AGREEMENT OF
LEASE
BETWEEN
GLENVIEW CORPORATE CENTER LIMITED PARTNERSHIP,
Landlord
AND
WORLDGATE COMMUNICATIONS,
Tenant
TABLE OF CONTENTS
LEASE
SECTION PAGE
1. REFERENCE DATA....................................................1
2. DEMISE............................................................3
3. TERM..............................................................3
4. HOLDING OVER......................................................3
5. RENT..............................................................3
6. OPERATING EXPENSE ESCALATION......................................4
7. COMPLETION OF IMPROVEMENTS; AS IS.................................9
8. [Intentionally Omitted]...........................................9
10. PERMITTED USES...................................................10
11. BUILDING OPERATION AND SERVICES; ELECTRICALLY....................10
12. INTERRUPTION OF SERVICES.........................................12
13. REPAIRS..........................................................13
14. INTENTIONALLY OMITTED............................................13
15. QUIET ENJOYMENT..................................................14
16. LANDLORD'S RIGHT OF ENTRY........................................14
17. SURRENDER OF PREMISES............................................14
18. MISCELLANEOUS COVENANTS..........................................15
19. RULES AND REGULATIONS............................................16
20. PERFORMANCE OF TENANT'S COVENANTS................................16
21. EMINENT DOMAIN...................................................16
22. CASUALTY DAMAGE..................................................17
23. HOLD HARMLESS: PUBLIC LIABILITY INSURANCE; WAIVER OF SUBROGATION.18
24. MORTGAGEE AND OTHER AGREEMENTS...................................19
25. SUBORDINATION AND ATTORNMENT.....................................20
26. ASSIGNMENT AND SUBLETTING........................................20
27. DEFAULT..........................................................22
28. LANDLORD'S REMEDIES..............................................23
29. LEGAL FEES AND OTHER COSTS.......................................26
30. LATE CHARGE......................................................26
31. SUCCESSORS AND ASSIGNS...........................................26
32. WAIVERS..........................................................27
33. WAIVER OF TRIAL BY JURY..........................................27
34. SEVERABILITY.....................................................27
35. NOTICES..........................................................27
36. AMENDMENT AND MODIFICATIONS......................................27
37. SECURITY DEPOSIT.................................................28
38. ENVIRONMENTAL MATTERS............................................28
39. BROKERS..........................................................30
40. FINANCIAL STATEMENTS.............................................30
41. TENANT'S TERMINATION RIGHTS......................................30
42. PARKING..........................................................30
43. OPTIONS TO EXTEND................................................31
44. HEADINGS AND TERMS...............................................31
45. GOVERNING LAW....................................................32
EXHIBITS
A Plan of Leased Premises
B Rules and Regulations
C Tenant Estoppel Letter
GLENVIEW CORPORATE CENTER Bensalem, Pennsylvania
1. REFERENCE DATA. Lease Dated: January 14, 1997
---------------
Any reference in this Lease to the following subjects shall
incorporate therein the data stated for the subject(s) in this Section:
LANDLORD: Glenview Corporate Center Limited Partnership, a
Delaware Limited Partnership
LANDLORD'S ADDRESS: c/o Pitcairn Properties Incorporated
Glenview Corporate Center, P.O. Box 863
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxxxx 00000-0000
LANDLORD'S CONSTRUCTION REPRESENTATIVE: R. Xxxxxxxx Xxxxxxxxx
TENANT: WorldGate Communications
TENANT'S ADDRESS:
TENANT'S CONSTRUCTION REPRESENTATIVE: N/A
LEASED PREMISES:
RENTABLE AREA OF LEASED PREMISES: 16,195 Rentable Square Feet
LEASE TERM: Three (3) years
SCHEDULED COMMENCEMENT DATE: March 1, 1997
COMMENCEMENT DATE: March 1, 1997
ANNUAL FIXED RENT: Year I - $263,168.75; Year 2 - $287,461.25; Year 3 -
$295,558.75
OPERATING EXPENSE ALLOWANCE: $6.00 Per Rentable Square Foot
TENANT'S PROPORTIONATE SHARE: 11. 30 %
PERMITTED USES: general office
SECURITY DEPOSIT: $21,930.73
ADVANCE RENTAL PAYMENT: $-0-
BROKER: Lanard & Axilbund Colliers
CONSTRUCTION ALLOWANCE: N.A.
GLENVIEW CORPORATE CENTER LIMITED
PARTNERSHIP
By: BPPI-I Limited Partnership,
its general partner
By: PITCAIRN PROPERTIES
INCORPORATED
By: /s/ illegible
--------------------------------------
BY: BERGEN OF PHILADELPHIA, INC.
BY: /s/ illegible
--------------------------------------
TENANT:
WORLDGATE CO UNICATTONS
By: /s/ Xxx Xxxxxxxxx
--------------------------------------
Name: Xxx Xxxxxxxxx
Title: Chairman/CEO
Attest: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: VP/GM
2. DEMISE . Landlord hereby demises and lets to Tenant and
Tenant takes and hires from Landlord that certain space (the "Leased
Premises") delineated in Exhibit "A", attached hereto and made part hereof,
in the five (5) story office building (the "Building") erected upon a parcel
of ground located at 0000 Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxxxxxxx (the
"Lot"), TOGETHER WITH, appurtenant to the Leased Premises, the right to use
in common with Landlord and other tenants, occupants and visitors to the
Building, the common walkways, sidewalks and parking lots of the Lot, the
common lobbies and facilities of the Building and, if the Leased Premises
include less than an entire floor of the Building, the common lobbies,
hallways and toilets and other common facilities of such floor. The
computation of the gross rentable area for the Leased Premises includes an
agreed upon loss factor representing Tenant's allocable share of common areas
and has been agreed upon and stipulated by Landlord and Tenant.
3. TERM. The Lease Term shall commence on the Commencement
Date which shall be the earlier of (a) the date on which Tenant shall take
possession of the Leased Premises, or (b) March 1, 1997.
4. HOLDING OVER. If Tenant retains possession of the Leased
Premises or any part thereof after the termination of this Lease by
expiration of the Lease Term or otherwise without the consent of Landlord,
Tenant shall pay Landlord (a) as agreed liquidated damages for such holding
over alone, an amount, calculated on a per them basis for each day of such
unlawful retention, equal to the greater of (i) twice the Annual Fixed Rent,
or (ii) the established market rental for the Leased Premises, for the time
Tenant thus remains in possession, plus, in each case, all Additional Rent
and other sums payable hereunder, and (b) all other damages, costs and
expenses sustained by Landlord by reason of Tenant's holding over. Without
limiting any rights and remedies of Landlord resulting by reason of the
wrongftil holding over by Tenant, or creating any right in Tenant to continue
in possession of the Leased Premises, all Tenant's obligations with respect
to the use, occupancy and maintenance of the Leased Premises shall continue
during such period of unlawful retention.
5. RENT. Rent is payable by Tenant beginning on the
Commencement Date in monthly installments of one-twelfth (1/12th) of the
Annual Fixed Rent, without prior notice or demand, and without any set-off or
deduction whatsoever, in advance, on the first day of each month at
Landlord's office in Bensalem, Pennsylvania or at such other place as
Landlord may direct in writing, except that the advance rent in the amount
set forth as the Advance Rental Payment in Section I hereof will be paid on
the date of the execution of this Lease and will be applied against the Fixed
Rent in the first full month of the Lease Term.
If the Lease Term commences on a day other than the
first day of a calendar month, the monthly installments of rent (including
Fixed Rent and any Additional Rent as herein provided), for the first and
last months of the Lease Term and for each Lease Month in which the rental
rate changes shall be apportioned pro rata in proportion to the number of
days in the month. As used herein, the term "Lease Month" shall mean the 28,
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29, 30 or 31 day period ending at midnight on the day preceding each monthly
anniversary of the Commencement Date.
Tenant hereby covenants and agrees to pay the
Annual Fixed Rent, Additional Rent and other sums payable to Landlord
hereunder when due, and to pay interest to Landlord at the Overdue Interest
Rate (a) on all overdue installments of Fixed Rent from the due date thereof
to the date of payment and (b) on all payments of Additional Rent or other
sums payable to Landlord hereunder from the date of demand for payment until
the date of payment. Upon default by Tenant in the payment of such Additional
Rent or other sums payable hereunder, Landlord shall be entitled to all
rights and remedies to which it would be entitled in default of the payment
of Fixed Rent. As used herein, the term "Overdue Interest Rate" shall mean
and equal three percent (3 %) per annum over the prime interest rate
announced from time to time by the largest commercial bank whose principal
office is located in Philadelphia or Xxxxxxxxxx County, Pennsylvania as being
its "prime" or benchmark rate of interest.
6. OPERATING EXPENSE ESCALATION. If Landlord's Operating
Expense for any Operating Year shall be greater than the Operating Expense
Allowance, Tenant shall pay to Landlord as Additional Rent an amount equal to
Tenant's Proportionate Share (as defined below) of the difference (the amount
of Tenant's Proportionate Share of such difference is hereinafter- referred
to as the "Operating Expense Adjustment"). If Tenant occupies the Leased
Premises or portion thereof for less than a full Operating Year, the
Operating Expense Adjustment will be allocated proportionately to the amount
of time in such Operating Year that Tenant so occupies such space.
Such Additional Rent shall be paid in the
following manner: within one hundred twenty (120) days following the end of
each Operating Year, Landlord shall furnish Tenant an Operating Expense
Statement setting forth (i) the Operating Expense for the preceding Operating
Year, (H) the Operating Expense Allowance and (iii) the Tenant's Operating
Expense Adjustment for such Operating Year. Within fifteen (15) days
following the receipt of such Operating Expense Statement (the "Expense
Adjustment Date") Tenant shall pay to Landlord as Additional Rent the
Operating Expense Adjustment for such Operating Year. Commencing with the
first month of the lease term, tenant shall pay to landlord, on account of
the operating expense adjustment for such Operating Year, monthly
installments in advance equal to one-twelfth (1/12TH) OF THE estimated
Operating Expense Adjustment for such Operating Year. On the next succeeding
Expense Adjustment Date, Tenant shall pay to Landlord (or Landlord shall
credit to Tenant) any deficiency (or excess) between the installments paid on
account of the preceding year's Operating Expense Adjustment and the actual
Operating Expense Adjustment for such Operating Year.
As used in this Section 6 and Section 1 where
applicable, the following words and terms shall be defined as hereinafter set
forth:
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(h) To constantly have pass keys to the Leased Premises.
(i) To grant to anyone the exclusive right to
conduct any particular business or undertaking in the Building.
0) To exhibit the Leased Premises to others and to
display "For Rent" signs on the Leased Premises.
(k) To take any and all measures, including
inspections, repairs, alterations, additions and improvements to the Leased
Premises or to the Building as may be necessary or desirable in the operation
of the Building.
Landlord may enter upon the Leased Premises and may
exercise any or all of the foregoing rights hereby reserved without being
deemed guilty of an eviction or disturbance of Tenant's use or possession and
without being liable in any manner to Tenant.
REGULATION CHANGE
Landlord shall have the right to amend these Rules and
Regulations, and to make such other and further reasonable Rules and
Regulations, as in the judgment of Landlord, may from time to time be needful
for the safety, appearance, care or cleanliness of the Building or for the
preservation of good order therein.
Landlord shall not be responsible to Tenant for the
enforcement of the Rules and Regulations or by the violation thereof by other
tenants.
5
(a) "OPERATING YEAR" shall mean each calendar
year, or such other period of twelve (12) months as hereafter may be adopted
by Landlord as its fiscal year, occurring during the Lease Term.
(b) "OPERATING EXPENSE ALLOWANCE" shall mean and
equal the amount set forth in Section I of this Lease multiplied by the
rentable area of the Building.
(c) "OPERATING EXPENSE STATEMENT" shall mean a
statement in writing signed by Landlord, setting forth in reasonable detail
(i) the Operating Expense for the preceding Operating Year, (ii) the
Operating Expense Allowance and (iii) the Tenant's Operating Expense
Adjustment for such Operating Year, or portion thereof. The Operating Expense
for each Operating Year shall be audited and certified by Landlord's
independent certified public accountant whose report thereon shall be
available for inspection by Tenant at Landlord's office during normal
business hours. The Operating Expense Statement duly prepared in accordance
herewith shall constitute a final determination as between Landlord and
Tenant of the Operating Expense and the Operating Expense Adjustment for any
Operating Year.
(d) "OPERATING EXPENSE" shall mean the following
expenses incurred by Landlord in connection with the operation, repair and
maintenance of the Building and the Lot:
(i) Wages, salaries, fees and other
compensation and payments and payroll taxes and contributions to any social
security, unemployment insurance, welfare, pension or similar fund and
payments for other fringe benefits required by law or by union agreement (or,
if the employees or any of them are non-union, then payments for benefits
comparable to those generally required by union agreement in first class
office buildings *in the Philadelphia suburban area, which are unionized)
made to or on behalf of all employees of Landlord performing services
rendered in connection with the operation and maintenance of the Building and
the Lot, including, without limitation: window cleaners; janitors;
miscellaneous handymen; watchmen; persons engaged in patrolling and
protecting the building and the lot; carpenters; engineers; mechanics;
electricians; plumbers; persons engaged in the operation and maintenance of
the Building and the Lot; building superintendent and assistants; building
manager; and clerical and administrative personnel.
(ii) The uniforms of all employees, and
the cleaning, pressing and repair thereof
(iii) Cleaning costs for the Building and
the Lot, including the windows and sidewalks, all snow and rubbish removal
(including separate contracts therefor) and the costs of all labor, supplies,
equipment and materials incidental thereto.
6
(iv) Premiums and other charges incurred
by Landlord with respect to all insurance relating to the Building and the
Lot and the operation and maintenance thereof, including, without limitation:
fire and extended coverage insurance, including windstorm, hail, explosion,
riot, rioting attending a strike, civil commotion, aircraft, vehicle and
smoke insurance; public liability; elevator; workmen's compensation; boiler
and machinery; rent; use and occupancy; and health, accident and group life
insurance of all employees.
(v) All taxes, charges, imposts and
burdens and special assessments of every kind and nature imposed by any
governmental authority on and/or with respect to the Lot or Building which
Landlord shall become obligated to pay because of or in connection with the
ownership, leasing or operation of the Lot or the Building.
(vi) The cost of water and sewer and any
and all other utility services used in connection with the operation and
maintenance of the Building and the Lot, excluding, however, electricity
which shall be billed monthly to tenants pursuant to Section 11 hereof.
(vii) Costs incurred for operation,
service, maintenance, inspection, repairs and alterations of the Building,
the Lot and the heating, air-conditioning, ventilating, plumbing, electrical,
security and elevator systems of the Building (including any separate
contract therefor) and the costs of labor, materials, supplies and equipment
used in connection with all of the aforesaid items.
(viii) Gross receipts taxes, sales taxes
and excise taxes and the like upon any of the expenses enumerated herein.
(ix) Management fees of the managing agent
for the Building.
(x) The cost of replacements for tools and
equipment used in the operation and maintenance of the Building and the Lot.
(xi) The cost of repainting or otherwise
redecorating any part of the Building other than premises demised to tenants
in the Building.
(xii) Christmas decorations for the lobby
and other public portions of the Building below the second floor.
(xiii) The cost of telephone service,
postage, office supplies, maintenance and repair of office equipment and
similar costs related to operation of the Building Superintendent's office.
(xiv) The cost of licenses, permits and
similar fees and charges related to operation, repair and maintenance of the
Building.
7
(xv) Auditing fees necessarily incurred
in connection with the maintenance and operation of the Building, and
accounting fees incurred in connection with the preparation and certification
of a real estate tax escalation and the operating expense escalation
statements pursuant to this Section 6.
(xvi) All costs incurred by Landlord to
retrofit any portion or all of the Building to comply with a change in
existing legislation or introduction of new legislation, whether Federal,
State or Municipal; repairs, replacements and improvements which are
appropriate for the continued operation of the Building as a first class
building.
(xvii) All expenses associated with the
installation of any energy or cost saving devices.
(xviii) The pro rata share of all costs
and expenses allocated to the Building and the Lot relating to the
maintenance, operation and repair of any common atrium or other facilities
connecting the Building or any of its facilities to any other building or
facilities on adjacent lots.
(xix) All assessments against Landlord
for the Lot and the Building's share of the costs of Glenview Corporate
Center as provided in the Declaration of Protective Covenants (the
"Protective Covenants") for Glenview Corporate Center.
(xx) Any and all other expenditures of
Landlord in connection with the operation, repair or maintenance of the Lot
or the Building which are properly expensed in accordance with generally
accepted accounting principles consistently applied with respect to the
operation, repair and maintenance of first-class office buildings in the
Philadelphia suburbs.
If Landlord shall purchase any item of
capital equipment or make any capital expenditure as described in subsections
(xvii) and (xviii) above, then the costs for the same shall be included in
Operating Expenses in the year of installation and in subsequent years
amortized on a straight line basis, over an appropriate period, but not more
than ten (10) years,, with an interest factor equal to the prime interest
rate, as defined in Section 5 hereof. If Landlord shall lease such item of
capital equipment, then the rentals or other operating costs paid pursuant to
such leasing shall be included in Operating Expenses for each year in which
they are incurred.
Notwithstanding the foregoing, "Operating Expense"
shall not include expenditures for any of the following:
(A) The cost of any capital addition made
to the Building (other than-that specified as part of Operating Expense as
provided above), including the cost to prepare space for occupancy by a new
tenant.
8
(B) Repairs or other work occasioned by
fire, windstorm or other insured casualty or hazard, to the extent that
Landlord shall receive proceeds of such insurance.
(C) Leasing commissions, advertising
expenses and other costs incurred in leasing or procuring new tenants.
(D) Repairs or rebuilding necessitated by
condemnation.
(E) Depreciation and amortization of the
Building, other than
(I) capital expenditures which
under generally applied real estate practice are expensed or regarded as
deferred expenses;
(II) capital expenditures
appropriate to a first class office building or required by law as described
in subsection (xvii) above; and
(III) capital expenditures
designed to result in savings or reductions in Operating Expenses as described
in subsection (xviii) above.
(F) The salaries and benefits of executive
officers of Landlord if any.
Operating Expense shall be "net" and, for that
purpose, shall be reduced by the amounts of any reimbursement or credit
received or receivable by Landlord with respect to an item of cost that is
included in Operating Expense (other than reimbursements to Landlord by
tenants of the Building pursuant to Operating Expense escalation provisions).
To the extent that any item of Operating Expense is
incur-red in common with another building or lot in the Glenview Corporate
Center, such item of expense shall be apportioned equitably among the
properties incurring such expenses.
If landlord shall eliminate the payment of any
wages or OTHER LABOR costs or otherwise reduce Operating Expense as a result
of the installation of new devices or equipment, or by any other means, then
in computing the Operating Expense the corresponding items shall be deducted
from the Operating Expense Allowance and Operating Year.
The Operating Expense for any Operating Year or
portion thereof during which less than one hundred percent (100%) of the
Rentable Area of the Building is leased to tenants shall be increased to
include an imputed cost for unoccupied portions of the Building in an amount
with respect to each such area equal to the product of (I) the Landlord's
estimate of the marginal Operating Expense saving resulting from such
vacancy, times (II) a fraction, the numerator of which is the number of days
during such Operating
9
Year such portion of the Building was unoccupied and the denominator of which
is three hundred sixty-five (365), times (III) the Rentable Area of such
unoccupied space. In the time that more than one such portion of Rentable
Area shall be unoccupied on separate dates within a relevant Operating Year,
then a separate computation shall be made with respect to each unoccupied
portion, and the products of such computations shall be added together, and
the total thereof shall be the amount of Operating Expense imputed to such
unoccupied portions for such Operating Year.
(e) "TENANT'S PROPORTIONATE SHARE" shall mean a
fraction, the numerator of which shall be the Rentable Area of Leased
Premises, and the denominator of which is 142,745 rentable square feet
(subject to adjustment only by reason of any substantial addition to the
Building made after the date of the initial completion of construction of the
Building), and shall equal, with respect to the Leased Premises, the
percentage set forth in Section I of this Lease.
7. COMPLETION OF IMPROVEMENTS: AS-IS. Tenant agrees to
accept the Leased Premises in its "As-Is" condition. Landlord shall have no
obligation to complete any work in connection with Tenant's occupancy of the
Leased Premises with the exception of building standard painting of the
Leased Premises, which shall be completed promptly following the Commencement
Date. Any other work completed by Tenant shall be at Tenant's sole cost and
expense and otherwise in accordance with the terms of this Lease.
Tenant agrees that Landlord's obligation to deliver
the Leased Premise "As-Is" does not include any obligation on the part of
Landlord to remove the workstations owned by the current Tenant of the Leased
Premises.
8. [Intentionally Omitted].
9. ALTERATIONS OR IMPROVEMENTS BY TENANT. Tenant shall not
make during the Lease Term any alterations or additions to the Leased
Premises which affect the Building's structure or mechanical, electrical,
plumbing or HVAC systems without Landlord's prior written approval, such
approval not to be unreasonably withheld. Any such alterations or additions
which may be approved by landlord and made by tenant shall be deemed part of
the Building and shall not thereafter be removed by Tenant unless Landlord
shall require removal of same, either in conjunction with its approval or by
notice to Tenant given prior to the termination of this Lease, in which case
Tenant shall remove any such alterations or additions and repair any damage
to the Building or the Leased Premises occasioned by their installation or
removal (including, without limitation, repairing and patching holes,
replacing ceiling, wall and floor surfaces and repainting), and restore the
Leased Premises to substantially the same condition as existed prior to the
time which any such alterations or additions were made, reasonable wear and
tear excepted.
All alterations and additions by Tenant. and
installation of furnishings following occupancy shall be coordinated with any
work being performed by Landlord and
10
performed in such manner and by such union contractor(s) as to assure
harmonious labor relations and so as to not damage the Building or interfere
with its operation or with the activities of other tenants and, except for
installation of furnishings only, by contractors or workmen first approved by
Landlord.
As further conditions to Landlord's approval of
any proposed alterations or additions by Tenant which are to be made after
the beginning of the Lease Term, Tenant shall: secure all necessary licenses
and permits; deliver to Landlord a waiver, executed by all persons or firms
who will be furnishing labor or materials waiving the right to file any
mechanic's Hen against the Building, the Lot or the estate or interest of
Landlord or Tenant therein; cause the contractor(s) and subcontractor(s) to
carry Workmen's Compensation insurance in statutory amounts and also
comprehensive public liability insurance with limits as approved by Landlord,
and deliver to Landlord certificates of all such insurance.
Failure to comply with any of the provisions of
this Section 9 (including, without limitation, any of the terms or conditions
of any consent granted hereunder) shall constitute a default under this Lease
and upon such default Landlord may pursue any or all of the remedies provided
for in Section 28 hereof, or any other remedy. available to Landlord in law
or in equity.
Tenant shall promptly pay when due the cost of all
such alterations and additions as referred to in this Section 9 and shall
cause any mechanics' liens which may be filed with respect thereto to be
immediately discharged, and shall indemnify Landlord against any loss, cost
or expense occasioned, directly or indirectly as a result of such alterations
and additions.
10. PERMITTED USES. Tenant covenants and agrees to use and
occupy the Leased Premises only in conformity with law and for the uses
specified in Section I hereof and not to use or permit any use of the Leased
Premises which creates any safety hazard, which would be dangerous to the
Leased Premises, the Building or the occupants of the same, which would be
disturbing to other tenants or occupants of the Building, or which would
cause any increase in premium for any insurance which Landlord may then have
in effect with respect to the building generally.
11. BUILDING OPERATION AND SERVICES, ELECTRICITY. Landlord
shall furnish, through Landlord's employees or independent contractors, such
services, facilities and supplies equal in scope, quality and frequency to
those being customarily provided by landlords in high quality office
buildings in the Philadelphia suburbs.
Heating, ventilating, and air conditioning shall
be provided as normal seasonal changes may require to provide reasonably
comfortable space temperature and ventilation for occupants of the Building
during normal business operation, daily from 8:00 a.m. to 6:00 p.m.
(Saturdays to 1:00 p.m.), except Sundays and holidays. Heating,
11
ventilating and air conditioning service shall be subject to such regulations
as the Department of Energy or other governmental agency shall adopt from
time to time.
The air conditioning system in the Building is
designed to accommodate a population load of one (1) person per one hundred
(100) square feet and an electrical load of four (4) xxxxx per foot. If as a
result of the layout or use of the Leased Premises, the population load
exceeds one (1) person per one hundred (100) square feet, or if as a result
of the installation of lights, equipment and appliances by Tenant in the
Leased Premises, the electrical load exceeds this design criteria of four (4)
xxxxx per square foot, Landlord shall have the right to require Tenant to
install in the Leased Premises, at Tenant's sole cost and expense, additional
cooling systems to enable the proper cooling of the Leased Premises.
Landlord shall install a timed override switch in
the Leased Premises as a part of the initial construction thereof to permit
Tenant to activate the air-conditioning system in the Leased Premises outside
of normal office hours. Tenant can also arrange for the air conditioning
system to be activated outside of normal office hours by giving the Building
manager at least four (4) hours written notice. Tenant shall pay Landlord for
such additional air-conditioning as a part of the cost of electricity set
forth below.
Maintenance and cleaning shall be provided Monday
through Friday (excluding holidays), after business hours, as follows:
janitor service, consisting of the removal of customary office trash, dusting
of furniture, desks and pictures, and vacuuming; maintenance and service of
the toilet rooms in the Building; and cleaning and maintenance of common
areas in the Building.
Fully automatic elevator service shall be provided
for the use of all tenants and the general public for access to and from all
floors of the Building.
Elevator service for freight shall be supplied by
a passenger/freight elevator in common with service to other tenants at
reasonable times during business hours and at other times at reasonable
charges payable by Tenant to Landlord in advance.
Hot and cold water for normal lavatory purposes
shall be provided. If Tenant requires water for additional purposes, Tenant
shall pay the cost thereof as shown on a meter to be installed and maintained
at Tenant's expense to measure such additional consumption.
Landlord will install as a portion of the original
construction of each tenant space in the Building, an electric meter to
measure the consumption of electricity in such space. Landlord reserves the
right to install only i single electric meter on each floor and, in such
event, the cost of such meter and electricity will be equitably apportioned
by Landlord among the tenants on such floor. Landlord will install during the
construction of the Building an energy management system which measures the
useage of heating, ventilating and air conditioning used by each Tenant in
the Building and the common areas of the
12
Building. Landlord will measure the electricity used by the heating,
ventilating and air conditioning system in the Building and will allocate
such electricity among the tenants in the Building in proportion to such
tenant's useage thereof as measured by the energy management system. Landlord
shall also determine the amount of electricity used for the common areas of
the Building and the Lot for heating, ventilating and air conditioning,
elevator service, site lighting and the like and apportion such electricity
among all tenants in the Building in accordance with such tenant's
Proportionate Share of the Building.
Landlord will xxxx Tenant monthly for electricity
used by or allocable to Tenant as aforesaid and Tenant shall pay for the same
as Additional Rent within fifteen (15) days after receiving Landlord's
statement. The charge to Tenant for all electricity used by or allocable to
Tenant as aforesaid shall be at the average rate per KVM that is paid by
Landlord to the utility providing the same, plus all surcharges, taxes, fuel
adjustments, transfer charges or other similar charges.
If submetering or allocation of electricity in the
Building is not permitted under future laws or regulations, the Annual Fixed
Rent will then be equitably and periodically adjusted to include an
additional payment to Landlord reflecting the cost to Landlord of furnishing
electricity to or for the benefit of Tenant.
Landlord shall not be liable in any way to Tenant
for any failure or defect in the supply or character of electric energy
furnished on the Leased Premises by reason of any requirement, act or
omission of the public utility serving the Building with electricity.
Tenant's use of electric energy in the Leased Premises shall not at any time
exceed the capacity of any of the electric conductors and equipment in or
otherwise serving the Leased Premises. In order to insure that such capacity
is not exceeded and to avert possible adverse effect upon the Building's
electric service, Tenant shall not, without Landlord's prior written consent
in each instance, connect to the Building's electric distribution system any
fixtures, appliances or equipment other than minicomputers, terminals,
duplicating machines, lamps, typewriters and similar small office machines
which operate on a voltage not in excess of 110 volts or make any
alterations or additions to the electric system of the Leased Premises.
Should Landlord grant such consent, all additional risers or other equipment
required therefor shall be provided by Landlord and the reasonable cost
thereof shall be paid by Tenant upon Landlord's demand.
Landlord shall furnish and install at Tenant's
expense all replacement lighting tubes, lamps, bulbs, and ballasts required
in the Leased Premises.
12. INTERRUPTION OF SERVICES. In case Landlord is prevented
or delayed in furnishing any service as set forth in Section 11 herein or
otherwise by reason of any cause beyond Landlord's reasonable control,
Landlord shall not be liable to Tenant therefor nor shall Tenant be entitled
to any abatement or reduction in rent by reason thereof, nor shall the same
give rise to a claim in Tenant's favor that such absence of building services
constitutes actual or constructive, total or partial eviction or renders the
Leased Premises untenantable.
13
Landlord reserves the right to stop any service or
utility system, when necessary by reason of accident or emergency, or until
necessary repairs have been completed, provided, however, that in each
instance of stoppage, Landlord shall exercise reasonable diligence to
eliminate the cause thereof. Except in case of emergency repairs, Landlord
will give Tenant reasonable advance notice of any contemplated stoppage and
will use reasonable efforts to avoid unnecessary inconvenience to Tenant by
reason thereof.
13. REPAIRS. Landlord shall make, as an Operating Expense
of the Building, all repairs necessary to maintain the plumbing, heating,
ventilating, air conditioning, electric systems, external windows and floors
(excluding carpeting and floor coverings), provided, however, that Landlord
shall not be obligated to make any such repairs until the expiration of a
reasonable period of time after receipt of written notice from Tenant that
such repair is needed. In no event shall Landlord be obligated under this
Section 13 to repair any damage caused by any act, omission or negligence of
Tenant or its employees, agents, invitees, licensees, subtenants, or
contractors. If Tenant requires maintenance, servicing, repair or replacement
of any special plumbing, heating or air conditioning systems installed for
Tenant's benefit in the Leased Premises, whether or not such systems are tied
into the standard Building systems, such maintenance, servicing, repair or
replacement shall be made at the sole expense of Tenant, unless the need for
such repairs is caused, in whole or in part, by the negligence or wilful
misconduct of Landlord, its agents or employees.
Tenant shall maintain the Leased Premises and the
fixtures and appurtenances therein in good repair at all times, reasonable
wear and tear excepted. Except to the extent released by Landlord pursuant to
the waiver of subrogation provision in Section 23 hereof, Tenant shall
reimburse Landlord for all costs and expenses of repairing and replacing all
damage or injury to the Leased Premises and the Building and to fixtures and
equipment caused by Tenant or its employees, agents, invitees, licensees,
subtenants, or contractors, or as the result of all or any of them moving in
or out of the Building or by installation or removal of furniture, fixtures
or other property. Such costs and expenses shall be collectible as Additional
Rent and paid by Tenant within fifteen (15) days after rendition of a xxxx
therefor.
Landlord shall not be liable by reason of any
injury to or interference with Tenant's business arising from the making of
any repairs, alterations, additions or improvements in or to the Leased
Premises or the Building or to any appurtenances or equipment therein. There
shall be no abatement of rent because of such repairs, alterations, additions
or improvements or because of any delay by Landlord in making the same.
Tenant shall give to Landlord prompt written
notice of any accidents to, or defects in plumbing, electrical, heating and
air conditioning systems and apparatus located in the Leased Premises.
14. INTENTIONALLY OMITTED
14
15. QUIET ENJOYMENT. Tenant, upon paying the Annual Fixed
Rent, all Additional Rent and all other sums and charges herein provided for
and, upon observing, keeping and performing all covenants, agreements and
conditions of this Lease on Tenant's part to be observed, kept and performed,
shall quietly have and enjoy the Leased Premises throughout the Lease Term
without hindrance or molestation by Landlord or by anyone claiming by,
through or under Landlord, subject, however, to the exceptions, reservations
and conditions of this Lease.
16. LANDLORD'S RIGHT OF ENTRY. Landlord, any ground lessor,
mortgagee or any agent thereof, shall have the right to enter the Leased
Premises at reasonable times: to perform Landlord's covenants as set forth in
this Lease, for purposes of inspection and to insure Tenant's compliance with
the provisions of this Lease, to make any repairs, replacements or
alterations to the Building or do any work which Landlord may deem necessary,
or to show the Leased Premises to prospective purchasers of the Building, and
also, during the last six (6) months of the Lease Term, to show the Leased
Premises to prospective tenants.
In the event Tenant vacates the Leased Premises
prior to the expiration of the Lease Term, Landlord shall have the right to
enter the Leased Premises at any time thereafter to show the Leased Premises
to prospective tenants and to retrofit all or a portion thereof for new
tenants. No such entry and construction work shall be deemed to be an
acceptance of surrender by landlord of all or a portion of the Leased
Premises until a replacement tenant actually occupies the same for its
business purposes. Acceptance of surrender shall be deemed to occur upon the
occupancy by a replacement tenant, but only as to such portion of the Leased
Premises which such replacement tenant occupies. Notwithstanding any such
acceptance of surrender, Tenant shall remain liable for the difference
between the rent reserved hereunder and the rent Landlord receives under a
lease with the replacement tenant.
17. SURRENDER OF PREMISES. Any alterations, improvements or
additions to the Leased Premises made by or at the request of Tenant shall
remain upon the Leased Premises at the expiration or earlier termination of
this Lease and shall become the property of Landlord unless Landlord shall,
prior to the expiration or earlier termination of this Lease, give written
notice to Tenant to remove such alterations, improvements and additions.
Tenant shall repair any damage caused by the installation and/or removal
(including, without limitation, repairing and patching holes, replacing
ceiling, floor and wall surfaces and repainting), and restore the Leased
Premises to substantially the same condition in which it existed prior to the
time that any such alterations, improvements or additions were made,
reasonable wear and tear excepted. Should Tenant fail to remove any such
alterations, improvements or additions or to repair such damage wh6n required
or requested by Landlord so to do pursuant to this Section 17, Landlord may
do so, and the cost and expense thereof shall be paid by Tenant to Landlord
as Additional Rent.
16
Any personal property which shall remain in the
Leased Premises or any part thereof after the expiration or earlier
termination of this Lease shall be deemed to have been abandoned and either
may be retained by Landlord as Landlord's property or may be disposed of in
such manner as Landlord may see fit, provided that notwithstanding the
foregoing Tenant shall, upon request of Landlord made no later then ten (10)
days after the expiration or earlier termination of this Lease, promptly
remove from the Building any such personal property at Tenant's own cost and
expense. Should Tenant fail so to do, Landlord may do so, and the cost and
expense thereof shall be paid by Tenant to Landlord as Additional Rent. If
such personal property or any part thereof shall be sold by Landlord,
Landlord may receive and retain the proceeds of such sale(s) as Landlord's
property. The covenants contained in this Section 17 shall survive the
expiration or earlier termination of this Lease.
18. MISCELLANEOUS COVENANTS. Tenant shall faithfully
perform all of the covenants and conditions to be performed and observed by
Tenant hereunder and in addition to those covenants and conditions which are
set forth elsewhere herein, Tenant agrees:
(a) To secure and maintain in effect any
governmental approvals, licenses and permits as may be required for Tenant's
use and occupancy of the Leased Premises.
(b) To comply with all applicable laws, codes and
regulations of governmental authorities applicable to Tenant's use and
occupancy of the Leased Premises and all rules and regulations of insurers of
the Leased Premises and the National Board of Fire Underwriters as they apply
to Tenant's use and occupancy of the Leased Premises.
(c) If the Leased Premises include less than an
entire floor of the Building, to not place, erect, maintain or display any
sign or other marking of any kind whatsoever on the exterior surface of the
walls of the Leased Premises or on any door which faces any common corridor
or hallway, without the prior written approval of Landlord, which approval
shall not be unreasonably withheld for a single sign, provided that the same
conforms to the sign standards as are then established by Landlord generally
for the Building, and to not install or replace any entrance door or other
door facing on any common corridor or hallway other than the standard door
supplied by Landlord, without the prior written approval of Landlord.
(d) Not to use or place any curtains, blinds,
drapes,, coverings or signs over any exterior windows or upon the window
surfaces as would be visible from the outside of the Building without the
prior written approval of Landlord.
(e) Without the prior written consent of Landlord,
not to place within the Leased Premises or bring into the Building any
machinery, equipment or other personalty other than customary office
furnishings and small machinery such as typewriters and other similar items
of office equipment, or any machinery or other personalty having a weight on
16
the average in excess of the floor bearing capacity of one hundred (100)
pounds per square foot. Landlord in its sole discretion, may condition any
consent given pursuant to this Section 18(e) upon the requirement that Tenant
pay all costs of all structural and other alterations, changes or additions
required to be made to the Leased Premises and the Building, in the sole
judgment of Landlord, for the safe support of such machinery, equipment or
personalty, together with all costs of engineering or other studies required
in the sole judgment of Landlord, to determine the required structural and
other alterations, changes or additions.
19. RULES AND REGULATIONS. Tenant covenants and agrees that
Tenant, its servants, employees, agents, invitees, licensees and other
visitors shall observe faithfully, and comply strictly with, the Rules and
Regulations contained in Exhibit "B", attached hereto and made a part hereof,
and such other and further reasonable Rules and Regulations as Landlord or
Landlord's agents may, after written notice to Tenant, from time to time
adopt. Nothing in this Lease contained shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations or
terms, covenants or conditions in any other lease as against any other
tenant, and Landlord shall not be liable to Tenant for violation of the same
by any other tenant, its servants, employees, agents, invitees, licensees or
other visitors.
20. PERFORMANCE OF TENANT'S COVENANTS. If Tenant fails to
perform any covenant or observe any condition to be performed or observed by
Tenant hereunder or acts in violation of any covenant or condition hereof,
Landlord, may, but shall not be required to on behalf of Tenant, perform such
covenant and/or take such steps, including entering upon the Leased Premises,
as may be necessary or appropriate to meet the requirements of any such
covenant or condition, provided that Landlord shall have given Tenant at
least three (3) days prior written notice of Landlord's intention to do so,
unless an emergency situation exists, in which case Landlord shall have the
right to proceed immediately; and all costs and expenses incurred by Landlord
in so doing, including reasonable legal fees, shall be paid by Tenant to
Landlord upon demand, plus interest at the Overdue Interest Rate from the
date of expenditure(s) by Landlord, as Additional Rent. Landlord's proceeding
under the rights reserved to Landlord under this Section shall not in any way
prejudice or waive any rights as Landlord might otherwise have against Tenant
by reason of Tenant's default.
21. EMINENT DOMAIN. In the event of the exercise of the
power of eminent domain whereby (a) such portion of the Building is taken
that access to the Leased Premises is permanently impaired thereby and
reasonable alternate access is not provided by Landlord within a time period
which is reasonable under the circumstances, (b) all or substantially all of
the Leased Premises or the Building is taken, (c) if less than substantially
all of the Building is taken but Landlord, acting in good faith, determines
that it is economically unfeasible to continue to operate the uncondemned
portion as a first-class office building, or (d) if less than substantially
all of the Leased Premises is taken, but Tenant, acting in good faith,
determines that because of such taking it is economically unfeasible to
continue to conduct its business in the uncondemned portion of the Leased
Premises, then in the case of (a) or (b), either party, and in the case of
(c), Landlord, and in the case of (d), Tenant, shall
17
have the right to terminate this Lease as of the date when possession of that
part which was taken is required to be delivered or surrendered to the
condemning authority; and in such case all rent and other charges shall be
adjusted to the date of termination. The foregoing right of termination shall
be applicable to the taking of any estate or interest whatsoever which, as a
matter of law, would deprive Landlord or Tenant of any right to possession
(in common with others, as to common areas of the Building) for any period in
excess of sixty (60) consecutive days from the date of taking, whether or not
the taking be in fee, for a term of years or of any other estate or interest;
and a taking shall include the transfer of title or of any interest in the
Building by deed or other instrument in settlement of or in lieu of transfer
by operation of law incident to condemnation proceedings.
Tenant shall have no right to participate or share
in any condemnation claim, damage award or settlement in lieu thereof with
respect to any taking of any nature; provided, however, that Tenant shall not
be precluded from claiming or receiving payment for Tenant's relocation and
moving expenses as may be permitted under applicable law so long as the
amount of the same is not subtracted from the award which Landlord is
entitled to receive.
22. CASUALTY DAMAGE. In the event of damage to or
destruction of the Leased Premises caused by fire or other casualty, or of
the entrances and other common facilities necessary to provide normal access
to the Leased Premises, or to other portions of the Building or its equipment
which portions and equipment are necessary to provide services to the Leased
Premises in accordance herewith, Landlord shall undertake to make and
complete repairs and restorations as hereafter provided, unless this Lease be
terminated by Landlord or Tenant or unless any mortgagee which is entitled to
receive casualty insurance proceeds fails to make available to Landlord a
sufficient amount of such proceeds to cover the cost of such repairs and
restoration.
If (a) the damage is of such nature or extent, in
Landlord's sole judgment, that. more than one hundred and eighty (180)
consecutive days, after commencement of the work, would be required (with
normal work crews and hours) to repair and restore the part of the Leased
Premises or the Building which has been damaged, or (b) a substantial portion
of the Leased Premises or the Building is so damaged that, in Landlord's
.sole judgment, it is uneconomic to restore or repair the Leased Premises or
the Building, as the case may be, or (c) less than two (2) years remain on
the Lease Term, Landlord shall so advise Tenant promptly, and either party,
in the case described in clause (a) above, or Landlord, in the case described
in clauses (b) or (c) above, for a period of ten (10) days thereafter, shall
have the right to terminate this Lease by written notice to the other, as of
the date specified in such notice, which termination date shall be no later
than thirty (30) days after the date of such notice.
In the event of such fire or other casualty, if
this Lease is not terminated pursuant to the terms of this Section 22, if
sufficient casualty insurance proceeds are available for use for such
restoration or repair, and if this Lease is then in full force and
18
effect, Landlord shall proceed diligently to restore the Leased Premises to
substantially its condition prior to the occurrence of the damage, provided
that Landlord shall not be obligated to repair or restore any alterations,
additions or fixtures which Tenant may have installed (whether or not Tenant
has the right or the obligation to remove the same or is required to leave
the same on the Leased Premises as of the expiration or earlier termination
of this Lease) unless Tenant, in a manner satisfactory to Landlord, assures
payment in full of all cost as may be incurred by Landlord in connection
therewith. Landlord is not required hereunder to insure any improvements or
alterations made by Tenant, to the Leased Premises, or any fixtures,
equipment or other property of Tenant. Tenant shall have the right, at its
sole expense, to insure the value of its leasehold improvements, fixtures,
equipment or other property located in the Leased Premises, for the purpose
of providing funds to Landlord to repair and restore the Leased Premises to
substantially its condition prior to the occurrence of the damage. If there
be any such alteration, fixtures or additions and Tenant does not assure or
agree to assure payment of the cost of restoration or repair as aforesaid,
Landlord shall have the right to determine the manner in which the Leased
Premises shall be restored so as to be substantially as the Leased Premises
existed prior to the damage occurring, as if such alterations, additions or
fixtures had not then been made or installed. The validity and effect of this
Lease shall not be impaired in any way by the failure of Landlord to complete
repairs and restoration of the Leased Premises or of the Building within one
hundred eighty (180) consecutive days after commencement of work, even if
Landlord had in good faith notified Tenant that the repair and restoration
could be completed within such period, provided that Landlord proceeds
diligently with such repair and restoration.
In the case of damage to the Leased Premises which
is of a nature or extent that Tenant's continued occupancy is substantially
impaired, the Annual Fixed Rent otherwise payable by Tenant hereunder shall
be equitably abated or adjusted for the duration of such impairment. Anything
to the contrary in this Lease notwithstanding, expressed or implied, Landlord
shall have no liability to Tenant for and shall have no duty to repair,
replace or restore any damage whatsoever, occurring as a result of leakage or
seepage of water or any other liquid from any source whatsoever, or breakage
of any pipes, mains or other plumbing located in or about the Building, or
snow, frost, steam, excessive heat or cold, falling plaster, sewage, gas,
odors, noise, or by air conditioning or heating apparatus. Provided, however,
Landlord shall repair, replace and restore as an Operating Expense of the
Building, all damage to the Building structure, systems and fixtures. Tenant
shall be responsible to insure and/or repair all of Tenant's leasehold
improvements and all equipment, fixtures and personal property located in the
Leased Premises.
23. HOLD HARMLESS: PUBLIC LIABILITY INSURANCE: WAIVER OF
SUBROGATION. Tenant covenants and agrees to exonerate, indemnify, defend,
protect and save Landlord, owner of the Lot and Landlord's managing agent, if
any, harmless from and against any and all claims, demands, expenses,.
losses, suits and damages as may be occasioned by reason of (a) any accident
or matter occurring on the Leased Premises, causing injury to persons or
damage to property (including, without limitation, the Leased Premises),
unless such accident
19
or other matter resulted from the negligence or otherwise tortious act of
Landlord or Landlord's agents or employees, (b) the failure of Tenant to
fully and faithfully perform the obligations and observe the conditions of
this Lease, or (c) the negligence or otherwise tortious act of Tenant or
anyone in or about the Building on behalf or at the invitation or right of
Tenant.
Tenant shall keep in force at its own expense
comprehensive general liability insurance (including a contractual liability
insurance endorsement) in companies acceptable to Landlord sufficient to
cover such indemnification and naming as additional insured Landlord, owner
of the Lot, Landlord's managing agent, if any, and Tenant against claims for
personal injury" including bodily injury, death or property damage in amounts
not less than $1,000,000 (or such higher limits as may be determined by
Landlord), and Tenant will further deposit the policy or policies of such
insurance, or certificates thereof, with Landlord. Said policy or policies of
insurance or certificates thereof shall have attached thereto an endorsement
that such policy shall not be cancelled without at least ten (10) days prior
written notice to Landlord and Landlord's managing agent, if any, and that no
act or omission of Tenant shall invalidate the interest of Landlord under
said insurance.
Landlord and Tenant hereby release the other from
any and all liability or responsibility to the other or anyone claiming
through or under them by way of subrogation or otherwise for any loss or
damage to property covered by any insurance then in force, even if such fire
or other casualty shall have been caused by the fault or negligence of the
other party, or anyone for whom such party may be responsible, provided,
however, that this release shall be applicable and in force and effect only
to the extent of and with respect to any loss or damage occurring during such
time as the policy or policies of insurance covering said loss shall contain
a clause or endorsement to the effect that this release shall not adversely
affect or impair said insurance or prejudice the right of the insured to
recover thereunder.
-24. MORTGAGEE AND OTHER AGREEMENTS. In the event any
person, firm, corporation or other entity who is a party to any instrument to
which this Lease is subject or subordinate (including, without limitation,
any mortgage now or hereafter placed upon the building or lot or on any
interest created therein) or their successor(s), succeeds thereunder to the
interest of landlord hereunder in the building or the lot, or acquires the
right to possession of the Building or the Lot, such person, firm,
corporation or other entity shall not be (a) liable for any act or omission
of the party named above as Landlord under this Lease; (b) liable for the
performance of Landlord's covenants hereunder which arise and accrue prior to
such person, firm, corporation or other entity succeeding to the interest of
Landlord hereunder or acquiring such right to possession; (c) subject to any
offsets or defenses which Tenant may have at any time against Landlord; (d)
bound by any rent which Tenant may have paid previously for more than one (1)
month in advance; and (e) shall not be bound by any amendment or modification
hereof relating to the reduction of rent, shortening of term, or effecting a
cancellation or surrender hereof and made without the consent of such person,
firm, corporation or other entity.
20
Tenant agrees, from time to time as may be
requested by Landlord, to execute, acknowledge and deliver to Landlord all or
any of the following: an estoppel letter certifying to such party as Landlord
reasonably may designate, including any mortgagee, that this Lease is in full
force and effect and has not been amended, modified or superseded, that
Landlord has satisfactorily completed all construction work required by this
Lease (subject to completion of punch-list items), that Tenant has accepted
the Leased Premises and is now in possession thereof, that Tenant has no
defense, offsets or counterclaims hereunder or otherwise against Landlord
with respect to this Lease or the Leased Premises and Landlord is not in
default hereunder (or if any of the foregoing not be the case, specifying in
reasonable detail the extent and nature thereof), that Tenant has no
knowledge of any pledge or assignment of this Lease or rentals hereunder,
that rent is accruing under this Lease but has not been paid more than one
(1) month in advance and the date to which rent has been paid; and any other
instrument as may be reasonably requested to be executed by Tenant by any
mortgagee of the Lot or the Building or any interest therein, so long as the
rights of Tenant as provided for by this Lease are not materially affected by
any such other instrument. Tenant's estoppel letter shall be in the form of
Exhibit "D" attached hereto and made a part here of, or in such other form as
Landlord or its mortgagee shall hereafter proscribe.
25. SUBORDINATION AND ATTORNMENT. This Lease and the
estate, interest and rights hereby created are subordinate to any mortgage
now or hereafter placed upon the Lot, the Building or any estate or interest
therein, including, without limitation, any mortgage on any leasehold estate,
and to all renewals, modifications, consolidations, replacements and
extensions of the same as well as any substitutions therefor. Tenant agrees
that in the event any person, firm, corporation or other entity acquires the
right to possession of the Lot and the Building including any mortgagee or
holder of any estate or interest having priority over this Lease, Tenant
shall, if requested by such person, firm, corporation or other entity, attorn
to and become the tenant of such person, firm, corporation or other entity,
upon the same terms and conditions as are set forth herein for the balance of
the Lease Term. Notwithstanding the foregoing, any mortgagee may, at any
time, subordinate its mortgage to this Lease, without Tenant's consent, by
notice in writing to Tenant, and thereupon this Lease shall be deemed prior
to such mortgage without regard to their respective dates of execution and
delivery, and in that event, such mortgagee shall have the same rights with
respect to this lease as though it had been executed prior to the execution
and delivery of the mortgage.
Tenant, if requested by Landlord, shall execute
any such instruments in recordable form as ma~ be reasonably required by
Landlord in order to confirm or effect the subordination of this Lease and
the attornment of Tenant to future landlords in accordance with the terms of
this Section.
26. ASSIGNMENT AND SUBLETTING . Tenant shall not assign,
pledge, mortgage or otherwise transfer or encumber this Lease, nor sublet all
or any part of the Leased Premises or permit the same to be occupied or used
by anyone other than Tenant or its employees without Landlord's prior written
consent, which consent shall not be unreasonably
21
withheld or delayed. It will not be unreasonable for Landlord to withhold its
consent if Landlord is acting in its best interests and not with the express
intent of interfering with Tenant's proposed assignment or Sublease, and if
the reputation, financial responsibility, or business of a proposed assignee
or subtenant is unsatisfactory to Landlord, or if Landlord deems such
business to not be consonant with that of other tenants in the Building, or
if the intended use by the proposed assignee or subtenant conflicts with any
commitment made by Landlord to any other tenant in the Building, or if the
proposed rental rate is lower than the then current rate at which similar
space in the Building is being offered by Landlord, or if the proposed
subletting is to a prospective subtenant for less than fifty percent (50%) of
the Leased Premises. Notwithstanding the foregoing, Tenant may assign or
sublet the Leased Premises without Landlord's consent to a corporation which
is a parent or subsidiary of Tenant or is affiliated with Tenant in a common
group of corporations provided no such assignment or subletting shall relieve
Tenant of its obligations and liabilities hereunder.
Tenant's request for consent shall be in writing
and contain the name, address, and description of the business of the
proposed assignee or subtenant, its most recent financial statement and the
other evidence of financial responsibility, its intended use of the Leased
Premises, and the terms and conditions of the proposed assignment or
subletting.
Within thirty (30) days from receipt of such
request, Landlord shall either: (a) grant or refuse consent; or (b) elect to
require Tenant (i) to execute an assignment of lease or sublease of Tenant's
interest hereunder to Landlord or its designee upon the same terms and
conditions as are contained herein, together with an assignment of Tenant's
interest as sublessor in any such proposed sublease, or (ii) if the request is
for consent to a proposed assignment of this Lease, to terminate this Lease
and the term hereof effective as of the last day of the third month following
the month in which the request was received.
Each assignee hereunder shall assume and be deemed
to have assumed this Lease and -shall be and remain liable jointly and
severally with Tenant for all payments and for the due performance of all
terms, covenants, conditions and provisions herein contained on Tenant's part
to be observed and performed. No assignment shall be binding upon Landlord
unless the assignee shall deliver to Landlord an instrument in recordable
form containing a covenant of assumption by the assignee, but the failure or
refusal of assignee to execute the same shall not release assignee from its
Habifity as set forth herein.
All the foregoing notwithstanding, Tenant shall not
enter into any lease, sublease, license, concession or other agreement for
the use, occupancy or utilization of the Leased Premises or any portion
thereof, which provides. for a rental or other payment for such use,
occupancy or utilization based in whole or in part on the income or profits
derived by any person from the property leased, used, occupied or utilized
(other than an amount based on a fixed percentage or percentages of receipts
or sales). Any such purported lease, sublease, license, concession or other
agreement shall be absolutely void and ineffective as a
22
conveyance or any right or interest in the possession, use or occupancy of
any part of the Leased Premises.
Any consent by Landlord hereunder shall not
constitute a waiver of strict future compliance by Tenant of the provisions
of this Section 26 or a release of Tenant from the full performance by Tenant
of any of the terms, covenants, provisions, or conditions in this Lease
contained.
27. DEFAULT. Any other provisions in the Lease
notwithstanding, it shall be an Event of Default under this Lease if (a)
Tenant fails to pay any installment of Fixed Rent, Additional Rent or other
sum payable by Tenant hereunder when due and such failure continues for a
period of ten (10) days after written notice given by or on behalf of
Landlord to Tenant, provided, however, Landlord need not give any such
written notice, for nonpayment of rent and Tenant shall not be entitled to
any such period of grace, more than twice in any twelve (12) month period,
(b) Tenant vacates the Leased Premises or uses or occupies the Leased
Premises otherwise than as permitted by Sections 1 and 10 hereof, or assigns
or sublets, or purports to assign to sublet, the Leased Premises or any part
thereof otherwise than in the manner and upon the conditions set forth in
Section 26 hereof, (c) Tenant fails to observe or perform any other covenant
or agreement of Tenant herein contained and such failure continues after
written notice given by or on behalf of Landlord to Tenant for more than
thirty (30) days and such additional time, if any, as is reasonably necessary
to cure such failure, provided Tenant commences to cure such failure within
such thirty (30) day period and diligently thereafter prosecutes such cure to
completion, (d) without Landlord's prior written consent, Tenant removes or
attempts to remove or manifests an intention to remove any or all of Tenant's
property from the Leased Premises otherwise than in the ordinary and usual
course of business, (e) Tenant makes any assignment for the benefit of
creditors; Tenant commits an act of bankruptcy or files a petition or
commences any proceeding under any bankruptcy or insolvency law; a petition
is filed or any proceeding is commenced against Tenant under any bankruptcy
or insolvency law and such petition or proceeding is not dismissed within
thirty (30) days; Tenant is adjudicated a bankrupt; Tenant by any act
indicates its consent to, approval of or acquiescence in, or a court
approves, a petition filed or proceeding commenced against Tenant under any
bankruptcy or insolvency law; a receiver or other official is appointed for
Tenant or for a substantial part of Tenant's assets or for Tenant's interests
in this Lease; any attachment or execution against a substantial part of
Tenant's assets or of Tenant's interest in this Lease remains unstayed or
undismissed for a period of more than ten (10) days; a substantial part of
Tenant's assets or of Tenant's interest in this Lease is taken by legal
process in any action against Tenant, or (f) any of the foregoing occur as to
any guarantor or surety of Tenant's performance under this Lease, or 'such
guarantor or surety defaults on any provision under its guaranty or
suretyship agreement.
23
28. LANDLORD'S REMEDIES.
(a) If an Event of Default hereunder shall have
happened and be continuing, Landlord may, at its option:
(i) declare due and payable and xxx for
and recover, all unpaid Fixed Rent for the unexpired period of the Lease Term
(and also all Additional Rent as the amount(s) of same can be determined or
reasonably estimated) as if by the terms of this Lease the same were payable
in advance, together with all legal fees and other expenses incurred by
Landlord in connection with the enforcement of any of Landlord's rights and
remedies hereunder, and/or
(ii) distrain, collect or bring action for
such Fixed Rent and Additional Rent as being rent in arrears, or may enter
judgment therefor in an amicable action as herein elsewhere provided for in
case of rent in arrears, or may file a Proof of Claim in any bankruptcy or
insolvency proceeding for such Fixed Rent and Additional Rent, or institute
any other proceedings, whether similar or dissimilar to the foregoing, to
enforce payment thereof, and/or
(iii) terminate the Lease Term by giving
written notice thereof to Tenant and, upon the giving of such notice, the
Lease Term and the estate hereby granted shall expire and terminate with the
same force and effect as though the date of such notice was the date
hereinbefore fixed for the expiration of the Lease Term, and all rights of
Tenant hereunder shall expire and terminate, but Tenant shall remain liable
as hereinafter provided, and/or
(iv) exercise any other rights and remedies
available to Landlord at law or in equity.
(b) If any Event of Default shall have happened
and be continuing, Landlord may, whether or not the Lease Term has been
terminated as herein provided, reenter and repossess the Leased Premises or
any part thereof by force, summary proceedings, ejectment or otherwise and
Landlord shall have the right to remove all persons and property therefrom.
Landlord shall be under no liability for or by reason of any such entry,
repossession or removal; and no such re-entry or taking of possession of the
Leased Premises by Landlord shall be construed as an election on Landlord's
part to terminate the Lease Term unless a written notice of such intention be
given to Tenant pursuant to Section 28(a)(iii) or unless the termination of
this Lease be decreed by a court of competent jurisdiction.
(c) At any time or from time to time after the
repossession of the Leased Premises or any part thereof pursuant to Section
28(b), whether or not the Lease Term shall have been terminated pursuant to
Section 28(a)(iii), Landlord may (but shall be under no obligation to) relet
all or any part of the Leased Premises for the account of Tenant for such
term or terms (which may be greater or less than the period which would
otherwise
24
have constituted the balance of the Lease Term) and on such conditions (which
may include concessions or free rent) and for such uses as Landlord, in its
absolute discretion, may determine, and Landlord may collect and receive any
rents payable by reason of such reletting. Landlord shall not be required to
accept any tenant offered by Tenant or observe any instruction given by
Tenant about such reletting, or do any act or exercise any care or diligence
with respect to such reletting or to the mitigation of damages. For the
purpose of such reletting, Landlord may decorate or make repairs, changes,
alterations or additions in or to the Leased Premises or any part thereof to
the extent deemed by Landlord desirable or convenient, and the cost of such
decoration, repairs, changes, alterations or additions shall be charged to
and be payable by Tenant as Additional Rent hereunder, as well as any
reasonable brokerage and legal fees expended by Landlord.
(d) No expiration or termination of the Lease Term
pursuant to Section 28(a)(iii), by operation of law or otherwise, and no
repossession of the Leased Premises or any part thereof pursuant to Section
28(b), or otherwise, and no reletting of the Leased Premises or any part
thereof pursuant to Section 28(c) shall relieve Tenant of its liabilities and
obligations hereunder, all of which shall survive such expiration,
termination, repossession or reletting.
(e) In the event of any expiration or termination
of this Lease or repossession of the Leased Premises or any part thereof by
reason of an occurrence of an Event of Default, and Landlord has not elected
to accelerate rent pursuant to Section 28(a)(i), Tenant shall pay to Landlord
the Fixed Rent, Additional Rent and other sums required to be paid by Tenant
to and including the date of such expiration, termination or repossession;
and, thereafter, Tenant shall, until the end of what would have been the
expiration of the Lease Term in the absence of such expiration, termination
or repossession, and whether or not the Leased Premises or any part thereof
shall have been relet, be liable to Landlord for, and shall pay to Landlord,
as liquidated and agreed current damages, the Fixed Rent, Additional Rent and
other sums which would be payable under this Lease by Tenant in the absence
of such expiration, termination or repossession, less the net proceeds, if
any, of any reletting effected for the account of Tenant pursuant to Section
28(c), after deducting from such proceeds all of Landlord's reasonable
expenses in connection with such reletting (including, without limitation,
all related reasonable repossession costs, brokerage commissions, legal
expenses, attorneys' fees, employees' expenses, alteration costs and expenses
of preparation for such reletting). Tenant shall pay such current damages on
the days on which the Fixed Rent would have been payable under this Lease in
the absence of such expiration, termination or repossession, and Landlord
shall be entitled to recover the same from Tenant on each such day.
(f) At any time after such expiration or
termination of this Lease or repossession of the Leased Premises or any part
thereof by reason of the occurrence of an Event of Default, whether or not
Landlord shall have collected any current damages pursuant to Section 28(e),
Landlord shall be entitled to recover from Tenant, and Tenant shall pay to
Landlord on demand, unless Tenant has paid the whole of accelerated rent
pursuant to
25
Section 28(a)(i), as and for liquidated and agreed final damages for Tenant's
default and in lieu of all current damages beyond the date of such demand (it
being agreed that it would be impracticable or extremely difficult to fix the
actual damages), an amount equal to the excess, if any, of (i) Fixed Rent,
Additional Rent and other sums which would be payable under this Lease for
the remainder of the Lease Term from the date of such demand (or, if it be
earlier, the date to which Tenant shall have satisfied in full its
obligations under Section 28(e) to pay current damages) for what would have
been the then unexpired term of this Lease in the absence of such expiration,
termination or repossession, discounted at the prevailing yield to maturity
on United States Treasury Notes having the closest maturity to the expiration
date of the Lease Term, over (ii) the then fair rental value of the Leased
Premises for the same period, discounted at a like rate. If any statute. or
rule of law shall validly limit the amount of such liquidated final damages
to less than the amount above agreed upon, Landlord shall be entitled to the
maximum amount allowable under such statute or rule of law.
(g) Tenant, in consideration for the execution of
this Lease by Landlord and for the covenants and agreements on the part of
Landlord herein contained, and fully comprehending the relinquishment of
certain rights including rights of pre-judgment notice and hearing, hereby
expressly authorizes any attorney of any Court of Record to accept service of
process for, to appear for, and to confess judgment against Tenant in any and
all actions brought hereunder by Landlord against Tenant to recover
possession from time to time of the Leased Premises in accordance with the
terms hereof (and Tenant agrees that upon the entry of each judgment for said
possession a Writ of Possession or other appropriate process may issue
forthwith).
(h) Tenant further hereby expressly authorizes and
empowers (which power is coupled with an interest) Landlord, upon the
occurrence of an Event of Default and so long as the same is continuing, to
enter upon the Leased Premises, distrain upon and remove therefrom all
inventory, equipment, machinery, trade fixtures, and personal property of
whatsoever kind or nature, owned by Tenant and to proceed, without judicial
decree, writ of execution or assistance of constables, to conduct a private
sale, by auction or sealed bid, of such personal property, at which sale
Landlord may bid without restriction. Tenant hereby waives the benefit of all
laws, whether now in force or hereafter enacted, exempting any personal
property on the Leased Premises from sale or levy, whether execution thereon
is had by order of ANY COURT OR THROUGH PRIVATE sale as herein authorized.
Landlord agrees, on the request of a secured party holding a valid purchasing
money security interest in personal property located at the Leased Premises,
to execute a Landlord's waiver on terms and conditions reasonably acceptable
to Landlord.
(i) In any action for ejectment or for distraint,
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 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
26
to the contrary notwithstanding. The authority to confess judgment against
Tenant hereunder shall not be exhausted by one (1) exercise thereof, but
judgment may be confessed as provided herein from time to time as often as
any Event of Default occurs under this Lease, and such authority- may be
exercised as well after the expiration of the Lease Term and/or during or
after the expiration of any extended or renewal term.
(j) No right or remedy herein conferred upon or
reserved to either party is intended to be exclusive of any other right or
remedy herein by law provided, but each shall be cumulative and in addition
to every right or remedy given herein or now or hereafter existing at law or
in equity or by statute.
(k) No waiver by either party of any breach by the
other of any of the other's obligations, agreements or covenants herein shall
be a waiver of any subsequent breach or of any obligation, agreement or
covenant, nor shall any forbearance by either party to seek a remedy for any
breach by the other be a waiver by either party or any rights and remedies
with respect to such or any subsequent breach.
(l) In the event of a breach or threatened breach
by either party of any of the covenants or provisions hereof, the other shall
have the right of injunction and right to invoke any remedy allowed at law or
in equity as if re-entry summary proceedings and other remedies were not
herein provided for.
(in) Tenant hereby expressly waives any and all
rights of redemption granted by or under any present or future laws in the
event of Tenant being evicted or dispossessed for any cause, or in the event
of Landlord obtaining possession of the Leased Premises, by reason of the
violation by Tenant of any of the covenants and conditions of this Lease, or
otherwise.
29. LEGAL FEES AND OTHER COSTS. The prevailing party in any
enforcement proceeding shall be entitled to reimbursement of all reasonable
legal fees and expenses by the non-prevailing party.
30. LATE CHARGE. If any installment of fixed rent,
additional rent or other sums payable by tenant to landlord under this lease
shall not be paid on the due date thereof, Tenant shall pay to Landlord a
"late charge" of five percent (5 %) of the amount so due for the purpose of
defraying the. expense incident to handling such delinquent payment.
31. SUCCESSORS AND ASSIGNS. The obligations of this Lease
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns; provided that Landlord and each
successive owner of the Building and/or the Lot shall be liable only for
obligations accruing during the period of its ownership or interest in the
Building or the Lot; and from and after the transfer by Landlord or such
successive owner of its ownership or other interest in the Building or the
Lot, Tenant shall look solely to the successors in title for the performance
of Landlord's obligations hereunder. The liability of
27
Landlord or any successive owner of the Building and/or the Lot hereunder and
all of its officers, employees, shareholders or joint venturers or partners,
if any, whether general or limited, shall be limited to Landlord's estate or
other title or interest in the Building and/or the Lot.
32. Waivers. No delay or forbearance by Landlord in
exercising any right or remedy hereunder or in undertaking or performing any
act or matter which is not expressly required to be undertaken by Landlord
shall be construed, respectively, to be a waiver of Landlord's rights or to
represent any agreement by Landlord to undertake or perform such act or
matter thereafter.
33. WAIVER OF TRIAL BY JURY. It is mutually agreed by and
between Landlord and Tenant that the respective parties hereto shall and they
hereby do waive trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use of or occupancy of the
Leased Premises and/or any claim of injury or damage and any emergency
statutory or any other statutory remedy.
34. SEVERABILITY. Each covenant and agreement in this Lease
shall for all purposes be construed to be a separate and independent covenant
or agreement. If any provision in this Lease or the application thereof shall
to any extent be invalid, illegal or otherwise unenforceable, the remainder
of this Lease, and the application of such provision other than as invalid,
illegal or unenforceable, shall not be affected thereby; and such provisions
in this Lease shall be valid and enforceable to the fullest extent permitted
by law.
35. NOTICES. All notices or other communications required
or permitted hereby shall be effective only if the same are in writing and
are signed by the party giving the notice or by an agent or other person
authorized in writing to so act on behalf of such party. Notices.-to Tenant
shall be given by registered or certified mail, return receipt requested,
addressed to Tenant at the address set forth in Section I hereto; and notices
to Landlord shall be given by registered or certified mail, return receipt
requested to the address set forth in section I hereof. All notices shall be
deemed given unless otherwise specified herein, on the date when same are
delivered, if delivered, or on the date when the same are deposited in the
mail.
36. AMENDMENT AND MODIFICATIONS. This Lease contains the
entire agreement between the parties hereto, and shall not be amended,
modified or supplemented unless by agreement in writing signed by both
Landlord and Tenant and the same shall not be valid unless approved in
writing by all mortgagees and holders of any estate or interest in the
Building or the Lot by virtue of leases or other instruments expressly
referred to herein or which are then of record.
28
37. SECURITY DEPOSIT. Upon execution of this Lease, Tenant
shall deposit the sum set forth in Section I hereof with Landlord as a
security deposit (the "Security Deposit") to be held by Landlord as security
for Tenant's performance of all of Tenant's obligations under this Lease.
Landlord may commingle the Security Deposit with its general funds and any
interest earned on the Security Deposit shall belong to Landlord. Landlord,
in its sole discretion, may apply the Security Deposit to cure any Event of
Default under this Lease. If any such application is made, upon notice by
Landlord to Tenant, Tenant shall promptly replace the amount so applied. If
there has been no Event of Default within thirty (30) days after expiration
or earlier termination of this Lease, Landlord shall return the entire
balance of the Security Deposit to Tenant. Tenant will not look to any
foreclosing mortgagee on the Lot or Building or any interest therein for the
return of the Security Deposit unless the mortgagee has expressly assumed
Landlord's obligations under this Lease or has actually received the balance
of the Security Deposit. In the event Landlord sells the Lot and Building and
transfers the Security Deposit to a new owner of the Lot and Building, Tenant
shall look solely to such new owner for the return of the balance of the
Security Deposit.
38. ENVIRONMENTAL MATTERS.
(a) Tenant shall promptly deliver to Landlord
copies of any of the following documents that Tenant receives or prepares:
(i) applications or other materials
regarding the Land, Building, or Premises submitted to any governmental
agency in compliance with Environmental Statutes;
(ii) any notifications regarding the Land,
Building, or Premises submitted to any person pursuant to Environmental
Statutes;
(iii) any permit, license, approval,
amendment or modification thereto granted regarding the Land, Building, or
Premises pursuant to Environmental Statutes;
(iv) any record or manifest required to be
maintained regarding the land, building, or premises pursuant to
environmental statutes; and
(v) any correspondence, notice of
violation, summons, order, complaint or other document received by Tenant or
its lessees, sublessees or assigns (if permitted), pertaining to the Land,
Building, or Premises and to compliance with any Environmental Statutes.
"Environmental Statutes" shall mean all
statutes, ordinances, regulations, orders and requirements of common law
regulating environmental matters concerning (A) activities at the Land,
Building or Premises, (B) repairs or construction of any improvements located
on the Land, (C) handling of any materials, (D) discharges to the
29
air, soil, surface water, or ground water, and (E) storage, treatment or
disposal of any waste at the Land, Building or Premises.
(b) In the event that Landlord or Landlord's mortgagee performs
or n of the Lot or Building for any of the below matters, lord or Landlord's
mortgagee with respect to such investigation:
(i) compliance at the Land, Building, or Premises
with Environmental Statutes;
(ii) the presence of hazardous substances or
contamination at the Land, Building, or Premises;
(iii) the presence at the Land, Building, or
Premises of polychlorinated biphenyls, substances containing polychlorinated
biphenyls, asbestos, materials containing asbestos, or unreaformaldehyde foam
insulation;
(iv) the presence at the Land of (A) a wetland or
other "water of the United States" for purposes of Section 404 of the federal
Clean Water Act, 33 U.S.C. Section 1344, or any similar area regulated under
any state law, (B) a flood plain or other flood hazard area as defined
pursuant to the Pennsylvania Flood Plain Management Act, Pa. Stat. tit. 32,
Sections 679.101 to .601 (Xxxxxx Sup. 1989), (C) a portion of the coastal
zone for purposes of the federal Coastal Zone Management Act, 16 U.S.C.
Sections 1451-1464, or (D) any other area development of which is
specifically restricted under applicable law by reason of its physical
characteristics or prior use;
(v) the presence at the Land, Building, or
Premises of radon products; or
(vi) the presence at the Land, Building, or
Premises of tanks presently or formerly used for the storage of any liquid or
gas above or below ground.
(C) In the event Tenant brings any hazardous or toxic
substances or waste into the Leased Premises of the nature described in
clause (b) above, Tenant shall notify Landlord thereof and Tenant shall
promptly clean up the same.
(d) In the event any present or future Federal, State or
municipal statute, ordinance, law, rule, or regulation requires Landlord or
Tenant to obtain a clearance certificate or Declaration of Non-Applicability,
similar or dissimilar to those required by the New Jersey Environmental
Clean-Up Responsibility Act, upon the expiration or earlier termination of
the Lease Term, or upon the sale of the Lot or Building by Landlord, Tenant
will apply therefore and deliver an application therefor to Landlord without
delay,
30
and take such action as may be necessary under such applicable statute,
ordinance, law, rule or regulation to obtain such clearance certificate or
Declaration of Non-Applicability.
39. BROKERS. Landlord and Tenant each represent and warrant
to the other that it has not engaged any broker, finder or other person other
than the broker, if any, listed in Section I hereof, who would be entitled to
any commission or fees in respect of the negotiation, execution or delivery
of this Lease. Landlord and Tenant each agree to indemnify and hold harmless
the other against any loss, cost, liability or expense incurred by the other
as a result of any claim asserted by any other broker, finder or other person
on the basis of any arrangements or agreements made or alleged to have been
made by or on behalf of the other. Landlord shall be responsible for the
payment of a brokerage fee to the broker listed in Section I at Landlord's
scheduled commission rate or as otherwise agreed in writing between Landlord
and such broker.
40. FINANCIAL STATEMENTS. Within ninety (90) days following
the end of Tenant's fiscal year, Tenant shall deliver to Landlord a copy of
Tenant's financial statements (consisting, at a minimum, of Tenant's balance
sheet and income statement) for Tenant's fiscal year just ended, certified by
an independent certified public accountant as presenting fairly, in all
material respects, the financial position of Tenant and the results of its
operations in accordance with generally accepted accounting principles. In
addition, Tenant shall provide from time to time, on request of Landlord,
bank references necessary to verify Tenant's continued good credit.
41. TENANT'S TERMINATION RIGHTS. Tenant shall have the
right and option to terminate this Lease at the end of the twenty-fourth
(24th) Lease Month (the "Termination Date") of the initial Lease Term by
giving Landlord not less than six (6) months prior written notice thereof and
paying to Landlord at the time of the giving of such notice a termination fee
of $73,889.68 (the "Termination Fee"). If Tenant gives notice of its election
to terminate this lease under this Section 41, but fails to pay the
Termination Fee or fails to vacate the Leased Premises on or before the
Termination Date, Landlord shall have the option of treating such failure as
either (a) an Event of Default hereunder, (b) a rescission of Tenant's notice
of termination, or (c) a holdover under Section 4 hereof. In any event,
Tenant shall pay Landlord, as Additional Rent hereunder, all damages, losses,
costs and expenses (including reasonable legal fees and expenses) Landlord
may have incurred by reason of Tenant's failure to vacate, including, without
limitation, any costs or lost profits from any reletting or proposed
reletting of the Leased Premises and Landlord's efforts to regain possession
of the Leased Premises.
42. PARKING. At no additional rent to * Tenant, Landlord
shall provide on the Lot on which the Building is located parking for all
tenants (including Tenant), their guests and customers at an overall rate of
five (5) parking spaces per 1,000 square feet of office space in the
Building, which shall include two (2) spaces in the underground parking
structure.
31
43. OPTIONS TO Extend. Provided no Event of Default under
this Lease has occurred and is CONTINUING, TENANT shall have the right and
option, exercisable by giving Landlord written notice at least nine (9)
months prior to the expiration of the initial Term, to to extend the Lease
Term for one (1) additional period of four (4) years (the "Extended Term")
and, upon the giving of such notice, this Lease shall automatically be
extended for such four (4) year period and no further agreement of extension
need be executed. In the even that Tenant fails to give such notice to
Landlord as herein provided, this Lease shall automatically terminate at the
end of the then current Lease Term and Tenant shall have no further right or
option to extend this Lease. The Extended Term shall be upon the same
covenants, agreements, provisions, terms and conditions as during the
original Lease Term except that the Annual Fixed Rent during the Extended
Term shall equal the Fair Market Rent for the Leased Premises, but not less
than the aggregate rent paid during the last year of the initial Term. The
"Fair Market Rent" for the Leased Premises shall mean the rent for comparable
space in a Class A mid-rise building in lower Bucks County for a new tenant
entering into a new four (4) year lease and with the Operating Expense
Allowance being adjusted to reflect the expense allowance used in calculating
the Fair Market Rent. At least nine (9) months prior to the expiration of the
then current Lease Term, Tenant may request Landlord to quote the Fair Market
Rent effective for the first day of the Extended Term. If Tenant objects
thereto, Landlord and Tenant shall negotiate for a period of thirty (30) days
to determine whether the Fair Market Rent can be agreed upon. In the event
Landlord and Tenant cannot agree on the Fair Market Rent within such thirty
(30) day period, Landlord and Tenant shall mutually select a real estate
appraiser (MAI or equal) knowledgeable of rents obtained in Class A mid-rise
office buildings in lower Bucks County, Landlord shall submit to such
appraiser the lowest Annual Fixed Rent which Landlord is willing to accept,
together with any information with respect thereto that Landlord deems
relevant and Tenant shall submit to such appraiser the highest Annual Fixed
Rent which Tenant is wining to pay, together with any information with
respect thereto that Tenant deems relevant, and the appraiser will then
select which of Landlord's or Tenant's submissions most clearly reflect the
Fair Market Rent for Class A mid-rise office buildings in lower Bucks County
for new leases for a four (4) year term as aforesaid. The appraiser's
decision shall be rendered within forty-five (45) days following his
selection and to determine the Fair market rent of the leased premises as
aforesaid. Such determination shall be final, binding and or conclusive on
Landlord and Tenant.
44. HEADINGS AND TERMS. The title, headings and table of
contents of this Lease are for convenience of reference only and shall not in
any way be utilized to construe or interpret the agreement of the parties as
otherwise set forth herein. The term "Landlord" and the term "Tenant" as used
herein shall mean, where appropriate, all persons acting by or on behalf of
the respective parties, except as to any required approvals, consents or
amendments, modifications or supplements hereunder when such terms shall only
mean the parties originally named on the first page of this Lease as Landlord
and Tenant, respectively, and their agents so authorized in writing.
32
45. GOVERNING LAW. This Lease shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed the date first mentioned.
LANDLORD:
GLENVIEW CORPORATE CENTER LIMITED PARTNERSHIP
By: BPPI-I, L.P.
By: Bergen of Philadelphia, Inc.
By: /s/ illegible
----------------------------------------
By: Pitcairn Properties, Inc.
By: /s/ illegible
----------------------------------------
TENANT:
WORLDGATE COMMUNICATIONS
By: /s/ Xxx Xxxxxxxxx
----------------------------------------
Name: Xxx Xxxxxxxxx
--------------------------------------
Title: Chairman/CEO
-------------------------------------
Attest: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: VP/GM
------------------------------------
33
EXECUTION
FIRST AMENDMENT TO LEASE
FIRST AMENDMENT TO LEASE dated October 24, 1997 by and between
GLENVIEW CORPORATE CENTER LIMITED PARTNERSHIP, Landlord ("Landlord"), and
WORLDGATE COMMUNICATIONS, as Tenant ("Tenant").
BACKGROUND
A. Landlord and Tenant entered into a Lease dated January 14,
1997 (the "Original Lease") pursuant to which Tenant leased approximately 16,195
rentable square feet (the "Premises") at 0000 Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx,
Xxxxxxxxxxxx (the "Building"). Capitalized terms not otherwise defined herein
shall have the meaning assigned to them in the Original Lease.
B. Tenant desires to Lease an additional approximately 3,130
rentable square feet on the second (2nd) floor of the Building (the "Additional
Premises"). Landlord has agreed to the lease of the Additional Promises upon the
terms and conditions hereinafter set forth.
AGREEEMENT
NOW, THEREFORE, in consideration of the foregoing, the parties
hereto, intending to be legally bound hereby, agree as follows:
1. DEFINITIONS; EFFECTIVENESS. The Original Lease as amended by
this Amendment is hereafter referred to as the Lease. The respective obligations
of Landlord and Tenant prior to the Effective Date (as defined in Section 3
below) shall be governed in all respects by the Original Lease.
2. PREMISES. Landlord hereby leases the Additional Premises to
Tenant for the Annual Rent set forth in Section 3 below and upon the terms and
conditions set forth in the Original Lease. EXHIBIT "A" to the Lease is hereby
amended to include as the Premises the area in the Building depicted on EXHIBIT
"A" attached hereto.
3. BASE RENT. Tenant shall pay to Landlord as Annual Fixed Rent
for the Additional Premises the sum of Twenty and 50/100 Dollars ($20.50) per
rentable square foot, or Sixty Four Thousand one Hundred Sixty Five ($64,165),
per annum, commencing December 1, 1997 (the "Effective Date"), payable as
provided in the Original Lease.
4. CONSTRUCTION OF ADDITIONAL PREMISES. (a) Landlord will
construct the improvements in the Additional Premises in accordance with the
plans attached or described in EXHIBIT "B". Landlord will provide Tenant with a
Tenant Improvement Allowance in the amount of $29,200. To the extent that Tenant
makes any changes in finish or scope of the work described in EXHIBIT "B" Tenant
shall pay such excess monthly in proportion to the overall Cost of Construction
within fifteen (15) days of receiving Landlord's statement therefor. The "Cost
of Construction" shall mean the actual charges of Landlord's contractors,
designers and engineers and Landlord's overhead in an amount equal to ten
percent (10%) of such charges.
(b) All construction work required or permitted
by the Lease, whether by Landlord or Tenant, shall be done in a good and
workmanlike manner and in compliance with all applicable laws, ordinances,
regulations and orders of governmental authorities and with all applicable
codes of all insurers of the Building. Each party may inspect the work of the
other at reasonable times and shall promptly give notice of observed defects.
Each party hereby agrees to be bound by and authorizes the other to rely
upon, in connection with design and construction, approval and other actions
by their respective construction representative, as identified by written
notice to the other. Landlord's construction representation is R. Xxxxxxxx
Xxxxxxxxx.
(c) Within five (5) days after written notice
from Landlord to Tenant of the date on which Landlord reasonably expects that
the construction of the Additional Premises will be Substantially Completed
or, in the absence of such notice, within five (5) days after Tenant
commences occupancy of the Additional Premises, or any part thereof,
Landlord's and Tenant's construction representatives shall make such
inspection of the Additional Premises as Tenant deems appropriate, and,
except as otherwise notified by Tenant in writing to Landlord within such
period, Tenant shall be deemed to have accepted the Additional Premises in
their then condition and as being in the condition in which Landlord is
obligated to deliver the Additional Premises hereunder. If as a result of
such inspection Tenant discovers deviations or variations from the plans and
specifications for the construction of the Additional Premises of a nature
commonly found on a "punch list" (as that term is used in the construction
industry), Tenant shall promptly notify Landlord of such deviations. The
existence of such punch list items shall not postpone the Effective Date of
this Lease nor the obligations of Tenant to pay rent. After the Effective
Date, Landlord, its agents and/or contractors may enter the Additional
Premises from time to time to complete unfinished details and adjustments
with reasonable dispatch, and such entry shall not constitute an eviction, in
whole or in part, entitle Tenant to any abatement or diminution of rent,
relieve Tenant of any of its obligations
under the Lease, or impose any liability on Landlord to Tenant or its agents or
contractors by reason thereof.
5. COMPLETION OF IMPROVEMENTS. (a) The Additional Premises
shall be deemed to be substantially completed ("Substantially Completed" or
"Substantial Completion") when all work specified to be done in the plans
attached or described in EXHIBIT "B", attached hereto and made a part hereof,
has BEEN substantially completed, except for minor items of finishing and
construction of a nature which are not necessary to make the Additional Premises
reasonably tenantable for Tenant's use as stated herein.
(b) If TENANT MAKES any changes in such plans,
Tenant shall bear any additional construction or other expense to Landlord
caused directly or indirectly by any delay caused BY such changes and shall
pay to Landlord as Additional Rent, at the Effective Date as defined in
Section 3, an amount equal to the aggregate number of days of delay caused by
such changes, multiplied by one three hundred sixty-fifth (1/365th) of the
Annual Fixed Rent. Landlord and Tenant, understanding the difficulty in
determining or estimating the actual damages that will result from Tenant's
changes, have agreed upon the foregoing as an appropriate method of
liquidating such damages.
(c) Landlord shall have the Additional Premises
Substantially Completed by the Effective Date, except for delays due to
governmental regulation, unusual scarcity of or inability to obtain labor or
materials, labor difficulties, casualty or other causes beyond Landlord's
reasonable control, any of which shall extend the Effective Date for a period
equal to the total of the duration of each such delay. However, if the
Additional Premises is not Substantially Completed within one (1) month
following the Effective Date, as the same may be extended in accordance
herewith, Tenant, as Tenant's sole right thereby arising, may terminate the
Lease (as to the Additional Premises ONLY) by written notice to Landlord
given within fifteen (15) days thereafter, provided that the Lease Term for
the Additional Premises shall not have commenced prior to the giving of such
notice to Tenant, the Lease as to the Additional Premises to terminate in
such case upon Landlord's receipt of such notice, whereupon Landlord shall
return all rent and other monies paid by Tenant to Landlord in advance on
account of the Additional Premises, except as hereinafter stated, and all
further obligaTIONS OF the parties hereunder shall end. The termination right
provided herein is applicable to the Additional Premises only, and shall not
terminate or otherwise effect the Tenant's obligations under the Lease as to
the Leased Premises under the Original Lease.
(d) it is understood that in the event of such
termination by Tenant, Landlord shall have no responsibility to
reimburse Tenant for ANY COST or expenses AS TENANT MAY have directly or
indirectly incurred toward this leasing or the occupancy of the Additional
Premises, whether with respect to arranging for or termination of arrangements
for other space.
6. TERM. The term of the Lease with respect to the Additional
Area shall commence on the Effective Date (as defined in Section 3 above) and
thereafter be coterminous with the Lease Term as provided in the Original Lease.
7. ADDITIONAL RENT. The Additional Premises shall be considered
part of the Rentable Area of the Leased Premises for the purposes of determining
Tenant's Proportionate Share under Paragraph 6 of the Original Lease. Tenant
acknowledges and agrees that from and after the Effective Date, Tenant's
Proportionate Share shall be 13.53%.
S. TENANT'S TERMINATION RIGHTS. In the event that Tenant
exercises its right and option to terminate the Lease in accordance with Section
41 of the original Lease, Tenant shall pay to Landlord, in addition to any and
all costs and charges provided in Section 41 of the Original Lease (including,
but not limited to the Termination Fee), the unamortized portion of the Tenant
Improvement Allowance provided in Section 4(a) hereof.
9. BROKERS. Landlord and Tenant each represent and warrant to
the other that it has not engaged any broker, finder or other person other than
the broker, if any, listed in Section I of the Original Lease, who would be
entitled to any commission or fees in respect of the negotiation, execution or
delivery of this Lease. Landlord and Tenant each agree to indemnify and hold
harmless the other against any loss, cost, liability or expense incurred by the
other as a result of any claim asserted by any other broker, finder or other
person on the basis of any arrangements or agreements made or alleged to have
been made by or on behalf of the other. Landlord shall be responsible for the
payment of a brokerage fee to the broker listed in Section 1 of the Original
Lease at Landlord's scheduled commission rate or as otherwise agreed in writing
between Landlord and such broker.
10. GENERAL PROVISIONS.
(a) GOVERNING LAW. This Amendment shall be governed
by and construed in accordance with the laws of the Commonwealth of
Pennsylvania.
(b) ENTIRE AGREEMENT. This Amendment
constitutes the entire agreement between the parties hereto and may not be
modified except by a written instrument executed by the parties hereto.
(c) CAPTIONS. Paragraph headings are used herein
solely for reference purposes and are not to be construed as part of this
Amendment.
(d) COUNTERPARTS. This Amendment may be executed in
counterpart copies, each of which shall constitute an original but all of
which together shall constitute one and the same instrument.
(e) FULL FORCE AND EFFECT. Except as expressly
modified herein or inconsistent with the terms hereof, THE Original Lease
shall remain in full force and effect and all of the provisions thereof are
hereby ratified and confirmed.
IN WITNESS WHEREOF, the undersigned have executed this First
Amendment to Lease on and as of the date first above set forth.
Attest: LANDLORD:
GLENVIEW CORPORATE CENTER
LIMITED PARTNERSHIP
By: /s/ Xxxxx X. Xxxxxx By: Pitcairn Properties Incorporated
-----------------------------
Title:
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Authorized Officer
Pitcairn Properties Incorporated
executes This Lease in its
capacity as the General Partner of
PPI-LDP-I which is the general
partner of Land and Development
Partnership -I which is the
General Partner of Landlord.
Attest: TENANT:
WORLDGATE COMMUNICATIONS
By: /s/ illegible
-----------------------------
Title:
By: /s/ Xxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxx X. Xxxx
Title: VP, General Counsel
