Exhibit 10.25
-------------
LEASE
FROM:
CAL-TREE REALTY ASSOCIATES L.P.
LESSOR
TO:
SYNOVA HEALTHCARE, INC.
LESSEE
BUILDING:
ROSE TREE II
0000 X. XXXXXXXXXX XXXX
XXXXX, XXXXXXXXXXXX
TABLE OF CONTENTS
1. DESCRIPTION 1
2. TERM 1
3. BASIC RENT 1
4. USE AND OCCUPANCY 1
5. CARE AND REPAIR OF PREMISES 1
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS 2
7. ACTIVITIES INCREASING FIRE INSURANCE RATES 2
8. ASSIGNMENT AND SUBLEASE 2
9. COMPLIANCE WITH RULES AND REGULATIONS 3
10. DAMAGES TO BUILDING/WAIVER OF SUBROGATION 3
11. EMINENT DOMAIN 4
12. INSOLVENCY OF LESSEE 4
13. LESSOR'S REMEDIES ON DEFAULT 4
14. DEFICIENCY 4
15. SUBORDINATION OF LEASE 5
16. SECURITY DEPOSIT 6
17. RIGHT TO CURE LESSEE'S BREACH 6
18. MECHANIC'S LIENS 6
19. RIGHT TO INSPECT AND REPAIR 6
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION 6
21. INTERRUPTION OF SERVICES OR USE 7
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE 7
23. ADDITIONAL RENT 8
24. LESSEE'S ESTOPPEL 11
25. HOLDOVER TENANCY 11
26. RIGHT TO SHOW PREMISES 11
27. LESSOR'S WORK - LESSEE'S DRAWINGS 11
28. WAIVER OF TRIAL BY JURY 12
29. LATE CHARGE 12
30. LESSEE'S INSURANCE 12
i
31. NO OTHER REPRESENTATIONS 12
32. QUIET ENJOYMENT 12
33. INDEMNITY 12
34. PARAGRAPH HEADINGS 13
35. APPLICABILITY TO HEIRS AND ASSIGNS 13
36. OUTSIDE PARKING SPACES 13
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY 13
38. PARTIAL INVALIDITY 13
39. LESSEE'S BROKER 13
40. PERSONAL LIABILITY 13
41. NO OPTION 14
42. DEFINITIONS 14
43. LEASE COMMENCEMENT 15
44. NOTICES 15
45. ACCORD AND SATISFACTION 15
46. EFFECT OF WAIVERS 15
47. LEASE CONDITION 15
48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE 15
49. LESSOR'S RESERVED RIGHT 16
50. CORPORATE AUTHORITY 16
51. AFTER-HOURS USE 16
52. LESSEE'S EXPANSION/RELOCATION 16
53. BUILDING PERMIT 17
ii
LEASE, is made the 22nd day of December, 2005 between CAL-TREE REALTY
ASSOCIATES, L.P. (herein referred to as "Lessor") whose address is c/o Xxxx-Xxxx
Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and SYNOVA
HEALTHCARE, INC. (herein referred to as "Lessee") whose address is Rose Tree II,
0000 Xxxxxxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxx 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 Lessee to Lessor pursuant to the provisions of the Lease.
2. BASE PERIOD COSTS shall mean the following:
A. Base Operating Costs: Those Operating Costs incurred during Calendar
Year 2006.
B. Base Real Estate Taxes: Those Real Estate Taxes incurred during
Calendar Year 2006.
C. Insurance Cost Expense Stop: $31,713.00
3. BUILDING shall mean Xxxx Xxxx XX, 0000 X. Xxxxxxxxxx Xxxx, Xxxxx, XX.
4. BUILDING HOLIDAYS shall be those shown on Exhibit E.
5. BUILDING HOURS shall be Monday through Friday, 8:00 a.m. to 6:00 p.m.,
but excluding those holidays as set forth on Exhibit E attached hereto
and made a part hereof, except that Common Facilities, lighting in the
Building and Office Building Area shall be maintained for such
additional hours as, in Lessor's sole judgement, is necessary or
desirable to insure proper operating of the Building and Office
Building Area.
6. COMMENCEMENT DATE is December 1, 2005. The ADDITIONAL PREMISES
COMMENCEMENT DATE is the later to occur of (i) February 1, 2006 or (ii)
substantial completion of Lessor's Work in the Additional Premises as
set forth in Exhibit C attached hereto and shall for purposes hereof be
subject to Articles 27 and 43 hereof. In the event Lessee shall fail to
increase the letter of credit as set forth in Paragraph 16 of this
Preamble on or before February 1, 2006, then notwithstanding anything
contained herein or in Articles 27 and 43 and Exhibit C to the
contrary, the Additional Premises Commencement Date shall be February
15, 2006. Notwithstanding anything to the contrary contained herein, if
Lessee delivers the increased letter of credit after February 1, 2006
and Lessor accepts such cure of Lessee's default (although Lessor shall
have no obligation to do so) and provided there are no other uncured
events of default, Lessor shall be obligated to complete Lessor's Work
in the Additional Premises as set forth on Exhibit C, and the
Additional Premises Commencement Date shall be February 15, 2006.
7. DEMISED PREMISES OR PREMISES shall be deemed to be 4,328 gross rentable
square feet on the 6th floor as shown on Exhibit A hereto, which
includes an allocable share of the Common Facilities as defined in
Article 42(b), consisting of approximately 2,476 gross rentable square
feet ("Initial Premises") and approximately 1,852 gross rentable square
feet ("Additional Premises"). The Additional Premises shall not be
deemed part of the Premises until the Additional Premises Commencement
Date.
8. EXHIBITS shall be the following, attached to this Lease and
incorporated herein and made a part hereof.
1
Rider A Confession of Judgment
Exhibit A Premises
Exhibit X-0 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxx X Rules and Regulations
Exhibit C Lessor's Work
Exhibit C-1 Air Conditioning &
Heating Standards
Exhibit D Cleaning Services
Exhibit E Building Holidays
Exhibit F Tenant Estoppel Certificate
Exhibit G Commence Date Agreement
Exhibit H Letter of Credit
9. EXPIRATION DATE shall be November 30, 2011.
10. FIXED BASIC RENT applicable to the Initial Premises shall mean:
--------------------------------------------------------------------------------
Annual Per Sq.
Term Annual Rate Monthly Installments Ft. Rate
--------------------------------------------------------------------------------
12/01/05 - 11/30/06 $52,243.60 $4,353.63 $21.10
--------------------------------------------------------------------------------
12/01/06 - 11/30/07 $53,481.60 $4,456.80 $21.60
--------------------------------------------------------------------------------
12/01/07 - 11/30/08 $54,719.60 $4,559.97 $22.10
--------------------------------------------------------------------------------
12/01/08 - 11/30/09 $55,957.60 $4,663.13 $22.60
--------------------------------------------------------------------------------
12/01/09 - 11/30/10 $57,195.60 $4,766.30 $23.10
--------------------------------------------------------------------------------
12/01/10 - 11/30/11 $58,433.60 $4,869.47 $23.60
--------------------------------------------------------------------------------
FIXED BASIC RENT applicable to the Additional Premises shall mean:
--------------------------------------------------------------------------------
Annual Per Sq.
Term Annual Rate Monthly Installments Ft. Rate
--------------------------------------------------------------------------------
Additional $39,077.20 $3,256.43 $21.10
Premises
Commencement
Date - 11/30/06
--------------------------------------------------------------------------------
12/01/06-11/30/07 $40,003.20 $3,333.60 $21.60
--------------------------------------------------------------------------------
12/01/07-11/30/08 $40,929.20 $3,410.77 $22.10
--------------------------------------------------------------------------------
12/01/08-11/30/09 $41,855.20 $3,487.93 $22.60
--------------------------------------------------------------------------------
12/01/09-11/30/10 $42,781.20 $3,565.10 $23.10
--------------------------------------------------------------------------------
12/01/10-11/30/11 $43,707.20 $3,642.27 $23.60
--------------------------------------------------------------------------------
11. LESSEE'S BROKER shall mean none.
12. LESSEE'S PERCENTAGE applicable to the Initial Premises shall be 1.55%
and Lessee's Percentage applicable to the Additional Premises shall be
1.16%, all subject to adjustment as
2
provided for in Article 42(d).
13. OFFICE BUILDING AREA is as set forth on Exhibit A-1.
14. PARKING SPACES shall mean a total of thirteen (13) parking spaces as
follows:
four (4) covered reserved parking spaces
nine (9) unreserved outside parking spaces
15. PERMITTED USE shall be general office use and for no other purpose.
16. SECURITY DEPOSIT shall be SEVENTY THOUSAND NINE HUNDRED SEVENTY-TWO AND
00/100 DOLLARS ($70,972.00).
Lessee shall within five (5) days of receipt of a fully executed copy
of this Lease, deliver to Lessor an irrevocable negotiable letter of
credit issued by and drawn upon such commercial bank selected by Lessee
and acceptable to Lessor (at its sole discretion) and in form and
content acceptable to Lessor (also at its sole discretion) (the form
attached hereto as Exhibit H shall be deemed acceptable to Lessor) for
the account of Lessor, in the amount of TWENTY-THREE THOUSAND AND
00/100 DOLLARS ($23,000.00). Thereafter, on or before February 1, 2006
Lessee shall increase the aforesaid letter of credit to SEVENTY
THOUSAND NINE HUNDRED SEVENTY-TWO AND 00/100 DOLLARS ($70,972.00). In
the event Lessee shall fail to increase the letter of credit on or
before February 1, 2006, (i) Lessee shall be deemed in material default
of this Lease, (ii) Lessor shall have the right to exercise all of its
rights and remedies as set forth in this Lease and at law or in equity
and (iii) the Additional Premises Commencement Date shall be February
15, 2006. Said letter of credit shall be for a term of not less than
one (l) year and shall be automatically renewed by the bank (without
notice from Lessor) (i.e. an "evergreen" letter of credit), until
Lessor shall be required to return the security to Lessee pursuant to
the terms of this Lease but in no event earlier than ninety (90) days
after the Expiration Date, and any renewed letter of credit shall be
delivered to Lessor no later than sixty (60) days prior to the
expiration of the letter of credit then held by Lessor. If any portion
of the security deposit shall be utilized by Lessor in the manner
permitted by this Lease, Lessee shall, within five (5) days after
request by Lessor, replenish the security account by depositing with
Lessor, in cash or by letter of credit, an amount equal to that
utilized by Lessor. Failure of Lessee to comply strictly with the
provisions of this Article shall constitute a material breach of this
Lease and Lessor shall be entitled to present the letter of credit then
held by it for payment (without notice to Lessee). If the cash security
is converted into a letter of credit, the provisions with respect to
letters of credit shall apply (with the necessary changes in points of
detail) to such letter of credit deposit. In the event of a bank
failure or insolvency affecting the letter of credit, Lessee shall
replace same within twenty (20) days after being requested to do so by
Lessor. The letter of credit shall be transferable in connection with a
transfer of the Building and Lessee shall be solely responsible for any
transfer fees imposed by the Bank.
Provided that (i) this Lease is in full force and effect, (ii) Lessee
is not in and has not been in default hereunder and (iii) Lessee's net
worth is at least equal to the net worth of Lessee on the date of this
Lease, Lessee, upon request to Lessor, may reduce the Security Deposit
by $14,194.40 on the one (1) year anniversary of the Additional
Premises Commencement Date and by $14,194.40 on the two (2) year
anniversary of the Additional Premises Commencement Date and by
$33,891.14 on the thirty (30) month anniversary of the Additional
Premises Commencement Date.
17. TERM shall mean the period from the Commencement Date to the Expiration
Date, unless extended pursuant to any option contained herein.
3
W I T N E S S E T H
For and in consideration of the covenants herein contained,
and upon the terms and conditions herein set forth, Lessor and Lessee agree as
follows:
1. DESCRIPTION: Lessor hereby leases to Lessee, and Lessee hereby hires
from Lessor, the Premises as defined in the Preamble which includes an
allocable share of the Common Facilities, as shown on the plan or
plans, initialed by the parties hereto, marked Exhibit A attached
hereto and made part of this Lease in the Building as defined in the
Preamble, (hereinafter called the "Building") which is situated on that
certain parcel of land (hereinafter called "Office Building Area") as
described on Exhibit A-1 attached hereto and made part of this Lease,
together, with the right to use in common with other lessees of the
Building, their invitees, customers and employees, those public areas
of the Common Facilities as hereinafter defined.
2. TERM: The Premises are leased for a term to commence on the
Commencement Date, and to end at 12:00 midnight on the Expiration Date,
all as defined in the Preamble.
3. BASIC RENT: The Lessee shall pay to the Lessor during the Term, the
Fixed Basic Rent as defined in the Preamble (hereinafter called "Fixed
Basic Rent") payable in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment
of public and private debts. The Fixed Basic Rent shall accrue at the
Yearly Rate as defined in the Preamble and shall be payable, in
advance, on the first day of each calendar month during the Term at the
Monthly Installments as defined in the Preamble, except that a
proportionately lesser sum may be paid for the first and last months of
the Term of this Lease if the Term commences on a day other than the
first day of the month, in accordance with the provisions of this Lease
herein set forth. Lessor acknowledges receipt from Lessee of the first
monthly installment by check, subject to collection, for Fixed Basic
Rent for the first month of the Lease Term. Lessee shall pay Fixed
Basic Rent, and any Additional Rent as hereinafter provided, to Lessor
at Lessor's above stated address, or at such other place as Lessor may
designate in writing, without demand and without counterclaim,
deduction or set off.
4. USE AND OCCUPANCY: Lessee shall use and occupy the Premises for the
Permitted Use as defined in the Preamble.
Lessee hereby acknowledges "no smoking" is permitted in the Common
Facilities. If at any time during the Term of this Lease, Lessee adopts
a policy prohibiting Lessee, its employees, agents or invitees from
smoking within the Premises, Lessee shall use its best efforts to
enforce Lessor's policy prohibiting its employees, agents or invitees
from smoking within the Common Facilities including the areas outside
of the Building's main entrance.
5. CARE AND REPAIR OF PREMISES: Lessee shall commit no act of waste and
shall take good care of the Premises and the fixtures and appurtenances
therein, and shall, in the use and occupancy of the Premises, conform
to all laws, orders and regulations of the federal, state and municipal
governments or any of their departments affecting the Premises and with
any and all environmental requirements resulting from the Lessee's use
of the Premises, this covenant to survive the expiration or sooner
termination of the Lease. Lessor shall, subject to the same being
included in Operating Costs, make all necessary repairs to the
Premises, Common Facilities and to the assigned parking areas, if any,
except where the repair has been made necessary by misuse or neglect by
Lessee or Lessee's agents, servants, visitors or licensees, in which
event Lessor shall nevertheless make the repair but Lessee shall pay to
Lessor, as Additional Rent, immediately upon demand, the costs
therefor. All improvements made by Lessee to the Premises other than
Lessee's trade fixtures, if any, which are so attached to the Premises,
shall become the property of Lessor upon installation. Not later than
the last day of the Term, Lessee shall, at Lessee's expense, remove all
Lessee's personal property and those improvements made by Lessee which
have not become the property of Lessor, including trade fixtures,
cabinetwork, movable paneling, partitions and the like; repair all
injury done by or in connection with the installation or removal of
said property and improvements; and surrender the Premises in as good
condition as they were at the beginning
4
of the Term, reasonable wear and damage by fire, the elements, casualty
or other cause not due to the misuse or neglect by Lessee, Lessee's
agents, servants, visitors or licensees excepted. All other property of
Lessee remaining on the Premises after the last day of the Term of this
Lease shall be conclusively deemed abandoned and may be removed by
Lessor, and Lessee shall reimburse Lessor for the cost of such removal,
provided that such property is actually removed from the Premises.
Lessor may have any such property stored at Lessee's risk and expense.
Lessee shall not generate, handle, dispose, bring, store or discharge
or permit the generation, handling, disposal, bringing, storage or
discharge of any hazardous substances or wastes in, upon or about the
Premises, the Building or the Office Building Area in violation of any
laws and/or requirements of public authorities (hereinafter
collectively referred to as "Prohibited Actions"). Lessee shall
indemnify and hold Lessor harmless against any and all loss, cost,
damage, liability or expense (including without limitation, attorney's
fees, and disbursements) which Lessor may sustain or incur as a result
of any Prohibited Actions.
Lessor shall indemnify and hold Lessee harmless against any and all
loss, cost, damage, liability or expense (including without limitation,
attorney's fees and disbursements) which Lessee may sustain or incur as
a result of any Prohibited Actions by Lessor.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS: Lessee shall not, without first
obtaining the written consent of Lessor, make any structural or
Building Systems alterations, additions or improvements in, to or about
the Premises. Building Systems shall mean any structural, life safety,
plumbing, electrical, heating, ventilation or air conditioning system
or its components. Lessee shall not, without first obtaining the
written consent of Lessor (which shall not be unreasonably withheld or
delayed) make any non-Building Systems alterations, additions or
improvements in, to or about the Premises. Lessee may, upon
notification to Lessor, perform minor cosmetic improvements, such as
painting and wallpapering, without prior consent of Lessor.
7. ACTIVITIES INCREASING FIRE INSURANCE RATES: Lessee shall not do or
suffer anything to be done on the Premises which will increase the rate
of fire insurance on the Building.
8. ASSIGNMENT AND SUBLEASE: Provided Lessee is not in default of any
provisions of this Lease, Lessee may assign or sublease the within
Lease to any party subject to the following:
a. In the event Lessee desires to assign this Lease or sublease
all or part of the Premises to any other party, the terms and
conditions of such assignment or sublease shall be
communicated to the Lessor in writing prior to the effective
date of any such sublease or assignment, and, prior to such
effective date, the Lessor shall have the option, exercisable
in writing to the Lessee, to: (i) sublease such space from
Lessee 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 sublessee or assignee shall
then become the sole Lessee of Lessor hereunder, or (iii)
recapture the Recapture Space for Lessor's own use and the
within Lessee shall be fully released from any and all
obligations hereunder with respect to the Recapture Space.
b. In the event that the Lessor elects not to sublease or
recapture the Lease as hereinabove provided, the Lessee may
nevertheless assign this Lease or sublet the whole or any
portion of the Premises, subject to the Lessor's prior written
consent, which consent shall not be unreasonably withheld and
subject to the consent of any mortgagee, trust deed holder or
ground lessor, on the basis of the following terms and
conditions:
5
i. The Lessee shall provide to the Lessor the name and
address of the assignee or sublessee.
ii. The assignee or sublessee shall assume, by written
instrument, all of the obligations of this Lease, and
a copy of such assumption agreement shall be
furnished to the Lessor within ten (10) days of its
execution. Any sublease shall expressly acknowledge
that said sublessee's rights against Lessor shall be
no greater than those of Lessee. Lessee further
agrees that notwithstanding any such subletting, no
other and further subletting of the Premises by
Lessee or any person claiming through or under Lessee
shall or will be made except upon compliance with and
subject to the provisions of this Article 8.
iii. Each sublease or assignment shall provide that it is
subject and subordinate to this Lease and to the
matters to which this Lease is or shall be
subordinate, and that in the event of default by
Lessee under this Lease, Lessor may, at its option,
take over all of the right, title and interest of
Lessee, as sublessor, or assignor, under such
sublease or assignment, and such sublessee or
assignee shall, at Lessor's option, attorn to Lessor
pursuant to the then executory provisions of such
sublease or assignment, except that Lessor shall not
(i) be liable for any previous act or omission of
Lessee under such sublease or, (ii) be subject to any
offset not expressly provided in such sublease which
theretofore accrued to such sublease to which Lessor
has not specifically consented in writing or by any
previous prepayment of more than one month's rent.
iv. The Lessee and each assignee or sublessee 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.
v. The Lessee and any assignee shall promptly pay to
Lessor fifty percent (50%) of any net consideration
received for any assignment and/or fifty percent
(50%) of the rent, as and when received, in excess of
the Rent required to be paid by Lessee for the area
sublet computed on the basis of an average square
foot rent for the gross square footage Lessee has
leased after deducting there from all customary and
reasonable out-of-pocket expenses incurred by the
Lessee in connection with such assignment or
subletting.
vi. In any event, the acceptance by the Lessor of any
rent from the assignee or from any of the sublessees
or the failure of the Lessor to insist upon a strict
performance of any of the terms, conditions and
covenants herein shall not release the Lessee herein,
nor any assignee assuming this Lease, from any and
all of the obligations herein during and for the
entire Term of this Lease.
vii. In Lessor's reasonable judgment the proposed assignee
or subtenant shall engage in a business and the
Premises, or the relevant part thereof, shall be used
in a manner which (i) is in keeping with the then
standards of the Building, (ii) is limited to the use
expressly permitted under this Lease, and (iii) will
not violate any negative covenant as to use contained
in any other lease of space in the Building or
Property;
viii. The proposed assignee or sublessee shall not be a
person with whom Lessor is then negotiating to lease
space in the Building or Property;
ix. Where Lessor has space available for leasing
reasonably equivalent to the Premises, the proposed
assignee or sublessee shall not then be a tenant or
occupant of any part of the Building or Property, or
is any corporation which
6
controls or is controlled by such tenant or occupant
or is under common control with such tenant or
occupant;
x. There shall not be more than two (2) subtenants
(including Lessor or its designee) of the Premises;
xi. There shall be no default by Lessee under any of the
terms, covenants, and conditions of this Lease at the
time that Lessor's consent to any such assignment or
subletting is requested and on the effective date of
the assignment or the proposed sublease;
xii. The instrument of sublease or assignment shall
provide that, if the Lease is terminated because of
Lessee's default or otherwise, such sublessee or
assignee shall, at Lessor's option, attorn to Lessor.
xiv. Lessee shall reimburse Lessor for any reasonable
expenses that may be incurred by Lessor in connection
with the proposed assignment or sublease, including
without limitation the reasonable costs of making
investigations as to the acceptability of a proposed
assignee or subtenant and reasonable legal expenses
incurred in connection with the granting of any
requested consent to the assignment or subleases and
such cost shall not exceed FIVE HUNDRED AND 00/100
DOLLAR ($500.00) for each request for consent to any
sublet or assignment prior to its consideration of
the same. Lessee acknowledges that its sole remedy
with respect to any assertion that Lessor's failure
to consent to any sublet or assignment is
unreasonable shall be the remedy of specific
performance and Lessee shall have no other claim or
cause of action against Lessor as a result of
Lessor's actions in refusing to consent thereto.
c. If Lessee is a corporation other than a corporation whose
stock is listed and traded on a nationally recognized stock
exchange, the provisions of Sub-section a. 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 Lessee as if such transfer of stock (or
other mechanism) which results in a change of control of
Lessee were an assignment of this Lease, and if Lessee 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 Lessee
is merged or consolidated or to which all or substantially all
of Lessee's assets are transferred or to any corporation which
controls or is controlled by Lessee or is under common control
with Lessee, provided that in the event of such merger,
consolidation or transfer of all or substantially all of
Lessee's assets (i) the successor to Lessee has a net worth
computed in accordance with generally accepted accounting
principles at least equal to the greater of (1) the net worth
of Lessee immediately prior to such merger, consolidation or
transfer, or (2) the net worth of Lessee herein named on the
date of this Lease, and (ii) proof satisfactory to Lessor of
such net worth shall have been delivered to Lessor at least 10
days prior to the effective date of any such transaction.
Lessee may, without Lessor's consent and without being subject
to Lessor's right to recapture set forth in subsection a. of
this Section 8, assign this Lease or sublet any portion of the
Premises to any corporation, partnership, trust, association
or other business organization directly or indirectly
controlling or controlled by Lessee or under common control
with Lessee, or to any successor by merger, consolidation,
corporate reorganization or acquisition of all or
substantially all of the assets of Lessee provided that any
such successor by merger,
7
consolidation, corporate reorganization or acquisition of
assets has a net worth at the time of such merger,
consolidation, reorganization or acquisition (herein,
"Merger") equal to or greater than the lesser of (A) the net
worth of Lessee immediately preceding the Merger or (B) the
net worth of Lessee as of the Commencement Date. Any other
assignment or subleasing of Lessee's interest under this Lease
shall be subject to Lessor's approval, which approval shall
not be unreasonably withheld or delayed.
d. In the event that any or all of Lessee'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
Lessee, or to Lessee as a debtor in possession, and
subsequently any or all of Lessee's interest in the Premises
and/or this Lease is offered or to be offered by Lessee or any
trustee, receiver, or other representative or agent of Lessee
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 Lessor (each such
transaction being hereinafter referred to as a "Disposition"),
it is agreed that Lessor 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 Lessor 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 Lessor has failed or refused to
accept such right of first refusal as to the Disposition, as
set forth herein.
Lessor 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 Lessee's interest by such
Disposition, and the exercise of the option by Lessor shall be
effected by notice to that effect sent to the Grantor; but
nothing herein shall require Lessor 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 Lessor. In the event Lessor accepts such offer of
first refusal, the transaction shall be consummated pursuant
to the terms and conditions of the Disposition described in
the notice to Lessor. In the event Lessor 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 Lessor
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 Lessor hereunder.
e. Without limiting any of the provisions of Articles 12 and 13,
if pursuant to the Federal Bankruptcy Code (herein referred to
as the "Code"), or any similar law hereafter enacted having
the same general purpose, Lessee 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 Lessor for the balance of the Term,
without interest, as security for the full performance of all
of Lessee's obligations under this Lease, to be held and
applied in the manner specified for security in Article 16.
f. Except as specifically set forth above, no portion of the
Premises or of Lessee'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
Lessee, nor shall Lessee pledge its interest in this Lease or
in any security deposit required hereunder.
8
9. COMPLIANCE WITH RULES AND REGULATIONS: Lessee shall observe and comply
with the rules and regulations hereinafter set forth in Exhibit B
attached hereto and made a part hereof and with such further reasonable
rules and regulations as Lessor may prescribe, on written notice to the
Lessee, for the safety, care and cleanliness of the Building and the
comfort, quiet and convenience of other occupants of the Building.
Lessee shall not place a load upon any floor of the Premises exceeding
the floor load per square foot area which it was designed to carry and
which is allowed by law. Lessor reserves the right to prescribe the
weight and position of all safes, business machines and mechanical
equipment. Such installations shall be placed and maintained by Lessee,
at Lessee's expense, in settings sufficient, in Lessor's judgement, to
absorb and prevent vibration, noise and annoyance.
10. DAMAGES TO BUILDING: If the Building is damaged by fire or any other
cause to such extent the cost of restoration, as reasonably estimated
by Lessor, will equal or exceed twenty-five percent (25%) of the
replacement value of the Building (exclusive of foundations) just prior
to the occurrence of the damage, then Lessor may, no later than the
sixtieth (60th) day following the date of damage, give Lessee a prior
written notice of election to terminate this Lease, or if the cost of
restoration will equal or exceed fifty percent (50%) of such
replacement value and if the Premises shall not be reasonably usable
for the purpose for which they are leased hereunder, or if restoration
of the damage will require more than one hundred eighty (180) days to
complete or if such damage is not fully repaired and reasonable access
to the Premises restored within one hundred eighty (180) days from the
date of damage, then, in any such event, Lessee may, no later than the
sixtieth (60th) day following the date of damage or following the end
of said one hundred eighty (180) days from the date of damage, then, in
any such event, give Lessor a notice of election to terminate this
Lease. In either said event of election, this Lease shall be deemed to
terminate on the thirtieth (30th) day after the giving of said notice,
and Lessee shall surrender possession of the Premises within a
reasonable time thereafter, and the Fixed Basic Rent, and any
Additional Rent, shall be apportioned as of the date of said damage and
any Fixed Basic Rent or Additional Rent paid for any period beyond said
date shall be repaid to Lessee. If the cost of restoration shall not
entitle Lessor to terminate this Lease, or if, despite the cost, Lessor
does not elect to terminate this Lease, Lessor shall diligently restore
the Building and the Premises subject to Force Majeure, and Lessee
shall have no right to terminate this Lease, except as set forth above.
Lessor need not restore fixtures and improvements owned by Lessee.
Lessee shall be responsible for restoring all fixtures and improvements
owned by Lessee and Lessor shall be responsible for restoring all
fixtures and improvements owned by Lessor.
In any case in which use of the Premises is affected by any damage to
the Building, there shall be either a complete abatement or an
equitable reduction in Fixed Basic Rent and Additional Rent, depending
on the period for which and for the extent to which the Premises are
not reasonably usable for the purpose for which they are leased
hereunder. The words "restoration" and "restore" as used in this
Article 10 shall include repairs. If the damage results from the fault
of the Lessee, Lessee's agents, servants, visitors or licensees, Lessee
shall not be entitled to any abatement or reduction in Fixed Basic
Rent, except to the extent of any rent insurance received by Lessor.
11. EMINENT DOMAIN: If Lessee's use of the Premises is materially affected
due to the taking by eminent domain of (a) the Premises or any part
thereof or any estate therein; or (b) any other part of the Building;
then, in either event, this Lease shall terminate on the date when
title vests pursuant to such taking. The Fixed Basic Rent, and any
Additional Rent, shall be apportioned as of said termination date and
any Fixed Basic Rent or Additional Rent paid for any period beyond said
date, shall be repaid to Lessee. Lessee shall not be entitled to any
part of the award for such taking or any payment in lieu thereof, but
Lessee may file a separate claim for any taking of fixtures and
improvements owned by Lessee which have not become the Lessor's
property, and for moving expenses, provided the same shall, in no way,
affect or diminish Lessor's award. In the event of a partial taking
which does not effect a termination of this Lease but does deprive
Lessee of the use of a portion of the Premises, there shall either be
an abatement or an equitable reduction of the Fixed Basic Rent and
Additional Rent, and an equitable adjustment reducing the Base Period
Costs as hereinafter defined depending on the period for which and the
extent to which the Premises so taken are not reasonably usable for the
purpose for which they are leased hereunder.
9
12. INSOLVENCY OF LESSEE: Either (a) the appointment of a receiver to take
possession of all or substantially all of the assets of Lessee, or, (b)
a general assignment by Lessee for the benefit of creditors, or, (c)
any action taken or suffered by Lessee under any insolvency or
bankruptcy act, shall constitute a default of this Lease by Lessee, and
Lessor may terminate this Lease forthwith and upon notice of such
termination Lessee's right to possession of the Premises shall cease,
and Lessee shall then quit and surrender the Premises to Lessor but
Lessee shall remain liable as hereinafter provided in Article 14
hereof.
13. LESSOR'S REMEDIES ON DEFAULT: If Lessee defaults in the payment of
Fixed Basic Rent, or any Additional Rent, or defaults in the
performance of any of the other covenants and conditions hereof or
permits the Premises to become deserted, abandoned or vacated, Lessor
shall give Lessee notice of such default, and if Lessee does not cure
any Fixed Basic Rent or Additional Rent default within five (5) days or
other default within fifteen (15) days after giving of such notice (or
if such other default is of such nature that it cannot be completely
cured within such period, if Lessee does not commence such curing
within such fifteen (15) days and thereafter proceed with reasonable
diligence and in good faith to cure such default), then Lessor may
terminate this Lease on not less than ten (10) days notice to Lessee,
and on the date specified in said notice, Lessee's right to possession
of the Premises shall cease but Lessee shall remain liable as
hereinafter provided. If this Lease shall have been so terminated by
Lessor pursuant to Articles 12 or 13 hereof, Lessor may at any time
thereafter resume possession of the Premises by any lawful means and
remove Lessee or other occupants and their effects. Lessee shall pay to
Lessor, on demand, such expenses as Lessor may incur, including,
without limitation, court costs and reasonable attorney's fees and
disbursements, in enforcing the performance of any obligation of Lessee
under this Lease.
14. DEFICIENCY: In any case where Lessor has recovered possession of the
Premises by reason of Lessee's default, Lessor may, at Lessor's option,
occupy the Premises or cause the Premises to be redecorated, altered,
divided, consolidated with other adjoining premises or otherwise
changed or prepared for reletting, and may relet the Premises or any
part thereof, as agent of Lessee or otherwise, for a term or terms to
expire prior to, at the same time as or subsequent to, the original
Expiration Date of this Lease, at Lessor's option and receive the rent
therefor. Rent so received shall be applied first to the payment of
such expenses as Lessor may have incurred in connection with the
recovery of possession, redecorating, altering, dividing, consolidating
with other adjoining premises, or otherwise changing or preparing for
reletting, and the reletting, including brokerage and reasonable
attorney's fees, and then to the payment of damages in amounts equal to
the Fixed Basic Rent and Additional Rent hereunder and to the costs and
expenses of performance of the other covenants of Lessee as herein
provided. Lessee agrees, in any such case, whether or not Lessor has
relet, to pay to Lessor damages equal to the Fixed Basic Rent and
Additional Rent from the date of such default to the date of expiration
of the term demised and other sums herein agreed to be paid by Lessee,
less the net proceeds of the reletting, if any, received by Lessor
during the remainder of the unexpired term hereof, as ascertained from
time to time, and the same shall be payable by Lessee on the several
rent days above specified. Lessee shall not be entitled to any surplus
accruing as a result of any such reletting. In reletting the Premises
as aforesaid, Lessor may grant rent concessions, and Lessee shall not
be credited therewith. No such reletting shall constitute a surrender
and acceptance or be deemed evidence thereof. If Lessor elects,
pursuant hereto, actually to occupy and use the Premises or any part
thereof during any part of the balance of the Term as originally fixed
or since extended, there shall be allowed against Lessee's obligation
for rent or damages as herein defined, during the period of Lessor's
occupancy, the reasonable value of such occupancy, not to exceed, in
any event, the Fixed Basic Rent and Additional Rent herein reserved and
such occupancy shall not be construed as a release of Lessee's
liability hereunder.
Alternatively, in any case where Lessor has recovered possession of the
Premises by reason of Lessee's default, Lessor may at Lessor's option,
and at any time thereafter, and without notice or other action by
Lessor, and without prejudice to any other rights or remedies it might
have hereunder or at law or equity, become entitled to recover from
Lessee, as Damages for such breach, in addition to such other sums
herein agreed to be paid by Lessee,
10
to the date of re-entry, expiration and/or dispossess, an amount equal
to the difference between the Fixed Basic Rent and Additional Rent
reserved in this Lease from the date of such default to the date of
Expiration of the original Term demised and the then fair and
reasonable rental value of the Premises for the same period. Said
Damages shall become due and payable to Lessor immediately upon such
breach of this Lease and without regard to whether this Lease be
terminated or not, and if this Lease be terminated, without regard to
the manner in which it is terminated. In the computation of such
Damages, the difference between an installment of Fixed Basic Rent and
Additional Rent thereafter becoming due and the fair and reasonable
rental value of the Premises for the period for which such installment
was payable shall be discounted to the date of such default at the rate
of not more than six percent (6%) per annum.
Lessee hereby waives all right of redemption to which Lessee or any
person under Lessee might be entitled by any law now or hereafter in
force.
Lessor's remedies hereunder are in addition to any remedy allowed by
law.
15. SUBORDINATION OF LEASE: This Lease shall, at Lessor's option, or at the
option of any holder of any underlying lease or holder of any mortgages
or trust deed, be subject and subordinate to any such underlying leases
and to any such mortgages or trust deed which may now or hereafter
affect the real property of which the Premises form a part, and also to
all renewals, modifications, consolidations and replacements of said
underlying leases and said mortgages or trust deed, provided, that
Lessor shall use commercially reasonable efforts to obtain a
non-disturbance agreement from any current or future holder of any such
underlying lease, mortgage or trust deed. Any expenses charged by the
mortgagee in connection with the obtaining of the aforesaid agreement
shall be paid by Lessee. Although no instrument or act on the part of
Lessee shall be necessary to effectuate such subordination, Lessee
will, nevertheless, execute and deliver such further instruments
confirming such subordination of this Lease as may be desired by the
holders of said mortgages or trust deed or by any of the lessor's under
such underlying leases. If any underlying lease to which this Lease is
subject terminates, Lessee shall, on timely request, attorn to the
owner of the reversion.
Lessor represents that there currently is no mortgage encumbering the
Building.
16. SECURITY DEPOSIT: Lessee shall deposit with Lessor on the signing of
this Lease, the Security Deposit as defined in the Preamble for the
full and faithful performance of Lessee's obligations under this Lease,
including without limitation, the surrender of possession of the
Premises to Lessor as herein provided. If Lessor applies any part of
said Security Deposit to cure any default of Lessee, Lessee shall, on
demand, deposit with Lessor the amount so applied so that Lessor shall
have the full Security Deposit on hand at all times during the Term of
this Lease. In the event a bona fide sale, subject to this Lease,
Lessor shall have the right to transfer the Security Deposit to the
vendee, and Lessor shall be considered released by Lessee from all
liability for the return of the Security Deposit; and lessee agrees to
look solely to the new lessor for the return of the Security Deposit,
and it is agreed that this shall apply to every transfer or assignment
made of the Security Deposit to the new lessor. Provided this Lease is
not in default, the Security Deposit (less any portions thereof used,
applied or retained by Lessor in accordance with the provisions of this
Article 16), shall be returned to Lessee after the expiration or sooner
termination of this Lease and after delivery of the entire Premises to
Lessor in accordance with the provisions of this Lease. Lessee
covenants that it will not assign or encumber or attempt to assign or
encumber the Security Deposit and Lessor shall not be bound by any such
assignment, encumbrance or attempt thereof.
In the event of the insolvency of Lessee, or in the event of the entry
of a judgement in any court against Lessee which is not discharged
within thirty (30) days after entry, or in the event a petition is
filed by or against Lessee under any chapter of the bankruptcy laws of
the State of Pennsylvania or the United States of America, then in such
event, Lessor may require the Lessee to deposit additional security in
an amount which in Lessor's sole judgement would be sufficient to
adequately assure Lessee's performance of all of its obliga-
11
tions under this Lease including all payments subsequently accruing.
Failure of Lessee to deposit the security required by this Article 16
within ten (10) days after Lessor's written demand shall constitute a
material breach of this Lease by Lessee.
17. RIGHT TO CURE LESSEE'S BREACH: If Lessee breaches any covenant or
condition of this Lease, Lessor may, on reasonable notice to Lessee
(except that no notice need be given in case of emergency), cure such
breach at the expense of Lessee and the reasonable amount of all
expenses, including attorney's fees, incurred by Lessor in so doing
(whether paid by Lessor or not) shall be deemed Additional Rent payable
on demand.
18. MECHANIC'S LIENS: Lessee shall, within fifteen (15) days after notice
from Lessor, discharge or satisfy by bonding or otherwise any mechanic
liens for materials or labor claimed to have been furnished to the
Premises on Lessee's behalf.
19. RIGHT TO INSPECT AND REPAIR: Lessor may enter the Premises but shall
not be obligated to do so (except as required by any specific provision
of this Lease) at any reasonable time on reasonable notice to Lessee
(except that no notice need be given in case of emergency) for the
purpose of inspection or the making of such repairs, replacement or
additions in, to, on and about the Premises or the Building, as Lessor
deems necessary or desirable. Lessee shall have no claims or cause of
action against Lessor by reason thereof. In no event shall Lessee have
any claim against Lessor for interruption of Lessee's business, however
occurring, including but not limited to that arising from the
negligence of Lessor, its agents, servants or invitees, or from
defects, errors or omissions in the construction or design of the
Premises and/or the Building, including the structural and
non-structural portions thereof.
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION: Subject to
intervening laws, ordinances, regulations and executive orders, while
Lessee is not in default under any of the provisions of this Lease,
Lessor agrees to furnish, except on holidays, as set forth on Exhibit E
attached hereto and made a part hereof:
a. The cleaning services, as set forth on Exhibit D attached
hereto and made a part hereof, and subject to the conditions
therein stated. Except as set forth on Exhibit D, Lessee shall
pay the cost of all other cleaning services required by
Lessee.
b. Heating, ventilating and air conditioning (herein "HVAC") as
appropriate for the season, and as set forth on Exhibit C-1
and Paragraph 22, attached hereto and made a part hereof,
together with Common Facilities lighting and electric energy
all during "Building Hours", as hereinafter defined.
c. Cold and hot water for drinking and lavatory purposes.
d. Elevator service during Building Hours (if the Building
contains an elevator or elevators for the use of the occupants
thereof).
e. Restroom supplies and exterior window cleaning when reasonably
required.
f. Notwithstanding the requirements of Exhibit C-1 (as to HVAC)
or D or any other provision of this Lease, Lessor shall not be
liable for failure to furnish any of the aforesaid services
when such failure is due to Force Majeure, as hereinafter
defined. Lessor shall not be liable, under any circumstances,
including, but not limited to, that arising from the
negligence of Lessor, its agents, servants or invitees, or
from defects, errors or omissions in the construction or
design of the Premises and/or the Building, including the
structural and non-structural portions thereof, for loss of or
injury to Lessee or to property, however occurring, through or
in connection with or incidental to the furnishings of, or
failure to furnish, any of the aforesaid services or for any
interruption to Lessee's business, however occurring.
21. INTERRUPTION OF SERVICES OR USE: Interruption or curtailment of any
service maintained in the Building or at the Office Building Area, if
caused by Force Majeure, as
12
hereinafter defined, shall not entitle Lessee to any claim against
Lessor or to any abatement in rent, and shall not constitute a
constructive or partial eviction, unless Lessor fails to take measures
as may be reasonable under the circumstances to restore the service
without undue delay. If the Premises are rendered untenantable in whole
or in part, for a period of five (5) consecutive business days, by the
making of repairs, replacements or additions, other than those made
with Lessee's consent or caused by misuse or neglect by Lessee, or
Lessee's agents, servants, visitors or licensees, there shall be a
proportionate abatement of Rent and Additional Rent from and after said
fifth (5th) consecutive day of interruption and continuing for the
period of such untenantability. In no event, shall Lessee be entitled
to claim a constructive eviction from the Premises unless Lessee shall
first have notified Lessor in writing of the condition or conditions
giving rise thereto, and if the complaints be justified, unless Lessor
shall have failed, within a reasonable time after receipt of such
notice, to remedy, or commence and proceed with due diligence to remedy
such condition or conditions, all subject to Force Majeure as
hereinafter defined.
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE:
(a) Electricity shall be supplied to the Premises during the term
in accordance with the provisions of paragraph (c) of this
Article. However, at any time and from time to time during the
term hereof, provided it is then permissible under the
provisions of legal requirements, Lessor shall have the option
to have electricity supplied to the Premises in accordance
with paragraph (d) of this Article.
(b) For the purposes of this Article:
(i) The term "Electric Rate" shall mean the Service
Classification pursuant to which Lessee would
purchase electricity directly from the utility
company servicing the Building, provided, however, at
no time shall the amount payable by Lessee for
electricity be less than Lessor's Cost per Kilowatt
and Cost per Kilowatt Hour (as such terms are
hereinafter defined), and provided further that in
any event, the Electric Rate shall include all
applicable surcharges, and demand, energy, fuel
adjustment and time of day charges (if any), taxes
and other sums payable in respect thereof.
(ii) The term "Cost per Kilowatt Hour" shall mean the
total cost for electricity incurred by Lessor to
service the Building during a particular time period
(including all applicable surcharges, and energy,
fuel adjustment and time of day charges (if any),
taxes and other sums payable in respect thereof)
divided by the total kilowatt hours purchased by
Lessor during such period.
(iii) The term "Cost per Kilowatt" shall mean the total
cost for demand incurred by Lessor to service the
Building during a particular time period (including
all applicable surcharges, demand, and time of day
charges (if any), taxes and other sums payable in
respect to thereof) divided by the total kilowatts
purchased by Lessor during such period.
(c) (i) Lessor shall supply electricity to service the
Premises on a "check meter" basis, and Lessee shall
pay to Lessor, as Additional Rent, the sum of (y) an
amount determined by applying the Electric Rate or,
at Lessor's election, the Cost per Kilowatt Hour and
Cost per Kilowatt, to Lessee's consumption of and
demand for electricity within the Premises as
recorded on the meter meters servicing the Premises,
and (z) the actual administrative costs incurred by
Lessor in supplying electricity on a "check metered"
basis (such combined sum being hereinafter called
"Electric Rent"). Except as set forth in the
foregoing clause (z), Lessor will not charge Lessee
more than the Electric Rate or, at Lessor's election,
the Cost per Kilowatt and Cost per Kilowatt Hour for
the electricity provided pursuant to this paragraph.
All costs incurred by Lessor to install the check
meter(s) and any other equipment necessary to enable
Lessee to obtain electricity from Lessor on a check
meter basis shall be paid by Lessee, as Additional
Rent, within thirty (30) days after Lessee's receipt
of Lessor's
13
invoice therefor.
(ii) Where more than one meter measures the electric
service to Lessee, the electric service rendered
through each meter shall be computed and billed
separately in accordance with the provisions
hereinabove set forth.
(iii) Lessee shall pay to Lessor, on account of the
Electric Rent payable pursuant to this paragraph (c),
the annual sum of $1.20 per square foot of Rentable
Area ("Estimated Electric Rent"), subject to the
adjustments on the first day of each and every
calendar month of the term (except that if the first
day of the term is other than the first day of a
calendar month, the first monthly installment,
prorated to the end of said calendar month, shall be
payable on the first day of the first full calendar
month).
(iv) From time to time during the term, the Estimated
Electric Rent may be adjusted by Lessor on the basis
of either Lessor's reasonable estimate of Lessee's
electric consumption and demand (if at any time the
meter(s) servicing the Premises are inoperative) or
Lessee's actual consumption of and demand for
electricity as recorded on the meter(s) servicing the
Premises, and, in either event, the Electric Rate or
Cost per Kilowatt and Cost per Kilowatt Hour then in
effect.
(v) Subsequent to the end of each calendar year during
the Term, or more frequently if Lessor shall elect,
Lessor shall submit to Lessee a statement of the
Electric Rent for such year or shorter period
together with the components thereof, as set forth in
clause (i) of this paragraph (c) ("Electric
Statement"). To the extent that the Estimated
Electric Rent paid by Lessee for the period covered
by the Electric Statement shall be less than the
Electric Rent as set forth on such Electric
Statement, Lessee shall pay Lessor the difference
within 30 days after receipt of the Electric
Statement. If the Estimated Electric Rent paid by
Lessee for the period covered by the Electric
Statement shall be greater than the Electric Rent as
set forth on the Electric Statement, such difference
shall be credited against the next required
payment(s) of Estimated Electric Rent. If no
Estimated Electric Rent payment(s) shall thereafter
be due, Lessor shall pay such difference to Lessee
within forty-five (45) days.
(vi) For any period during which the meter(s) servicing
the Premises are inoperative, the Electric Rent shall
be determined by Lessor, based upon its reasonable
estimate of Lessee's actual consumption of and demand
for electricity, and the Electric Rate or Cost per
Kilowatt and Cost per Kilowatt Hour then in effect.
(d) If Lessor discontinues furnishing electricity to the Premises
pursuant to paragraph (c) of this Article, Lessee shall make
its own arrangements to obtain electricity directly from the
utility company furnishing electricity to the Building. The
cost of such service shall be paid by Lessee directly to such
utility company. Lessor shall permit its electric feeders,
risers and wiring serving the Premises to be used by Lessee,
to the extent available, safe and capable of being used for
such purpose. All meters and all additional panel boards,
feeders, risers, wiring and other conductors and equipment
which may be required to enable Lessee to obtain electricity
of substantially the same quality and character, shall be
installed by Lessor at Lessee's cost and expense.
(e) Bills for electricity supplied pursuant to paragraph (c) of
this Article shall be rendered to Lessee at such times as
Lessor may elect. Lessee's payments for electricity supplied
in accordance with paragraph (c) of this Article shall be due
and payable within 30 days after delivery of a statement
therefor, by Lessor to Lessee. If such bills are not paid
within 30 days after the same are rendered, Lessor may,
without further notice, discontinue the service of electricity
to the Premises without releasing Lessee from any liability
under this lease and without Lessor or Lessor's agents
incurring any liability for any damage or loss sustained by
Lessee as the result of such discontinuance. If any tax is
imposed upon Lessor's receipts from the sale of electricity to
Lessee by legal
14
requirements, Lessee agrees that, unless prohibited by such
legal requirements, Lessee's Percentage of such taxes shall be
included in the bills of, and paid by Lessee to Lessor, as
Additional Rent.
(f) Lessor's failure during the Term to prepare and deliver any
statements or bills under this Article, or Lessor's failure to
make a demand under this Article, shall not in any way be
deemed to be a waiver of, or cause Lessor to forfeit or
surrender, its rights to collect any amount of additional rent
which may become due pursuant to this Article. Lessee's
liability for any amounts due under this Article shall survive
the expiration or sooner termination of the Term.
(g) Lessee's failure or refusal, for any reason, to utilize the
electrical energy provided by Lessor, shall not entitle Lessee
to any abatement or diminution of Fixed Basic Rent or
Additional Rent, or otherwise relieve Lessee from any of its
obligations under this Lease.
(h) If either the quantity or character of the electrical service
is changed by the utility company supplying electrical service
to the Building or is no longer available or suitable for
Lessee's requirements, or if there shall be a change,
interruption or termination of electrical service due to a
failure or defect on the part of the utility company, no such
change, unavailability, unsuitability, failure or defect shall
constitute an actual or constructive eviction, in whole or in
part, or entitle Lessee to any payment from Lessor for any
loss, damage or expense, or to abatement or diminution of
Fixed Basic Rent or Additional Rent, or otherwise relieve
Lessee from any of its obligations under this Lease, or impose
any obligation upon Lessor or its agents. Lessor will use
reasonable efforts to insure that there is no interruption in
electrical service to Lessee, but in no event shall Lessor be
responsible for any failures of the utility providing such
service or the negligence or other acts of third parties
causing any such interruption.
(i) Lessee shall not make any electrical installations,
alterations, additions or changes to the electrical equipment
or appliances in the Premises without prior written consent of
Lessor in each such instance. Lessee shall comply with the
rules and regulations applicable to the service, equipment,
wiring and requirements of Lessor and of the utility company
supplying electricity to the Building. Lessee agrees that its
use of electricity in the Premises will not exceed the
capacity of existing feeders to the Building or the risers or
wiring installations therein and Lessee shall not use any
electrical equipment which, in Lessor's judgment, will
overload such installations or interfere with the use thereof
by other lessees in the Building. If, in Lessor's judgment,
Lessee's electrical requirements necessitate installation of
an additional riser, risers or other proper and necessary
equipment or services, including additional ventilating or
air-conditioning, the same shall be provided or installed by
Lessor at Lessee's expense, which shall be chargeable and
collectible as Additional Rent and paid within 30 days after
the rendition to Lessee of a xxxx therefor.
(j) If, after Lessor's initial installation work, (i) Lessee shall
request the installation of additional risers, feeders or
other equipment or service to supply its electrical
requirements and Lessor shall determine that the same are
necessary and will not cause damage or injury to the Building
or the Premises or cause or create a dangerous or hazardous
condition or entail excessive or unreasonable alterations,
repairs or expense or interfere with or disturb other Lessees
or occupants of the Building, or (ii) Lessor shall determine
that the installation of additional risers, feeders or other
equipment or service to supply Lessee's electrical
requirements is necessary, then and in either of such events
Lessor shall cause such installations to be made, at Lessee's
sole cost and expense and Lessee shall pay Lessor for such
installations, as Additional Rent, within 30 days after
submission of a statement therefor.
(k) Lessor, at Lessee's expense, shall furnish and install all
replacement lighting tubes, lamps, ballasts and bulbs required
in the Premises. Lessee, however, shall have the right to
furnish and/or install any or all of the items mentioned in
this Article 22(k).
15
(l) Lessee shall pay, as Additional Rent, Lessee's Percentage
Share of the cost to the Building (including applicable sales
or use taxes) for utility and energy costs, including any fuel
surcharges or adjustments with respect thereto, incurred for
water, sewer, gas and other utilities and heating, ventilating
and air conditioning for the Building, to include all leased
and leasable areas (not separately billed or metered within
the Building) and Common Facilities electric and lighting, for
the Building and Office Building Area, for any Lease Year or
Partial Lease Year, during the Term (collectively, "Additional
Utility Rent"). Lessee shall pay to Lessor, on account of the
Additional Utility Rent payable pursuant to this paragraph
(l), the annual sum of $1.20 per square foot of gross rentable
area of the Premises ("Estimated Additional Utility Rent"),
subject to the adjustments on the first day of each and every
calendar month of the term (except that if the first day of
the term is other than the first day of a calendar month, the
first monthly installment, prorated to the end of said
calendar month, shall be payable on the first day of the first
full calendar month). From time to time during the term, the
Estimated Additional Utility Rent may be adjusted by Lessor on
the basis of either Lessor's reasonable estimate of the
Building's and Office Building Area's electric consumption and
demand or the Building's and Office Building Area's actual
consumption of and demand for electricity, and, in either
event, the Electric Rate or Cost per Kilowatt and Cost per
Kilowatt Hour then in effect. Subsequent to the end of each
calendar year during the Term, or more frequently if Lessor
shall elect, Lessor shall submit to Lessee a statement of the
Additional Utility Rent for such year or shorter period
together with the components thereof, as set forth in this
paragraph (l) ("Additional Utility Statement"). To the extent
that the Estimated Additional Utility Rent paid by Lessee for
the period covered by the Additional Utility Statement shall
be less than the Additional Utility Rent as set forth on such
Additional Utility Statement, Lessee shall pay Lessor the
difference within 30 days after receipt of the Additional
Utility Statement. If the Estimated Additional Utility Rent
paid by Lessee for the period covered by the Additional
Utility Statement shall be greater than the Additional Utility
Rent as set forth on the Additional Utility Statement, such
difference shall be credited against the next required
payment(s) of Estimated Additional Utility Rent. If no
Estimated Additional Utility Rent payment(s) shall thereafter
be due, Lessor shall pay such difference to Lessee within
forty-five (45) days.
23. ADDITIONAL RENT: It is expressly agreed that Lessee will pay in
addition to the Fixed Basic Rent provided in Article 3 hereof, an
Additional Rent to cover Lessee's Percentage as defined in the
Preamble, of the increased cost to Lessor, for each of the categories
enumerated herein, over the "Base Period Costs", as defined in the
Preamble for said categories.
a. OPERATING COST ESCALATION -- If the Operating Costs incurred
for the Building in which the Premises are located and Office
Building Area for any Lease Year or Partial Lease Year during
the Lease Term shall be greater than the Base Operating Costs
(adjusted proportionately for periods less than a Lease Year),
then Lessee shall pay to Lessor, as Additional Rent, Lessee's
Percentage of all such excess Operating Costs. Operating Costs
shall include, by way of illustration and not of limitation:
personal property taxes; management fees; labor, including all
wages and salaries; social security taxes, and other taxes
which may be levied against Lessor upon such wages and
salaries; supplies; repairs and maintenance; maintenance and
service contracts; painting; wall and window washing; laundry
and towel service; tools and equipment (which are not required
to be capitalized for federal income tax purposes); trash
removal; lawn care; snow removal and all other items properly
constituting direct operating costs according to standard
accounting practices (hereinafter collectively referred to as
the "Operating Costs"), but not including depreciation of
Building or equipment; interest; income or excess profits
taxes; costs of maintaining the Lessor's corporate existence;
franchise taxes; any expenditures required to be capitalized
for federal income tax purposes, unless said expenditures are
for the purpose of reducing Operating Costs within the
Building and Office Building Area, or those which under
generally applied real estate practice are expensed or
regarded as deferred expenses or are required under any
governmental or quasi-governmental
16
law, statute, ordinance, rule, order, requirements or
regulation, in which event the costs thereof shall be
included. Notwithstanding anything contained herein to the
contrary, any additional costs incurred by Lessor during the
2006 Calendar Year by reason of Lessor or any of its vendors
entering into new labor contracts or renewals or modifications
of existing labor contracts shall not be included in Base
Operating Costs. The Base Operating Costs shall as be as
defined in the Preamble.
b. TAX ESCALATION -- If the Real Estate Taxes for the Building
and Office Building Area at which the Premises are located for
any Lease Year Partial Lease Year, during the Lease Term,
shall be greater than the Base Real Estate Taxes (adjusted
proportionately for periods less than a Lease Year), then
Lessee shall pay to Lessor as Additional Rent, Lessee's
Percentage as hereinafter defined, of all such excess Real
Estate Taxes.
As used in this Article 23(b), the words and terms which
follow mean and include the following:
i. "Base Real Estate Taxes" shall be as defined in the
Preamble.
ii. "Real Estate Taxes" shall mean the property taxes and
assessments imposed upon the Building and Office
Building Area, or upon the rent, as such, payable to
the Lessor, including, but not limited to, real
estate, city, county, village, school and transit
taxes, or taxes, assessments, or charges levied,
imposed or assessed against the Building and Office
Building Area by any other taxing authority, whether
general or specific, ordinary or extraordinary,
foreseen or unforeseen. If due to a future change in
the method of taxation, any franchise, income or
profit tax shall be levied against Lessor in
substitution for, or in lieu of, or in addition to,
any tax which would otherwise constitute a Real
Estate Tax, such franchise, income or profit tax
shall be deemed to be a Real Estate Tax for the
purposes hereof; conversely, any additional real
estate tax hereafter imposed in substitution for, or
in lieu of, any franchise, income or profit tax
(which is not in substitution for, or in lieu of, or
in addition to, a Real Estate Tax as hereinbefore
provided) shall not be deemed a Real Estate Tax for
the purposes hereof.
c. INSURANCE COST ESCALATION - If the Insurance Costs for the
Building and Office Building Area for any Lease Year or
partial Lease Year during the Term shall be greater than the
Insurance Expense Stop (adjusted proportionately for periods
less than a Lease Year), Lessee shall pay to Lessor as
Additional Rent for each Lease Year or partial Lease Year
commencing from and after the Commencement Date, Lessee's
Percentage of such excess Insurance Costs.
As used in this Article 23(d), the words and terms which
follow mean and include the following:
i. "Insurance Expense Stop" shall be as defined in the
Preamble.
ii. "Insurance Costs" shall mean all fire and other
insurance costs incurred by Lessor in connection with
its operation and maintenance of the Building and
Office Building Area, for any Lease Year or Partial
Lease Year, during the Term.
d. LEASE YEAR -- As used in this Article 23, Lease Year shall
mean a calendar year. Any portion of the Term which is less
than a Lease Year as hereinbefore defined, that is, from the
Commencement Date through the following December 31, and from
the last January 1, falling within the Term to the end of the
Term, shall be deemed a "Partial Lease Year". Any reference in
this Lease to a Lease Year shall, unless the context clearly
indicates otherwise, be deemed to be a reference to a Partial
Lease Year if the period in question involves a Partial Lease
Year.
17
e. PAYMENT -- At any time, and from time to time, after the
establishment of the Base Period Costs for each of the
categories referred to above, Lessor shall advise Lessee in
writing of Lessee's Percentage share with respect to each of
the categories as estimated for the next twelve (12) month
period (or proportionate part thereof if the last period prior
to the Lease's expiration is less than twelve (12) months) as
then known to the Lessor, and thereafter, the Lessee shall pay
as Additional Rent, Lessee's Percentage share of these costs
for the then current period affected by such advice (as the
same may be periodically revised by Lessor as additional costs
are incurred) in equal monthly installments, such new rates
being applied to any months, for which the Fixed Basic Rent
shall have already been paid which are affected by the
Operating Cost Escalation and/or Insurance Cost Escalation
and/or Tax Escalation Costs above referred to, as well as the
unexpired months of the current period, the adjustment for the
then expired months to be made at the payment of the next
succeeding monthly rental, all subject to final adjustment at
the expiration of each Lease Year as defined in Article 23(d)
hereof (or Partial Lease Year if the last period prior to the
Lease's termination is less than twelve (12) months).
In the event the last period prior to the Lease's termination
is less than twelve (12) months, the Base Period Costs during
said period shall be proportionately reduced to correspond to
the duration of said final period.
f. BOOKS AND REPORTS -- For the protection of Lessee, Lessor
shall maintain books of account which shall be open to Lessee
and its representatives at all reasonable times so that Lessee
can determine that such Operating, Insurance and Real Estate
Tax Costs have, in fact, been paid or incurred. Lessee's
representatives shall mean only (i) Lessee's employees or (ii)
a Certified Public Accounting firm. At Lessor's request,
Lessee shall execute a confidentiality agreement reasonably
acceptable to Lessor prior to any examination of Lessor's
books and records. In the event Lessee disputes any one or
more of said charges, Lessee shall attempt to resolve such
dispute with Lessor, provided that if such dispute shall not
be satisfactorily settled between Lessor and Lessee, the
dispute shall be referred by either party to an independent
certified public accountant to be mutually agreed upon, and if
such an accountant cannot be agreed upon, The American
Arbitration Association may be asked by either party to select
an arbitrator, whose decision on the dispute will be final and
binding upon both parties, who shall jointly share any cost of
such arbitration. Pending resolution of said dispute the
Lessee shall pay to Lessor the sum so billed by Lessor subject
to its ultimate resolution as aforesaid.
g. RIGHT OF REVIEW -- Once Lessor shall have finally determined
said Operating, Insurance or Real Estate Tax Costs at the
expiration of a Lease Year, then as to the item so
established, Lessee shall only be entitled to initiate a
dispute of said charge as finally established for a period of
six (6) months after such charge is finally established, and
Lessee specifically waives any right to dispute any such
charge at the expiration of said six (6) month period.
h. OCCUPANCY ADJUSTMENT -- If, with respect to Operating Cost
Escalation, as established in Article 23(a) hereof, the
Building is less than eighty-five percent (85%) occupied
during the establishment of the respective Base Periods, then
the Base Costs incurred with respect to said Operating Cost
shall be adjusted during any such period within the Base
Period so as to reflect eighty-five percent (85%) occupancy.
Similarly, if during any Lease Year or Partial Lease Year,
subsequent to the Base Period the Building is less than
eighty-five percent (85%) occupied, then the actual costs
incurred for Operating Cost shall be increased during any such
period to reflect eighty-five percent (85%) occupancy so that
at all times after the Base Period the Operating Cost shall be
actual costs, but in the event less than eighty-five percent
(85%) of the Building is occupied during all or part of the
Lease Year involved, the Operating Cost shall not be less than
that which would have been incurred had eighty-five percent
(85%) of the Building been occupied. The aforesaid adjustment
shall only be made with respect to those items that are in
fact affected by variations in occupancy levels.
18
24. LESSEE'S ESTOPPEL: Lessee shall, from time to time, on not less that
ten (10) days prior written request by Lessor, execute, acknowledge and
deliver to Lessor a written statement certifying that the Lease is
unmodified and in full force and effect, or that the Lease is in full
force and effect as modified and listing the instruments of
modification; the dates to which the rents and charges have been paid;
and, to the best of Lessee's knowledge, whether or not Lessor is in
default hereunder, and if so, specifying the nature of the default. It
is intended that any such statement delivered pursuant to this Article
24 may be relied on by a prospective purchaser of Lessor's interest or
mortgagee of Lessor's interest or assignee of any mortgage of Lessor's
interest. Lessee shall also execute and deliver the form "Lessee
Estoppel Certificate" attached hereto as Exhibit F. Upon Lessee's
request, Lessor shall, within ten (10) days of such request, deliver a
commercially reasonable estoppel certificate reasonably satisfactory to
Lessor and Lessee.
25. HOLDOVER TENANCY: If Lessee holds possession of the Premises after the
Expiration Date of this Lease, Lessee shall (i) become a tenant from
month to month under the provisions herein provided, but at one hundred
seventy-five percent (175%) of the monthly Fixed Basic Rent for the
last month of the Term, plus the Additional Rent, for the first month
of Lessee's holding over and two hundred percent (200%) of the monthly
Fixed Basic Rent for the last month of the Term, plus the Additional
Rent, thereafter, which shall continue as provided in the Lease which
sum shall be payable in advance on the first day of each month, and
without the requirement for demand or notice by Lessor to Lessee
demanding delivery of possession of said Premises, and such tenancy
shall continue until terminated by Lessor, or until Lessee shall have
given to Lessor, at least sixty (60) days prior to the intended date of
termination, a written notice of intent to terminate such tenancy,
which termination date must be as of the end of a calendar month; and
(ii) indemnify Lessor against loss or liability resulting from the
delay by Lessee in so surrendering the Premises including, without
limitation, any claims made by any succeeding occupant founded on such
delay. Lessee's obligations under this Section shall survive the
expiration or sooner termination of the Lease. The time limitations
described in this Section 25 shall not be subject to extension for
Force Majeure.
26. RIGHT TO SHOW PREMISES: Lessor may show the Premises to prospective
purchasers and mortgagees; and during the twelve (12) months prior to
termination of this Lease, to prospective tenants, during Building
Hours on reasonable advance notice to Lessee. During the last twelve
(12) months of the Term, Lessor or any prospective lessee shall have
the right to enter the space to perform inspections, surveys,
measurements or such other reasonable activities as may be necessary to
prepare the Premises for occupancy by the succeeding lessee.
27. LESSOR'S WORK - LESSEE'S DRAWINGS:
a. Lessee shall accept the Initial Premises "as is". Except as
set forth on Exhibit C hereof, Lessee shall be responsible for
all work as may be necessary to convert the Initial Premises
to Lessee's requirements. Lessor shall not be responsible for
performing any work with respect to the Initial Premises,
except as set forth on Exhibit C. Any other work, changes or
improvements made to such space shall be performed at Lessee's
expense in accordance with the terms of this Lease.
x. Xxxxxx agrees that, prior to the commencement of the Term of
this Lease applicable to the Additional Premises, it will do
substantially all of the work in the Additional Premises in
accordance with Exhibit C attached hereto and made a part
hereof. In no event shall Lessor be required to commence the
work to be performed as set forth in Exhibit C until the
letter of credit is increased to SEVENTY THOUSAND NINE HUNDRED
SEVENTY-TWO AND 00/100 DOLLARS ($70,972.00) pursuant to
Paragraph 16 of the Preamble. Notwithstanding the foregoing,
Lessor shall proceed with the preparation of applicable
construction documents and permits applications upon full
execution of this Lease.
19
c. Lessee will timely supply such drawings and information to
Lessor as set forth in Exhibit C. Any delay occasioned by
Lessee's failure to timely supply such drawings and
information shall not delay the Additional Premises
Commencement Date and Lessee's obligations hereunder, and the
same shall commence on the date the Additional Premises would
have been delivered to Lessee pursuant to Article 2, but for
Lessee's delay.
d. Lease commencement applicable to the Additional Premises shall
occur and the Additional Premises Commencement Date is defined
as that date when Lessor has done substantially all of the
work to be done by Lessor with respect to the Additional
Premises in accordance with Exhibit C and Lessor has obtained
all governmental approvals required to be obtained by Lessor
hereunder necessary for Lessee to lawfully occupy the
Additional Premises, unless Lessor has been precluded from
completing said work as a result of Lessee's acts or omissions
including, but not limited to, its failure to comply with
Article 27(b) hereof. Occupancy by Lessee or the delivery of a
Certificate of Occupancy by Lessor (if required pursuant to
local law) shall be prima facie evidence that Lessor has done
substantially all of the work. The estimated Additional
Premises Commencement Date is February 1, 2006. If Lessee
shall deliver the increased letter of credit on or before
February 1, 2006 as set forth in Paragraph 16 of the Preamble,
Lessor shall endeavor to substantially complete the work to be
performed by Lessor pursuant to Exhibit C on or before April
1, 2006.
28. WAIVER OF TRIAL BY JURY: To the extent such waiver is permitted by law,
the parties waive trial by jury in any action or proceeding brought in
connection with this Lease or the Premises.
29. LATE CHARGE: Anything in this Lease to the contrary notwithstanding, at
Lessor's option, Lessee shall pay a "Late Charge" of eight percent (8%)
of any installment of Fixed Basic Rent or Additional Rent paid more
than five (5) days after the due date thereof, to cover the extra
expense involved in handling delinquent payments, said Late Charge to
be considered Additional Rent. The amount of the Late Charge to be paid
by Lessee shall be reassessed and added to Lessee's obligations for
each successive monthly period until paid.
30. LESSEE'S INSURANCE:
a. Lessee covenants to provide at Lessee's cost and expense on or
before the earlier of (i) the Commencement Date, or (ii)
Lessee's taking actual possession for the purpose of
completing any improvement work, and to keep in full force and
effect during the entire Term and so long thereafter as
Lessee, or anyone claiming by, through or under Lessee, shall
occupy the Premises, insurance coverage as follows:
i. Commercial General Liability insurance with
contractual liability endorsements with respect to
the Premises and the business of Lessee in which
Lessee shall be adequately covered under limits of
liability of not less than FIVE MILLION AND 00/100
DOLLARS ($5,000,000) combined single limit per
occurrence for bodily or personal injury (including
death) and property damage. Such insurance may be
carried (x) under a blanket policy covering the
Premises and other locations of Lessee, if any,
provided that each such policy shall in all respects
comply with this Article and shall specify that the
portion of the total coverage of such policy that is
allocated to the Premises is in the amounts required
pursuant to this Article 30 and (y) under a primary
liability policy of not less than ONE MILLION AND
00/100 DOLLARS ($1,000,000) and the balance under an
umbrella policy. Notwithstanding anything to the
contrary contained in this Lease, the carrying of
insurance by Lessee in compliance with this Article
30 shall not modify, reduce, limit or impair Lessee's
obligations and liability under Article 33 hereof.
20
ii. Fire and Extended Coverage, Vandalism, Malicious
Mischief, Sprinkler Leakage and Special Extended
Coverage Insurance in an amount adequate to cover the
cost of replacement of all personal property,
decoration, trade fixtures, furnishings, equipment in
the Premises and all contents therein. Lessor shall
not be liable for any damage to such property of
Lessee by fire or other peril includable in the
coverage afforded by the standard form of fire
insurance policy with extended coverage endorsement
attached (whether or not such coverage is in effect),
no matter how caused, it being understood that the
Lessee will look solely to its insurer for
reimbursement.
iii. Worker's Compensation Insurance in the statutory
amount covering all persons employed by Lessee.
iv. Said limits shall be subject to periodic review and
Lessor reserves the right to increase said coverage
limits if, in the reasonable opinion of Lessor, said
coverage becomes inadequate and is less than that
commonly maintained by tenants in similar buildings
in the area by tenants making similar uses. On or
before the Commencement Date, and thereafter at
Lessor's request, Lessee shall provide Lessor
evidence of the insurance coverage required herein in
the form of a duplicate original insurance policy, an
insurance binder (countersigned by the insurer), or
Evidence of Insurance (in form XXXXX 27) for each of
the insurance policies Lessee is required to carry in
compliance with its obligations under this Lease
which shall be delivered to Lessor at least fifteen
(15) days prior to the time such insurance is first
required to be carried by Lessee.
b. All of the aforesaid insurance shall (i) name Lessor as an
additional insured on a primary basis; (ii) be written by one
or more responsible insurance companies licensed in the State
of Pennsylvania reasonably satisfactory to Lessor; (iii)
contain endorsements substantially as follows: "It is
understood and agreed that the insurer will give to Lessor, or
any successor lessor, c/o Xxxx-Xxxx Realty Corporation, 00
Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx, thirty (30) days prior
written notice of any material change in or cancellation of
this policy."; (iv) shall be written on an "occurrence" basis
and not on a "claims made" basis.
c. Lessee shall be solely responsible for payment of premium and
Lessor (or its designee) shall not be required to pay any
premium for such insurance. Lessee shall deliver to Lessor at
least fifteen (15) days prior to the expiration of such
policy, either a duplicate original or a certificate it being
the intention of the parties hereto that the insurance
required under the terms hereof shall be continuous during the
entire Term of this Lease and any other period of time during
which pursuant to the Term hereof, said insurance is required.
Any insurance carried by Lessee shall be in excess of and will
not contribute with the insurance carried by Lessor for
injuries or damage arising out of the Premises.
d. Lessee agrees, at its own cost and expense, to comply with all
rules and regulations of the National Fire Protection
Association (NFPA) National Fire Code. If, at any time or from
time to time, as a result of or in connection with any failure
by Lessee to comply with the foregoing sentence or any act or
omission or commission by Lessee, its employees, agents,
contractors or licensees, or a result of or in connection with
the use to which the Premises are put (notwithstanding that
such use may be for the purposes hereinbefore permitted or
that such use may have been consented to by Lessor), the fire
insurance rate(s) applicable to the Premises shall be higher
than that which would be applicable for a business office
legally permitted therein, Lessee agrees that it will pay to
Lessor as Additional Rent, such portion of the premiums for
all Lessor's fire insurance policies in force with respect to
the building and the contents of any occupant thereof as shall
be attributable to such higher rate(s).
x. Xxxxxx makes no representation that the limits of liability
specified to be carried by Lessee or Lessor under the terms of
this Lease are adequate to protect Lessee against
21
Lessee's undertaking under this Article 30, and in the event
Lessee believes that any such insurance coverage called for
under this Lease is insufficient, Lessee shall provide, at is
own expense, such additional insurance as Lessee deems
adequate.
f. In the event the Premises or its contents are damaged or
destroyed by fire or other insured casualty, (i) Lessor, to
the extent of the coverage of Lessor's policies of fire
insurance, hereby waives its rights, if any, against Lessee
with respect to such damage or destruction, even if said fire
or other casualty shall have been caused, in whole or in part,
by the negligence of Lessee, and (ii) Lessee, to the extent of
the coverage of Lessee's policies of fire insurance with
extended coverage, hereby waives its rights, if any, against
Lessor with respect to such damage, or destruction, even if
said fire or other casualty shall have been caused, in whole
or in part, by the negligence of Lessor; provided, however,
such waivers of subrogation shall only be effective with
respect to loss or damage occurring during such time as
Lessor's or Lessee's policies of fire insurance (as the case
may be) shall contain a clause or endorsement providing in
substance that the aforesaid waiver of subrogation shall not
prejudice the type and amount of coverage under such policies
or the right of Lessor or Lessee (as the case may be) to
recover thereunder. If, at any time, Lessor's or Lessee's
insurance carrier refuses to write insurance which contains a
consent to the foregoing waiver of subrogation, Lessor or
Lessee, as the case may be, shall notify the party thereof in
writing, and upon the giving of such notice, the provisions of
this Section shall be null and void as to any casualty which
occurs after such notice. If Lessor's or Lessee's insurance
carrier shall make a charge for the incorporation of the
aforesaid waiver of subrogation in its policies, then the
party requesting the waiver shall promptly pay such charge to
the other party upon demand. In the event the party requesting
their waiver fails to pay such charge upon demand, the other
party shall be released of its obligation to supply such
waiver.
g. Should Lessee fail to maintain the insurance coverage as set
forth in this Article 30, then Lessee shall be in default
hereunder and shall be deemed to have breached its covenants
as set forth herein.
31. NO OTHER REPRESENTATIONS: No representations or promises shall be
binding on the parties hereto except those representations and promises
contained herein or in some future writing signed by the party making
such representation(s) or promise(s).
32. QUIET ENJOYMENT: Lessor covenants that if, and so long as, Lessee pays
Fixed Basic Rent, and any Additional Rent as herein provided, and
performs Lessee's covenants hereof, Lessor shall do nothing to affect
Lessee's right to peaceably and quietly have, hold and enjoy the
Premises for the Term herein mentioned, subject to the provisions of
this Lease.
33. INDEMNITY: Lessee shall defend, indemnify and save harmless Lessor and
its agents against and from; (a) any and all claims (i) arising from
(x) the conduct or management by Lessee, its subtenants, licensees, its
or their employees, agents, contractors or invitees on the Premises or
of any business therein, or (y) any work or thing whatsoever done, or
any condition created (other than by Lessor for Lessor's or Lessee's
account) in or about the Premises during the Term of this Lease, or
during the period of time, if any, prior to the Commencement Date that
Lessee may have been given access to the Premises, (z) any default by
Lessee under the terms, covenants and conditions of this Lease or (ii)
arising from any negligent or otherwise wrongful act or omission of
Lessee or any of its subtenants or licensees or its or their employees,
agents, contractors or invitees, and (b) all costs, expenses and
liabilities including attorneys fees and disbursements incurred in or
in connection with each such claim, action or proceeding brought
thereon. In case any action or proceeding be brought against Lessor by
reason of any such claim, Lessee, upon notice from Lessor, shall resist
and defend such action or proceeding.
Lessor shall indemnify and save harmless Lessee and Lessee's
shareholders, officers, directors, employees, agents and contractors
(collectively, the "Lessee Indemnitees") from and against any and all
claims of whatever nature against Lessee and/or the Lessee Indemnitees
arising directly from (1) any accident, injury or damage occurring
within the
22
Office Building Area or the Building but outside of the Premises where
such accident, injury or damage results from the negligence or willful
misconduct of Lessor, its agents, or employees or (2) any default by
Lessor in the performance of Lessor's obligations under this Lease.
34. ARTICLE HEADINGS: The article headings in this Lease and position of
its provisions are intended for convenience only and shall not be taken
into consideration in any construction or interpretation of this Lease
or any of its provisions.
35. APPLICABILITY TO HEIRS AND ASSIGNS: The provisions of this Lease shall
apply to, bind and inure to the benefit of Lessor and Lessee, and their
respective heirs, successors, legal representatives and assigns. It is
understood that the term "Lessor" as used in this Lease means only the
owner, a mortgagee in possession or a term lessee of the Building, so
that in the event of any sale of the Building or of any lease thereof,
or if a mortgagee shall take possession of the Premises, the Lessor
herein shall be and hereby is entirely freed and relieved of all
covenants and obligations of Lessor hereunder accruing thereafter, and
it shall be deemed without further agreement that the purchaser, the
term lessee of the Building, or the mortgagee in possession has assumed
and agreed to carry out any and all covenants and obligations of Lessor
hereunder.
36. OUTSIDE PARKING SPACES: Lessee's occupancy of the Premises shall
include the use of the number of parking spaces as set forth in the
Preamble. Lessor shall not be responsible for any damage or theft of
any vehicle in the parking area and shall not be required to keep
parking spaces clear of unauthorized vehicles or to otherwise supervise
the use of the parking area. Lessee shall, upon request, promptly
furnish to Lessor the license numbers of the cars operated by Lessee
and its subtenants, licensees, invitees, concessionaires, officers and
employees. If any vehicle of the Lessee, or of any subtenant, licensee,
concessionaire, or of their respective officers, agents or employees,
is parked in any part of the Common Facilities other than the employee
parking area(s) designated therefor by Lessor, Lessee shall pay to
Lessor such penalty as may be fixed by Lessor from time to time. All
amounts due under the provisions of this Article 36 shall be deemed to
be Additional Rent.
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY: Lessor shall not be liable for
any loss of property from any cause whatsoever, including but not
limited to theft or burglary from the Premises, and any such loss
arising from the negligence of Lessor, its agents, servants or
invitees, or from defects, errors or omissions in the construction or
design of the Premises and/or the Building, including the structural
and non-structural portions thereof, and Lessee covenants and agrees to
make no claim for any such loss at any time.
38. PARTIAL INVALIDITY: If any of the provisions of this Lease, or the
application thereof to any person or circumstances, shall to any
extent, be invalid or unenforceable, the remainder of this Lease, or
the application of such provision or provisions to persons or
circumstances other than those as to whom or which it is held invalid
or unenforceable, shall not be affected thereby, and every provision of
this Lease shall be valid and enforceable to the fullest extent
permitted by law.
39. LESSEE'S BROKER: Lessee represents and warrants to Lessor that the
Broker, as defined in the Preamble is the sole broker with whom Lessee
has negotiated in bringing about this Lease and Lessee agrees to
indemnify and hold Lessor 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 Lessor and Lessee. In no event shall Lessor's
mortgagee(s) have any obligation to any broker involved in this
transaction. In the event that no broker was involved as aforesaid,
then Lessee represents and warrants to the Lessor that no broker
brought about this transaction, and Lessee agrees to indemnify and hold
Lessor 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 Lessee and Lessor.
40. PERSONAL LIABILITY: Notwithstanding anything to the contrary provided
in this Lease, it is specifically understood and agreed, such agreement
being a primary consideration
23
for the execution of this Lease by Lessor, that there shall be
absolutely no personal liability on the part of Lessor, its constituent
members (to include but not be limited to, officers, directors,
partners and trustees) their respective successors, assigns or any
mortgagee in possession (for the purposes of this Article, collectively
referred to as "Lessor"), with respect to any of the terms, covenants
and conditions of this Lease, and that Lessee shall look solely to the
equity of Lessor in the Building for the satisfaction of each and every
remedy of Lessee in the event of any breach by Lessor of any of the
terms, covenants and conditions of this Lease to be performed by
Lessor, such exculpation of liability to be absolute and without any
exceptions whatsoever.
41. NO OPTION: The submission of this Lease Agreement for examination does
not constitute a reservation of, or option for, the Premises, and this
Lease Agreement becomes effective as a Lease Agreement only upon
execution and delivery thereof by Lessor and Lessee.
42. DEFINITIONS:
a. AFFILIATE -- Affiliate shall mean any corporation related to
Lessee as a parent, subsidiary or brother-sister corporation
so that such corporation and such party and other corporations
constitute a controlled group as determined under Section 1563
of the Internal Revenue Code of 1986, as amended and as
elaborated by the Treasury Regulations promulgated thereunder
or any business entity in which Lessee has more than a fifty
percent (50%) interest.
b. COMMON FACILITIES -- Common Facilities shall mean the
non-assigned parking areas; lobby; elevator(s); fire stairs;
public hallways; public lavatories; all other general Building
facilities that service all Building tenants; air conditioning
rooms; fan rooms; janitors' closets; electrical closets;
telephone closets; elevator shafts and machine rooms; flues;
stacks; pipe shafts and vertical ducts with their enclosing
walls. Lessor may at any time close temporarily any Common
Facilities to make repairs or changes therein or to effect
construction, repairs or changes within the Building, or to
discourage non-tenant parking, and may do such other acts in
and to the Common Facilities as in its judgement may be
desirable to improve the convenience thereof, but shall always
in connection therewith, endeavor to minimize any
inconvenience to Lessee.
c. FORCE MAJEURE -- Force Majeure shall mean and include those
situations beyond Lessor's reasonable control, including by
way of example and not by way of limitation, acts of God;
accidents; repairs; strikes; shortages of labor, supplies or
materials; inclement weather; or, where applicable, the
passage of time while waiting for an adjustment or insurance
proceeds. Any time limits required to be met by either party
hereunder, whether specifically made subject to Force Majeure
or not, except those related to the payment of Fixed Basic
Rent or Additional Rent, shall, unless specifically stated to
the contrary elsewhere in this Lease, be automatically
extended by the number of days by which any performance called
for is delayed due to Force Majeure.
d. LESSEE'S PERCENTAGE -- The parties agree that Lessee's
Percentage, as defined in the Preamble, reflects and will be
continually adjusted to reflect the ratio of the gross square
feet of the area rented to Lessee (including an allocable
share of all Common Facilities) [the numerator] as compared
with the total number of gross square feet of the entire
Building (or additional buildings that may be constructed
within the Office Building Area) [the denominator] measured
outside wall to outside wall, but excluding therefrom any
storage areas. Lessor shall have the right to make changes or
revisions in the Common Facilities of the Building so as to
provide additional leasing area. Lessor shall also have the
right to construct additional buildings in the Office Building
Area for such purposes as Lessor may deem appropriate, and
subdivide the lands for that purpose if necessary, and upon so
doing, the Office Building Area shall become the subdivided
lot on which the Building in which the Premises is located.
However, if any service provided for in Article 23(a) or any
utility provided for in Article 23(b) is separately billed or
separately metered within
24
the Building, then the square footage so billed or metered
shall be subtracted from the denominator and the Lessee's
proportionate share for such service and/or utility shall be
separately computed, and the Base Costs for such item shall
not include any charges attributable to said square footage.
Lessee understands that as a result of changes in the layout
of the Common Facilities from time to time occurring due to,
by way of example and not by way of limitation, the
rearrangement of corridors, the aggregate of all Building
tenant proportionate shares may be equal to, less than or
greater than one hundred percent (100%).
43. LEASE COMMENCEMENT: Notwithstanding anything contained herein to the
contrary, if Lessor, for any reason whatsoever, including Lessor's
negligence except as provided for in Article 27(b), cannot deliver
possession of the Premises, as provided for in Article 27(a), to Lessee
at the commencement of the agreed Term as set forth in Article 2, this
Lease shall not be void or voidable, nor shall Lessor be liable to
Lessee for any loss or damage resulting therefrom, but in that event,
the Term shall be for the full term as specified above to commence from
and after the date Lessor shall have delivered possession of the
Premises to Lessee or from the date Lessor would have delivered
possession of the Premises to Lessee but for Lessee's failure to timely
supply to Lessor such drawings and/or information required by Exhibit C
or for any other reason attributable to Lessee (herein the
"Commencement Date") and to expire midnight of the day immediately
preceding Term anniversary of the Commencement Date, and if requested
by Lessor, Lessor and Lessee shall, ratify and confirm said
Commencement and Expiration Dates by completing and signing Exhibit G
attached hereto and made a part hereof.
44. NOTICES: Any notice by either party to the other shall be in writing
and shall be deemed to have been duly given only if (i) delivered
personally or (ii) sent by registered mail or certified mail return
receipt requested in a postage paid envelope addressed or (iii) sent by
nationally recognized overnight delivery service, if to Lessee, at the
above described Building; if to Lessor, at Lessor's address as set
forth above; or, to either at such other address as Lessee or Lessor,
respectively, may designate in writing. Notice shall be deemed to have
been duly given, if delivered personally, on delivery thereof, if
mailed, upon the tenth (10th) day after the mailing thereof or if sent
by overnight delivery service, the next business day.
45. ACCORD AND SATISFACTION: No payment by Lessee or receipt by Lessor of a
lesser amount than the rent and additional charges payable hereunder
shall be deemed to be other than a payment on account of the earliest
stipulated Fixed Basic Rent and Additional Rent, nor shall any
endorsement or statement on any check or any letter accompanying any
check or payment for Fixed Basic Rent or Additional Rent be deemed an
accord and satisfaction, and Lessor may accept such check or payment
without prejudice to Lessor's right to recover the balance of such
Fixed Basic Rent and Additional Rent or pursue any other remedy
provided herein or by law.
46. EFFECT OF WAIVERS: No failure by Lessor to insist upon the strict
performance of any covenant, agreement, term or condition of this
Lease, or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any such
breach or of such covenant, agreement, term or condition. No consent,
or waiver, express or implied, by Lessor to or of any breach of any
covenant, condition or duty of Lessee shall be construed as a consent
or waiver to or of any other breach of the same or any other covenant,
condition or duty, unless in writing signed by Lessor.
47. LEASE CONDITION: Intentionally omitted.
48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE: Lessee agrees to give any
mortgagees and/or trust deed holders, by registered mail, a copy of any
notice of default served upon Lessor, provided that, prior to such
notice, Lessee has been notified in writing (by way of notice of
assignment of rents and leases or otherwise) of the address of such
mortgagees and/or trust deed holders. Lessee further agrees that, if
Lessor shall have failed to cure such default within the time provided
for in this Lease, then the mortgagees and/or trust deed holders shall
have an additional thirty (30) days within which to cure such default,
25
or if such default cannot be cured within that time, then such
additional time as may be necessary, if within such thirty (30) days,
any mortgagee and/or trust deed holder has commenced and is diligently
pursuing the remedies necessary to cure such default (including but not
limited to commencement of foreclosure proceedings if necessary to
effect such cure), in which event this Lease shall not be terminated
while such remedies are being so diligently pursued.
49. LESSOR'S RESERVED RIGHT: Lessor and Lessee acknowledge that the
Premises are in a Building which is not open to the general public.
Access to the Building is restricted to Lessor, Lessee, other tenants
of the Building, their respective agents, employees and contractors and
to their invited visitors. In the event of a labor dispute including a
strike, picketing, informational or associational activities directed
at Lessee or any other tenant, Lessor reserves the right unilaterally
to alter Lessee's ingress and egress to the Building or make any change
in operating conditions to restrict pedestrian, vehicular or delivery
ingress and egress to a particular location. Notwithstanding the
foregoing, Lessee shall at all times and from time to time have access
to the Premises twenty-four (24) hours a day, seven (7) days a week,
except in the case of an emergency.
50. CORPORATE AUTHORITY: If Lessee is a corporation, Lessee represents and
warrants that this Lease has been duly authorized and approved by the
corporation's Board of Directors. The undersigned officers and
representatives of the corporation represent and warrant that they are
officers of the corporation with authority to execute this Lease on
behalf of the corporation, and within fifteen (15) days of execution
hereof, Lessee will provide Lessor with a corporate resolution
confirming the aforesaid. Lessee hereby warrants and covenants to and
for the benefit of Lessor as follows: (a) Lessee and each of its
subsidiaries, predecessors, agents, direct and indirect owners and
their respective affiliates has at all applicable times been, is now
and will in the future be, in compliance with U.S. Executive Order
13224 and no action, proceeding, investigation, charge, claim, report
or notice has been filed, commenced or threatened against any of them
alleging any failure to so comply; (b) neither Lessee nor any Guarantor
or any of their respective agents, subsidiaries or other affiliates
has, after due investigation and inquiry, knowledge or notice of any
fact, event, circumstance, situation or condition which could
reasonably be expected to result in (i) any action, proceeding,
investigation, charge, claim, report or notice being filed, commenced
or threatened against any of them alleging any failure to comply with
the Order, or (ii) the imposition of any civil or criminal penalty
against any of them for any failure to so comply; (c) the names,
addresses, and in the case of entities, jurisdiction of formation or
organization, as the case may be, of Lessee and each Guarantor and the
predecessors, agents, subsidiaries, direct and indirect owners, and
affiliates of each of them are set forth on the attached Exhibit H
(titled "Executive Order 13224 Compliance Information"), and none of
them are included in the United States Treasury Department's Office of
Foreign Assets Control list; and (d) prior to any changes in direct or
indirect ownership of Lessee or any Guarantor, Lessee shall give
written notice to Lessor signed by Lessee and each Guarantor (i)
advising Lessor in reasonable detail as to the proposed ownership
change, and (ii) affirming that the representations and warranties
herein contained will remain true and correct.
51. AFTER-HOURS USE: Lessee shall be entitled to make use of said Standard
Electric Service and HVAC beyond the Building Hours, at Lessee's sole
cost and expense, provided Lessee shall notify the Lessor by 3:00 p.m.
on the day that Lessee shall require said overtime use if said overtime
use is required on any weekday, and by 3:00 p.m. on Friday for Saturday
and/or Sunday overtime use. It is understood and agreed that Lessee
shall pay the sum of FORTY-FIVE AND 00/100 DOLLARS ($45.00) per hour
per zone for air-conditioning service and THIRTY AND 00/100 DOLLARS
($30.00) per hour per zone for heating services, plus such additional
percentage increase of the aforesaid hourly sum computed by measuring
the percentage increase between the rate in effect (including fuel
surcharges or adjustments) during the month for which such overtime use
is requested and the Base Rate. The Base Rate for purposes hereof shall
be the average of the rates in effect (including surcharges and/or
adjustments) during Calendar Year 2006.
In no event shall the Lessee pay less than the sum of FORTY-FIVE AND
00/100 DOLLARS ($45.00) per hour per zone for such overtime
air-conditioning service or less than THIRTY AND 00/100 DOLLARS
($30.00) per hour per zone for such overtime heating service.
26
52. LESSEE'S EXPANSION/RELOCATION: The Lessor, in its sole discretion,
shall have the right from time to time to change the location of the
Premises to other space (the "Substituted Leased Premises") within the
Building, subject to the terms and conditions set forth below.
a. The Substituted Leased Premises shall contain a minimum floor
area of approximately the same number of square feet as are
contained in the Premises; and the square footage of any
Common Facilities attributable to the Substituted Leased
Premises shall be approximately the same as that of the Common
Facilities attributable to the Premises.
b. If the total square footage comprised by the Substituted
Leased Premises and its attributable Common Facilities exceed
the total of the Premises and its attributable Common
Facilities, the Lessee shall not be required to pay any
increase in the Fixed Basic Rent and Lessee's Percentage shall
not be increased. If, however, such total square footage shall
be less, Lessee's Fixed Basic Rent and Lessee's Percentage
shall be decreased proportionately.
c. The Lessor shall give the Lessee not less than forty-five (45)
days prior notice of Lessor's decision to relocate the Lessee;
and the Lessee agrees that no later than forty-five (45) days
from the date of its receipt of such notice it shall relocate
to the Substituted Leased Premises.
d. The Lessor shall bear and pay for the cost and expense of any
such relocation; provided, however, that the Lessee shall not
be entitled to any compensation for damages for any
interference with or interruption of its business during or
resulting from such relocation. The Lessor shall use best
efforts to minimize such interference.
e. In connection with any such relocation, the Lessor shall, at
its own cost and expense, furnish and install in (or, if
practicable, relocate to) the Substituted Leased Premises all
walls, partitions, floors, floor coverings, ceilings,
fixtures, wiring and plumbing, if any, (as distinguished from
trade fixtures, equipment, furniture, furnishings and other
personal property belonging to Lessee) required for the
Lessee's proper use and occupancy thereof, all of which items
shall be comparable in quality to those situated in the
Premises.
f. The payments of new monthly minimum rent shall commence on the
earlier of ten (10) days after Lessor has completed the
physical relocation and installation of permanent improvements
in the Substituted Leased Premises or the date that Lessee
first opens for business in the Substituted Leased Premises.
x. Xxxxxx and Lessee shall promptly execute an amendment to this
Lease reciting the relocation of the Premises and any changes
in the monthly minimum rent payable hereunder.
53. BUILDING PERMIT: This Lease is expressly conditioned upon Lessor
obtaining a building permit from the appropriate government official
for Lessee's Premises. Lessor hereby agrees to make application to said
government official within five (5) days following the execution of the
construction drawings for the Premises. As used herein, construction
drawings shall mean the final plans and specifications required
pursuant to Article 27(b).
54. LESSOR'S SECURITY INTEREST. As additional security for the faithful
performance and observance by Lessee of all of the terms, provisions
and conditions of this Lease, Lessee hereby grants to and creates on
behalf of Lessor a security interest in all of Lessee's equipment,
fixtures, decorations, alterations, furniture, machinery,
installations, additions and improvement in the Premises. The security
interest herein granted and any security interest of the Lessor granted
by statute shall be subordinate, solely as to furniture, trade fixtures
and other personal property, to any purchase money security interest
given by Lessee in connection with the financing of the purchase of the
item of personal property in question.
27
This Lease constitutes a security agreement under the Pennsylvania
Uniform Commercial Code. Lessee agrees from time to time to execute and
deliver such security agreements and financing statements as Lessor
shall reasonably require to evidence and/or perfect the lien of the
security interest granted herein, within five (5) days of Lessor's
request therefor. Upon the occurrence of any default hereunder by
Lessee, beyond applicable notice and cure periods, Lessor may, at its
option, foreclose on said security and apply the proceeds of the sale
of the property covered thereby for the payment of all rent owing under
this Lease or any other sum owing by Lessee under the terms of Article
14 above, including, but not limited to any damages or deficiencies
resulting from any reletting of the Premises, whether said damage or
deficiency accrued before or after summary proceedings or other
re-entry by Lessor. Lessee covenants that it shall keep and maintain
all fixtures, machinery, equipment, furnishings and other personal
property at the Premises, whether or not the property of Lessee, in
good, substantial and efficient operating condition (including
replacement of same when necessary) at Lessee's sole cost and expense,
at all times during the term of this Lease.
55. USE AND OCCUPANCY TAX AND MISCELLANEOUS TAXES. Lessee shall pay prior
to delinquency all taxes (or its equivalent) assessed against or levied
or imposed upon its use and occupancy of the Premises or upon the
fixtures, furnishings, equipment and all other personal property of
Lessee located in the Premises and when possible Lessee shall cause
said fixtures, furnishings, equipment and all other personal property
to be assessed and billed separately from the property of Lessor. In
the event any or all of Lessee's fixtures, furnishings, equipment and
all other personal property or its occupancy of the Premises shall be
assessed and taxed with the property of Lessor, Lessee shall pay to
Lessor its share of such taxes within twenty (20) days after delivery
to Lessee by Lessor of a statement in writing setting forth the amount
of such taxes applicable to Lessee's fixtures, furnishings, equipment,
personal property or occupancy. If, during the Term of this Lease or
any renewal or extension thereof, any tax is imposed upon the privilege
of renting or occupying the Premises or upon the amount of rentals
collected therefor, Lessee will pay each month, as Additional Rent, a
sum equal to such tax or charge that is imposed for such month, but
nothing herein shall be taken to require Lessee to pay any income,
estate, inheritance or franchise tax imposed upon Lessor except to the
extent required by Article 23 hereof. In addition, Lessee will pay as
additional rent, all school district business use and occupancy tax
applicable to Lessee and the Premises (if any) within the time set
forth in any xxxx rendered by the taxing authority having such
authority, or Lessor for said tax. Lessor shall have the same rights
and remedies for the non-payment of such use and occupancy tax, or any
other item hereunder, that it has upon Lessee's failure to pay rent
hereunder.
54. TERMINATION OPTION:
Notwithstanding anything to the contrary contained herein, Lessee shall
have a one-time option to surrender the Premises ("Termination Option")
in accordance with the following terms and conditions:
a. If Lessee desires to exercise the Termination Option, Lessee
shall give Lessor irrevocable written notice ("Termination
Notice") of Lessee's exercise of this Termination Option,
which shall be delivered by certified mail or nationally
recognized overnight courier which Termination Notice must be
received by Lessor no later than the date that is twelve (12)
full months prior to the Termination Date. TIME IS OF THE
ESSENCE with respect to Lessor's receipt of the Termination
Notice and all other deadlines in this Article.
b. If Lessee gives the Termination Notice and complies with all
the provisions in this Article, the Lease as it applies to the
Premises only shall terminate at 11:59 p.m. on the last day of
the month during which the third (3rd) anniversary of the
Additional Premises Commencement Date occurs (the "Termination
Date").
c. In consideration for Lessee's termination of this Lease,
Lessee shall pay Lessor $56,689.48 ("Termination Fee")
simultaneously with the Termination Notice sent by Lessee to
Lessor.
28
d. Lessee's obligations to pay Fixed Basic Rent, Additional Rent,
and any other costs or charges under this Lease, and to
perform all other Lease obligations for the period up to and
including the Termination Date, shall survive the termination
of this Lease.
e. Notwithstanding the foregoing, if at any time during the
period on or after the date on which Lessee shall exercise its
Termination Option, up to and including the Termination Date,
Lessee shall be in default of this Lease past any applicable
cure periods, then Lessor may elect, but is not obligated, to
cancel and declare null and void Lessee's exercise of the
Termination Option and this Lease shall continue in full force
and effect for the full Term hereof unaffected by Lessee's
exercise of the Termination Option. If Lessor does not cancel
Lessee's exercise of the Termination Option after Lessee's
default, Lessee shall cure any default within the period of
time specified in this Lease and this obligation shall survive
the Termination Date.
f. In the event Lessee exercises the Termination Option, Lessee
covenants and agrees to surrender full and complete possession
of the Premises to Lessor on or before the Termination Date
vacant, broom-clean, in good order and condition reasonable
wear and tear excepted, and, in accordance with the provisions
of this Lease, and thereafter the Premises shall be free and
clear of all leases, tenancies, and rights of occupancy of any
entity claiming by or through Lessee.
g. If Lessee shall fail to deliver possession of the Premises on
or before the Termination Date in accordance with the terms
hereof, Lessee shall be deemed to be a holdover Lessee from
and after the Termination Date, and in such event all
covenants and terms of Article 25 shall apply and shall also
be liable to Lessor for all costs and expenses incurred by
Lessor in securing possession of the Premises. Lessor may
accept any such sums from Lessee without prejudice to Lessor's
right to evict Lessee from the Premises by any lawful means.
h. If Lessee properly and timely exercises the Termination Option
and properly and timely satisfies all other monetary and
non-monetary obligations under this Lease, the Lease as it
applies to the Premises shall cease and expire on the
Termination Date with the same force and effect as if said
Termination Date were the date originally provided in this
Lease as the Expiration Date of the Term hereof.
i. If this Lease has been assigned or all or a portion of the
Premises has been sublet, this Termination Option shall be
deemed null and void and neither Lessee nor any assignee or
sublessee shall have the right to exercise such option during
the term of such assignment or sublease.
55. RIGHT OF NOTIFICATION: When requested by Lessee in writing, Lessor
shall inform Lessee of the status of any available space in the
Building or any space about to become available and subject to any
prior rights other tenants in the Building may have, shall ascertain
Lessee's interest in leasing same. Lessor shall not be considered to be
in default of the Lease should Lessor fail to notify Lessee of such
space.
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under the Lease or this Agreement or make any claim that the Lease or
this Agreement is invalid or unenforceable due to any failure of this document
to comply with ministerial requirements including, but not limited to,
requirements for corporate seals, attestations, witnesses, notarizations, or
other similar requirements, and each party hereby waives the right to assert any
such defense or make any claim of invalidity or unenforceability due to any of
the foregoing.
THE UNDERSIGNED LESSEE ACKNOWLEDGES THAT IT FULLY UNDERSTANDS THE
CONFESSION OF JUDGMENT CONTAINED IN RIDER A HEREOF AND THAT THE LESSOR-LESSEE
RELATIONSHIP CREATED HEREBY IS COMMERCIAL IN NATURE AND THAT THE UNDERSIGNED
WAIVES ANY RIGHT TO A HEARING WHICH WOULD OTHERWISE BE A CONDITION TO LESSOR'S
OBTAINING THE JUDGMENTS AUTHORIZED BY ARTICLE 14.
29
THE UNDERSIGNED LESSEE FURTHER ACKNOWLEDGES AND UNDERSTANDS THAT LESSEE
HAS WAIVED ITS RIGHT TO A TRIAL BY JURY.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
LESSOR: LESSEE:
CAL-TREE REALTY ASSOCIATES L.P. SYNOVA HEALTHCARE, INC.
By: Xxxx-Xxxx Sub XV Trust,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------- -------------------------
Xxxxxxx X. Xxxxxxxx Name:
Executive Vice President Title: CFO
30
RIDER A
CONFESSION OF JUDGMENT
This Rider is made a part of that certain Lease Agreement by and between SYNOVA
HEALTHCARE, INC., as Lessee, and CAL-TREE REALTY ASSOCIATES L.P., as Lessor.
Notwithstanding, anything in the Lease to the contrary, the provision of this
Rider A shall prevail.
LESSOR SHALL HAVE THE FOLLOWING RIGHTS TO CONFESS JUDGMENT AGAINST LESSEE AND
ALL PERSONS CLAIMING THROUGH LESSEE, FOR POSSESSION OF THE DEMISED PREMISES:
(i) WHEN THIS LEASE SHALL BE TERMINATED BY REASON OF A DEFAULT BY
LESSEE OR ANY OTHER REASON WHATSOEVER, EITHER DURING THE ORIGINAL TERM OF THIS
LEASE OR ANY RENEWAL OR EXTENSION THEREOF, AND ALSO WHEN THE TERM HEREBY CREATED
OR ANY EXTENSION THEREOF SHALL HAVE EXPIRED, IT SHALL BE LAWFUL FOR ANY ATTORNEY
TO APPEAR FOR LESSEE IN ANY AND ALL SUITS OR ACTIONS WHICH MAY BE BROUGHT FOR
POSSESSION AND/OR EJECTMENT; AND AS ATTORNEY FOR LESSEE TO CONFESS JUDGMENT IN
EJECTMENT AGAINST LESSEE AND ALL PERSONS CLAIMING UNDER LESSEE FOR THE RECOVERY
BY LESSOR OF POSSESSION OF THE DEMISED PREMISES, FOR WHICH THIS LEASE SHALL BE
LESSOR'S SUFFICIENT WARRANT. UPON SUCH CONFESSION OF JUDGMENT FOR POSSESSION, IF
LESSOR SO DESIRES, A WRIT OF EXECUTION OR OF POSSESSION MAY ISSUE FORTHWITH,
WITHOUT ANY PRIOR WRIT OR PROCEEDINGS WHATSOEVER. IF FOR ANY REASON AFTER SUCH
ACTION SHALL HAVE BEEN COMMENCED, THE SAME SHALL BE DETERMINED AND THE
POSSESSION OF THE DEMISED PREMISES SHALL REMAIN IN OR BE RESTORED TO LESSEE,
THEN LESSOR SHALL HAVE THE RIGHT UPON ANY SUBSEQUENT OR CONTINUING DEFAULT OR
DEFAULTS, OR AFTER EXPIRATION OF THE LEASE, OR UPON THE TERMINATION OF THIS
LEASE AS HEREINBEFORE SET FORTH, TO BRING ONE OR MORE FURTHER ACTIONS AS
HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF THE DEMISED PREMISES.
(ii) In any action of ejectment, Lessor shall cause to be filed in such
action an affidavit made by Lessor or someone acting for Lessor setting forth
the facts necessary to authorize the entry of judgment, of which facts such
affidavit shall be conclusive evidence. If a true copy of this Lease shall be
filed in such action (and the truth of the copy as asserted in the affidavit of
Lessor shall be sufficient evidence of same), it shall not be necessary to file
the original Lease as a warrant of attorney, any rule of court, custom or
practice to the contrary notwithstanding.
(iv) Lessee releases to Lessor and to any and all attorneys who may
appear for Lessor all errors in such proceedings and all liability therefor.
(v) The right to enter judgment against Lessee and to enforce all of
the other provisions of this Lease herein provided for, at the option of any
assignee of this Lease, may be exercised by any assignee of Lessor's right,
title and interest in this Lease in Lessee's own name, notwithstanding the fact
that any or all assignments of such right, title and interest may not be
executed and/or witnessed in accordance with the Act of Assembly of May 28,
1715, 1 Sm. L. 94, and all supplements and amendments thereto that have been or
may hereafter be passed. Lessee hereby expressly waives the requirements of such
Act of Assembly and any and all laws regulating the manner and/or form in which
such assignments shall be executed and witnessed.
(vi) Lessee acknowledges that it has been represented by counsel in
connection with the negotiation of this Lease, that it has read and discussed
with such counsel the provisions herein relating to confession of judgment, and
that it understands the nature and consequences of such provisions.
The rights and remedies set forth herein in favor of Lessor shall be in addition
to any other rights and remedies that Lessor may have under the Lease or at law
or in equity.
Exhibit A - Page 1
THE PRIOR PARAGRAPHS SET FORTH WARRANTS OF AUTHORITY FOR AN ATTORNEY TO CONFESS
JUDGMENTS AGAINST LESSEE FOR POSSESSION OF THE PREMISES. IN GRANTING THESE
WARRANTS OF ATTORNEY TO CONFESS JUDGEMENTS AGAINST LESSEE HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, AND, ON THE ADVISE OF THE SEPARATE COUNSEL OF
LESSEE, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS LESSEE HAS OR MAY HAVE WITH
RESPECT TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE
CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF
PENNSYLVANIA.
In consideration of the promises and covenants set forth in the Lease of which
this Rider is a part, and intending to be legally bound hereby, Lessee has
caused this Rider to be executed this ____th day of _________, 2005.
LESSEE:
SYNOVA HEALTHCARE, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name:
Title: CFO
Exhibit A - Page 2
EXHIBIT A-1
-----------
OFFICE BUILDING AREA
ROSE TREE I AND II
COMMONLY KNOWN AS:
Providence Road, Upper Providence Township,
Delaware County, State of Pennsylvania
AND DESIGNATED AS:
Parcel 35-00-01465-00
and
Parcel 35-00-00806-00
bounded and described according to a Final Subdivision Plan of Property of Rose
Tree Office Associates II, made by X.X. Xxxxxxx and Son, Civil Engineers, Land
Surveyors, Media, Pennsylvania dated November 7, 1984 and recorded in Delaware
County in Plan Case 14 pay 278 on May 30, 1985.
Exhibit A-1 - Page 1
EXHIBIT B
---------
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS: The sidewalks, entrance, passages, courts,
elevators, vestibules, stairways, corridors and public parts of the
Building shall not be obstructed or encumbered by Lessee or used by
Lessee for any purpose other than ingress and egress. If the Premises
are situated on the ground floor with direct access to the street, then
Lessor shall, at Lessor's expense, keep the sidewalks and curbs directly
in front of the Premises clean and free from ice, snow and refuse.
2. WINDOWS: Windows in the Premises shall not be covered or obstructed by
Lessee. No bottles, parcels or other articles shall be placed on the
windowsills, in the halls, or in any other part of the Building other
than the Premises. No article shall be thrown out of the doors or
windows of the Premises.
3. PROJECTIONS FROM BUILDING: No awnings, air-conditioning units, or other
fixtures shall be attached to the outside walls or the window xxxxx of
the Building or otherwise affixed so as to project from the Building,
without prior written consent of Lessor.
4. SIGNS: No sign or lettering shall be affixed by Lessee to any part of
the outside of the Premises, or any part of the inside of the Premises
so as to be clearly visible from the outside of the Premises, without
the prior written consent of Lessor. However, Lessee shall have the
right to place its name on any door leading into the Premises the size,
color and style thereof to be subject to the Lessor's approval. Lessee
shall not have the right to have additional names placed on the Building
directory without Lessor's prior written consent.
5. FLOOR COVERING: Lessee shall not lay linoleum or other similar floor
covering so that the same shall come in direct contact with the floor of
the Premises. If linoleum or other similar floor covering is desired to
be used, an interlining of builder's deadening felt shall first be fixed
to the floor by a paste or other material that may easily be removed
with water, the use of cement or other similar adhesive material being
expressly prohibited.
6. INTERFERENCE WITH OCCUPANTS OF BUILDING: Lessee shall not make, or
permit to be made, any unseemly or disturbing noises or odors and shall
not interfere with other tenants or those having business with them.
Lessee will keep all mechanical apparatus in the Premises free of
vibration and noise which may be transmitted beyond the limits of the
Premises.
7. LOCK KEYS: No additional locks or bolts of any kind shall be placed on
any of the doors or windows by Lessee. Lessee shall, on the termination
of Lessee's tenancy, deliver to Lessor all keys to any space within the
Building either furnished to or otherwise procured by Lessee, and in the
event of the loss of any keys furnished, Lessee shall pay to Lessor the
cost thereof. Lessee, before closing and leaving the Premises, shall
ensure that all windows are closed and entrance doors locked. Nothing in
this Paragraph 7 shall be deemed to prohibit Lessee from installing a
burglar alarm within the Premises, provided: (1) Lessee obtain's
Lessor's consent which will not be unreasonably withheld or delayed; (2)
Lessee supplies Lessor with copies of the plans and specifications of
the system; (3) such installation shall not damage the Building; and (4)
all costs of installation shall be borne solely by Lessee.
8. CONTRACTORS: No contract of any kind with any supplier of towels, water,
toilet articles, waxing, rug shampooing, venetian blind washing,
furniture polishing, lamp servicing, cleaning of electrical fixtures,
removal of waste paper, rubbish, garbage, or other like service shall be
entered into by Lessee, nor shall any machine of any kind be installed
in the Building or the Office Building Area without the prior written
consent of the Lessor. Lessee shall not employ any persons other than
Lessor's janitors for the purpose of cleaning the Premises without prior
written consent of Lessor. Lessor shall not be responsible to Lessee for
any loss of property from the Premises however occurring, or for any
damage to the effects of Lessee by such janitors or any of its
employees, or by any other person or any other cause.
Exhibit B - Page 1
9. PROHIBITED ON PREMISES: Lessee shall not conduct, or permit any other
person to conduct, any auction upon the Premises, manufacture or store
goods, wares or merchandise upon the Premises without the prior written
approval of Lessor, except the storage of usual supplies and inventory
to be used by Lessee in the conduct of his business, permit the Premises
to be used for gambling, make any unusual noises in the Building, permit
to be played musical instrument on the Premises, permit any radio to be
played, or television, recorded or wired music in such loud manner as to
disturb or annoy other tenants, or permit any unusual odors to be
produced on the Premises. Lessee shall not permit any portion of the
Premises to be occupied as an office for a public stenographer or
typewriter, or for the storage, manufacture, or sale of intoxicating
beverages, narcotics, tobacco in any form or as a xxxxxx or manicure
shop. Canvassing, soliciting and peddling in the Building and the Office
Building Area are prohibited and Lessee shall cooperate to prevent the
same. No bicycles, vehicles or animals of any kind shall be brought into
or kept in or about the Premises.
10. PLUMBING, ELECTRIC AND TELEPHONE WORK: Plumbing facilities shall not be
used for any purpose other than those for which they were constructed;
and no sweepings, rubbish, ashes, newspaper or other substances of any
kind shall be thrown into them. Waste and excessive or unusual amounts
of electricity or water is prohibited. When electric wiring of any kind
is introduced, it must be connected as directed by Lessor, and no
stringing or cutting of wires will be allowed, except by prior written
consent of Lessor, and shall be done by contractors approved by Lessor.
The number and locations of telephones, telegraph instruments,
electrical appliances, call boxes, etc. shall be subject to Lessor's
approval.
11. MOVEMENT OF FURNITURE, FREIGHT OR BULKY MATTER: The carrying in or out
of freight, furniture or bulky matter of any description must take place
during such hours as Lessor may from time to time reasonably determine
and only after advance notice to the superintendent of the Building. The
persons employed by Lessee for such work must be reasonably acceptable
to the Lessor. Lessee may, subject to these provisions, move freight,
furniture, bulky matter, and other material into or out of the Premises
on Saturdays between the hours of 9:00 a.m. and 1:00 p.m., provided
Lessee pays additional costs, if any, incurred by Lessor for elevator
operators or security guards, and for any other expenses occasioned by
such activity of Lessee. If, at least three (3) days prior to such
activity, Lessor requests that Lessee deposit with Lessor, as security
of Lessee's obligations to pay such additional costs, a sum of which
Lessor reasonably estimates to be the amount of such additional cost,
the Lessee shall deposit such sum with Lessor as security of such cost.
There shall not be used in the Building or Premises, either by Lessee or
by others in the delivery or receipt of merchandise, any hand trucks
except those equipped with rubber tires and side guards, and no hand
trucks will be allowed in the elevators without the consent of the
superintendent of the Building.
12. SAFES AND OTHER HEAVY EQUIPMENT: Lessor reserves the right to prescribe
the weight and position of all safes and other heavy equipment so as to
distribute properly the weight thereof and to prevent any unsafe
condition from arising.
13. ADVERTISING: Lessor shall have the right to prohibit any advertising by
Lessee which in Lessor's reasonable opinion tends to impair the
reputation of the Building or its desirability as a building for
offices, and upon written notice from Lessor, Lessee shall refrain from
or discontinue such advertising.
14. NON-OBSERVANCE OR VIOLATION OF RULES BY OTHER TENANTS: Lessor shall not
be responsible to Lessee for non-observance or violation of any of these
rules and regulations by any other tenant.
15. AFTER HOURS USE: Lessor reserves the right to exclude from the Building
between the hours of 6:00 p.m. and 8:00 a.m. and at all hours on
Saturdays, Sundays and Building Holidays, all persons who do not present
a pass to the Building signed by the Lessee. Each Lessee shall be
responsible for all persons for whom such a pass is issued and shall be
liable to the Lessor for the acts of such persons.
16. PARKING: Lessee and its employees shall park their cars only in those
portions of the parking area designated by Lessor.
Exhibit B - Page 2
17. Lessor hereby reserves to itself any and all rights not granted to
Lessee hereunder, including, but not limited to, the following rights
which are reserved to Lessor for its purposes in operating the Building:
a) the exclusive right to the use of the name of the Building for
all purposes, except that Lessee may use the name as its
business address and for no other purposes; and
b) the right to change the name or address of the Building,
without incurring any liability to Lessee for doing so; and
c) the right to install and maintain a sign on the exterior of
the Building; and
d) the exclusive right to use or dispose of the use of the roof
of the Building; and
e) the right to limit the space on the directory of the Building
to be allotted to Lessee; and
f) the right to grant to anyone the right to conduct any
particular business or undertaking in the Building.
18. The Lessee shall be responsible for initiating, maintaining and
supervising all health and safety precautions and/or programs required
by Law in connection with the Lessee's use and occupancy of the
Premises.
19. The Lessee shall not store, introduce or otherwise permit any material
known to be hazardous within the Premises. Any material within the
Premises which is determined to be hazardous shall be removed and
properly disposed of by the Lessee at the Lessee's sole expense.
-- END --
Exhibit B - Page 3
EXHIBIT C
NOTES
RE: Workletter Agreement for office space on the 6th floor at Rose Tree II,
1400 N. Providence Road, Media, Pennsylvania.
, 2005
LESSEE:
Synova Healthcare, Inc.
You ("Lessee") and we ("Lessor") are executing simultaneously with this
Workletter Agreement a written lease ("Lease"), covering the space referred to
above, as more particularly described in the Lease ("Premises").
To induce Lessee to enter into the Lease (which is hereby incorporated by
reference) and in consideration of the covenants hereinafter contained, Lessor
and Lessee mutually agree as follows:
1. Lessor shall have its architect prepare the following architectural and
mechanical drawings and specifications based upon the sketch layout
supplied to Lessor by Lessee, attached hereto and made a part hereof,
upon full execution of this Lease.
a. Architectural drawings and specifications for Lessee's
partition layout, reflected ceiling, placement of electrical
outlets and other installations for the work to be done by
Lessor.
b. Mechanical plans and specifications where necessary for
installation of air conditioning systems, ductwork and
heating.
All such plans and specifications are expressly subject to Lessor's
written approval, which Lessor covenants it will not unreasonably
withhold.
2. Lessor agrees to cause the partition plan, electrical plan and the
reflected ceiling plan to be delivered to Lessee on or before the
fifteenth (15th) day after Lease execution. Lessee agrees to approve
said plans by initialing and returning same to Lessor within three (3)
days of receipt of each plan. Upon approval of the plans initialed by
Lessee, Lessor shall file said plans with the appropriate governmental
agencies.
3. Lessor agrees, at its expense and without charge to Lessee (unless
otherwise provided), to do the work in the Premises as shown on the
plans dated September 27, 2005 and revised October 6, 2005, prepared by
Xxxxx Architects and described on the "Description of Materials"
schedule attached hereto which shall hereinafter be referred to as "The
Work". The Work shall include Lessor's general conditions and overhead
amounts indicated on the Description of Materials. "Building Standard"
shall mean the type and grade of material, equipment and/or device
designated by Lessor as standard for the Building. All items are
Building Standard unless otherwise noted. The provisions of Article 6
of the Lease shall apply to any alterations made to the Premises after
the initial work to be performed herein.
4. Intentionally omitted.
5. All low partitioning, workstation modules, bank screen partitions and
prefabricated partition systems shall be furnished and installed by
Lessee.
6. The installation or wiring of telephone and computer (data) outlets is
not part of The Work. Lessee shall bear the responsibility to provide
its own telephone and data systems at Lessee's sole cost and expense.
Upon expiration or sooner termination of the Lease, Lessee shall remove
all telephone and data equipment and wiring from the Premises and the
Building risers upon vacation of same.
Exhibit C - Page 1
7. Changes in The Work, if necessary or requested by the Lessee, shall be
accomplished after the execution of the Lease and this Workletter
Agreement, and without invalidating any part of the Lease or Workletter
Agreement, by written agreement between Lessor and Lessee hereinafter
referred to as a Change Order. Each Change Order shall be prepared by
Lessor and signed by both Lessee and Lessor stating their agreement
upon all of the following:
a. The scope of the change in The Work; and
b. The cost of the change; and
c. Manner in which the cost will be paid or credited; and
d. The estimated extent of any adjustment to the Commencement
Date (if any) as a result of the change in The Work.
Each and every Change Order shall be signed by Lessor's and
Lessee's respective construction representatives. In no event
shall any Change Order(s) be permitted without such
authorizations. A 10% supervision plus 10% overhead charge
will be added to the cost of any Change Order and to the cost
of any other work to be performed by Lessor in the Premises
after Lessor's completion of The Work. If Lessee shall fail to
approve any such Change Order within one (1) week, the same
shall be deemed disapproved in all respects by Lessee and
Lessor shall not be authorized to proceed thereon. Any
increase in the cost of The Work or the change in The Work
stated in a Change Order which results from Lessee's failure
to timely approve and return said Change Order shall be paid
by the Lessee. Lessee agrees to pay to Lessor the cost of any
Change Order promptly upon receipt of an invoice for same.
Similarly, any cost savings resulting from such Change
Order(s) shall be credited to the Lessee.
8. If Lessee elects to use the architect suggested by Lessor, this
architect becomes the Lessee's agent solely with respect to the plans,
specifications and The Work. If any change is made after completion of
schematic drawings and prior to completion of final construction
documents which result in a Change Order and additional costs, such
costs shall be the responsibility of the Lessee.
9. Prior to Lessee's occupancy of the Premises, Lessee shall identify and
list any portion of The Work which does not conform to this Workletter
Agreement ("Punch List"). The Lessor shall review with the Lessee all
of the items so listed and correct or complete any portion of The Work
which fails to conform to the requirements of this Workletter
Agreement.
10. The terms contained in the Lease (which include all exhibits attached
thereto) constitute Lessor's agreement with Lessee with respect to the
work to be performed by Lessor on Lessee's behalf. If the architectural
drawings are in conflict with the terms of the Lease, then the Lease
shall be deemed the controlling document.
11. All materials and installations constructed for the Lessee within the
Premises shall become the property of the Lessor upon installation. No
refund, credit or removal of said items is to be permitted at the
termination of the Lease. Items installed that are not integrated in
any such way with other common building materials do not fall under
this provision (e.g. shelving, furniture, etc.).
12. It is agreed that notwithstanding the date provided in the Lease for
the Additional Premises Commencement Date, the term shall not commence
until Lessor has "substantially completed" all work to be performed by
Lessor in the Additional Premises as hereinbefore set forth in
Paragraph 3 above and as set forth in the Lease; provided, however,
that if Lessor shall be delayed in substantially completing said work
as a result of:
a. Lessee's failure to approve the plans and specifications in
accordance with Paragraph 2 hereof; or
b. Lessee's failure to furnish interior finish specifications,
i.e., paint colors, carpet
Exhibit C - Page 2
selection, etc., to Lessor by the fifth (5th) working day
after Lessor has approved the plans and specifications
submitted by Lessee referred to in Paragraph 2 hereof; or
c. Lessee's request for materials, finishes or installations
other than Lessor's Building Standard; or
d. Lessee's changes in The Work; or
e. The performance of a person, firm, partnership or corporation
employed by Lessee and the completion of the said work by said
person, firm, partnership or corporation;
then the Additional Premises Commencement Date shall be accelerated by
the number of days of such delay and Lessee's obligation to pay Fixed
Basic Rent and Additional Rent with respect to the Additional Premises
shall commence as of such earlier date.
13. Lessor shall permit Lessee and its agents to enter the Additional
Premises prior to the Additional Premises Commencement Date in order
that Lessee may perform through its own non-union contractors (or union
contractor if required by Lessor) such other work and decorations as
Lessee may desire at the same time Lessor's contractors are working in
the Additional Premises. The foregoing license to enter the Additional
Premises prior to the Additional Premises Commencement Date, however,
is conditioned upon:
a. Lessee's workmen and mechanics working in harmony and not
interfering with the labor employed by Lessor, Lessor's
mechanics or contractors or by any other Lessee or its
mechanics or contractors; and
b. Lessee providing Lessor with evidence of Lessee's contractors
and subcontractors carrying such worker's compensation,
general liability, personal and property insurance as required
by law and in amounts no less than the amounts set forth in
Article 30 of the Lease. If at any time such entry shall cause
disharmony or interference therewith, this license may be
withdrawn by Lessor upon forty-eight (48) hours written notice
to Lessee. Such entry shall be deemed controlled by all of the
terms, covenants, provisions and conditions of said Lease,
except as to the covenant to pay Fixed Basic Rent and
Additional Rent. Lessor shall not be liable in any way for any
injury, loss or damage which may occur to any of Lessee's
decorations or installations so made in the Additional
Premises prior to the Additional Premises Commencement Date,
the same being solely at Lessee's risk.
14. No part of the Premises shall be deemed unavailable for occupancy by
the Lessee, or shall any work which the Lessor is obligated to perform
in such part of the Premises be deemed incomplete for the purpose of
any adjustment of Fixed Basic Rent payable hereunder, solely due to the
non-completion of details of construction, decoration or mechanical
adjustments which are minor in character and the non-completion of
which does not materially interfere with the Lessee's use of such part
of the Premises.
15. Lessee is responsible for all costs related to the repairs and
maintenance of any additional or supplemental HVAC systems, appliances
and equipment installed to meet Lessee's specific requirements. Lessee
shall purchase a service contract for this equipment so that the
equipment is covered by such service contract each year of the term of
the Lease and shall forward a copy of such contract to Lessor.
16. If construction is to occur in a space occupied by Lessee's employees,
Lessee shall be liable for all costs associated with a delay if Lessee
shall fail to comply with a submitted construction schedule to relocate
personnel, furniture, or equipment. These costs shall include, but not
be limited to the following:
a. cost of construction workers time wasted; and
b. cost of any overtime work necessary to meet schedule deadlines; and
c. any other costs associated with delays in final completion.
Exhibit C - Page 3
17. This workletter is based on the quantities and specifications listed
herein. Any change to these specifications shall require the
recalculation of the construction costs. Such recalculation shall not
negate any other section of this Lease.
18. All sums payable by Lessee to Lessor in connection with this Exhibit C
and any other work to be performed by Lessor within the Premises and
billable to Lessee shall be deemed Additional Rent.
19. With respect to the construction work being conducted in or about the
Premises, each party agrees to be bound by the approval and actions of
their respective construction representatives. Unless changed by
written notification, the parties hereby designate the following
individuals as their respective construction representatives:
FOR LESSOR: FOR LESSEE:
Xxxxx XxxXxxxxx Xxxxxx Xxxxxxx
c/o Xxxx-Xxxx Realty Corporation Synova Healthcare, Inc.
0000 Xxxxxxxxx Xxxxx Rose Tree Corporate Center II
Suite 100 0000 X. Xxxxxxxxxx Xxxx, Xxxxx Xxxxx
Xxxxxx, XX 00000 Xxxxx, XX 00000
(000) 000-0000 (000) 000-0000
Exhibit C - Page 4
EXHIBIT C - 1
AIR CONDITIONING & HEATING DESIGN STANDARDS
The following are design standards for the building air-conditioning system for
cooling and heating in the air in the subject building:
1. During the normal heating season to maintain an average indoor dry bulb
temperature of not less than 70 degrees F (21 degrees C) or more than
76 degrees (24.4 degrees C) when the outdoor dry bulb temperature is
lower than 65 degrees F (18 degrees C) but not lower than 0 degrees F
(-13 degrees C).
2. To maintain comfort cooling for an average indoor dry bulb temperature
of not more than 78 degrees F when the outside dry bulb temperature is
95 degrees F (24 degrees C).
3. During the intermediate seasons, when the outside dry bulb temperature
is below 55 degrees (13 degrees C), cooling will be provided by outside
air usage in conjunction with operating of return air, outside air and
exhaust air dampers.
4. To furnish not less than .10 cubic foot of fresh air per minute per
square foot of rentable area, and between .20 and 1.0 cubic feet of
total air per minute, per square foot of rentable occupied space.
5. Lessor will not be responsible for the failure of the air-conditioning
system if such failure results from (i) the occupancy of the Premises
with more than an average of one (1) person for each one hundred (100)
usable square feet of floor area (ii) the installation or operation by
Lessee of machines and appliances, the installed electrical load of
which when combined with the load of all lighting fixtures exceeds five
(5) xxxxx per square foot of floor area and in any manner exceeding the
aforementioned occupancy and electrical load criteria, or (iii)
rearrangement of partitioning after the initial preparation of the
Premises. If interference with normal operation of the air-conditioning
system in the Premises results, necessitating changes in the air
conditioning system servicing the Premises, such changes shall be made
by Lessor upon written notice to Lessee at Lessee's sole cost and
expense. Lessee agrees to lower and close window coverings when
necessary because of the sun's position whenever the air conditioning
system is in operation, and Lessee agrees at all times to cooperate
fully with Lessor and to abide by all the Rules and Regulations
attached hereto as well as reasonable rules and regulations which
Lessor may hereafter prescribe involving the air-conditioning system.
-- END --
Exhibit C-1 - Page 1
EXHIBIT D
---------
CLEANING SERVICES
(Five Nights Per Week)
LESSEE'S PREMISES
-----------------
1. Vacuum clean all carpeted areas.
2. Sweep and dust mop all non-carpeted areas. Wet mop whenever necessary.
3. All office furniture such as desks, chairs, files, filing cabinets,
etc. shall be dusted with a clean treated dust cloth whenever necessary
and only if such surfaces are clear of Lessee's personal property
including but not limited to plants.
4. Empty and wash ashtrays.
5. Empty wastepaper baskets and remove waste to the designated areas.
6. All vertical surfaces within arms reach shall be spot cleaned to remove
finger marks and smudges. Baseboard and window xxxxx are to be spot
cleaned whenever necessary.
7. All cleaning of cafeterias, vending areas, kitchen facilities are
excluded. Lessee may make necessary arrangements for same directly with
Lessor's cleaning maintenance company.
8. Cleaning hours shall be Monday through Friday between 5:30 p.m. and
11:00 p.m.
9. No cleaning service is provided on Saturday, Sunday and Building
Holidays.
10. Cartons or refuse in excess which can not be placed in wastebaskets
will not be removed. Lessee is responsible to place such unusual refuse
in trash dumpster.
11. Cleaning maintenance company will not remove nor clean tea, office cups
or similar containers. If such liquids are spilled in waste baskets,
the waste baskets will be emptied but not otherwise cleaned. Lessor
will not be responsible for any stained carpet caused from liquids
leaking or spilling from Lessee's wastepaper receptacles.
12. Upon completion of cleaning, all lights will be turned off and doors
locked leaving the Premises in an orderly condition.
13. Glass entrance doors will be cleaned nightly. Interior glass doors or
glass partitions are excluded. Lessee may make arrangements for same
with Lessor's cleaning maintenance company.
COMMON AREAS
1. Vacuum all carpeting in entrance lobbies, outdoor mats and all
corridors.
2. Wash glass doors in entrance lobby with a clean damp cloth and dry
towel.
3. Clean cigarette urns. Sweep and/or wet mop all resilient tile flooring.
Hard surface floors such as quarry tile, etc., shall be cleaned
nightly.
4. Wash, clean and disinfect water fountains.
5. Clean all elevators and stairwells.
6. Lavatories -- Men and Women.
a. Floors in all lavatories shall be wet mopped each evening with a
germicidal detergent to ensure a clean and germ free surface.
b. Wash and polish all mirrors, shelves, bright work including any
piping and toilet seats.
c. Wash and disinfect wash basins and sinks using a germicidal
detergent.
d. Wash and disinfect toilet bowls and urinals.
e. Keep lavatory partitions, tiled walls, dispensers and receptacles
in a clean condition using a germicidal detergent when necessary.
f. Empty and sanitize sanitary disposal receptacles.
g. Fill toilet tissue holders, towel dispensers and soap dispensers.
Refills to be supplied by Lessor.
7. Clean all air ventilation grill work in ceilings.
Exhibit D - Page 1
EXHIBIT E
---------
BUILDING HOLIDAYS
BUILDING CLOSED
* NEW YEAR'S DAY *
* MEMORIAL DAY *
* INDEPENDENCE DAY *
* LABOR DAY *
* THANKSGIVING DAY *
* CHRISTMAS DAY *
-- END --
Exhibit E - Page 1
EXHIBIT F
TENANT ESTOPPEL CERTIFICATE
TO: MORTGAGEE and/or its affiliates and/or whom else it may concern:
1. The undersigned is the Lessee (Tenant) under that certain Lease dated
by and between as Lessor (Lessor) and as Lessee, covering those
certain premises commonly known and designated as r.s.f. on the ( )
floor of
,NJ.
2. The Lease has not been modified, changed, altered or amended in any
respect (except as indicated following this sentence) and is the only
Lease or agreement between the undersigned and the Lessor affecting
said premises. If none, state "none".
3. The undersigned has made no agreements with Lessor or its agents or
employees concerning free rent, partial rent, rebate of rental
payments or any other type of rental concession (except as indicated
following this sentence). If none, state "none".
4. The undersigned has accepted and now occupies the premises, and is and
has been open for business since , 200_. The Lease term began , 200_,
and the rent for said premises has been paid to and including , 200_
in conformity with this Lease agreement. No rent has been prepaid for
more than two (2) months. The fixed minimum rent being paid as above
is $ __________ per month. If Lessee is not in full possession,
whether Lessee has assigned the Lease, sublet all or any portion of
the Premises, or otherwise transferred any interest in the Lease or
the Premises, Lessee agrees to provide a copy of such assignment,
sublease, or transfer upon request.
5. The Lease is not in default and is in full force and effect. As of the
date hereof, the undersigned is entitled to no credit, no free rent
and no offset or deduction in rent.
6. All alterations, improvements, additions, build-outs, or construction
required to be performed under the Lease have been completed in
accordance with the terms of the Workletter attached to Lease as
Exhibit C.
7. The Lease does not contain and the undersigned doesn't have any
outstanding options or rights of first refusal to purchase the
premises or any part thereof or the real property of which the
premises are a part.
8. No actions, whether voluntary or otherwise, are pending against the
undersigned under the bankruptcy laws of the United States or any
State thereof.
9. There are currently no valid defenses, counterclaims, off-sets,
credits, deductions in rent, or claims against the enforcement of any
of the agreements, terms, or conditions of the Lease.
10. The undersigned acknowledges that all the interest of Lessor in and to
the above-mentioned Lease is being duly assigned to MORTGAGEE or one
of its affiliates hereunder and that pursuant to the terms thereof (i)
all rental payments under said Lease shall continue to be paid to
Lessor in accordance with the terms of the Lease unless and until you
are otherwise notified in writing by MORTGAGEE, or its successor or
assigns and (ii) no modification, revision, or cancellation of the
Lease or amendments thereto shall be effective unless a written
consent thereto of such mortgagee is first obtained.
11. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of the Lessee.
Dated this ________ day of __________________ , 200_
, LESSEE
-----------------------------------
Name:
Title:
Exhibit F - Page 1
EXHIBIT G
---------
COMMENCEMENT DATE AGREEMENT
1.0 PARTIES
THIS AGREEMENT made the _________day of ________, 200__ is by and
between ________________ (hereinafter "Lessor") whose address is c/o
Cali Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
and _________________________ (hereinafter "Lessee") whose address is
________________________________________.
2.0 STATEMENT OF FACTS
2.1 Lessor and Lessee entered into a Lease dated ____________,
200__ (hereinafter "Lease") setting forth the terms of
occupancy by Lessee of approximately ________ rentable square
feet on the _____ (___) floor (hereinafter "Premises") at
_____________________________ (hereinafter "Building"); and
2.2 The Term of the Lease is for ____________ (__) months with the
Commencement Date of the initial Term being defined in the
Preamble to the Lease as being subject to change under
Articles 27 and 43 thereof; and
2.3 It has been determined in accordance with the provisions
of Articles 27 and 43 of the Lease that ___________, 200__ is
the Commencement Date of the Term of the Lease.
3.0 STATEMENT OF TERMS
NOW, THEREFORE, in consideration of the Premises and the
covenants hereinafter set forth, it is agreed:
3.1 The Commencement Date of the Term of the Lease is ___________
, 200__ and the Expiration Date thereof is _____________ ,
200__ and the Lease Preamble Articles 6 and 9 shall be deemed
modified accordingly.
3.2 Article 10 of the Preamble shall be deemed modified as
follows:
3.3 This Agreement is executed by the parties hereto for the
purpose of providing a record of the Commencement and
Expiration Dates of the Lease, adjust the Term of the Lease
and Fixed Basic Rent amount accordingly.
EXCEPT as modified herein, the Lease covering the Premises shall remain
in full force and effect as if the same were set forth in full herein and Lessor
and Lessee hereby ratify and confirm all the terms and conditions thereof.
THIS AGREEMENT shall be binding upon and inure to the benefit of the
parties hereto and their respective legal representatives, successors and
permitted assigns.
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under the Lease or this Agreement or make any claim that the Lease or
this Agreement is invalid or unenforceable due to any failure of this document
to comply with ministerial requirements including, but not limited to,
requirements for corporate seals, attestations, witnesses, notarizations, or
other similar requirements, and each party hereby waives the right to assert any
such defense or make any claim of invalidity or unenforceability due to any of
the foregoing.
IN WITNESS THEREOF, Lessor and Lessee have hereunto set their hands and
seals the date and year first above written and acknowledge one to the other
they possess the requisite authority to enter into this transaction and to sign
this Agreement.
_________________________________ __________________________________
LESSOR LESSEE
By: Xxxx-Xxxx Sub__, Inc.,
Managing General Partner
By: ________________________________ By:_______________________________
Xxxxxxx X. Xxxxxx Name:
Vice President - Leasing Title:
Exhibit G - Page 1
EXHIBIT H
SAMPLE FORM - LETTER OF CREDIT
[DATE]
TO:
[Name of Beneficiary]
[Address]
Re: Irrevocable Letter of Credit
Gentlemen:
By order of our client, _________________________, we hereby establish
our irrevocable Letter of Credit No. ______ in your favor for a sum or sums not
to exceed $__________________- (_________________U.S. Dollars) in the aggregate,
effective immediately.
This Letter of Credit shall be payable in immediately available funds
in U.S. Dollars. Funds under this credit are payable to you upon your
presentation to us a sight draft drawn on us in the form annexed hereto. All
drafts must be marked: "Drawn under Letter of Credit No. ____ of [Name of
Issuing Bank].
This Letter of Credit shall expire twelve (12) months from the date
hereof; but is automatically extendable, so that this Letter of Credit shall be
deemed automatically extended, from time to time, without amendment, for one
year from the expiration date hereof and from each and every future expiration
date, unless at least sixty (60) days prior to any expiration date we shall
notify you by registered mail that we elect not to consider this Letter of
Credit renewed for any such additional period. The final expiration date hereof
shall be no earlier than [fill in suitable date after expiration of lease].
This Letter of Credit is transferable and may be transferred one or
more times. However, no transfer shall be effective unless advice of such
transfer is received by us in our standard form.
We hereby agree to honor each draft drawn under and in compliance with
this Letter of Credit, if duly presented at our offices at
___________________________or at any other of our offices.
This Letter of Credit is subject to the International Standby Practices
1998, International Chamber of Commerce Publication No. 590.
[Name of Bank]
By:
[Annex Bank's Form of Sight Draft]
Exhibit H - Page 1
