
attached hereto (the "Work Letter"), Landlord agrees to review Tenant's proposal
and not to unreasonably withhold prior approval to that proposal within a
reasonable time after its submission provided that such plans do not require the
provision of additional electrical capacity by the utility serving the Building.
If Landlord consents, all additional risers or other equipment required shall be
provided by Landlord at Tenant's sole cost and expense and paid for by Tenant
upon Landlord's demand. As a condition to granting such consent, Landlord, at
Tenant's sole expense, may cause a new survey to be made of the use of electric
energy (other than for heating and air-conditioning) in order to calculate the
potential additional electric energy to be made available to Tenant based upon
the estimated additional capacity of such additional risers or other equipment.
When the amount of such increase is so determined and the estimated cost thereof
is calculated, the amount of monthly Additional Rent payable pursuant to this
Section shall be adjusted to reflect the additional costs and shall be payable
as herein provided.
(iii) If there is an increase or decrease in the rate schedule
(including surcharges or demand adjustments) of the public utility for the
supply of electrical service to the Building or the imposition of any tax with
respect to such service or increase in any such tax following the Commencement
Date, the Additional Rent payable hereunder shall be adjusted equitably to
reflect the increase or decrease in rate or imposition or increase in the
aforesaid tax.
(e) In the event that Tenant shall require electric energy for use
in the Demised Premises in excess of the quantity initially designed and if, in
Landlord's judgment such excess requirements cannot be furnished unless
additional risers, conduits, feeders, switchboards and/or appurtenances are
installed in the Building, Landlord, upon written request of Tenant, will
proceed with reasonable diligence to install such additional riser, conduits,
feeders, switchboards and/or appurtenances provided the same and the use thereof
shall be permitted by applicable laws and insurance regulations and shall not
cause permanent damage or injury to the Building or the Demised Premises or
cause or create a dangerous or hazardous condition or entail excessive or
unreasonable alterations or repairs or interfere with or disrupt other tenants
or occupants of the Building, and Tenant agrees to pay all reasonable costs and
expenses incurred by Landlord in connection with such installation.
(f) In order that Landlord may at all times have all necessary
information which it requires in order to maintain and protect its equipment,
Tenant agrees that Tenant will not make any material alteration or material
addition to the electrical systems in the Demised Premises without the prior
written consent of Landlord in each instance and will promptly advise Landlord
of any other alteration or addition to such electrical systems. Tenant further
acknowledges and agrees that Tenant shall not have the right to install
additional connections to the Building electricity. Any such connections desired
by Tenant shall be effected by Landlord at Tenant's sole cost and expense, and
shall only be permitted to the extent such connections will not cause the
Premises to exceed its permitted electrical capacity, or overload, damage or
limit the electrical system of the Building.
21
(g) Landlord shall in no way be liable or responsible to Tenant for
any loss or damage or expense which Tenant may sustain or incur by reason of any
failure, inadequacy or defect in the character, quantity or supply of electric
energy furnished to the Demised Premises except for actual damage other than
property damage suffered by Tenant by reason of any negligence of Landlord.
(h) Landlord shall furnish gas heat and air conditioning and
electric to Building Common Areas and Tenant shall pay to Landlord as Additional
Rent, Tenant's Proportionate Share of the cost of all Building gas and electric
charges ("Building Gas and Electric Cost") paid by Landlord in connection with
the provision of said heat and air conditioning and common area electricity. The
Building Gas and Electric Cost shall be calculated by subtracting the total
amount attributable to all tenant spaces (whether or not occupied by tenants) of
the Building, for electric energy and gas supplied to tenant spaces (including
overtime services) per Section 15, from the total amount of all charges paid or
incurred by Landlord for electric energy and gas supplied to the Building. Prior
to the first such calculation of Tenant's Proportionate Share of Building Gas
and Electric Cost, such Proportionate Share shall be the Base Building Gas and
Electric Amount. Thereafter, each calendar year, or part thereof, Landlord shall
send to Tenant a statement of the estimated Building Gas and Electric Cost, for
the applicable calendar year (or portion thereof) and shall indicate what the
estimated amount of Tenant's Proportionate Share of such Cost shall be, said
amounts to be paid in equal monthly installments (rounded to the nearest whole
dollar) in advance on the first day of each month by Tenant as Additional Rent.
Following the end of each calendar year, Landlord shall send
to Tenant a statement of the actual Building Gas and Electric Cost for the prior
calendar year showing Tenant's Proportionate Share of such costs due from Tenant
and for the Tenant Electric Amount pursuant to Section 15(d)(i), the latter
based on actual submeter readings. In the event the amount prepaid by Tenant
exceeds the amount that was actually due based upon actual year end cost, then
Landlord shall credit an amount equal to the overcharge to the payment or
payments of Additional Rent next coming due hereunder or, if the excess exceeds
one month's Additional Rent, Landlord shall pay the difference to Tenant in cash
within 20 days. In the event Landlord has undercharged Tenant then Landlord
shall provide Tenant with an invoice stating the additional amount due, which
amount shall be paid in full by Tenant within twenty (20) days of receipt.
Tenant acknowledges and agrees that upon the termination or sooner expiration of
this Lease Tenant shall remain liable for any underpayment of Tenant's
Proportionate Share of Building Gas and Electric Cost, and Landlord shall remain
liable for any refund to Tenant on account of any overpayment of Tenant's
Proportionate Share, notwithstanding the fact that the statement described in
this Subsection (h) from Landlord with respect to such calendar year is
delivered after the termination or sooner expiration of this Lease.
16. Subordination. Subject to the terms below, this Lease is subject and
-------------
subordinate in all respects to any underlying leases, declarations of
condominium, ground leases, licenses or agreements, and to all mortgages which
may now or hereafter be placed on or affect such leases, licenses or agreements
or the Land or the Premises and also to all renewals, modifications,
consolidations and extensions of such underlying leases, declarations of
condominium, ground lease, licenses, agreements, and mortgages. Although no
instrument or act on the part of Tenant shall be necessary to effectuate such
subordination as to existing mortgages, Tenant shall,
22
nevertheless, execute and deliver such further instruments confirming such
subordination as may be desired by any holder of any such mortgage or by a
lessor, licensor or party to an agreement under any such underlying lease,
ground lease, license or agreement, respectively, so long as it includes the
Nondisturbance Agreement required in this Section. If any underlying lease,
ground lease, license or agreement to which this agreement is subject and
subordinate terminates, or if any Mortgage to which this lease is subordinate is
foreclosed, Tenant shall, on timely request, attorn to the holder of the
reversionary interest or to the Mortgagee in possession, as the case may be.
Notwithstanding the foregoing, (i) Landlord agrees to obtain from any future
lender, ground lessor, etc., for the Building a Nondisturbance Agreement on the
form required by such lender for the benefit of Tenant and reasonably acceptable
to Tenant as a condition to the subordination of this Lease; (ii) Landlord
agrees to use good faith efforts to obtain such a Nondisturbance Agreement from
each current lender, ground lessor, etc.; and (iii) provided, further Tenant
shall be required to pay all Landlord's reasonable out-of-pocket costs arising
from the negotiation thereof within thirty days of an invoice therefor.
17. Landlord's Cure of Tenant's Default. If Tenant shall fail or refuse to
-----------------------------------
comply with and perform any conditions and covenants of this Lease alter
applicable notice and cure, Landlord may, if Landlord so elects, carry out and
perform such conditions and covenants, at the cost and expense of Tenant, and
the said cost and expense shall be payable on demand, or at the option of
Landlord shall be added to the installment of rent due immediately thereafter,
but in no case later than one month after such demand, and shall be due and
payable as such. This remedy shall be in addition to such other remedies as
Landlord may have hereunder by reason of the breach of Tenant of any of the
covenants and conditions in this Lease contained.
18. Notices. Any notice, demand, statement or other communication which
-------
under the terms of this Lease or under any statute or law must or may be given
shall be given by hand delivery to the respective parties as follows or by
hand-delivery or by reputable private overnight delivery service for next
business day delivery addressed to the respective parties as follows:
To Landlord: at the address set forth in the introductory paragraph to this
Lease.
To Tenant: At its address stated above until the date Tenant takes
occupancy of Demised Premises and thereafter to the Demised
Premises, in each case to the attention of the CEO with a
required copy to the same address to the attention of the
General Counsel.
Any such notice, demand, statement or other communication shall be deemed to
have been given or made upon hand delivery or the next business day thereafter
when deposited, with a reputable private overnight delivery service, as the case
may be. Any of the above addresses may be changed at any time notice is given as
above provided.
19. Quiet Enjoyment. Landlord covenants that Tenant upon keeping and
---------------
performing each and every covenant, agreement, term, provision and condition
herein contained on the part and on behalf of Tenant to be kept and performed,
shall quietly enjoy the Demised Premises without hindrance or molestation by
Landlord or by any other person lawfully claiming by, through or
23
under the same subject to the covenants, agreements, terms, provisions and
conditions of this Lease and the effect of the application of same.
20. Security Deposit. Tenant has this day deposited with Landlord the
----------------
Security Deposit as security for the prompt payment of the Fixed Rent,
Additional Rent and other charges hereunder and the full and faithful
performance by Tenant of the covenants and conditions on the part of Tenant to
be performed. Said sum shall be returned to Tenant, without interest, within 45
days after the expiration of the Term hereof, less any amount necessary to cure
any default by Tenant. During the Term hereof, Landlord may, if Landlord so
elects, have recourse to such Security Deposit, to make good any default by
Tenant, in which event Tenant shall, on demand, promptly restore said Security
Deposit to its original amount. Landlord shall assign or transfer said Security
Deposit, for the benefit of Tenant, to any subsequent owner or holder of the
reversion or title to Demised Premises, in which case the assignee shall become
liable for the repayment thereof as herein provided, and Landlord shall be
deemed to be released by Tenant from all liability to return such Security
Deposit.
21. Access to Premises.
------------------
(a) Tenant agrees to permit Landlord and Landlord's agents,
employees or other representatives with 24 hour notice to show the Demised
Premises to any lessor under any underlying lease or ground lease or any
mortgagee or any persons wishing to rent or purchase the same, and Tenant agrees
that on and after the twelfth month next preceding the expiration of the term
hereof, Landlord or Landlord's agents, employees or other representatives shall
have the right to show the Demised Premises to any prospective tenant or to
place notices on the front of the Building or any part thereof, offering the
Demised Premises for rent or for sale; and Tenant hereby agrees to permit the
same to remain thereon without hindrance or molestation.
(b) Tenant agrees that Landlord and Landlord's agents, employees or
other representatives, shall have the right to enter into and upon the said
premises or any part thereof, at all reasonable hours, for the purpose of
examining the same or reading meters, or performing maintenance or making such
repairs or alterations therein as may be necessary for the safety and
preservation thereof. Landlord will make reasonable efforts to minimize
disruption to Tenant and shall provide Tenant 24 hours notice of repairs except
in the case of emergency. This clause shall not be deemed to be a covenant by
Landlord nor be construed to create an obligation on the part of Landlord to
make such inspection or repairs.
22. Brokerage. Tenant and Landlord warrant and represent to each other
---------
that neither has dealt with any broker or brokers regarding the negotiation of
the within Lease other than the Designated Brokers. Landlord shall pay the
Designated Brokers a commission pursuant to a separate agreement. Tenant and
Landlord agree to be responsible for and to indemnify and save the other
harmless from and against any claim for a commission or other compensation by
any broker other than the Designated Brokers claiming to have negotiated with
the indemnifying party with respect to the Demised Premises or to have called
the said Demised Premises to Tenant's attention or to have called Tenant to
Landlord's attention.
24
23. Parking. Tenant shall have the right under this Lease to the
-------
non-exclusive use of a proportionate share of parking spaces in the parking lot
of the Building in compliance with such reasonable Rules and Regulations as
Landlord may promulgate from time to time. Landlord shall have the right to
assign the location of said parking spaces or may designate the location of same
from time to time. Except for handicapped or visitor spaces, assigned or
designated spaces if any shall be fairly allocated (as to location and number)
among building tenants.
24. Landlord's Inability to Perform. Except as otherwise provided herein,
-------------------------------
this Lease and the obligation of Tenant to pay the rent hereunder and to comply
with the covenants and conditions hereof, shall not be affected, curtailed,
impaired or excused because of the Landlord's inability to supply any service or
material called for herein, by reason of any rule, order, regulation or
preemption by any governmental entity, authority, department, agency or
subdivision or for any delay which may arise by reason of negotiations for the
adjustment of any fire or other casualty loss or because of strikes or other
labor trouble or for any cause beyond the control of the Landlord.
25. Condemnation.
------------
(a) If the Project, Building, the Demised Premises leased herein, or
such portions of the Building as may be required for the Tenant's reasonable use
of the Premises shall be taken under eminent domain or condemnation proceedings,
or if suit or other action shall be instituted for the taking or condemnation
thereof, or if in lieu of any formal condemnation proceedings or actions
Landlord shall grant an option to purchase and or shall sell and convey the
Project, Building or the Demised Premises, then either party may terminate this
Lease and the term hereof shall end as of such date (on or before the title
vests in the condemning authority) as Landlord or Tenant, as the case may be
shall fix by notice in writing; and Tenant shall have no claim or right to claim
or be entitled to any portion of any amount which may be awarded as damages or
paid as the result of such condemnation proceedings or paid as the purchase
price for such option, sale or conveyance in lieu of formal condemnation
proceedings; and all rights of Tenant to damages, if any, are hereby assigned to
Landlord, provided that such Tenant shall have the right to make a separate
claim for damages as provided below. Tenant agrees to execute and deliver any
instruments, at the expense of Landlord, as may be deemed necessary or required
to expedite any condemnation proceedings or to effectuate a proper transfer of
title to such governmental or other public authority, agency, body or public
utility seeking to take or acquire the Project, Building and Demised Premises or
any portion thereof. Tenant covenants and agrees to vacate the Demised Premises,
remove all Tenant's personal property therefrom and deliver up peaceable
possession thereof to Landlord or to such other party designated by Landlord in
the aforementioned notice. Failure by Tenant to comply with any provision in
this clause shall subject Tenant to such costs, expenses, damages and losses as
Landlord may incur by reason of Tenant's breach hereof.
(b) Tenant shall have no claim or right to claim or be entitled to
any portion of any amount which may be awarded as damages or paid as the result
of such condemnation proceedings or paid as the purchase price for any option,
sale or conveyance in lieu of formal condemnation proceedings; and all rights of
Tenant to damages, if any, are hereby assigned to Landlord. Notwithstanding the
foregoing, Tenant shall have the right to make a separate claim
25
against the condemning authority for such independent claim which it may have as
may be allocated by law, for costs and damages due to any taking of Tenant's
trade fixtures, relocation, moving and other similar costs and charges directly
incurred by tenant and resulting from such condemnation, provided same does not
diminish the Landlord's award. Tenant agrees to execute and deliver any
instruments, at the expense of Landlord, as may be deemed necessary or required
to expedite any condemnation proceedings or to effectuate a proper transfer of
title to such governmental or other public authority, agency, body or public
utility seeking to take or acquire the Project, Building and Demised Premises or
any portion thereof. Tenant covenants and agrees to vacate the Demised Premises,
remove all Tenant's personal property therefrom and deliver up peaceable
possession thereof to Landlord or to such other party designated by Landlord in
the aforementioned notice. Failure by Tenant to comply with any provision in
this clause shall subject Tenant to such costs, expenses, damages and losses as
Landlord may incur by reason of Tenant's breach hereof.
(c) In the event of a partial taking or a temporary taking such that
a portion of the Demised Premises are untenantable but the Lease is not
terminated, Tenant shall be entitled to a pro rata abatement of rent during the
duration of the taking.
26. Assignment and Subletting.
-------------------------
(a) Tenant shall not (i) assign or otherwise transfer, this Lease or
any of its rights hereunder, or (ii) sublet the Premises or any part thereof, or
permit the use of the Premises or any part hereunder by any persons other than
Tenant or its employees, agents and invitees, without the prior written consent
of Landlord not to be unreasonably withheld, conditioned or delayed in each
instance. Landlord's consent to a proposed sublease or assignment shall not be
unreasonably withheld provided the proposed assignee/subtenant is of a type and
quality reasonably satisfactory to Landlord, and Landlord approves such entity's
financial condition as being at least as good as Tenant's, and such proposed
assignee/subtenant, is not a current tenant of the Building or the Park or an
entity to which Landlord has submitted, during the three (3) month period prior
to such request for consent, a written proposal to lease any space in the
Building or the Park. The consent by Landlord to any assignment, transfer, or
subletting to any entity shall not be construed as a waiver or release of Tenant
from any provision of this Lease, unless expressly stated in writing (it being
understood that in all instances, Tenant shall remain primarily liable as a
principal and not as a guarantor or surety) nor shall the collection or
acceptance of Rent from any such assignee, transferee, subtenant or occupant
constitute a waiver or release of Tenant from any such provision. No consent by
Landlord to any such assignment, transfer, or subletting, in any one instance
shall constitute a waiver of the necessity for such consent in a subsequent
instance, nor shall any consent by Landlord be construed to permit reassignment
or resubletting by a permitted assignee or sublessee. For purpose of the
foregoing, a transfer, conveyance, grant or pledge, directly or indirectly, in
one or more transactions, of interests in Tenant (whether stock, partnership
interest or other form of ownership or control), or the issuance of new
interests, by which an aggregate of more than fifty percent (50%) of the
interest in Tenant shall be vested in a party or parties who are not holders of
such interest(s) as of the date hereof shall be deemed an assignment of this
Lease; provided, however, that this limitation shall not apply to any publicly
traded entity. Landlord's acceptance of any name for listing on the Building
Directory will not be deemed, nor will it substitute for, Landlord's consent
26
required under this Lease to any sublease, assignment or other occupancy of the
Premises. In the event of an assignment or subletting not in conformance with
the terms of this Lease, such assignment and/or subletting shall be void ab
initio, and Landlord shall have the right to terminate this Lease or to require
that the Premises be surrendered to Landlord for the balance of the Term (in the
case of an assignment) or for the term of the proposed sublease (in the case of
a sublease). Such termination shall in no event be construed to limit Landlord's
right to damages or any other relief for the violation of the terms of this
Lease. This Article shall not affect or require Landlord's consent to any Lease
assignment or transfer by operation of law in connection with a merger or
consolidation, or transfer of substantially all of the assets of Tenant.
(b) If at any time or from time to time during the term of this
Lease Tenant desires to assign this Lease or sublet all or any part of the
Premises, Tenant shall give notice to Landlord of such desire, including the
name, address and contact party for the proposed assignee or subtenant, a
description of such party's business history, the effective date of the proposed
assignment or sublease (including the proposed occupancy date by the proposed
assignee or sublessee), and in the instance of a proposed sublease, the square
footage to be subleased, a floor plan drawn to scale, depicting the proposed
sublease area, and a statement of the duration of the proposed sublease (which
shall in any and all events expire by its terms prior to the scheduled
expiration of this Lease, and immediately upon the sooner termination hereof).
If Landlord's consent to such assignment or sublet is required hereunder,
Landlord may, at its option, and in its sole and absolute discretion,
exercisable by notice given to Tenant within fifteen (15) days next following
Landlord's receipt of Tenant's notice (which notice from Tenant shall, as a
condition of its effectiveness, include all of the above-enumerated
information), elect to recapture the Premises or such portion as is proposed by
Tenant to be sublet (and in each case, the designated and non-designated parking
spaces included in this demise, or a pro-rata portion thereof in the instance of
the recapture of less than all of the Premises), and terminate this Lease with
respect to the space being recaptured, effective the proposed effective date of
the proposed assignment or sublease.
If Landlord elects to recapture the Premises or a portion thereof as aforesaid,
then from and after the effective date thereof as approved by Landlord, after
Tenant shall have fully performed such obligations as are enumerated herein to
be performed by Tenant in connection with such recapture, and except as to
obligations and liabilities accrued and unperformed (and any other obligations
expressly stated in this Lease to survive the expiration or sooner termination
of this Lease), Tenant shall be released of and from all lease obligations
thereafter otherwise accruing with respect to the Premises (or such lesser
portion as shall have been recaptured by Landlord). The Premises, or such
portion thereof as Landlord shall have elected to recapture, shall be delivered
by Tenant to Landlord free and clear of all furniture, furnishings, personal
property and removable fixtures, with Tenant repairing and restoring any and all
damage to the Premises resulting from the installation, handling or removal
thereof, and otherwise in the same condition as Tenant is, by the terms of this
Lease, required to redeliver the Premises to Landlord upon the expiration or
sooner termination of this Lease; provided, however Landlord shall promptly
thereafter reimburse Tenant for the unamortized portion of the Tenant
Improvement Work as to the space so recaptured. Upon the completion of any
recapture and termination as provided herein, Tenant's Fixed Rent, Additional
Rent and other monetary obligations hereunder shall be adjusted pro-rated based
upon the reduced rentable square footage then comprising the Premises.
27
(c) If for any assignment or sublease consented to by Landlord
hereunder Tenant receives rent or other consideration, either initially or over
the term of the assignment or sublease, in excess of the Rent called for
hereunder, or in case of sublease of part, in excess of such Rent fairly
allocable to the part, after appropriate adjustments to assure that all other
payments called for hereunder are appropriately taken into account, to pay to
Landlord as additional rent equal to fifty percent (50%) of the excess of each
such payment of rent or other consideration received by Tenant promptly after
its receipt, after deduction for amortized cost of tenant improvements for the
subtenant/assignee and all standard costs of the transaction amortized over term
of sublease.
(d) Regardless of Landlord's consent, no subletting or assignment
shall release Tenant of Tenant's obligations or alter the primary liability of
Tenant to pay the rental and to perform all other obligations to be performed by
Tenant hereunder. The acceptance of rental by Landlord from any other person
shall not be deemed to be a waiver by Landlord of any provision hereof. Consent
to one assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by any assignee of Tenant or
any successor of Tenant in the performance of any of the terms hereof, Landlord
may proceed directly against Tenant without the necessity of exhausting remedies
against such assignee or successor.
(e) In the event that (i) the Premises or any part thereof are
sublet and Tenant is in default under this Lease, or (ii) this Lease is assigned
by Tenant, then, Landlord may collect rent from the assignee or subtenant and
apply the net amount collected to the rent herein reserved; but no such
collection shall be deemed a waiver of the provisions of this Section 26 with
respect to assignment and subletting, or the acceptance of such assignee or
subtenant as Tenant hereunder, or a release of Tenant from further performance
of the covenants herein contained.
(f) Tenant shall pay to Landlord all reasonable costs and expenses
incurred by Landlord in connection with any assignment or sublease requested by
Tenant, whether or not Landlord's consent is granted, including without
limitation, fees paid to attorneys, accountants and space planners.
(g) Tenant may, without the consent of Landlord and without
triggering any right of recapture, assign this Lease or sublet all or any
portion of the Demised Premises to any parent, subsidiary or affiliate of Tenant
for a legitimate business purpose and, in such event, the provisions of
subsections (b) and (c) shall be inapplicable thereto
27. Intentionally Deleted.
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28. Environmental Matters.
---------------------
(a) Tenant shall not engage in operations at the Premises which
involve the generation, manufacture, refining, transportation, treatment,
storage, handling or disposal of "hazardous substances" or "hazardous waste" as
such terms are defined under the "Comprehensive Environmental Response,
Compensation and Liability Act" ("CERCLA"), as amended 42 U.S.C. 9601, et seq.
Tenant further covenants that it will not cause to exist, as a
28
result of an intentional or unintentional action or omission on its part, the
release, spill, leak, emission or discharge from, on or about the Demised
Premises of any hazardous substance.
(b) In the event there occurs a discharge of any hazardous substance
as a result of an intentional or unintentional action or omission on Tenant's
part or Tenant's agents, employees or invitees when under control of Tenant or
on the Demised Premises, Tenant shall promptly give Landlord notice thereof and
shall thereafter proceed with diligence to remediate the discharge and clean up
the Premises to completion. If reasonably indicated by the presence of hazardous
substances on the Premises, Landlord may require, at Tenant's expense,
inspections and testing of the premises by landlord's environmental consultant
in order to assure that the Premises do not contain hazardous substances in
violation of applicable law.
(c) With respect to Tenant's occupancy of the Premises, Tenant shall
promptly provide Landlord with any notices, correspondence and submissions made
by Tenant to or to Tenant from the Pennsylvania Department of Environmental
Protection, the United State Environmental Protection Agency (EPA), the United
States Occupational Safety and Health Administration (OSHA), or any other local,
state or federal authority which requires submission of any information
concerning environmental matters or hazardous wastes or hazardous substances.
(d) In the event of Tenant's failure to comply in full with this
Section 28, Landlord may, at its option, perform any and all of Tenant's
obligation as aforesaid and all costs and expenses incurred by Landlord in the
exercise of this right shall be deemed to be Additional Rent payable in
accordance with Section 3, above.
(e) Tenant's obligations under this Section 28 shall survive the
expiration or sooner termination of this Lease.
(f) Tenant agrees to indemnify and hold harmless the Landlord,
Additional Insureds and each mortgagee of the Demised Premises from and against
any and all liabilities, damages, claims, losses, judgments, causes of action,
costs and expenses (including the reasonable fees and expenses of counsel) which
may be incurred by the Landlord or any such mortgagee or threatened against the
Landlord or such mortgagee, relating to or arising out of any breach by Tenant
of this Section 28, which indemnification shall survive the expiration or sooner
termination of this Lease.
(g) Landlord represents the best of Landlord's knowledge that the
Demised Premises are and will be, except to the extent caused by Tenant, its
employees, agents, contractors or invitees, as of the Commencement Date,
materially free of all hazardous waste and hazardous substances. Landlord agrees
to indemnify and hold harmless the Tenant from and against any and all
liabilities, damages, claims, losses, judgments, causes of action, costs and
expenses (including the reasonable fees and expenses of counsel) which may be
incurred by the Tenant relating to or arising out of any misrepresentation by
Landlord in this Section 28, which indemnification shall survive the expiration
or sooner termination of this Lease.
29. Parties Bound.
-------------
29
(a) The covenants, agreements, terms, provisions and conditions of
this Lease shall bind and benefit the respective successors, assigns and legal
representatives of the parties hereto with the same effect as if mentioned in
each instance where a party hereto is named or referred to except that no
violation of the provisions of subsection 7(c) hereof shall operate to vest any
rights in any successor, assignee or legal representative of Tenant and that the
provisions of this Section 29 shall not be construed as modifying the conditions
contained in Section 13 hereof.
(b) Tenant acknowledges and agrees that if Landlord shall be an
individual, joint venture, corporation, limited liability company, tenancy in
common, firm, or partnership, general or limited, there shall be no personal
liability on such individual or on the members of such joint venture,
corporation, limited liability company, tenancy in common, firm or partnership
in respect of any of the covenants or conditions of this Lease; rather, Tenant
agrees to look solely to Landlord's estate and property in the Building (or the
proceeds thereof) for the satisfaction of Tenant's remedies arising out of or
related to this Lease.
(c) The term "Landlord" as used in this Lease means only the owner,
or the mortgagee in possession, for the time being of the Demised Premises (or
the owner of a lease of the Demised Premises) so that in the event of any sale
or sales of the Land, Building, or the Demised Premises or of said lease, or in
the event of a lease of the Land, Building or of the Demised Premises, the said
Landlord shall be and hereby is entirely freed and relieved of all covenants,
liabilities and obligations of Landlord hereunder, and it shall be deemed and
construed without further agreement between the parties or their successors in
interest, or between the parties and the purchaser, at any such sale, or the
said lessee of the Land, Building or of the Demised Premises, that the purchaser
or the lessee of the same has assumed and agreed to carry out any and all
covenants and obligations of Landlord hereunder.
30. Miscellaneous.
-------------
(a) This Lease contains the entire contract between the parties. No
representative, agent or employee of Landlord has been authorized to make any
representations or promises with reference to the leasing of the Demised
Premises or to vary, alter or modify the terms hereof. No additions, changes or
modifications, renewals, or extensions hereof, shall be binding unless reduced
to writing and signed by Landlord and Tenant.
(b) The terms, conditions, covenants and provisions of this Lease
shall be deemed to be severable. If any clause or provision herein contained be
adjudged to be invalid or unenforceable by a court of competent jurisdiction or
by operation of any applicable law, it shall not affect the validity of any
other clause or provision herein, but such other clauses or provisions shall
remain in full force and effect.
(c) The paragraph headings in this Lease are for convenience only
and are not to be considered in construing the same.
(d) All dates and time periods set forth in this Lease are Time of
the Essence.
30
(e) In the event that Tenant or anyone claiming through or under
Tenant shall not vacate and redeliver the Demised Premises on or before the
Expiration Date as required by this Lease, Tenant shall be deemed a holdover
tenant and Landlord shall have all rights and remedies provided at law relating
to such holdover. During the period of holdover tenancy, the Tenant shall be
liable for a holdover rental charge for the Demised Premises which charge shall
be equal to 150% of the Fixed Rent and Additional Rent payable by Tenant
hereunder during the Lease Year immediately preceding the Expiration Date. In
addition, Tenant further agrees that if it fails to so surrender the Demised
Premises, Tenant (i) shall be liable to Landlord for any and all damages which
Landlord shall suffer by reason thereof, and (ii) shall indemnify Landlord
against all claims and demands made by any succeeding tenants against Landlord
founded upon delay by Landlord in delivering possession of the Demised Premises
to such succeeding tenant.
(f) This Lease shall not be recorded by either party.
(g) No more than once a year, upon reasonable request by Landlord,
within fifteen (15) days after Landlord's request, Tenant will furnish Tenant's
most recent audited financial statements (including any notes to them) to
Landlord, or, if no such audited statements have been prepared, such other
financial statements (and notes to them) as may have been prepared by an
independent certified public accountant, or, failing those, Tenant's internally
prepared financial statements, certified by Tenant; provided, however, so long
as (a) Tenant is a publicly traded company; (b) the Lease has not been assigned
or sublet except to a public company; (c) [INTENTIONALLY DELETED]; and (d) the
information to be delivered pursuant to this Article 30 is readily available and
otherwise accessible from the internet , XXXXX or such other similar source,
then Tenant's requirements hereunder shall be waived. Landlord will not disclose
any aspect of Tenant's financial statements which Tenant designates to Landlord
as confidential except: (i) to Landlord's lenders or prospective purchasers of
the Project; (ii) in litigation between Landlord and Tenant; and (iii) if
required by court order.
(h) Whenever Tenant requests Landlord to take any action or give any
consent required or permitted under this Lease, Tenant will reimburse Landlord
for all of Landlord's actual costs incurred in reviewing the proposed action or
consent, including, without limitation, attorneys', engineers' or architects'
fees, within ten (10) days after Landlord's delivery to Tenant of a statement of
such costs. Tenant will be obligated to make such reimbursement without regard
to whether Landlord consents to any such proposed action.
(i) [INTENTIONALLY DELETED].
(j) Any diminution or shutting off of light, air or view by any
structure which may be erected on lands adjacent to or in the vicinity of the
Building and Project shall not affect this Lease, xxxxx any payment owed by
Tenant hereunder or otherwise impose any liability on Landlord.
(k) Under no circumstances whatsoever shall Landlord or Tenant ever
be liable hereunder for consequential damages or special damages.
31
(l) The obligation of Tenant to pay all Rent and other sums
hereunder provided to be paid by Tenant and the obligation of Tenant to perform
Tenant's other covenants and duties hereunder constitute independent,
unconditional obligations to be performed at all times provided for hereunder,
save and except only when an abatement thereof or reduction therein is
hereinabove expressly provided for and not otherwise. Tenant waives and
relinquishes all rights which Tenant might have to claim any nature of a
prejudgment lien against or withhold, or deduct from, or offset against any rent
and other sums provided hereunder to be paid Landlord by Tenant.
(m) The furnishing of the form of this Lease shall not constitute an
offer and this Lease shall become effective upon and only upon its execution by
and delivery to each party hereto.
(n) This Lease may be executed in any number of counterparts, each
of which shall be an original, and such counterparts together shall constitute
one and the same instrument.
31. Right of First Offer. Landlord shall notify Tenant with regard to
--------------------
space leased by Xxxxxxx Pharmaceutica, Inc. (or its successor or assign) on the
second floor of the Building (as more fully described on Exhibit F attached
hereto) ("Xxxxxxx Lease") that is or Landlord expects to become vacant and
available for lease within the Building during the Initial Term, and Landlord
shall propose to Tenant in writing not more than 6 months before such space is
available the basic economic terms (which terms shall not exceed the then
prevailing Fair Market Rental Rate for the space) upon which Landlord would be
prepared to accept for a new lease for such space (on all of the same non-rental
terms and conditions as are set forth in the Lease, except as otherwise
specified by Landlord) or an amendment to this Lease with which the parties
would add such space to the description of the "Premises," and which economic
terms shall include the estimated date that the space shall be available for
delivery, the Term, the Base Rent, and the Tenant Allowance (if any) to be
furnished to Tenant, whereupon Tenant shall have ten (10) business days next
following Landlord's delivery of such notice within which to accept such terms,
time being of the essence. Should Tenant accept such terms as are specified by
Landlord, the parties shall negotiate the terms of a new lease, or an amendment
to this Lease, to memorialize their agreement. If Tenant shall not accept
Landlord's terms within such ten business (10) day period, or if the parties
shall not have executed and delivered a mutually satisfactory new lease or lease
amendment with thirty (30) days next following Landlord's original notice under
this Paragraph 31, then Tenant's rights to lease such space shall lapse and
terminate, and Landlord may, at its discretion, lease such space to another
tenant; provided, however, that the base economic terms of the lease shall be
substantially the same as those presented to Tenant, provided, further if the
space is not leased within 6 months, or Landlord proposes to lease within six
(6) months but on less than substantially the same terms, Landlord shall offer
said space to Tenant on the offered terms and the requirements of this Section
shall be reinstated. For purposes of this Section, the "base economic terms" of
a lease shall be the net present value of fixed rent and any initial monetary
concessions, including free rent and tenant improvement allowances, determined
using the Prime Rate as the discount rate, and "substantially the same" shall
mean differing by no more than ten percent (10%). Tenant's rights
32
hereunder shall not include the right to lease less than all of the space
identified in Landlord's notice.
Anything herein contained to the contrary notwithstanding, Landlord may at
any time modify or extend the Xxxxxxx Lease, without in any such case notifying
or offering such space to Tenant, or giving rise to any right of Tenant
hereunder. Nothing contained in this Paragraph 31 is intended nor may anything
herein be relied upon by Tenant as representation by Landlord as to the
availability of expansion space within the Building at any time. Tenant's rights
hereunder shall continue throughout the term hereof provided, that the Tenant
first-above named shall continuously remain in occupancy of not less than
seventy five (75%) of the Premises originally demised hereunder.
32. Condominium Documents. This Lease is subject to the Declaration of
---------------------
Condominium of Yardley Newtown Corporate Center Condominium dated as of
September 24, 1998 and recorded in the Office of the Recorder of Deeds of Bucks
County in Deed Book 1679, page 914, as amended by a First Amendment dated as of
May 4, 2000 and recorded as aforesaid in Deed Book 2067, page 465, (the
"Condominium Documents"); provided, however, Landlord shall not exercise its
voting or approval rights as owner of Unit 7 in any manner inconsistent with or
which would materially impair Tenant's rights under the Lease.
33
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Lease as of the day and year first above written.
WITNESS: LANDLORD:
NEWTOWN OFFICE DEVELOPMENT III, L.P.
By: Bergen of Newtown III, Inc., a general
partner
______________________________ By: ________________________________________
Name:
Title:
WITNESS: TENANT:
3-DIMENSIONAL PHARMACEUTICALS, INC.
By: ________________________________________
Name:
Title:
34
EXHIBIT "A"
FLOOR PLAN OF DEMISED PREMISES
Third Floor
[GRAPHIC]
35
EXHIBIT "A-1"
-------------
SITE PLAN
[GRAPHIC]
36
EXHIBIT "B"
-----------
TENANT IMPROVEMENT WORK
Reference is made to that certain Lease Agreement dated August 8,
2001 (the "'Lease") to which this Exhibit is attached and made a part.
1. Landlord and Tenant agree that Landlord shall construct the Building in
accordance with Exhibit B-1 at Landlord's sole cost. Notwithstanding the Section
F2 of Exhibit B-1, perimeter walls (exclusive of the window xxxxx) have been dry
walled by Landlord and the cost thereof shall not be deducted from the Tenant
Improvement Allowance. Subject to Section 24 of the Lease, the Landlord shall
deliver the Demised Premises ready for Tenant Improvement Work on or before
August 15, 2001 ("Landlord's Work"). The Demised Premises shall be considered
ready for the Tenant Improvement Work upon substantial completion of the Base
Building.
2. (a) In addition to the work described below, Tenant, at Tenant's sole
cost and expense, shall cause to be prepared, complete, finished and detailed
architectural and engineering (electrical, mechanical, plumbing and structural,
if any) drawings and specifications for Tenant's partition layout, reflected
ceiling plan, floor finishes and other installations, for the work to be done by
Tenant under this Exhibit "B" ("Tenant Improvement Work"). All such plans and
specifications ("Plans") shall be submitted to Landlord as soon as available but
not later than August 10, 2001 and are expressly subject to Landlord's written
approval, which Landlord will not unreasonably withhold, condition or delay;
provided however, Landlord shall approve, deny or comment upon said plans within
five (5) business days of receipt thereof . Any written approval of plans or
specifications by Landlord shall not make Landlord responsible in any way for
the design of any Tenant Improvement Work and Tenant shall look solely to its
architect, engineers, designers and any of its other agents for damages
resulting from design errors or omissions. Tenant shall be responsible for all
normal and customary costs of Tenant Improvement Work, including but not limited
to the cost of design, materials (including transportation and hoisting), labor
general conditions, utility consumption during construction, cleaning services
and rubbish removal, and all other cost to construct the Tenant Improvements.
Landlord will reimburse Tenant for such costs, up to the amount of the
Improvement Allowance, within 30 days of submission of applicable invoices, an
architect's certification that the work for which Tenant requests payment has
been completed in accordance with the approved plans and any other information
reasonably requested by Landlord. Reimbursements will be made monthly if
requested by Tenant.
(b) The Commencement Date shall be the earlier of (i) November 1,
2001 (subject to extensions as provided in Section 2(c) below) and (ii) the date
Tenant conducts business thereon or therefrom. Tenant shall, upon delivery of
the Base Building for Tenant Improvement Work, promptly commence Tenant
Improvement Work and prosecute the same to completion. Tenant shall be solely
responsible, at Tenant's sole cost and expense, for obtaining the certificate of
occupancy with respect to the Demised Premises.
37
(c) If Landlord is unable to Substantially Complete the Base
Building by August 15, 2001 for reasons other than delay(s) caused by Tenant or
its employees, agents, contractors or subcontractors, or in the event Tenant
Improvement Work is delayed as a result of (I) an act by Landlord or any of its
employees, agents or contractors which materially interferes with or delays
completion of Tenant Improvement Work by Tenant or (ii) failure by Landlord to
comply with, unless such non-compliance is, in whole or in part the
responsibility of Tenant, local or municipal zoning or code violations which
materially interferes with or delays completion of Tenant Improvement Work
(collectively, "Landlord Delay"), the Commencement Date shall be extended and
Tenant shall be entitled to an abatement of Base Rent equal to one (1) day's
rent for each day between the scheduled delivery of Base Building date and the
date of actual delivery. "Substantial completion" or "Substantially Complete"
shall be defined as (i) all improvements being done and operational so that the
lack of completion, and process of Landlord's completing the work will not
interfere with the conduct or completion of Tenant's Work, or with Tenant's use
and occupying of the Demised Premises and common areas appurtenant thereto and
(ii) Landlord's remaining items can be completed within thirty days.
3. Tenant shall perform the Tenant Improvement Work itself using qualified
contractors approved by Landlord, which approval shall not be unreasonably
withheld, conditioned or delayed.
4. Tenant's license to enter the Premises to perform Tenant Improvement
Work, including installation of cabling, wiring and furniture prior to the
commencement of the term, is conditioned upon Tenant's workmen and mechanics
working in harmony and not interfering with the labor employed by the Landlord,
Landlord's mechanics or contractors or by any other tenant or their contractors.
If at any times such entry shall cause disharmony or interference therewith,
this license may be withdrawn by Landlord upon forty-eight (48) hours written
notice to Tenant. Such entry shall be deemed to be under all of the terms,
covenants, provisions and conditions of the Lease except as to the covenant to
pay rent. Landlord shall not be liable in any way for any injury, loss or damage
which may occur to any of Tenant's decorations or installations so made prior to
the commencement of the term of the Lease, the same being solely at Tenant's
risk. Furthermore, Tenant and its contractors shall be responsible for
transportation, safekeeping and storage of materials and equipment used in the
performance of Tenant Improvement Work and for the removal of waste and debris
resulting from the performance of Tenant Improvement Work. Such waste and debris
shall be deposited by Tenant and its contractors in its own dumpsters or other
containers and shall not be deposited in those of Landlord or Landlord's
contractors unless by prearrangement and in exchange for an agreement to pay the
costs of additional waste pick-ups at the Building. Landlord shall meter utility
consumption of Tenant, its employees, agents, contractors, subcontractors and
mechanics during completion of the Tenant Improvement Work, which cost thereof
shall be paid from the Tenant Improvement Allowance.
5. Landlord shall equitably allocate elevator usage for to Tenant, its
agent, contractors and employees, for the Tenant Improvement Work. Landlord
agrees to make the freight elevator available to Tenant, its agents,
contractors, and employees without additional cost or expense twenty-four (24)
hours per day during the completion of the Tenant Improvement Work.
38
EXHIBIT "B-1"
-------------
LOWER MAKEFIELD CORPORATE CENTER
Preliminary Outline Specification
North Campus - Building Three
A. CODE ANALYSIS:
1. Built in compliance with appropriate federal, state and local codes.
2. State and local building and construction code review agency
identifies BOCA National Building Code 1996 as primary code.
3. Code checklist:
a. Use group (BOCA Article 3): Group B.
b. Construction type (BOCA Article 6, Table 602): 2C,
unprotected.
c. Fire protection (BOCA Article 10): Automatic sprinkler system.
d. Code population: Total area is 60,680 s.f. Assuming 1 person
per 100 s.f., building population is 607 people.
B. ZONING ANALYSIS:
1. Township: Lower Makefield Township.
2. County: Bucks County, Pennsylvania.
3. District: Office/Research (O-R).
4. Uses by Right: General business, professional or government office,
Research and development facility.
5. Minimum width: Greater of 200' or 40% of maximum tract depth.
6. Maximum building coverage: 35%.
7. Maximum impervious surface ratio: 65%.
8. Yards: 100 ft. front, 75 ft. side, 75 ft. rear.
9. Maximum building height: 50 ft. not including rooftop mechanical
equipment.
10. Buffers: Required as per Section 12.150.
11. Parking: Required as per Section 12.221 and 12.222 (minimum 1 space
per 250 g.s.f.).
12. Access: Not more than one access and one egress per 300 ft. of major
road frontage.
C. BASE BUILDING DESIGN PROGRAM:
1. Approximately 60,680 gross square feet in a three story building.
2. Base building spaces and systems in the building:
a. Building structure, perimeter wall and roof.
b. Core spaces including elevators, floor elevator lobbies,
toilet rooms, janitor's closet, local electric closets, local
tele/data closets, fire stairs and corridors, equipment shafts
and risers.
c. Entry lobby.
d. Stand alone HVAC, electric, plumbing, sprinkler, life safety,
security and tele/data systems and support spaces.
3. Tenant Spaces: A tenant allowance as per Proposal.
D. SITEWORK:
39
1. Site work shall include hardscape and landscape work to support
vehicle parking, pedestrian access and service.
a. Paving shall be 4" subbase with bituminous 4" base course and
2" wearing course.
b. Concrete curbs shall be provided.
c. Signage:
1) Signage for direction and control of on-site vehicular
traffic and handicap parking shall be provided as per
code standards.
2) Corporate identity signage shall be provided under TI
allowance subject to local code restrictions.
d. Drainage: Sufficient inlets, drainage structures and retention
pond shall be provided to control stormwater runoff as per
code standards.
e. Sidewalks shall be 4" concrete with 4" subbase.
f. Site lighting shall be provided as per code standards. Accent
lighting shall be provided at building entries. Security
lighting shall be provided at building exits and service
areas.
g. Landscaping allowance shall be provided including grass
planted areas, shrubs, evergreens, perennials and trees in
parking areas, approach roads and building entries.
2. Utility Services:
a. Sanitary sewer service shall be provided to the building and
connected to main.
b. Storm sewer service shall be provided to the building and
inlets, drainage structures and retention pond shall be
provided to control stormwater runoff as per code standards.
c. Domestic water service shall be provided to the building and
connected to main.
d. Fire water service shall be provided to the building and
connected to main.
e. Empty concrete encased conduits shall be provided to
transformer and switch pads at the building. Empty concrete
encased conduit secondary service electric connection from
transformer and switch pads to switchgear inside the building
will also be provided. PECO shall provide primary service
wiring, transformers, switches and secondary service
connections to switchgear.
f. Empty conduit system shall be provided to connect tele/data
terminal room in the building to telephone main. Wiring,
fiber, equipment, connections, etc. shall be provided by
others.
E. STRUCTURAL SYSTEM:
1. Design live loads:
a. 30 p.s.f. at roof.
b. 100 p.s.f. live load and 20 p.s.f. partition load at supported
floors.
c. 100 p.s.f. live load and 20 p.s.f. partition load at slab on
grade.
2. Steel superstructure:
a. 13'-0" floor to floor height. All structural steel beams,
girders and columns shall be ASTM 572 grade 50 steel.
b. Floor deck shall be 4" normal weight concrete on 9/16" deep 26
ga. UFS metal deck (4" total depth).
c. Roof deck shall be sloped to drain 1 1/2" deep 22 ga. painted
metal deck.
3. Fireproofing shall be cementitious type spray-on fireproofing on all
beams, girders and columns where necessary to obtain rating required
by local code.
4. Slab on grade shall be 4" reinforced concrete on 4" stone and vapor
barrier.
5. Foundations shall be reinforced concrete spread footings at columns
and perimeter walls.
6. Perimeter wall:
a. Brick with metal stud backup system.
40
b. Metal and glass strip window supported by metal studs.
7. Miscellaneous:
a. Perimeter of slab on grade shall be insulated.
b. Perimeter of foundation wall shall be drained.
F. ARCHITECTURAL SYSTEMS:
1. Exterior wall shall be a non-loadbearing system consisting of:
a. Brick with metal stud backing. Interior surfaces shall be
insulated.
b. Strip window system consisting of aluminum frames with duranar
finish and insulated, tinted, low "E" fixed glazing.
c. Firesafing shall be provided between floors and roof as per
code standards.
2. Interior perimeter walls above strip window head and at columns to a
9'-6" AFF height shall be finished, unpainted GWB on metal studs.
Perimeter walls below window and windowsills shall be part of the
tenant allowance.
3. Roof construction shall be primarily flat roof deck, sloped to
drain, 1 1/2" deep, 22 ga. galvanized vented metal deck. Perimeter
of building roof line shall receive prefabricated roof truss system
which will provide a mansard type architectural appearance and
screen all rooftop mechanical equipment. Roof pavers shall be
arranged to provide access to rooftop equipment.
4. Base building interiors:
a. 13'-0" floor to floor height shall accommodate 9'-0" finish
ceiling height. (Third floor core areas have 8'-6" finish
ceiling height.
b. Typical core doors shall be 3' x 7' painted solid core wood in
welded hollow metal frames. Doors shall be labeled as
required. Hardware shall be brushed stainless steel.
c. Entry lobby connecting the building entry to the elevator core
shall include carpet and stone floor and base, paint on GWB,
finished GWB ceilings, general and accent lighting, HVAC, fire
protection and life safety systems.
d. Finishes for elevator lobbies on tenant floors in the building
shall include finished GWB walls, carpet, vinyl base, finished
GWB ceiling, general and accent lighting, HVAC, fire
protection and life safety systems.
e. Fire stairs shall be provided in the building including
concrete pan treads and painted metal rails, GWB walls,
general lighting, HVAC, fire protection and life safety
systems. One roof hatch is provided at third floor janitor
closet.
f. Toilet rooms shall be provided on each floor including wet
wall with ceramic tile to finish; other walls with finished
GWB walls; ceramic tile floors; suspended acoustical tile
ceiling; ceiling suspended plastic laminate toilet partitions;
wall mounted fixtures; brush finish stainless steel toilet
accessories; solid surface material lavatory counter with
mirror, general and accent lighting, HVAC, fire protection and
life safety systems.
g. Janitor's closet shall be provided on each floor including
floor mounted service sink, vinyl composite tile floors,
finished GWB walls; no ceiling; general lighting, HVAC, fire
protection and life safety systems.
h. Core telephone closets shall be provided on each floor
including vinyl composition tile floors, vinyl base, finished
GWB walls, with 3/4" painted plywood on one wall, general
lighting, HVAC, fire protection and life safety systems.
i. Core electric closets shall be provided on each floor
including vinyl composition tile floors, vinyl base, finished
GWB walls, general lighting, HVAC, fire protection and life
safety systems.
j. Elevator machine room shall include sealed concrete floors,
GWB walls, general lighting, fire protection, HVAC and life
safety systems.
k. Electrical switchgear room shall include vinyl composition
tile floors, GWB walls, general lighting, fire protection,
HVAC and life safety systems.
41
5. Vertical transportation in the building shall include two 3,500 lb.
passenger elevators. Elevators to be pre-engineered, 125 feet per
minute, hydraulic elevators with standard finish cabs upgraded by
base building allowance described above. Elevator door heights shall
be 7'-0". Elevator cab ceiling height shall be 7'-4".
G. MECHANICAL, ELECTRICAL AND PLUMBING SYSTEMS:
1. Design criteria:
a. Outdoor conditions:
1) Summer: 93(Degree) F DB and 75(Degree) F WB.
2) Winter: 10(Degree) F
b. Inside conditions:
1) Heating:
(a) Office: 70(Degree) F.
(b) MEP Rooms: 60(Degree) F.
(c) Elevator machine rooms: 65(Degree) F.
(d) (No winter humidification provided)
2) Cooling:
(a) Office: 78(Degree) F +/- 2(Degree) F.
(b) MEP rooms: Ventilation only.
(c) Elevator machine rooms: 85(Degree) F.
c. Construction values:
1) Roof U = 0.064 BTU/sf/degree F.
2) Wall U = 0.044 BTU/sf/degree F.
3) Floor edge loss = 45 BTU/ft. of perimeter edge.
4) Glass U = 0.48 BTU/sf/degree F.
5) Glass shading coefficient 56%.
d. Ventilation requirements:
1) Office areas at 20 cfm/person.
2) Toilet areas at 75 cfm per water closet or urinal.
3) Maintain positive pressure throughout entire facility.
2. HVAC system is variable air volume packaged rooftop air conditioning
units with electric heat, and will consist of the following
components:
a. Base building:
1) Two ninety ton packaged rooftop units with electric heat
and VAV controls, 100% OA economizer, 100% exhaust fan,
building pressurization controls, spring isolators, DDC
building automation system and 14 inch roof curbs.
2) Thermally wrapped supply duct risers and mains on each
floor for connection by future tenants. Acoustically
lined return inlets on each floor connected to return
air shafts, plenum return. Exhaust fans and ductwork for
Toilet Rooms. Exhaust fan and ductwork for Janitor's
Closets and Elevator Machine Room, continuous operation.
3) Three VAV shut-off boxes, supply ductwork and diffusers
for lobbies and core areas. Ductwork and diffusers for
fit-out of core areas including lobby and restrooms.
Four fan powered VAV boxes with electric heat on each
floor for temporary heating and cooling. Electric heat
for entry and stairwells. Electric unit heaters in third
floor ceiling plenum to offset roof heat loss. Fan
powered VAV boxes with electric heat for perimeter zones
and shut-off VAV boxes for interior areas to be provided
as part of tenant fit-out.
b. Tenant Improvements:
1) All HVAC distribution is part of the tenant allowance,
including VAV boxes, sensors, connection to the
communication loop, programming, tenant air
42
distribution system, lay-in egg crate returns, extension
and modification of floor mains and risers as required
and balancing.
2) Supply ductwork will be lined sheet metal. Perimeter
diffusers will be lay-in slots and interior diffusers
will be lay-in perforated face.
3. Exhaust system: Toilet rooms, janitor's closets, mechanical and
electrical rooms shall be ventilated by roof mounted centrifugal
exhaust fans.
4. Plumbing/fire protection:
a. Domestic water shall be provided from meter pit outside the
building.
b. Roof drainage in the building shall be connected to site storm
sewer system. Secondary roof drainage system shall discharge
to grade.
c. Centralized electric fired hot water heaters shall provide hot
water for toilet rooms.
d. Two remote risers to water, sewer and vent plumbing risers
shall be provided at toilet rooms on each floor.
e. Sanitary sewer shall be connected to local sanitary sewer.
Floor drains shall be self-priming.
5. Fire protection:
a. Fire sprinkler system shall be provided including test header
and siamese connection as per code.
b. Sprinklers shall be provided in all base building spaces.
Sprinkler loop shall be provided on office floors with light
hazard distribution, heads up. Tenant will drop heads and
upgrade to higher hazard, if required.
c. Sprinkler shall be supplied from standpipe risers with shutoff
valve, flow switch and drain/test connection located in the
fire stairs. A fire department hose valve shall be provided on
each floor in each fire stair as per code.
6. Electrical:
a. Design criteria:
1) Lighting: 2 xxxxx/s.f. for recessed 2' x 4' three lamp
deep cell parabolic louvered fluorescent troffers
provided under TI allowance and miscellaneous base
building lighting requirements. Energy efficient
ballasts and lamps shall be utilized.
2) General power: 5 xxxxx/s.f.
3) Feeder riser: 8 xxxxx/s.f. (2 xxxxx lighting, 5 xxxxx
general power, 1 watt for future loads).
b. Incoming electric supply to the building shall be 277/480
volts, 3 phase, 4 wire secondary service from exterior PECO
pad mounted transformer assembly. Single service is provided.
Totalizing/generalizing metering is provided.
c. Electric power distribution shall be provided by three
distribution panels:
1) Distribution panel "HDP", 1000 ampere, 480/277 volts, 3
phase, 4 wire shall provide distribution for heating/air
conditioning loads. Heating and air conditioning
distribution shall be via EMT conduit with copper
conductor feeders. Risers shall be run in local
electrical closets to 480/277 volts, 3 phase, 4 wire,
200 ampere panel.
2) Distribution panel "MDP", 600 ampere, 480/277 volts, 3
phase, 4 wire shall provide distribution for lighting,
general power and elevator loads. Lighting distribution
shall be via EMT conduit with copper conductor feeders.
Risers shall be run in local electrical closets to
480/277 volts, 3 phase, 4 wire, 200 ampere panel.
3) Distribution panel "PDP", 600 ampere, 208/120 volts, 3
phase, 4 wire (fed from distribution panel "MDP") and
150 kva 480 - 208/120 volts, 3 phase, 4 wire transformer
shall provide distribution to general power loads.
General power distribution shall be via EMT conduit with
copper conductor feeders. Risers
43
shall be run in local electrical closets to 208/120
volts, 3 phase, 4 wire, 200 ampere panel.
d. Base building lighting and receptacle loads throughout the
building shall be served from panelboard(s) located in local
electrical closet(s). Panelboards for light and power circuits
shall be of the circuit breaker type for flush or surface
mounting dead-front cabinets. Concealed wiring shall be
provided in all areas except MEP spaces. All power loads, such
as elevators, motor control equipment, mechanical HVAC
equipment, etc. shall operate at 480 volts and shall be
connected to heating distribution panel with single or
multiple conduit and cable feeders. Wire and cable shall be
copper with type THW insulation.
e. TI fitout allowance includes providing connections to
distribution panel, tenant lighting and power panel boards and
distribution wiring. Tenant fluorescent lighting shall be fed
at 277 volts. Local dry type transformers will reduce 480
voltage to 120/208 voltage for tenant incandescent lighting
and general power.
f. Building grounding and lightning protection systems shall be
provided.
g. Emergency lighting for life safety requirements
shall be provided by local battery units.
7. Telephone service:
a. Base building shall provide empty conduit, underground duct
bank service to first floor electrical/mechanical/telephone
room. A system of empty conduit(s) and sleeve(s) risers shall
be provided to accommodate installation of tenant's tele/data
system from the first floor electrical/mechanical/telephone
room to local electrical closets.
b. The local electrical closet shall include two power outlet(s)
and 3/4" painted plywood backer board for punchdown equipment.
c. Telephone service should be provided to base building spaces
as required by program.
d. Telephone service, wire, fiber, equipment, outlet jacks, cable
tray, etc. shall be provided by others or under TI allowance.
8. Security:
a. Building entrance shall be provided with empty conduit and
junction boxes to enable installation of tenant-provided card
reader security system.
9. Smoke, fire and sprinkler alarm system.
a. Multiplex addressable fire alarm and sprinkler alarm system
shall be provided in the building in accordance with code
requirements including non-coded semi-flush mounted pull
stations at the exit stairs, horns with flashing lights, etc.
as per code requirements.
b. The smoke detection system shall consist of products of
combustion, ionization type detectors in supply and return air
ductwork as per code requirements.
c. The sprinkler and sprinkler alarm system shall consist of
water flow devices and tamper switches and fire alarm control
panel at a central location.
d. Fire command station shall contain, in addition to the fire
alarm related annunciation, communication and elevator recall
functions, a central damper and fan switch panel for use in
emergency smoke removal.
44
EXHIBIT "C"
-----------
RULES AND REGULATIONS
---------------------
1. No sign, placard, picture, advertisement, name or notice shall be installed
or displayed on any part of the exterior or interior Common Areas of the
Building without the prior written consent of Landlord. Landlord shall have the
right to remove, at Tenant's expense and without notice, any sign installed or
displayed in violation of this rule. All approved signs or lettering on doors
and walls shall be printed, painted, affixed or inscribed at the expense of
Tenant by a person chosen by Landlord.
2. No awning shall be permitted on any part of the Demised Premises. Tenant
shall not place anything against, near or on any glass partitions, doors,
windows or window xxxxx which may appear unsightly from outside the Demised
Premises and Tenant is specifically prohibited from sitting or placing anything
on the window xxxxx of the Demised Premises. Tenant shall not obstruct any
windows, doors, partitions or lights within the Demised Premises which admit or
reflect light into the hallways or other Common Areas of the Building. Tenant
shall not attach or hang any curtains, blinds, shades or screens used in
connection with any window or door of the Demised Premises without first
obtaining the written consent of Landlord. Said curtains, blinds or shades must
be of a quality, type, design and color and attached in a manner approved by
Landlord.
3. Landlord shall retain the right to control and prevent access to the Building
of all persons whose presence in the judgment of Landlord would be prejudicial
to the safety, character, reputation and interests of the Building and its
tenants; provided that nothing herein contained shall be construed to prevent
such access to persons with whom any tenant normally deals in the ordinary
course of its business, unless such persons are engaged in illegal activities.
No tenant and no employee or invitee of any tenant shall go upon the roof of the
Building.
4. All cleaning and janitorial services for the Building and the Demised
Premises shall be provided exclusively through Landlord, and except with the
written consent of Landlord, no person or persons other than those approved by
Landlord shall be employed by Tenant or permitted to enter the Building for the
purpose of cleaning the same. Tenant shall not cause any unnecessary labor by
carelessness or indifference to the good order and cleanliness of the Demised
Premises. Landlord shall not in any way be responsible to any Tenant for any
loss of property on the Demised Premises, however occurring, or for any damage
to any Tenant's property by the janitor or any other employee or any other
person.
5. Landlord will furnish Tenant, free of charge, two (2) keys (plus two (2)
additional keys upon request) to each door lock in the Demised Premises.
Landlord may charge an additional amount $2.00 per key for any additional keys
requested by Tenant. Tenant shall not alter any lock or install a new additional
lock or bolt on the entrance door of its Demised Premises without written
consent of Landlord. Tenant, upon the termination of its tenancy, shall deliver
to Landlord the keys of all doors which have been furnished to Tenant, and in
the event of loss of any keys so furnished, shall pay Landlord therefor.
45
6. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions in
their installation.
7. Any freight elevator shall be available for use by all tenants in the
Building, subject to such reasonable scheduling as Landlord in its discretion
shall deem appropriate. No equipment, materials, furniture, packages, supplies,
merchandise or other property will be received in the Building or carried in the
elevators except between such hours and in such elevators as may be designated
by Landlord.
8. Tenant shall not place a load upon any floor of the Demised Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Building. Heavy objects shall, if considered necessary by
Landlord, stand on such platforms as determined by Landlord to be necessary to
properly distribute the weight. Business machines and mechanical equipment
belonging to Tenant, which cause noise or vibration that may be transmitted to
the structure of the Building or to any space therein to such a degree as to be
objectionable to Landlord or to any tenants in the Building, shall be placed and
maintained by Tenant, at Tenant's expense, on vibration eliminators or other
devices sufficient to eliminate noise or vibration. The persons employed to move
such equipment in or out of the Building must be acceptable to Landlord.
Landlord will not be responsible for loss of, or damage to, any such equipment
or other property from any cause, and all damage done to the Building by
maintaining or moving such equipment or other property shall be repaired at the
expense of Tenant.
9. Tenant shall not use or keep in the Demised Premises any kerosene, gasoline
or inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment.
Tenant shall not use or permit to be used in the Demised Premises any foul or
noxious gas or substance, or permit or allow the Demised Premises to be occupied
or used in a manner offensive or objectionable to Landlord or other occupants of
the Building by reason of noise, odors or vibrations, nor shall Tenant bring
into or keep in or about the Demised Premises any birds or animals.
10. Tenant shall not use any method of heating or air-conditioning other than
that supplied by Landlord.
11. Tenant shall cooperate fully with Landlord to assure the most effective
operation of the Building's heating and air-conditioning and to comply with any
governmental energy-saving rules, laws or regulations of which Tenant has actual
notice, and shall refrain from attempting to adjust controls other than room
thermostats installed for Tenant's use. Tenant shall keep corridor doors closed,
and shall close window coverings at the end of each business day.
12. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
13. Landlord reserves the right to exclude from the Building between the hours
of 6 p.m. and 8 a.m. the following day, or such other hours as may be
established from time to time by Landlord, and on Sundays and legal holidays,
any person unless that person is known to the person or employee in charge of
the Building and has a pass or is properly identified. Tenant
46
shall be responsible for all persons for whom it requests passes and shall be
liable to Landlord for all acts of such persons. Landlord shall not be liable
for damages for any error with regard to the admission to or exclusion from the
Building of any person. Landlord reserves the right to prevent access to the
Building in case of invasion, mob, riot, public excitement or other commotion by
closing the doors or by other appropriate action.
14. Tenant shall close and lock the doors of the Demised Premises and entirely
shut off all water faucets or other water apparatus, and electricity, gas or air
outlets before tenant and its employees leave the Demised Premises. Tenant shall
be responsible for any damage or injuries sustained by other tenants or
occupants of the Building or by Landlord for noncompliance with this rule.
15. Tenant shall not obtain for use on the Demised Premises ice, drinking water,
food, beverage, towel or other similar services or accept barbering or
bootblacking services upon the Demised Premises, except from such contractors as
are reasonably approved by Landlord and at such hours and under such regulations
as may be fixed by Landlord.
16. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall not
be used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown thereto. The expense of
any breakage, stoppage or damage resulting from the violation of this rule shall
be borne by the tenant who, or whose employees or invitees shall have caused it.
17. Tenant shall not sell, or permit the sale at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise to the
general public in or on the Demised Premises. Tenant shall not make any
room-to-room solicitation of business from other tenants in the Building.
18. Tenant shall not install any radio or television antenna, loudspeaker or
other device on the roof or exterior walls of the Building. Tenant shall not
interfere with radio or television broadcasting or reception from or in the
Building or elsewhere.
19. Tenant shall not xxxx, drive nails, screw or drill into the partitions,
woodwork or plaster or in any way deface the Demised Premises or any part
thereof. Landlord reserves the right to direct electricians as to where and how
telephone and telegraph wires are to be introduced to the Demised Premises.
Tenant shall not cut or bore holes for wires. Tenant shall not affix any floor
covering to the floor of the Demised Premises in any manner except as approved
by Landlord. Tenant shall repair any damage resulting from noncompliance with
this rule.
20. Tenant shall not install, maintain or operate upon the Demised Premises any
vending machine without the written consent of Landlord.
21. Canvassing, soliciting and distribution of handbills or any other written
material, and peddling in the Building are prohibited, and each tenant shall
cooperate to prevent same.
22. Landlord reserves the right to exclude or expel from the Building any person
who, in Landlord's judgment, is intoxicated or under the influence of liquor or
drugs or who is in violation of any of the Rules and Regulations of the
Building.
47
23. Tenant shall store all its trash and garbage within the Demised Premises.
Tenant shall not place in any trash box or receptacle any material which cannot
be disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Landlord.
24. The Demised Premises shall not be used for the storage of merchandise held
for sale to the general public, or for lodging or for manufacturing of any kind,
nor shall the Demised Premises be used for any improper, immoral or
objectionable purpose. No cooking shall be done or permitted by any tenant on
the Demised Premises, except that use by Tenant of Underwriters'
Laboratory-approved equipment for brewing coffee, tea, hot chocolate and similar
beverages or use of a microwave oven shall be permitted, provided that such
equipment and use is in accordance with all applicable federal, state, county
and city laws, codes, ordinances, rules and regulations.
25. Tenant shall not use in any space or in the public halls of the Building any
hand trucks except those equipped with rubber tires and side guards or such
other material-handling equipment as Landlord may approve. Tenant shall not
bring any other vehicles of any kind into the Building.
26. Without the written consent of Landlord, Tenant shall not use the name of
the Building in connection with or in promoting or advertising the business of
Tenant except as Tenant's address.
27. Tenant shall comply with all safety fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
28. Tenant assumes any and all responsibility for protecting the Demised
Premises from theft, robbery and pilferage.
29. The requirements of Tenant will be attended to only upon written application
to the office of the Building Manager by an authorized individual.
30. Tenant shall not park its vehicles in any parking areas designated by
Landlord as areas for parking by visitors to the Building. Tenant shall not
leave vehicles in the Building parking areas overnight.
31. Landlord may waive any one or more of these Rules and Regulations for the
benefit of Tenant or any other tenant, but no such waiver by Landlord shall be
construed as a waiver of such Rules and Regulations in favor of Tenant or any
other tenant, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all of the tenants of the Building.
32. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of premises in the Building. In the event
of conflict between the provisions contained in this Lease and these Rules and
Regulations the provisions of this Lease shall prevail.
48
33. Landlord reserves the right to make such other and reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for safety and
security, for care and cleanliness of the Building and the Complex and for the
preservation of good order therein. Tenant agrees to abide by all such Rules and
Regulations hereinabove stated and any additional rules and regulations which
are adopted.
34. Tenant shall be responsible for the observance of all of the foregoing rules
by Tenant's employees, agents, clients, customers, invitees and guests.
49
EXHIBIT "D"
-----------
BUILDING HOLIDAYS
-----------------
New Years Day
President's Day
Memorial Day
Fourth of July
Labor Day
Thanksgiving Day
Christmas
50
EXHIBIT "E"
----------
JANITORIAL MAINTENANCE SPECIFICATIONS
-------------------------------------
PROVIDED BY LANDLORD
--------------------
1. OFFICE AREA CLEANING - Tenant Suites and Common Areas:
a. The following tasks are to be performed DAILY:
i. Empty ALL trash containers and wastebaskets. Replace all trash
liners as needed.
ii. Remove all trash to specifically designated areas and dispose
of in prescribed manner.
iii. Police stairwells for trash and debris.
iv. SPOT dust all uncluttered desk tops, file cabinets, counters,
xxxxx and ledges up to 72 inches.
v. Dust mop ALL hard floor surfaces insuring dust and debris are
removed from all corners, SPOT mop to remove spillage.
vi. Contractor will inspect the entire building and SPOT vacuum
all carpet in offices and traffic areas. Remove any carpet
stains as needed.
vii. Vacuum all entrance mats and runners.
viii. Spot clean smudges and finger marks from all doors,
doorframes, partitions and light switch covers.
ix. Wash all entrance door glass - both sides.
x. Clean all entrance frames and ledges.
xi. Damp wipe all CLEARED table tops, CLEARED counter tops and
cabinet faces in kitchen or coffee stations.
xii. Clean all drinking fountains.
xiii. SPOT clean interior partition glass.
xiv. Straighten chairs and tables in employee lunchrooms and
conference rooms.
51
xv. Keep all contractors storage areas clean, neat and orderly.
b. The following tasks are to be performed WEEKLY:
i. Detail ALL vacuum offices, cubicles, conference rooms and
traffic areas. Edge vacuum as needed.
ii. Sweep and wet mop stairwells to remove stains. Dust handrails
and other horizontal surfaces.
iii. Dust ALL UNCLUTTERED desk tops, file cabinets, counters, xxxxx
and ledges up to 72 inches.
iv. Wet mop any high traffic or lobby area hard surface flooring.
c. The following tasks are to be performed MONTHLY:
i. High dust all horizontal and vertical surfaces above 72
inches.
ii. Dust baseboards.
iii. Detail vacuum any upholstered chairs.
d. The following tasks are to be performed QUARTERLY:
i. Dust ceiling diffusers and vents.
ii. Spray-buff ALL resilient tile floors if needed throughout the
building.
iii. Wipe ALL venetian blinds with a treated cloth to remove dust.
iv. Clean ALL interior partition glass.
v. Shampoo carpets in common area lobbies to include walk off
mats (This will be invoiced separately).
e. The following tasks are to be performed ANNUALLY:
i. Strip and refinish the hard surface VCT or ceramic tile
flooring if needed.
2. RESTROOM CLEANING SPECIFICATIONS:
a. The following tasks are to be performed DAILY:
i. Empty all waste and sanitary disposal containers and replace
liners.
ii. Fill all dispensers.
iii. Clean and disinfect all disposal containers.
52
iv. Clean and polish all mirrors and brightwork leaving no
residue.
v. Clean and disinfect all countertops and lavatories.
vi. Clean and disinfect all toilet fixtures and urinals inside and
outside.
vii. SPOT clean all partitions and walls leaving no residue.
viii. Dust all xxxxx and ledges.
ix. Sweep and wet mop all hard surface floor areas with a
disinfectant cleaners.
b. The following tasks are to be performed QUARTERLY:
i. Wash and disinfect ALL ceramic tile walls and partitions.
ii. Dust ALL vents, diffusers and radiators.
c. The following tasks are to be performed ANNUALLY:
i. Machine scrub ceramic tile flooring or strip all VCT restrooms
floors and refinish with three coats of a low slip, high
traffic sealer, if needed.
53
EXHIIBT "F"
-----------
Space Leased by Xxxxxxx Pharmaceutical
--------------------------------------
54
