OFFICE SPACE LEASE
for
Xxxxxxxx 00 Xxxxxxxxxxx Xxxxxxxxx
by and between
X'Xxxxx Renaissance II Associates, L.P.
(as Landlord)
and
U.S. Interactive
(as Tenant)
Date: May 14, 1998
THIS LEASE (the "Lease") is made the ____ day of May, 1998 between
X'Xxxxx Renaissance II Associates, L.P. herein referred to as "Landlord") whose
address is 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxx Xxxx, Xxxxxxxxxxxx 00000 and U. S.
Interactive (herein referred to as "Tenant") whose address is 0 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx, XX 00000.
PREAMBLE
BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the
following terms whenever used in this Lease shall have only the meanings set
forth in this section, unless such meanings are expressly modified, limited or
expanded elsewhere herein.
1. ADDITIONAL RENT shall mean all sums in addition to Fixed Basic Rent
payable by Tenant to Landlord or to third parties pursuant to the provisions of
the Lease;
2. BROKERS shall mean Xxxxx Xxxx & Co., Inc. and Xxxxxx-Pitcairn, Inc.
3. BUILDING shall mean Building No. 12, 0000 Xxxxxxxxxxx Xxxxxxxxx, Xxxx xx
Xxxxxxx, XX as described on Exhibit A hereto.
4. BUILDING HOLIDAYS shall be those shown on Exhibit D.
5. COMMENCEMENT DATE shall be December 1, 1998 subject to Section 4 of the
Lease.
6. DEMISED PREMISES OR PREMISES shall be the entire Building consisting of
approximately Twenty Eight Thousand Seventy Seven (28,077) gross rentable square
feet in the Building subject to final measurement and agreement in accordance
with 1996 BOMA standards.
7. EXHIBITS shall be the following, attached to this Lease and incorporated
herein and made a part hereof:
Exhibit A Site Plan with Parking
Exhibit B Rules and Regulations
Exhibit C Plans and Specifications
Exhibit D Building Holidays
Exhibit E Tenant Estoppel Certificate
Exhibit F Commencement Date Agreement
Exhibit G Project Schedule
8. EXPIRATION DATE shall be the day before the seventh (7th) calendar year
anniversary of the Commencement Date.
i
9. FIXED BASIC RENT shall be calculated and payable as follows:
Rate Per Rentable
Square Foot Monthly
Year (net of utilities) Installment Yearly Rate
---- ------------------ ----------- -----------
1 $21.50 $50,304.63 $603,655.50
2 $22.00 $51,474.50 $617,694.00
3 $22.50 $52,644.38 $631,732.50
4 $23.00 $53,814.25 $645,771.00
5 $23.50 $54,984.13 $659,809.50
6 $24.00 $56,154.00 $673,848.00
7 $24.50 $57,323.88 $687,886.50
10. PERMITTED USE shall be general office use and for no other purpose.
11. PROPORTIONATE SHARE shall mean one hundred percent (100%) with respect
to the Building.
12. SECURITY DEPOSIT shall be an irrevocable and transferable letter of
credit payable on sight in favor of holder in the amount of One Hundred
Twenty-Five Thousand Dollars ($125,000.00) which shall be in form and substance
acceptable to Landlord. In the event Tenant is not in default and has not been
in default, beyond any applicable notice and cure periods, after two (2) years
after the Commencement Date, then the letter of credit shall be reduced to the
then current amount of one (1) month's Fixed Basic Rent.
13. TERM shall mean seven (7) years from the Commencement Date unless
terminated or extended pursuant to any option or provision contained herein.
ii
TABLE OF CONTENTS
Section Page
1. Definitions...........................................................1
2. Premises..............................................................1
3. Completion of Premises................................................1
4. Term..................................................................2
5. Use of Premises.......................................................2
6. Rent..................................................................2
7. Insurance.............................................................5
8. Repairs and Maintenance...............................................6
9. Utilities and Services................................................7
10. Governmental Regulations..............................................8
11. Signs.................................................................8
12. Alterations, Additions and Fixtures...................................8
13. Mechanic's Liens......................................................9
14. Landlord's Right of Entry............................................10
15. Damage by Fire or Other Casualty.....................................11
16. Non-Abatement of Rent................................................12
17. Indemnification......................................................12
18. Condemnation.........................................................12
19. Quiet Enjoyment......................................................13
20. Rules and Regulations................................................14
21. Assignment and Subletting............................................14
22. Tenant's Expansion/Relocation........................................17
23. Subordination........................................................17
24. Curing Tenant's Defaults.............................................17
25. Surrender............................................................17
26. Defaults-Remedies....................................................18
27. Condition of Premises................................................21
28. Hazardous Substances.................................................21
29. Recording............................................................21
30. Brokers'Commission...................................................22
31. Notices..............................................................22
32. Irrevocable Offer, No Option.........................................23
33. Inability to Perform.................................................23
34. Survival.............................................................23
35. Corporate Tenants....................................................23
36. Waiver of Invalidity of Lease........................................23
37. Security Deposit.....................................................23
38. Tenant Estoppel Certificate..........................................23
39. Rights Reserved by Landlord..........................................24
40. Miscellaneous........................................................26
41. Additional Definitions...............................................27
For and in consideration of the covenants herein contained, and upon
the terms and conditions herein set forth, Landlord and Tenant, intending to be
legally bound, agree as follows:
1. Definitions. The definitions set forth in the preceding Preamble shall
apply to the same capitalized terms appearing in this Lease Agreement.
Additional definitions are contained in Section 41 and throughout this Lease.
2. Premises. Landlord hereby demises and leases the Premises to Tenant and
Tenant hereby leases and takes the Premises from Landlord for the Term (as
defined in Section 4) and upon the terms, covenants, conditions, and provisions
set forth in this Lease Agreement, including the Preamble (this "Lease"). The
Tenant's interest in the Premises as tenant shall include the right, in common
with Landlord and other occupants of the Building, to use driveways, sidewalks,
loading and parking areas, lobbies, hallways and other facilities which are
located within the Property (defined in Section 6) and which are designated by
Landlord from time to time for the use of all of the tenants of the Building
(the "Common Facilities").
3. Completion of Premises. The premises shall be completed in accordance
with the plans and specifications attached hereto as Exhibit C (herein called
the "Plans") at Landlord's expense. All necessary construction shall be
commenced promptly following Landlord's execution and acceptance of this Lease
and Tenant's delivery of the first month's Fixed Basic Rent and the Security
Deposit to Landlord and shall be substantially completed ready for use and
occupancy by Tenant on the Lease Commencement Date set forth in the Preamble;
provided, however, that the time for substantial completion of the Premises
shall be extended for additional periods of time equal to the time lost by
Landlord or Landlord's contractors, subcontractors or suppliers due to strikes
or other labor troubles; delays in Tenant's selection of materials, plans or
specifications; governmental restrictions and limitations; unavailability or
delays in obtaining fuel, labor or materials; war or other national emergency;
accidents; floods; defective materials; fire damage or other casualties; adverse
weather conditions; the inability to obtain building or use and occupancy
permits; or any cause similar or dissimilar to the foregoing which is beyond the
reasonable control of Landlord or Landlord's contractors, subcontractors or
suppliers. The Premises shall be deemed substantially completed when Tenant is
in receipt of a Certificate of Occupancy or Temporary Certificate of Occupancy
(which is convertible to a permanent Certificate of Occupancy) (punchlist items
excepted) such certificate to be obtained by Landlord. All construction shall be
done in a good and workmanlike manner and shall comply at the time of completion
with all applicable and lawful laws, ordinances, regulations and orders of the
federal, state, county or other governmental authorities having jurisdiction
thereof Tenant and its authorized agents, employees and contractors shall have
the right, at Tenant's own risk, expense and responsibility, at all reasonable
times prior to the Commencement Date as hereinafter defined, to enter the
Premises for the purpose of taking measurements and installing its furnishings
and equipment; provided that Tenant, in so doing, shall not interfere with or
delay the work to be performed hereunder by Landlord, and Tenant shall use
contractors and workmen compatible with the contractors and workmen engaged in
the work to be performed hereunder by Landlord, and Tenant shall have obtained
Landlord's written consent to installing any furnishings or equipment. Tenant's
occupancy of the Premises shall constitute acceptance of the Work performed by
Landlord pursuant to this Section 3. If Landlord shall fail to deliver
possession of the Premises by the Commencement Date for any reason, whether or
not within
Landlord's control, Landlord shall not be subject to any liability to Tenant. No
failure to deliver the Premises by the Commencement Date or any other date shall
in any respect affect the validity or continuance of this Lease of any
obligation of Tenant hereunder or extend the Term of the Lease provided,
however, the Commencement Date shall be extended to such time as Landlord
substantially completes the work set forth in the Plans (the "Work"). In the
event Landlord fails to substantially complete the Work on or before January 1,
1999, then Tenant shall be entitled to one (1) day of Rent abatement for every
day of delay beyond January 1, 1999. In the event Landlord fails to
substantially complete the Work on or before May 1, 1999; then Tenant may
terminate this Lease by written notice to Landlord and neither party will have
any further obligations thereunder.
4. Term. The term of this Lease shall commence on the first to occur of (a)
Commencement Date and (b) the date on which the Premises are actually occupied
by Tenant. Following the Commencement Date, the term of this Lease, unless
sooner terminated as expressly provided in this Lease, shall continue until the
date of expiration of the term specified as the Term of Lease in the Preamble
plus the number of days which remain in the calendar month in which such term
expires (the "Term"). Upon request of Landlord, Tenant shall enter into a
memorandum agreement stipulating the actual Commencement Date of the Term
substantially in the form attached hereto as Exhibit F.
5. Use of Premises. Tenant shall occupy the Premises throughout the Term
and shall use the same for, and only for, the Permitted Use specified in the
Preamble. The Building is designed to normal building standards for floor
loading capacity.
6. Rent. Unless otherwise specifically requested by Landlord at any time,
Fixed Basic Rent, Additional Rent and any other rent or other sums due under
this Lease (hereunder collectively referred to as Rent) shall be paid and
delivered to Landlord's property manager, if any, as agent for Landlord, in the
amounts, time and manner more particularly provided in this Lease.
a. Fixed Basic Rent. Tenant shall pay, throughout the Term, Fixed Basic
Rent in the amount specified in the Preamble, without notice or demand and
without setoff or deduction, in equal monthly installments equal to one-twelfth
of the Fixed Basic Rent (specified as Monthly Installments in the Preamble), in
advance, on the first day of each calendar month during the Term. If the
Commencement Date falls on a day other than the first day of a calendar month,
the Fixed Basic Rent shall be apportioned on a per diem basis for the period
between the Commencement Date and the first day of the first full calendar month
in the Term and such apportioned sum shall be paid on the Commencement Date.
b. Additional Rent. Commencing on the Commencement Date, Tenant shall
pay to Landlord, as Additional Rent, in the manner more particularly set forth
below, Tenant's Proportionate Share of Annual Operating Costs (as defined below)
for the Property to the extent that such Proportionate Share exceeds Tenant's
Proportionate Share of Annual Operating Costs for the Premises for the 1999
calendar year (the "Base Year"):
2
i) Annual Operating Costs. The term "Annual Operating Costs" shall mean
all costs Landlord incurs from owning, operating and maintaining the Building
and the lot or tract of land on which it is situated (the "Property"). Annual
Operating Costs shall include, by way of example rather than limitation:
insurance costs, including premiums; fees; Impositions (defined below); costs
for repairs, maintenance and service contracts; management fees; landscaping;
snow removal; governmental permits fees; costs of compliance with governmental
orders and regulations; administrative and overhead expenses; costs of the use
of water, sewer, electricity, gas, fuel, and other utility services, for use in
common areas of the Building and Property; and the cost of janitorial service
and trash removal; excluding however, from Annual Operating Costs the following:
costs which are treated as capital expenditures (except as provided in Section
10(b)) under generally accepted accounting principles; mortgage debt or ground
rents incurred by Landlord as owner of the Proper; income, excess profits,
corporate capital stock or franchise tax imposed or assessed upon Landlord,
unless such tax or any similar tax is levied or assessed, in lieu of all or any
part of any currently existing Imposition or an increase in any currently
existing Imposition; leasing commissions, accountants', consultants' or
attorneys' fees, costs and disbursement and other expenses incurred in
connection with negotiations or disputes with tenants or prospective tenants or
associated with the enforcement of any leases or the defense of Landlord's title
to or interest in the Building in connection with any proceedings involving real
property taxes other than disputes regarding tax assessment and reduction of
real property taxes; costs of construction of the Building and related
facilities and correction of defects in construction of the Building (including
permit, license and inspection fees); costs of any items or services sold or
provided to tenants (including Tenant) for which Landlord is entitled to be
reimbursed by such tenants or which are not generally provided to all tenants of
the Building; fees and higher interest charges caused by Landlord's refinancing
the Building; all repairs to the interior of the Building of a structural nature
(not made necessary by unusual use by Tenant); costs incurred due to violation
by Landlord or any tenant of the terms and conditions of any lease; overhead and
profit increment paid to subsidiaries or affiliates of Landlord, or to any party
as a result of a noncompetitive selection process, for management or other
services on or to the Building or for supplies or other materials, to the extent
that the costs of such services, supplies or materials exceed the costs that
would have been paid had the services, supplies or materials been provided by
unaffiliated parties on a competitive basis; general overhead and administrative
expenses except salaries of on-site property manager, management secretary and
maintenance man; any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord, rentals and other related expenses
incurred in leasing air conditioning systems, elevators or other equipment
ordinarily considered to be for a capital nature, except equipment which is used
in providing janitorial services and which is not affixed to the Building; all
items and services for which Tenant reimburses Landlord or pays third persons or
which Landlord provides selectively to one or more tenants or occupants of the
Building (other than Tenant) without reimbursement; commissions, advertising,
and promotional expenditures; costs incurred in managing or operating any
parking facilities; nor any other expense which under generally accepted
accounting principles and practice would not be considered a normal maintenance
or repair expense. "Impositions" shall mean all levies, taxes, assessments,
charges, imposts, and burdens, of whatever kind and nature, ordinary and
extraordinary, which are assessed or imposed during the Term by any federal,
state or municipal government or public authority or under any law, ordinance or
regulation thereof or pursuant to any recorded covenants or agreements upon or
with respect to the Property or any
3
part thereof, any improvements thereto, any personal property necessary to the
operation thereof and owned by Landlord this Lease. If under the requirements of
any state or local law, a new Imposition is imposed upon Landlord which Tenant
is prohibited by law from paying, Landlord may, as its election, terminate this
Lease by giving written notice thereof to Tenant provided, however, that
Landlord and Tenant shall first negotiate in good faith to resolve the issues
raised by such change in law.
ii) Annual Operating Costs - Expense Statement and Reconciliation. For
and with respect to each calendar year of the Term (and any renewals or
extensions thereof) there shall accrue, as Additional Rent payable hereunder, an
amount equal to the product of Tenant's Proportionate Share and the amount of
Annual Operating Costs for such year (appropriately pro-rated for any partial
calendar year included within the beginning or end of the Term).
(1) Landlord shall submit to Tenant a statement as soon as
reasonably possible after the beginning of each calendar year of the Term, the
following:
(a) a statement setting forth (i) the Annual Operating Costs
for the previous calendar year of the Term and (ii) a calculation of Tenant's
Proportionate Share of the Annual Operating Costs for the previous calendar year
(the "Expense Statement"); and;
(b) a statement of Landlord's good faith estimate of the Annual
Operating Costs for the current calendar year and (2) a calculation of Tenant's
Proportionate Share of the Annual Operating Costs for the current calendar year
("Tenant's Estimated Share").
(2) Beginning with the next installment of Fixed Basic Rent due
after the delivery of the aforesaid statements to Tenant, Tenant shall pay to
Landlord, on account of its Proportionate Share of the Annual Operating Costs,
the following:
(a) a sum equal to the product of one-twelfth (1/12) of
Tenant's Estimated Share and the number of calendar months elapsed during the
current calendar year up to and including the month payment is made, plus any
amounts due from Tenant to Landlord on account of Annual Operating Costs for any
prior period(s) of time, less
(b) a sum equal to the amount, if any, by which the sum of all
payments made by Tenant to Landlord on account of Annual Operating Costs for the
previous calendar year exceed those actually specified in the Expense Statement.
(3) On the first day of each succeeding calendar month until such
time as Tenant receives a new Expense Statement and statement of Tenant's
Estimated Share, Tenant shall pay to Landlord, on account of its Proportionate
Share of Annual Operating Costs, one-twelfth (1/12) of the then current Tenant's
Estimated Share. Any payment due from Tenant to Landlord, or any refund due from
Landlord to be, on account of Annual Operating Costs not yet determined as of
the expiration of the Term shall be made within thirty (30) days after
submission to Tenant of the next Expense Statement.
4
c. Disputes. Unless Tenant, within thirty (30) days after any
statement of Additional Rent is furnished, shall give notice to Landlord that
Tenant disputes said statement, specifying in detail the basis for such dispute,
each statement furnished to Tenant by Landlord under any provision of this
Section shall be conclusively binding upon Tenant as to the particular
Additional Rent due from Tenant for the period represented thereby; provided,
however, that additional amounts due may be required to be paid by any
supplemental statement furnished by Landlord. Tenant shall have the right at
reasonable times to examine the records used in making the aforestated
determinations, upon written notice in advance; provided, however, such disputed
amount shall have been paid by Tenant to Landlord. In the event any such
examination shall reveal an adverse variance in excess of 10% of the total
operating expenses of which Tenant is required to pay their Proportionate Share,
Landlord shall reimburse Tenant for the reasonable cost of such examination
within thirty (30) days after demand. Tenant shall make all payments of
Additional Rent without delay and regardless of any pending dispute over the
amount of Additional Rent that is due in accordance with the statements
furnished by Landlord. Landlord shall have the right to retain Tenant's security
deposit until all Additional Rent payable by Tenant is determined and paid.
d. Independent Covenant; Survival. Tenant's covenant to pay Rent
is independent of any other covenant, agreement, term or condition of this
Lease. Without limitation of any obligation of Tenant under this Lease which
shall survive the expiration of the Term, the obligation of Tenant to pay Rent
shall survive the expiration of the Term.
7. Insurance.
a. Liability. Tenant, at Tenant's sole cost and expense, shall
maintain and keep insurance in effect throughout the Term against liability for
bodily injury (including death) and property damage in or about the Premises or
the Property under a policy of comprehensive general public liability insurance,
with such limits as to each as may be reasonably required by Landlord from time
to time, but not less than $2,000,000.00 for each person and S5,000,000.00 in
the aggregate for bodily injury (including death) to more than one (1) person
and $2,000,000.00 for property damage. The policies of comprehensive general
public liability insurance shall name Landlord and Tenant (and if requested, any
mortgagee of Landlord) as the insured parties. Each such policy shall provide
that it shall not be cancelable without at least thirty (30) days prior written
notice to Landlord and to any mortgagee named in an endorsement thereto and
shall be issued by an insurer and in a form satisfactory to Landlord. At least
ten (10) days prior to the Commencement Date, and thereafter upon Landlord's
request, a certificate of insurance shall be delivered to Landlord proving
compliance with the foregoing requirements. If Tenant shall fail, refuse or
neglect to obtain or to maintain any insurance that it is required to provide or
to furnish Landlord with satisfactory evidence of coverage on any such policy
upon demand, Landlord shall have the right to purchase such insurance. All
payments made by Landlord for such insurance shall be recoverable by Landlord
from Tenant, together with interest thereon, as Additional Rent promptly upon
demand. Notwithstanding anything contained herein to the contrary, Tenant may
self-insure all of its personal property situated within the Premises against
property damage and destruction.
5
b. Waiver of Subrogation. The parties to this Lease each release
the other, to the extent of the releasing party's insurance coverage, from any
and all liability for any loss or damage covered by such insurance which may be
inflicted upon the property of such party even if such loss or damage shall be
brought about by the fault or negligence of the other party, its agents or
employees. If any policy does not permit such a release of liability and a
waiver of subrogation, and if the party to benefit therefrom requests that such
a waiver be obtained, the other party agrees to obtain an endorsement to its
insurance policies permitting such waiver of subrogation if it is available. If
an additional premium is charged for such waiver, the party benefiting therefrom
agrees to pay the amount of such additional premium promptly upon demand. In the
event a party is unable to obtain such a waiver, it shall immediately notify the
other party of its inability. In the absence of such notifications, each party
shall be deemed to have obtained such waiver of subrogation.
c. Increase of Premiums. Tenant will not do anything or fail to
do anything or permit anything to be done which will cause the cost of
Landlord's insurance to increase or which will prevent Landlord from procuring
insurance (including but not limited to public liability insurance) from
companies, and in a form, satisfactory to Landlord. If any breach of this
subsection (c) by Tenant shall cause the rate of fire or other insurance to be
increased, Tenant shall pay the amount of such increase as Additional Rent
promptly upon demand. If Tenant does anything or fails to do anything or permits
anything to be done for which insurance cannot be obtained, Landlord may
terminate this Lease upon written notice to Tenant.
8. Repairs and Maintenance.
a. Tenant shall, throughout the Term and at Tenant's sole cost
and expense, keep and maintain the Premises in a neat and orderly condition;
and, upon expiration of the Term, Tenant shall leave the Premises in good order
and condition' ordinary wear and tear, damage by fire or other casualty (which
fire or other casualty has not occurred through the negligence of Tenant or
those claiming under Tenant or their agents, employees or invitees,
respectively) alone excepted, and for that purpose and except as stated, Tenant
will make all necessary repairs and replacements. Tenant shall not permit any
waste, damage or injury to the Premises. Tenant shall not use or permit the use
of any portion of the common areas for other than their intended use as
specified by the Landlord from time to time.
b. Landlord shall, throughout the Term, make all necessary
repairs to the structural elements of the Premises and other improvements
located on the Property; provided, however, that Landlord shall have no
responsibility to make any repairs unless and until Landlord receives written
notice of the need for such repair. Landlord shall keep and maintain all common
areas of the Property and any sidewalks, parking areas, curbs and access ways
adjoining the Property in a clean and orderly condition, free of accumulation of
dirt and rubbish and shall keep and maintain all landscaped areas within the
Property in a neat and orderly condition.
6
c. Notwithstanding the foregoing, repairs and replacements to
the Premises and the Property arising out of or caused by Tenant's use, manner
of use or occupancy of the Premises (normal wear and tear excepted), by Tenant's
installation of alterations, additions, improvements, trade fixtures or
equipment in or upon the Premises or by any act or omission of Tenant or any
employee, agent, contractor or invitee of Tenant shall be made at Tenant's sole
cost and expense and Tenant shall pay Landlord the cost of any such repair or
replacement, as Additional Rent, upon demand.
9. Utilities and Services.
a. Landlord shall furnish the Premises with electricity, heating
and air conditioning for the normal use and occupancy of the Premises as general
offices between twenty four hours per day, every day during the Term. Tenant
agrees to pay as Additional Rent all charges for electricity, light, heat or
other utility used by' Tenant at the Premises. If a separate meter is installed,
Tenant shall pay for the consumption of such utilities based upon its metered
usage. If no meter is installed, Tenant shall pay its Proportionate Share of any
utility charges covering the Demised Premises and the remainder of the Building.
Tenant shall pay all bills for separately metered utility usage within ten (10)
days after receipt thereof, and any non-payment or late payment of such utility
bills shall be deemed a default under the terms of this Lease. All charges for
installation and repairs of any meters servicing the Premises shall be payable
by Tenant as Additional Rent and shall be paid when the same shall become due.
If Tenant shall require electricity or install electrical equipment using
current in excess of 110 volts or which will in any way increase the amount of
electricity furnished by Landlord for general office use (including but not
limited to electrical heating or refrigeration equipment or electronic data
processing machines) or if Tenant shall attempt to use the Premises in such a
manner that the services to be furnished by Landlord are required during periods
other than the business hours specified above, Tenant will obtain prior written
approval from Landlord and will pay, as Additional Rent, for the resulting
additional direct expense to Landlord, including the expense resulting from the
installation of any equipment and meters, promptly upon receipt of an invoice
from Landlord.
b. Within the common areas of the Building on a twenty four hour
basis, every day during the Term, Landlord shall furnish reasonably: (i)
adequate electricity, (ii) hot and cold water, (iii) lavatory supplies, (iv)
automatically operated elevator service, (v) normal and customary cleaning
services (on a five-day a week basis) (Building Holidays excepted) after
business hours, (vi) heat and air conditioning in season, (vii) landscaping,
(viii) on Business Days, parking lot maintenance, (ix) common area maintenance
and (x) on Business Days snow removal. Tenant shall be responsible for its
Proportionate Share of such services in accordance with Section 6(b) hereof.
Landlord shall provide janitorial service to the Premises, five days per week,
(Building Holidays excepted) after regular business hours, and the costs of such
service will be passed through to Tenant as set forth in Section 6.
c. Landlord shall not be liable for any damages to Tenant
resulting from the quality, quantity, failure, unavailability or disruption of
any services beyond the reasonable control of Landlord and the same shall not
constitute a termination of this Lease or an actual or constructive eviction or
entitle Tenant to an abatement of rent. Landlord shall not be responsible for
providing any services not specifically provided for in this Lease.
7
10. Governmental Regulations.
a. Landlord and Tenant shall comply with all laws, ordinances,
notices, orders, rules, regulations and requirements of all federal, state and
municipal government or any department, commission, board of officer thereof, or
of the National Board of Fire Underwriters or any other body exercising similar
functions, relating to the Premises or to the use or manner of use of the
Property. Tenant shall not knowingly do or commit, or suffer to be done or
committed anywhere in the Building, any act or thing contrary to any of the
laws, ordinances, regulations and requirements referred to in this Section.
Tenant shall give Landlord prompt written notice of any accident in the Premises
and of any breakage, defect or failure in any of the systems or equipment
servicing the Premises or any portion of the Premises.
b. Tenant shall pay its Proportionate Share of the cost of
capital improvements which Landlord shall install or construct in compliance
with governmental requirements which take effect after the commencement of the
Term hereof or as energy saving devices. Tenant's Proportionate Share shall be
determined based upon the estimated life of the capital investment item,
determined by Landlord in accordance with generally accepted accounting
principles, and shall include a cost of capital funds adjustment equal to twelve
percent (12%) per year on the unamortized portion of all such costs. Tenant
shall only have to pay for the portion of the useful life of the capital
improvement which falls within the Term. Tenant shall thus make payments in
equal annual installments for such capital improvements until the Term expires
or until the cost of the improvement has been fully paid for, whichever first
occurs; such payments shall be computed by Landlord at the time of installation
of the capital improvement in the same manner as Landlord makes computations of
Tenant's share of the annual operating costs pursuant to Section 6(b)(ii).
c. Tenant shall pay all taxes imposed upon Tenant's furnishings,
trade fixtures, equipment or other personal property.
11. Signs. Tenant shall be permitted to place, erect, maintain or
paint any signs upon the Premises or the Property provided the design of such
signs, comply with all applicable restrictions of record, have been approved by
any and all entities with approval rights and comply with all applicable
governmental rules, regulating ordinances or other statutes. Tenant shall be
solely responsible for all costs and expenses associated with the erection of
any signs upon the Premises and shall be obligated to obtain and provide to
Landlord any and all necessary permits and approvals prior to the placement or
erection of such signs.
12. Alterations, Additions and Fixtures.
a. Tenant shall have the right to install in the Premises any
trade fixtures; provided, however, that no such installation and no removal
thereof shall be permitted which affects any structural component of the
Building or Premises and that Tenant shall repair and restore any damage or
injury to the Premises or the Property caused by installation or removal.
8
b. Tenant shall not make or permit to be made any alterations,
improvements or additions to the Premises or Property without on each occasion
first presenting plans and specifications to Landlord and obtaining Landlord's
prior written consent, which shall not be unreasonably withheld or delayed, but
may be conditioned upon compliance with reasonable requirements of Landlord
including, without limitation, the filing of mechanics' lien waivers by Tenant's
contractors and the submission of written evidence of adequate insurance
coverage naming Landlord as an additional insured thereunder. If Landlord
consents to any proposed alterations, improvements or additions or Tenant's
contractor performs any of the work identified in Section 3 of this Lease
Agreement, then Tenant shall make the proposed alterations, improvements and
additions at Tenant's sole cost and expense provided that: (i) Tenant supplies
any necessary permits; (ii) such alterations and improvements do not, in
Landlord's judgment, impair the structural strength of the Building or any other
improvements or reduce the value of the Property; (iii) Tenant takes or causes
to be taken all steps that are otherwise required by Section 13 of this Lease
and that are required or permitted by law in order to avoid the imposition of
any mechanic's, laborer's or materialman's lien upon the Premises or the
Property; (iv) Tenant uses a contractor approved by Landlord; (v) the occupants
of the Building and of any adjoining real estate owned by Landlord are not
annoyed or disturbed by such work; (vi) the alterations, improvements or
additions shall be installed in accordance with the approved plans and
specifications and completed according to a construction schedule approved by
Landlord; and (vii) Tenant provides insurance of the types and coverage amounts
required by Landlord. Any and all alterations, improvements and additions to the
Premises which are constructed, installed or otherwise made by Tenant shall be
the property of Tenant until the expiration or sooner termination of this Lease;
at that time all such alterations and additions shall remain on the Premises and
become the property of Landlord without payment by Landlord unless, upon the
termination of this Lease, Landlord instructs Tenant in writing to remove the
same in which event Tenant will remove such alterations, improvements and
additions, and repair and restore any damage to the Property caused by the
installation or removal. Notwithstanding anything to the contrary contained in
this Lease, Landlord may withhold its approval to any proposed alterations,
additions or improvements to the Premises in its absolute and sole discretion
with respect to any such alteration, addition or improvement which Landlord
determines involves any modification to the Building's exterior or its
structural, electrical, mechanical or plumbing systems, or any components
thereof.
13. Mechanic's Liens. Tenant shall promptly pay any contractors and
materialmen who supply labor, work or materials to Tenant at the Premises or the
Property so as to minimize the possibility of a lien attaching to the Premises
or the Property. Tenant shall take all steps permitted by law in order to avoid
the imposition of any mechanic's, laborer's or materialman's lien upon the
Premises or the Property. Should any such lien or notice of lien be filed for
work performed for Tenant other than by Landlord, Tenant shall cause such lien
or notice of lien to be discharged of record by payment, deposit, bond or
otherwise within fifteen (15) days after the filing thereof or after Tenant's
receipt of notice thereof, whichever is earlier, regardless of the validity of
such lien or claim. If Tenant shall fail to cause such lien or claim to be
discharged and removed from record within such fifteen (15) day period, then,
without obligation to investigate the validity thereof and in addition to any
other right or remedy Landlord may have, Landlord may, but shall not be
obligated to, contest the lien or claim or discharge it by payment, deposit,
9
bond or otherwise; and Landlord shall be entitled to compel the prosecution of
an action for the foreclosure of such lien by the lienor and to pay the amount
of the judgment in favor of the lienor with interest and costs. Any amounts so
paid by Landlord and all costs and expenses including, without limitation,
attorneys' fees incurred by Landlord in connection therewith, together with
interest at a rate of twelve percent (12%) per annum from the respective dates
of Landlord's making such payment or incurring such cost or expense, which shall
constitute Additional Rent payable hereunder promptly upon demand therefor.
Nothing in this Lease is intended to authorize Tenant to do or cause any work or
labor to be done or any materials to be supplied for the account of Landlord,
all of the same to be solely for Tenant's account and at Tenant's risk and
expense. Further, notwithstanding anything to the contrary contained in this
Lease, nothing contained in or contemplated by this Lease shall be deemed or
construed in any way to constitute the consent or request by Landlord for the
performance of any work or services or the furnishing of any materials for which
any lien could be filed against the Premises or the Building or the Property or
any part of any thereof, nor as giving Tenant any right, power or authority to
contract or permit the performance of any work or services or the furnishing of
any materials for which any lien could be filed against the Premises, the
Building, the Property or any part of any thereof. Throughout this Lease the
term "mechanic's lien" is used to include any lien, encumbrance or charge levied
or imposed upon the Premises or the Property or any interest therein or income
therefrom on account of any mechanic's, laborer's or materialman's lien or
arising out of any debt or liability to or any claim or demand of any
contractor, mechanic, supplier, materialman or laborer and shall include without
limitation any mechanic's notice of intention given to Landlord or Tenant, any
stop order given to Landlord or Tenant, any notice of refusal to pay naming
Landlord or Tenant and any injunctive or equitable action brought by any person
entitled to any mechanic's lien.
14. Landlord's Right of Entry.
a. Tenant shall permit Landlord and the authorized
representatives of Landlord and of any mortgagee or any prospective mortgagee to
enter the Premises at all reasonable times, with prior notice to Tenant, for the
purpose of (i) inspecting the Premises or (ii) making any necessary repairs to
the Premises or to the Building and performing any work therein. During the
progress of any work on the Premises or the Building, Landlord will attempt not
to inconvenience Tenant, but shall not be liable for inconvenience, annoyance,
disturbance, loss of business or other damage to Tenant by reason of making any
repair or by bringing or storing materials, supplies, tools and equipment in the
Premises during the performance of any work, and the obligations of Tenant under
this Lease shall not be thereby affected in any manner whatsoever.
b. Landlord shall have the right at all reasonable times to,
with prior notice to Tenant, enter and to exhibit the Premises for the purpose
of inspection or showing the Premises in connection with a sale or mortgage and,
during the last twelve (12) months of the Term, to enter upon and to exhibit the
Premises to any prospective tenant.
10
15. Damage by Fire or Other Casualty.
a. If the Premises or Building is damaged or destroyed by fire
or other casualty, Tenant shall promptly notify Landlord whereupon Landlord
shall, subject to the consent of Landlord's present or future mortgagee and to
the conditions set forth in this Section 15, repair, rebuild or replace such
damage and restore the Premises to substantially the same condition as the
Premises were in immediately prior to such damage or destruction; provided,
however, that Landlord shall only be obligated to restore such damage or
destruction to the extent of the proceeds of fire and other extended coverage
insurance policies. Notwithstanding the foregoing, if the Premises is destroyed
or damaged to the extent that in Landlord's reasonable judgment the Premises
cannot be repaired or restored within one hundred twenty (120) days after such
casualty, Landlord may, subject to the rights of Landlord's mortgagee, terminate
this Lease by written notice to Tenant within sixty (60) days after the date of
such casualty.
b. The repair, rebuilding or replacement work shall be
commenced promptly and completed with due diligence, taking into account the
time required by Landlord to effect a settlement with, and procure insurance
proceeds from, the insurer, and for delays beyond Landlord's reasonable control.
c. The net amount of any insurance proceeds recovered by reason
of the damage or destruction of the Building (meaning the gross insurance
proceeds excluding proceeds received pursuant to a rental coverage endorsement
and the cost of adjusting the insurance claim and collecting the insurance
proceeds) shall be applied towards the cost of restoration. Notwithstanding
anything to the contrary in this Lease Agreement, if in Landlord's sole opinion
the net insurance proceeds will not be adequate to complete such restoration,
Landlord shall have the right to terminate this Lease and all the unaccrued
obligations of the parties hereto by sending a written notice of such
termination to Tenant specifying a termination date no less then ten (10) days
after its transmission; provided, however, that Tenant may require Landlord,
except during the last two (2) years of the Term, to withdraw the notice of
termination by agreeing to pay the cost of restoration in excess of the net
insurance proceeds and by giving Landlord adequate security for such payment
prior to the termination date specified in Landlord's notice of termination. If
the net insurance proceeds are more than adequate, the amount by which the net
insurance proceeds exceed the cost of restoration will be retained by Landlord
or applied to repayment of any mortgage secured by the Premises.
d. Landlord's obligation or election to restore the Premises
under this Section shall be subject to the terms of any present or future
mortgage affecting the Premises and to the mortgagee's consent if required in
the mortgage and shall not, in any event, include the repair, restoration or
replacement of the fixtures, improvements, alterations, furniture or any other
property owned, installed, made by, or in the possession of Tenant.
e. Landlord shall maintain insurance against loss or damage to
the Building by fire and such other casualties as may be included within fire
and extended coverage insurance or all risk insurance, together with a rental
coverage endorsement or other comparable form of coverage. If Tenant is
dispossessed of the Premises due to fire or other casualty, Tenant will receive
an abatement of its Fixed Basic Rent during the period Tenant is dispossessed.
11
16. Non-Abatement of Rent. (Intentionally Deleted)
17. Indemnification.
a. Unless such loss, costs or damages were caused by negligence
of Landlord, its employees, agents or contractors, Tenant hereby agrees to
indemnify, defend and hold the Landlord and its employees, agents and
contractors harmless from any loss, costs and damages (including reasonable
attorney's fees and costs) suffered by Landlord, its agents, employees or
contractors, as a result of any claim by a third party, its agents, employees or
contractors arising from Tenant's occupancy of the Premises. Tenant shall have
the right to designate counsel acceptable to Landlord, such approval not be
unreasonably withheld, to assume the defense of any such third party claim on
behalf of itself and Landlord. Landlord shall not have the right to settle any
claim without the consent of Tenant. This indemnity shall survive the expiration
or termination of this Lease.
b. If Landlord brings any action under this Lease Agreement,
Tenant agrees in each case to pay Landlord's reasonable attorney's fees and
other costs and expenses incurred by Landlord in connection therewith; provided,
however, the Landlord obtains a final, unappealable judgment in a court of law
(or other agreed upon tribunal body).
18. Condemnation.
a. Termination. If (i) all of the Premises are covered by a
condemnation; or (ii) any of the Premises is covered by a condemnation and the
remaining part is insufficient for the reasonable operation therein of Tenant's
business; or (iii) subject to the provisions of subsection 1 8(b)(i) hereof, any
of the Property is covered by a condemnation and, in Landlord's sole opinion, it
would be impractical or the condemnation proceeds are insufficient to restore
the remainder of the Property; then, in any such event, this Lease shall
terminate and all obligations hereunder shall cease as of the date upon which
possession is taken by the condemnor. Upon such termination the Fixed Basic Rent
and all Additional Rent herein reserved shall be apportioned and paid in fill by
Tenant to Landlord to that date and all such rent prepaid for periods beyond
that date shall forthwith be repaid by Landlord to Tenant.
b. Partial Condemnation.
i) If there is a partial condemnation and Landlord decides
to terminate pursuant to subsection 1 8(a)(iii) hereof then Tenant may require
Landlord, except during the last two (2) years of the Term, to withdraw its
notice of termination by: [A] giving Landlord written notice thereof within ten
(10) days from transmission of Landlord's notice to Tenant of Landlord's
intention to terminate, [B] agreeing to pay the cost of restoration in excess of
the condemnation proceeds reduced by those sums expended by Landlord in
collecting the condemnation proceeds, and [C] giving Landlord adequate security
for such payment within such ten (10) day period.
12
ii) If there is a partial condemnation and this Lease has
not been terminated pursuant to subsection (a) hereof, Landlord shall restore
the Building and the improvements which are part of the Premises to a condition
and size as nearly comparable as reasonably possible to the condition and size
thereof immediately prior to the date upon which possession shall have been
taken by the condemnor; provided, however, that Landlord shall only be obligated
to restore such damage from condemnation to the extent possible with the award
damage. If the condemnation proceeds are more than adequate to cover the cost of
restoration and the Landlord's expenses in collecting the condemnation proceeds,
any excess proceeds shall be retained by Landlord or applied to repayment of any
mortgage secured by the Premises.
iii) If there is a partial condemnation and this Lease has
not been terminated by the date upon which the condemnor obtains possession, the
obligations of Landlord and Tenant under this Lease shall be unaffected by such
condemnation except that there shall be an equitable abatement for the balance
of the Term of the Fixed Basic Rent according to the value of the Premises
before and after the date upon which the condemnor takes possession. In the
event that the parties are unable to agree upon the amount of such abatement,
either party may submit the issue to arbitration.
c. Award. In the event of a condemnation affecting Tenant,
Tenant shall have the right to make a claim against the condemnor for removal
expense and moving expenses, loss of business and any other claims Tenant may
have; provided and to the extent, however, that such claims or payments do not
reduce the sums otherwise payable by the condemnor to Landlord. Except as
aforesaid, Tenant hereby waives all claims against Landlord and against the
condemnor, and Tenant hereby assigns to Landlord all claims against the
condemnor including, without limitation, all claims for leasehold damages and
diminution in value of Tenant's leasehold interest.
d. Temporary Taking. If the condemnor should take only the
right to possession for a fixed period of time or for the duration of an
emergency or other temporary condition then, notwithstanding anything
hereinabove provided, this Lease shall continue in full force and effect without
any abatement of rent, but the amounts payable by the condemnor with respect to
any period of time prior to the expiration or sooner termination of this Lease
shall be paid by the condemnor to Landlord and the condemnor shall be considered
a subtenant of Tenant. Landlord shall apply the amount received from the
condemnor applicable to the rent due hereunder, net of costs, to Landlord for
the collection thereof, or as much thereof as may be necessary for the purpose,
toward the amount due from Tenant as rent for that period; and, Tenant shall pay
to Landlord any deficiency between the amount thus paid by the condemnor and the
amount of the rent, or Landlord shall pay to Tenant any excess of the amount of
the award over the amount of the rent.
19. Quiet Enjoyment. Tenant, upon paying the Fixed Basic Rent,
Additional Rent and other charges herein required and observing and keeping all
covenants, agreements and conditions of this Lease, shall quietly have and enjoy
the Premises during the Term without hindrance or molestation by anyone claiming
by or through Landlord, subject, however, to the exceptions, reservations and
conditions of this Lease and Landlord shall take all reasonable steps necessary
to ensure such quiet enjoyment.
13
20. Rules and Regulations. The Landlord hereby reserves the right
to prescribe, from time to time, at its sole discretion, reasonable rules and
regulations (herein called the "Rules and Regulations") attached hereto as
Exhibit B governing the use and enjoyment of the Premises and the remainder of
the Property. The Rules and Regulations shall not materially interfere with the
Tenant's use and enjoyment of the Premises in accordance with the provisions of
this Lease for the Permitted Use and shall not increase or modify Tenant's
obligations under this Lease. In the event of a conflict between the Lease
Agreement and such rules and regulations, the Lease Agreement shall control. The
Tenant shall comply at all times with the Rules and Regulations and shall cause
its agents, employees, invitees, visitors, and guests to do so.
21. Assignment and Sublease. Tenant may assign or sublease the
within Lease to any party subject to the following:
a. In the event Tenant desires to assign this Lease or sublease
all or part of the Premises to any other party, Tenant shall provide written
notice of the terms and conditions of such assignment or sublease to Landlord
prior to the effective date of any such sublease or assignment, and, prior to
such effective date, the Landlord shall have the option, exercisable by written
notice to Tenant within ten (10) business days of Landlord's receipt of written
notice from Tenant, to: (i) sublease such space from Tenant at the lower rate of
(a) the rental rate per rentable square foot of Fixed Basic Rent and Additional
Rent then payable pursuant to this Lease or (b) the terms set forth in the
proposed sublease, (ii) recapture (in the case of subletting) that portion of
the Premises to be sublet or all of the Premises (in the case of an assignment)
("Recapture Space") so that such prospective subtenant or assignee shall then
become the sole Tenant of Landlord hereunder, or (iii) recapture the Recapture
Space for Landlord's own use, whereupon Tenant shall be fully released from any
and all obligations hereunder with respect to the Recapture Space.
b. In the event that the Landlord elects not to recapture the
Lease as hereinabove provided, the Tenant may nevertheless assign this Lease or
sublet the whole or any portion of the Premises, subject to the Landlord's prior
written consent, on the basis of the following terms and conditions:
i) The Tenant shall provide to the Landlord the name and
address of the assignee or subtenant.
ii) The assignee or subtenant shall assume, by written
instrument, all of the obligations of this Lease, and a copy of such assumption
agreement shall be furnished to the Landlord within ten (10) days of its
execution. Any sublease shall expressly acknowledge that said subtenant's rights
against Landlord shall be no greater than those of Tenant.
iii) The Tenant and each assignee shall be and remain liable
for the observance of all the covenants and provisions of this Lease, including,
but not limited to, the payment of Fixed Basic Rent and Additional Rent reserved
herein, through the entire Term of this Lease, as the same may be renewed,
extended or otherwise modified.
14
iv) The Tenant and any assignee shall promptly pay to
Landlord fifty percent (50%) of the net profit received from such subleasing or
assignment. Net profit will be calculated after deducting the Tenant's direct
costs of implementing the sublease or assignment (including broker commissions,
tenant improvements, and reasonable attorneys fees).
v) In any event, the acceptance by the Landlord of any rent
from the assignee or from any of the subtenants or the failure of the Landlord
to insist upon a strict performance of any of the terms, conditions and
covenants herein shall not release the Tenant herein, nor any assignee assuming
this Lease, from any and all of the obligations herein during and for the entire
Term of this Lease.
vi) Landlord shall require a Five Hundred Dollars ($500.00)
payment to cover its handling charges for each request for consent to any subset
or assignment prior to its consideration of the same. Tenant acknowledges that
its sole remedy with respect to any assertion that Landlord's failure to consent
to any sublet or assignment is unreasonable shall be the remedy of specific
performance and Tenant shall have no other claim or cause of action against
Landlord as a result of Landlord's actions in refusing to consent thereto.
c. If Tenant is a corporation other than a corporation whose
stock is listed and traded on a nationally recognized stock exchange, the
provisions of subsection a hereof shall apply to a transfer (however
accomplished, whether in a single transaction or in a series of related or
unrelated transactions) of stock (or any other mechanism such as, by way of
example, the issuance of additional stock, a stock voting agreement or change in
class(es) of stock) which results in a change of control of Tenant as if such
transfer of stock (or other mechanism) which results in a change of control of
Tenant were an assignment of this Lease, and if Tenant is a partnership or joint
venture, said provisions shall apply with respect to a transfer (by one or more
transfers) of an interest in the distributions of profits and losses of such
partnership or joint venture (or other mechanism, such as, by way of example,
the creation of additional general partnership or limited partnership interests)
which results in a change of control of such a partnership or joint venture, as
if such transfer of an interest in the distributions of profits and losses of
such partnership or joint venture which results in a change of control of such
partnership or joint venture were an assignment of this Lease; but said
provisions shall not apply to transactions with a corporation into or with which
Tenant is merged or consolidated or to which all or substantially all of
Tenant's assets are transferred or to any corporation which controls or is
controlled by Tenant or is under common control with Tenant, provided that in
the event of such merger, consolidation or transfer of all or substantially all
of Tenant's assets (i) the successor to Tenant has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
greater of (1) the net worth of Tenant immediately prior to such merger,
consolidation or transfer, or (2) the net worth of Tenant herein named on the
date of this Lease, and (ii) proof satisfactory to Landlord of such net worth
shall have been delivered to Landlord at least ten (10) days prior to the
effective date of any such transaction.
d. In the event that any or all of Tenant's interest in the
Premises and/or this Lease is transferred by operation of law to any trustee,
receiver, or other representative or agent of Tenant, or to Tenant as a debtor
in possession, and subsequently any or all of Tenant's interest
15
in the Premises and/or this Lease is offered or to be offered by Tenant or any
trustee, receiver, or other representative or agent of Tenant as to its estate
or property (such person, firm or entity being hereinafter referred to as the
"Grantor", for assignment, conveyance, lease, or other disposition to a person,
firm or entity other than Landlord (each such transaction being hereinafter
referred to as a "Disposition"), it is agreed that Landlord has and shall have a
right of first refusal to purchase, take, or otherwise acquire, the same upon
the same terms and conditions as the Grantor thereof shall accept upon such
Disposition to such other person, firm, or entity; and as to each such
Disposition the Grantor shall give written notice to Landlord in reasonable
detail of all of the terms and conditions of such Disposition within twenty (20)
days next following its determination to accept the same but prior to accepting
the same, and Grantor shall not make the Disposition until and unless Landlord
has failed or refused to accept such right of first refusal as to the
Disposition, as set forth herein. Landlord shall have sixty (60) days next
following its receipt of the written notice as to such Disposition in which to
exercise the option to acquire Tenant's interest by such Disposition, and the
exercise of the option by Landlord shall be effected by notice to that effect
sent to the Grantor; but nothing herein shall require Landlord to accept a
particular Disposition or any Disposition, nor does the rejection of any one
such offer of first refusal constitute a waiver or release of the obligation of
the Grantor to submit other offers hereunder to Landlord. In the event Landlord
accepts such offer of first refusal, the transaction shall be consummated
pursuant to the teens and conditions of the Disposition described in the notice
to Landlord. In the event Landlord rejects such offer of first refusal, Grantor
may consummate the Disposition with such other person, firm, or entity; but any
decrease in price of more than two percent (2%) of the price sought from
Landlord or any change in the terms of payment for such Disposition shall
constitute a new transaction requiring a further option of first refusal to be
given to Landlord hereunder.
e. Without limiting any of the provisions of this Section 21,
if pursuant to the Federal Bankruptcy Code (herein referred to as the "Code"),
or any similar law hereafter enacted having the same general purpose, Tenant is
permitted to assign this Lease notwithstanding the restrictions contained in
this Lease, adequate assurance of future performance by an assignee expressly
permitted under such Code shall be deemed to mean the deposit of cash security
in an amount equal to the sum of one year's Fixed Basic Rent plus an amount
equal to the Additional Rent for the calendar year preceding the year in which
such assignment is intended to become effective, which deposit shall be held by
Landlord for the balance of the Term, without interest, as security for the full
performance of all of Tenant's obligations under this Lease, to be held and
applied in the manner specified for any security deposit required hereunder.
f. Except as specifically set forth above, no portion of the
Premises or of Tenant's interest in this Lease may be acquired by any other
person or entity, whether by assignment, mortgage, sublease, transfer, operation
of law or act of the Tenant, nor shall Tenant pledge its interest in this Lease
or in any security deposit required hereunder.
g. Notwithstanding the foregoing, Landlord acknowledges that
Tenant intends to sublet approximately 4,500 rentable square feet of the
Premises until such time as Tenant expands into such space. Tenant shall be
entitled to sublease such space without Landlord's prior consent provided
Landlord is given written notice of the identity of such subtenant and such
subtenant agrees to be bound by the terms of this Lease.
16
22. Tenant's Relocation. [Intentionally Deleted]
23. Subordination. This Lease and Tenant's rights hereunder shall
be subject and subordinate at all times in lien and priority to any first
mortgage or other primary encumbrance now or hereafter placed upon or affecting
the Property or the Premises, and to any second mortgage or encumbrance with the
consent of the first mortgagee, and to all renewals, modifications,
consolidations and extensions thereof, without the necessity of any further
instrument or act on the part of Tenant. Tenant shall execute and deliver upon
demand any further instrument or instruments confirming the subordination of
this Lease to the lien of any such first mortgage or to the lien of any other
mortgage, if requested to do so by Landlord with the consent of the first
mortgagee, and any further instrument or instruments of attornment that may be
desired by any such mortgagee or Landlord, provided, however, that any holder of
such lien or mortgage agrees not to disturb the use and occupancy of the
Premises in accordance with the terms of this Lease Agreement upon any
foreclosure and further provided that Tenant's obligations (including monetary
obligations) will not be materially effected thereby Notwithstanding the
foregoing, any mortgagee may at any time subordinate its mortgage to this Lease,
without Tenant's consent, by giving 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. In that event such mortgagee shall
have the same rights with respect to this Lease as though this Lease had been
executed prior to the execution and delivery of the mortgage and had been
assigned to such mortgagee. Landlord agrees that it will use best efforts to
obtain and deliver to Tenant a subordination, non-disturbance and attornment
agreement from the holder(s) of any mortgage or other security interest
affecting the Premises of Building.
24. Curing Tenant's Defaults. If Tenant defaults in the performance
of any of its obligations hereunder beyond any applicable cure periods (except
in the case of emergency), Landlord may, without any obligation to do so and in
addition to any other rights it may have in law or equity, elect to cure such
default on behalf of Tenant after written notice to Tenant. Tenant shall
reimburse Landlord upon demand for any sums paid or costs incurred by Landlord
in curing such default, including interest thereon from the respective dates of
Landlord's making the payments and incurring such costs, which sums and costs
together with interest thereon shall be deemed Additional Rent payable within
ten (10) days of demand.
25. Surrender.
a. At the expiration or earlier termination of the Term Tenant
shall promptly yield up the Premises and all improvements, alterations and
additions thereto, and all fixtures and equipment servicing the Premises in a
condition which is clean of garbage and debris and broom clean and in the same
condition, order and repair in which they are required to be kept throughout the
Term, ordinary wear and tear excepted.
b. If Tenant, or any person claiming through Tenant, continues
to occupy the Premises after the expiration or earlier termination of the Term
or any renewal thereof without prior written consent of Landlord, the tenancy
under this Lease shall become, at the option of Landlord, expressed in a written
notice to Tenant and not otherwise, either from month-to-month
17
or for a period of one (l) year, terminable by Landlord on thirty (30) days
prior notice, under the same terms and conditions set forth in this Lease;
except, however, that the Fixed Basic Rent during such continued occupancy shall
be 200% of the amount set forth in subsection 6(a) and Tenant shall indemnify
Landlord for any loss or damage incurred by reason of Tenant's failure to
surrender the Premises. Anything to the contrary notwithstanding, any holding
over by Tenant without Landlord's prior written consent shall constitute a
default hereunder and shall be subject to all the remedies set forth in
subsection 26(b) hereof
26. Defaults-Remedies.
a. Defaults. It shall be an event of default under this Lease
if any one or more of the following events occurs:
i) Tenant fails to pay in full, within five (5) days of
written notice from Landlord, any and all installments of Fixed Basic Rent or
Additional Rent or any other charges or payments due and payable under this
Lease whether or not herein included as rent.
ii) Tenant violates or fails to perform or otherwise
breaches any agreement, term, covenant or condition contained in this Lease
within fifteen (15) days of written notice from Landlord (or such additional
time, not to exceed thirty (30) days as is reasonably required to cure such
breach).
iii) Tenant abandons or vacates the Premises without notice
without having first paid to Landlord in full all Fixed Basic Rent, Additional
Rent and other charges that have become due as well as all which will become due
thereafter through the end of the Term.
iv) Tenant becomes insolvent or bankrupt in any sense or
makes an assignment for the benefit of creditors or if a petition in bankruptcy
or for reorganization or for an arrangement with creditors under any federal or
state law is filed by or against Tenant, or a xxxx in equity or other proceeding
for the appointment of a receiver or similar official for any of Tenant's assets
is commenced, or if any of the real or personal property of Tenant shall be
levied upon by any sheriff, marshal or constable; provided, however, that any
proceeding brought by anyone other than the parties to this Lease under any
bankruptcy, reorganization arrangement, insolvency, readjustment, receivership
or similar law shall not constitute an event of default until such proceeding,
decree, judgment or order has continued unstayed for more than sixty (60)
consecutive days.
v) Any of the events enumerated in subsection (a)(i) through
(a) (iv) of this Section happen to any guarantor of this Lease.
b. Remedies. Upon the occurrence of an event of default under
this Lease, Landlord shall have all of the following rights:
i) Landlord may charge a late payment charge of five (5%)
percent of any amount owed to Landlord pursuant to this Lease which is not paid
within five (5) days of the due date which is set forth in the Lease or, if a
due date is not specified in this Lease, within
18
thirty (30) days of the mailing of a xxxx therefore by Landlord. If Landlord
incurs a late charge in connection with any payment which Tenant has failed to
make within the times required in this Lease, Tenant shall pay Landlord, in
addition to such payment due, the full amount of such late charge incurred by
Landlord. Nothing in this Lease shall be construed as waiving any rights of
Landlord arising out of any default of Tenant, by reason of Landlord's imposing
or accepting any such late charge(s) and/or interest; the right to collect such
late charge(s) and/or interest is separate and apart from any rights relating to
remedies of Landlord after default by Tenant including, without limitation, the
rights and remedies of Landlord provided herein.
ii) Landlord may accelerate the whole or any part of the
Fixed Basic Rent and all Additional Rent for the entire unexpired balance of the
Term of this Lease, as well as all other charges, payments, costs and expenses
herein agreed to be paid by Tenant, and any Fixed Basic Rent or other charges,
payments, costs and expenses so accelerated shall, in addition to any and all
installments of rent already due and payable and in arrears and any other charge
or payment herein reserved, included or agreed to be treated or collected as
rent and any other charge, expense or cost herein agreed to be paid by Tenant
which may be due and payable and in arrears, be deemed due and payable as if, by
the terms and provisions of this Lease, such accelerated rent and other charges,
payments, costs and expenses were on that date payable in advance. Landlord
agrees to undertake commercially reasonable efforts to mitigate its damages.
iii) Landlord may re-enter the Premises and, at the option
of Landlord, remove all persons and all or any property therefore either by
summary dispossess proceedings or by any suitable action or proceeding at law,
without being liable for prosecution or damages therefore, and Landlord may
repossess and enjoy the Premises. Upon legally recovering possession of the
Premises by reason of or based upon or arising out of a default on the part of
Tenant Landlord may, at Landlord's option, either terminate this Lease or make
such alterations and repairs as may be necessary in order to relet the Premises
and may relet the Premises or any part or parts thereof, either in Landlord's
name or otherwise, for a term or terms which may, at Landlord's option, be less
than or exceed the period which would otherwise have constituted the balance of
the Term of this Lease and at such rent or rents and upon such other terms and
conditions as in Landlord's sole discretion may seem advisable and to such
person or persons as may in Landlord's discretion seem best; upon each such
reletting all rents received by Landlord from such reletting shall be applied as
follows: first, to the payment of any costs and expenses of such reletting,
including all costs of alterations and repairs; second, to the payment of any
indebtedness other than Fixed Basic Rent, Additional Rent or other charges due
hereunder from Tenant to Landlord; third, to the payment of Fixed Basic Rent,
Additional Rent and other charges due and unpaid hereunder; and the residue, if
any, shall be held by Landlord and applied in payment of future rent as it may
become due and payable hereunder. If rentals received from reletting during any
month are less than that to be paid during that month by Tenant, Tenant shall
pay any such deficiency to Landlord. Such deficiency shall be calculated and
paid monthly. No such re-entry or taking possession of the Premises or the
making of alterations or improvements thereto or the reletting thereof shall be
construed as an election on the part of Landlord to terminate this Lease unless
written notice of termination is given to Tenant. Landlord shall in no event be
liable in any way whatsoever for failure to relet the Premises or, in the event
that the Premises or any part or parts thereof are relet, for failure to collect
the rent thereof under such reletting. Notwithstanding any such reletting
without termination, Landlord may at any time thereafter elect to terminate this
Lease for such previous breach.
19
iv) Landlord may terminate this Lease and the Term without
any right on the part of Tenant to waive the forfeiture by payment of any sum
due or by other performance of any condition, term or covenant broken. Upon such
termination, Landlord shall be entitled to exercise its rights set forth in
Section 26(b)(ii).
v) WHEN THIS LEASE AND THE TERM OR ANY EXTENSION OR RENEWAL
THEREOF SHALL HAVE BEEN TERMINATED ON ACCOUNT OF ANY DEFAULT BY TENANT, OR WHEN
THE TERM HAS EXPIRED, IT SHALL BE LAWFUL FOR ANY ATTORNEY OF ANY COURT OF RECORD
TO APPEAR AS ATTORNEY FOR TENANT AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH
OR UNDER TENANT, AND TO FILE AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN
AMICABLE ACTION FOR JUDGMENT IN EJECTMENT AGAINST TENANT AND ALL PERSONS
CLAIMING BY, THROUGH OR UNDER TENANT FOR THE RECOVERY BY LANDLORD OF POSSESSION
OF THE PREMISES, FOR WHICH THIS LEASE SHALL BE A SUFFICIENT WARRANT; WHEREUPON,
IF LANDLORD SO DESIRES, AN APPROPRIATE WRIT OF POSSESSION MAY ISSUE FORTHWITH,
WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER, AND PROVIDED THAT IS FOR ANY
REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED IT SHALL BE DETERMINED AND
POSSESSION OF THE PREMISES REMAIN IN OR BE RESTORED TO TENANT, LANDLORD SHALL
HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS,
OR UPON THE TERMINATION OF THIS LEASE OR TENANT'S RIGHT OF POSSESSION AS
HEREINBEFORE SET FORTH, TO BRING ONE OR MORE FURTHER ACTIONS IN EJECTMENT AS
HEREINBEFORE SET FORTH TO CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION OF THE
PREMISES.
c. Waiver of Jury Trial. IT IS MUTUALLY AGREED BY AND BETWEEN
LANDLORD AND TENANT THAT (A) THEY HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTER-CLAIM 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 OCCUPANCY OF THE
PREMISES OR CLAIM OF INJURY OR DAMAGE, AND (B) IN ANY ACTION AGAINST LANDLORD BY
TENANT, THE LEGAL FEES OF THE PREVAILING PARTY WILL BE PAID BY THE OTHER PARTY
TO THE ACTION.
d. Non-Waiver. No waiver by Landlord of any breach by Tenant of
any of Tenant's obligations, agreements or covenants herein shall be a waiver of
any subsequent breach or of any other obligation, agreement or covenant, nor
shall any forbearance by Landlord to seek a remedy for any event of default by
Tenant be a waiver by Landlord of any rights and remedies with respect to such
or any subsequent event of default.
20
e. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to Landlord is intended to be exclusive of any other
right or remedy provided herein or by law, but each shall be cumulative and in
addition to every other right or remedy given herein or now or hereafter
existing at law or in equity or by statute.
27. Condition of Premises. [Intentionally Deleted]
28. Hazardous Substances.
a. Landlord and Tenant shall not cause or allow the generation,
treatment, storage or disposal of Hazardous Substances on or near the Premises
or Property. "Hazardous Substances" shall mean (i) any hazardous substance as
that term is defined in the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA"), 42 U.S.C. 9601 et seq., as amended, (ii) any
hazardous waste or hazardous substance as those terms are defined in any local,
state or Federal law, regulation or ordinance not inapplicable to the Premises
and Property, or (iii) petroleum including crude oil or any fraction thereof. In
the event Landlord or Tenant uses any Hazardous Substances, Landlord or Tenant
shall dispose of such substances in accordance with all applicable Federal,
state and local laws, regulations and ordinances.
b. Landlord and Tenant agree to indemnify, defend and hold
harmless the other, its employees, agents, successors, and assigns, from and
against any and all damage, claim, liability, or loss, including reasonable
attorneys' and other fees, arising out of or in any way connected to the
generation, treatment, storage or disposal of Hazardous Substances by Landlord
or Tenant, its employees, agents, contractors, or invitees, on or near the
Premises or Property. Such duty of indemnification shall include, but not be
limited to damage, liability, or loss pursuant to all Federal, state and local
environmental laws, rules and ordinances, strict liability and common law.
c. Landlord and Tenant agree to notify each other immediately
of any disposal of Hazardous Substances in the Premises or Property, of any
discovery of Hazardous Substances in the Premises, or of any notice by a
governmental authority or private party alleging or suggesting that a disposal
of Hazardous Substances on or near the Premises or Property may have occurred.
Furthermore, Landlord and Tenant agree to provide the other with full and
complete access to any documents or information in its possession or control
relevant to the question of the generation, treatment, storage, or disposal of
Hazardous Substances on or near the Premises.
d. Other than as set forth in that certain Phase 1
Environmental Site Assessment prepared by Oxford Engineers and Consultants, Inc.
dated February 1998 for the Property, Landlord represents and warrants that, to
the best of its knowledge, there are no Hazardous Substances in, under or about
the Building.
29. Recording. Neither this Lease nor a memorandum of this Lease
shall be recorded in any public records without the written consent of Landlord.
21
30. Brokers' Commission. Tenant represents and warrants to Landlord
that the Brokers (as defined in the Preamble) are the sole brokers with whom
Tenant has negotiated in bringing about this Lease and Tenant agrees to
indemnify and hold Landlord and its mortgagee(s) harmless from any and all
claims of other brokers and expenses in connection therewith arising out of or
in connection with the negotiation of or the entering into this Lease by
Landlord and Tenant. In no event shall Landlord's mortgagee(s) have any
obligation to any broker involved in this transaction. In the event that no
broker was involved as aforesaid, then Tenant represents and warrants to the
Landlord that no broker brought about this transaction, and Tenant agrees to
indemnify and hold Landlord harmless from any and all claims of any broker
arising out of or in connection with the negotiations of, or entering into of,
this Lease by Tenant and Landlord.
31. Notices. All notices, demands, requests, consents,
certificates, and waivers required or permitted hereunder from either party to
the other shall be in writing and sent by United States certified mail, return
receipt requested, postage prepaid, or by recognized overnight courier,
addressed as follows:
If to Tenant:
U.S. Interactive
with a copy to:
J. Xxxxxxx Xxxx, Esquire
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
If to Landlord:
X'Xxxxx Renaissance II Associates, L.P.
c/o X'Xxxxx Properties Group, L.P.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attn: President
with a copy to:
Xxxxx X. Xxxxx, Esquire
Xxxxxxx Xxxxxx Gold and Xxxxx
Xxxxx 0000,Xxx Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Either party may at any time, in the manner set forth for giving notices to the
other, specify a different address to which notices to it shall thereafter be
sent.
22
32. Irrevocable Offer: No Option. Although Tenant's execution of
this Lease shall be deemed an offer irrevocable by Tenant, the submission of
this Lease by Landlord to Tenant for examination shall not constitute a
reservation of or option for the Premises. This Lease shall become effective
only upon execution thereof by both parties and delivery thereof to Tenant.
33. Inability to Perform. If Landlord is delayed or prevented from
performing any of its obligations under this Lease by reason of strike, labor
troubles, or any cause whatsoever beyond Landlord's control, the period of such
delay or such prevention shall be deemed added to the time herein provided for
the performance of any such obligation by Landlord.
34. Survival. Notwithstanding anything to the contrary contained in
this Lease, the expiration of the Term of this Lease, whether by lapse of time
or otherwise, shall not relieve Tenant from its obligations accruing prior to
the expiration of the Term.
35. Corporate Tenants. If Tenant is a corporation, the person(s)
executing this Lease on behalf of Tenant hereby covenant(s) and warrant(s) that:
Tenant is a duly formed corporation qualified to do business in the state in
which the Property is located; Tenant will remain qualified to do business in
said state throughout the Term and any renewals thereof; and such persons are
duly authorized by such corporation to execute and deliver this Lease on behalf
of the corporation.
36. Waiver of Invalidity of Lease. Each party agrees that it will
not raise or assert as a defense to any obligation under the Lease or this or
make any claim that the Lease is invalid or unenforceable due to any failure of
this document to comply with ministerial requirements including, without
limitation, requirements for corporate seals, attestations, witnesses,
notarizations or other similar requirements and each party hereby waives the
right to assert any such defenses or make any claim of invalidity or
unenforceability due to any of the foregoing.
37. Security Deposit. As additional security for the full and
prompt performance by Tenant of the terms and covenants of this Lease, Tenant
has deposited with Landlord the Security Deposit, as set forth in the Preamble.
The Security Deposit shall not constitute rent for any month (unless so applied
by Landlord on account of Tenant's default hereunder). Tenant shall, upon
demand, restore any portion of the Security Deposit which may be applied by
Landlord to cure any default by Tenant hereunder. To the extent that Landlord
has not applied the Security Deposit or any portion thereof on account of a
default, the Security Deposit, or such remaining portion of the Security
Deposit, shall be returned to Tenant, without interest, promptly following the
termination of this Lease.
38. Tenant Estoppel Certificate.
a. Tenant shall from time to time, within five (5) days after
Landlord's request or that of any mortgagee of Landlord, execute, acknowledge
and deliver to Landlord a written instrument in recordable form, substantially
in the form attached hereto as Exhibit E (a "Tenant Estoppel Certificate"),
certifying (i) that this Lease is in full force and effect and has not been
modified, supplemented or amended (or, if there have been modifications,
supplements or amendments, that it is in full force and effect as modified,
supplemented or amended, and stating
23
such modifications, supplements and amendments); (ii) the dates to which Fixed
Basic Rent and Additional Rent and any other charges arising hereunder have been
paid; (iii) the amount of any prepaid rents or credits due Tenant, if any; (iv)
if applicable, that Tenant has accepted possession and has entered into
occupancy of the Premises, and certifying the Commencement Date and the
Termination Date; (v) whether or not, to the best of the Tenant's knowledge, all
conditions under the Lease to be performed by Landlord prior thereto have been
satisfied and whether or not Landlord is then in default in the performance of
any covenant, agreement or condition contained in this Lease and specifying
each, if any, unsatisfied condition and each, if any, default of which Tenant
may have knowledge; and (vi) any other fact or condition reasonably requested.
Any certification delivered pursuant to the provisions of this Article shall be
intended to be relied upon by Landlord and any mortgagee or prospective
mortgagee or purchaser of the Property or of any interest therein.
b. The failure of Tenant to execute, acknowledge and deliver to
Landlord a written Tenant Estoppel Certificate in accordance with the provisions
of this Section 38 within said five (5) day period shall constitute an
acknowledgment by Tenant, which may be relied upon by any mortgagee or
prospective mortgagee or any purchaser of the Property or of any interest
therein, that this Lease has not been modified, supplemented or amended except
as set forth in landlord's request, and is in full force and effect (or in full
force and effect as so modified, supplemented or amended), that the Base Rent,
Additional Rent and any other charges arising hereunder have not been paid
beyond the respective due dates immediately preceding the date of such request,
that Tenant has no right of set off or other defense to this Lease and of the
truth of such other facts and conditions as shall have been requested to be
certified, and shall constitute, as to any person entitled to rely as aforesaid,
a waiver of any defaults which may exist prior to the date of such request.
Notwithstanding the foregoing, Tenant's failure to furnish a Tenant Estoppel
Certificate within said five (5) day period shall constitute a default under
this Lease.
39. Rights Reserved by Landlord. Landlord waives no rights, except
those that may be specifically waived herein, and explicitly retains all other
rights including, without limitation, the following rights, each of which
Landlord may exercise without notice to Tenant and without liability to Tenant
for damage or injury to property, person or business on account of the exercise
thereof, and the exercise of any such rights shall not be deemed to constitute
an eviction or disturbance of Tenant's use or possession of the Premises and
shall not give rise to any claim for set off or abatement of Rent or any other
claim:
a. To change the name or street address of the Building.
b. To install, affix and maintain any and all signs on the
exterior and on the interior of the Building.
c. Where necessary, to decorate or to make repairs,
alterations, additions, or improvements, whether structural or otherwise, in and
about the Building, or any part thereof, and for such purposes to enter upon the
Premises and during the continuance of any of such work, to temporarily close
doors, entry ways, public space and corridors in the Building and to interrupt
or temporarily suspend services or use of facilities, all without affecting any
of Tenant's obligations hereunder, so long as the Premises are reasonably
accessible and usable.
24
d. To furnish door keys for the entry door(s) in the Premises
on the Commencement Date and to retain at all times, and to use in appropriate
instances, keys to all doors within and into the Premises. Tenant agrees to
purchase only from Landlord additional duplicate keys as required, to change no
locks, and not to affix locks on doors without the prior written consent of the
Landlord. Upon the expiration of the Term or Tenant's right to possession,
Tenant shall return all keys to Landlord and shall disclose to Landlord the
combination of any safes, cabinets or vaults left in the Premises.
e. To designate and approve all window coverings used in the
Building.
f. To approve the weight, size and location of safes, vaults
and other heavy equipment and articles in and about the Premises and the
Building so as not to exceed the legal load per square foot designated by the
structural engineers for the Building, and to require all such items and
furniture and similar items to be moved into or out of the Building and Premises
only at such times and in such manner as Landlord shall direct in writing.
Tenant shall not install or operate machinery or any mechanical devices of a
nature not directly related to Tenant's ordinary use, as limited by the
Permitted Use, of the Premises without the prior written consent of Landlord.
The movement of Tenant's property into or out of the Building or the Premises
and within the Building are entirely at the risk and responsibility of Tenant,
and Landlord reserves the right to require written authorization from Tenant, in
form and content satisfactory to Landlord, before allowing any property to be
moved into or out of the Building or Premises.
g. To regulate delivery of supplies and the usage of the
loading docks, receiving areas and freight elevators.
h. To enter the Premises in accordance with Section 14, and in
the last year of the Term, to show the Premises to prospective tenants at
reasonable times and, if vacated or abandoned, to show the Premises at any time
and to prepare the Premises for re-occupancy.
i. To erect, use and maintain pipes, ducts, wiring and
conduits, and appurtenances thereto, in and through the Premises.
j. To enter the Premises at any reasonable time to inspect the
Premises and to make repairs or alterations as Landlord reasonably deems
necessary, with due diligence and minimum disturbance.
k. To grant to any person or to reserve unto itself the
exclusive right to conduct any business or render any service in the Building.
If Landlord elects to make available to tenants in the Building any services or
supplies, or arranges a master contract therefore, Tenant agrees to obtain its
requirements, if any, therefore from Landlord or under any such contract,
provided that the charges therefore are reasonable.
25
l. To alter the layout, design and/or use of the Building in
such manner as Landlord, in its sole discretion, deems appropriate, so long as
the character of the Building as a first class office building is maintained and
so long as Tenant's business 4s not unreasonably interrupted.
40. Miscellaneous.
a. Captions. The captions in this Lease are for convenience
only and are not a part of this Lease and do not in any way define, limit,
describe or amplify the terms and provisions of this Lease or the scope or
intent thereof.
b. Entire Agreement. This Lease represents the entire agreement
between the parties hereto and there are no collateral or oral agreements or
understandings between Landlord and Tenant with respect to the Premises or the
Property. No rights, easements or licenses are acquired in the Property or any
land adjacent to the Property by Tenant by implication or otherwise except as
expressly set forth in the provisions of this Lease.
c. Modification. This Lease shall not be modified in any manner
except by an instrument in writing executed by the parties. Notwithstanding the
foregoing, Landlord shall have the right at anytime, and from time to time,
during the Term, to unilaterally amend the provisions of this Lease if Landlord
is advised by its counsel that all or any portion of the moneys paid by Tenant
to Landlord hereunder are, or may be deemed to be, unrelated business income
within the meaning of the United States Internal Revenue Code or regulations
issued thereunder; and Tenant agrees that it will execute all documents or
instruments necessary to effect such amendment or amendments, provided that no
such amendment shall result in Tenant having to pay in the aggregate a larger
sum of money on account of its occupancy of the Premises under the terms of this
Lease as so amended, and provided further that no such amendment or amendments
shall result in Tenant receiving under this Lease less services than it is
entitled to receive, nor services of a less quality. In addition, Tenant agrees
to make such changes to this Lease as are required by any mortgagee, provided
such changes do not substantially affect Tenant's rights and obligation
hereunder.
d. Interpretation. The masculine (or neuter) pronoun, singular
number, shall include the masculine, feminine and neuter genders and the
singular and plural number.
e. Exhibits. Each writing or plan referred to herein as being
attached as an Exhibit or otherwise designated herein as an Exhibit hereto is
hereby made a part hereof.
f. Captions and Headings. The captions and headings of
sections, subsections and the table of contents herein are for convenience only
and are not intended to indicate all of the subject matter in the text and they
shall not be deemed to limit, construe, affect or alter the meaning of any
provisions of this Lease and are not to be used in interpreting this Lease or
for any other purpose in the event of any controversy.
g. Interest. Wherever interest is required to be paid
hereunder, such interest shall be at the highest rate permitted under law but
not in excess of twelve percent (12%).
26
h. Severability. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
i. Joint and Several Liability. If two or more individuals,
corporations, partnerships or other persons (or any combination of two or more
thereof) shall sign this Lease as Tenant, the liability of each such individual,
corporation, partnership or other persons to pay the Rent and perform all other
obligations hereunder shall be deemed to be joint and several, and all notices,
payments and agreements given or made by, with or to any one of such
individuals, corporations, partnerships or other persons shall be deemed to have
been given or made by, with or to all of them. In like manner, if Tenant shall
be a partnership or other legal entity, the members of which are, by virtue of
any applicable law or regulation, subject to personal liability, the liability
of each such member shall be joint and several.
j. No Representations by Landlord. Landlord and Landlord's
agents have made no representations, agreements, conditions, warranties,
understandings or promises, either oral or written, other than as expressly set
forth herein, with respect to this Lease. the Premises and/or the Building.
k. Relationship of Parties. This Lease shall not create any
relationship between the parties other than that of Landlord and Tenant.
l. Choice of Law. The terms of this Lease shall be construed
under the laws of the Commonwealth of Pennsylvania, and that exclusive
jurisdiction and venue shall be in the Court of Common Pleas of the County in
which the Property is located.
41. Additional Definitions.
a. "Date of this Lease" or "date of this Lease" shall mean the
date of acceptance of this Lease by the Landlord, following execution and
delivery thereof to Landlord by Tenant and that date shall be inserted in the
space provided in the Preamble.
b. "Landlord" as used herein includes the Landlord named above
as well as its successors and assigns, each of whom shall have the same rights,
remedies, powers, authorities and privileges as he would have had he originally
signed this lease as Landlord. Any such person, whether or not named herein,
shall have no liability hereunder after ceasing to hold title to the Premises.
Neither Landlord nor any principal of Landlord nor any owner of the Building or
the Lot, whether disclosed or undisclosed, shall have any personal liability
with respect to any of the provisions of this Lease or the Premises, and if
Landlord is in breach or default with respect to Landlord's obligations under
this Lease or otherwise, Tenant shall look solely to the equity of Landlord in
the Premises for the satisfaction of Tenant's remedies.
27
c. "Tenant" as used herein includes the Tenant named above as
well as its heirs, successors and assigns, each of which shall be under the same
obligations, liabilities and disabilities and each of which shall have the same
rights, privileges and powers as it would have possessed had it originally
signed this Lease as Tenant. Each and every person named above as Tenant shall
be bound formally and severally by the terms, covenants and agreements contained
herein. However, no such rights, privileges or powers shall inure to the benefit
of any assignee of Tenant, immediate or remote, unless the assignment to such
assignee is permitted or has been approved in writing by Landlord. Any notice
required or permitted by the terms of this Lease may be given by or to any one
of the persons named above as Tenant, and shall have the same force and effect
as if given by or to all of them.
d. "Mortgage" and "Mortgagee" as used herein includes any lien
or encumbrance on the Premises or the Property or on any part of or interest in
or appurtenance to any of the foregoing, including without limitation any ground
rent or ground lease if Landlord's interest is or becomes a leasehold estate.
The word "mortgagee" is used herein to include the holder of any mortgage,
including any ground Landlord if Landlord's interest is or becomes a leasehold
estate. Wherever any right is given to a mortgagee, that right may be exercised
on behalf of such mortgagee by any representative or servicing agent of such
mortgagee.
e. "Person" as used herein includes a natural person, a
partnership, a corporation, an association, and any other form of business
association or entity.
f. "Property" as used herein shall mean the Building and the
lot, tract or parcel of land on which the Building is situated.
g. "Rent" or "rent" as used herein shall mean all Fixed Basic
Rent and Additional Rent reserved under this Lease.
28
IN WITNESS WHEREOF, and in consideration of the mutual entry into this
Lease and for other good and valuable consideration, and intending to be legally
bound, each party hereto has caused this agreement to be duly executed under
seal.
Landlord: X'Xxxxx Renaissance II Associates, L.P.
--------
Date Signed: 5/14/98 By: X'Xxxxx Renaissance II Associates
--------------- Acquisition Corporation
By: /s/
---------------------------------------
Name: [illegible name]
---------------------------
Title: __________________________
Attest: __________________________________
Tenant: U.S. Interactive
-------
Date Signed: 5/8/98 U.S. Interactive, Inc.
--------------
By: /s/
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: EVP - Finance & Administration
--------------------------------
Attest: _________________________________
29
EXHIBIT A
LOCATION OF PREMISES
See Exhibit C
EXHIBIT A-1
-----------
OFFICE BUILDING AREA
See Exhibit C
