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XXX XXXX XXXXX ASSOCIATES, L.L.C. ("LANDLORD")
TO
BIOSONICS, INC. ("TENANT"),
.
LEASE
Space
0000x/- XXXXXXXX XXXXXX FEET
000 Xxx Xxxx Xxxxx, Xxxx Xxxxxxxxxx
Upper Dublin Township, Pennsylvania
Term
FROM OCTOBER 1, 1996 TO SEPTEMBER 30, 1998
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LEASE
THIS IS A LEASE AGREEMENT ("Lease"), dated __________, by and between
New York Drive, L.L.C. ("Landlord"), a Pennsylvania limited liability company,
and Biosonics Inc. ("Tenant").
Intending to be legally bound hereby, Landlord and Tenant agree:
1. LEASED SPACE; TERM.
(a) Landlord hereby leases to Tenant for use only as general
offices and administrative of 2761+/- rentable square feet ("Leased Space")
shown in the attached Exhibit A in the office building ("Building") at 000 Xxx
Xxxx Xxxxx, Xxxxx Xxxxxx Xxxxxxxx, Xxxxxxxxxxxx. The Leased Space contains an
area of 2761+/- rentable square feet which includes Tenant's agreed share of
hallways and other common areas.
(b) The term of the lease is two years and zero months
from the later of
(i) the first of the month after the date of this
Lease, or
(ii) the date Landlord notifies Tenant that the
Leased Space is ready for occupancy following substantial completion of the
work to be performed by Landlord pursuant to paragraph 3 hereof.
2. BASE RENT.
(a) The annual base rent is $40,034.50, payable in
consecutive, equal monthly installments of $3,336.21, prorated for any partial
calendar month of occupancy, payable in advance without prior notice or demand,
and without any set-off or deduction whatsoever, on the first day of each month
at Landlord's principal office in Upper Dublin Township or at such other place
as Landlord may direct, except the base rent for the unexpired portion of any
month in which the term begins will be paid on such beginning date and for the
first full month of the term will be paid on the date of this Lease.
(b) Additional Rent: Tenant agrees to reimburse Landlord on a
monthly basis upon notice and demand for Tenant's pro rata share of utilities.
3. COST OF LIVING ADJUSTMENTS TO BASE RENT.
(a) On January 1 of each calendar year during the term of this
Lease, the annual base rent payable by Tenant hereunder shall be increased (but
never decreased) by an amount equal to the product of: (i) one hundred percent
(100%) of the annual base rent as adjusted pursuant to this paragraph for the
preceding calendar year, times (ii) the percentage change in the "index" (as
hereinafter defined) between December of the preceding calendar year and
December of the second preceding calendar year. Provided however that the first
adjustment to base rent pursuant to this paragraph shall be reduced by a
percentage equal to the number of months commencing with the commencement date
of this lease and ending on December 31 of the preceding calendar year divided
by twelve.
(b) As soon as the Index for the preceding calendar year
becomes available to Landlord, Landlord shall forward a statement to Tenant
setting forth: (i) the Index for December of the preceding calendar year; (ii)
the Index for December of the second preceding calendar year; (iii) the adjusted
annual base rent for the ensuing calendar year; and (iv) the amount of each
monthly installment thereof. Such statement shall also set forth the amount, if
any, of additional rent payable for such preceding calendar year pursuant to
this paragraph prior to the time that the Index statistics were available, and
Tenant shall pay such additional rent for such period within fifteen (15) days
after its receipt of such statement.
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(c) As used in this paragraph, the term "Index" shall mean the
Consumer Price Index for All Urban Consumers released by the United States
Department of Labor, Bureau of Labor Statistics, relating to Consumer Prices for
All Items in the City of Philadelphia. The statistical methods used for
computing the Index shall be such as are chosen by the United States Department
of Labor for4 that purpose irrespective of whether the methods are changed from
time to time. If the base year selected by the United State Department of Labor
shall be changed, then the resultant index shall be readjusted so as to reflect
the base initially established under this paragraph. If the Index shall no
longer be published or cannot be readjusted, then another index generally
recognized as authoritative shall be selected by Landlord and substituted for
all purposes of this paragraph. Until such alternative Index shall be as last
previously determined, and when the same shall be so established it shall be
applied retroactively to the beginning of the calendar year in question; and
within fifteen (15) days thereafter Tenant shall pay to Landlord the additional
rent determined to be payable under this paragraph.
4. "AS-IS POSSESSION".
Anything herein contained to the contrary and not
withstanding, it is understood and agreed that the Lessee shall accept the
demised premises on an "as is" basis and shall assume all responsibility for
repairs to these premises.
5. COVENANTS OF LANDLORD. LANDLORD WILL:
(a) supply for normal office use heat and air conditioning
service, elevator service, janitorial and cleaning services, electricity, and
hot and cold water, all in amounts and at times consistent with similar services
provided in Class A office buildings in Upper Dublin Township, provided that:
(i) Landlord will not be liable for failure to supply any such services for any
cause beyond its control, or for any cause which in Landlord's judgment shall
require the suspension of any such service for purposes of necessary or proper
maintenance or repair of Building facilities; (ii) if Tenant requires janitorial
and cleaning services beyond those provided by Landlord, Tenant shall arrange
such additional services through Landlord, for which Tenant shall pay Landlord
upon receipt of billing therefor; and (iii) if Tenant requires installation of
additional heating, ventilating and/or air conditioning system, Tenant shall pay
for the furnishing and installation thereof, and in addition shall pay the
metered costs plus ten percent (10%) of such metered costs to compensate
Landlord for its costs in respect of such separate system;
(b) supply and maintain window drapes selected by Landlord for
all outside windows.
6. COVENANTS OF TENANT. Tenant will (at Tenant's sole cost and
expense):
(a) pay to Landlord all amounts due as base rent and
additional rent; and pay to Landlord: (i) a "late charge" on all overdue
installments of base rent and on all overdue payments of additional rent or
other sums payable to Landlord hereunder, such "late charge" to compensate
Landlord for its costs in collecting the same and to be in an agreed upon,
liquidated amount equal to five percent (5%) of the installment or payment so
overdue; and (ii) in addition to the foregoing described "late charge",
interest, at the "overdue interest rate" of twelve percent (12%). Late charges
will be assessed after the fifteenth of the month;
(b) keep the Leased Space in good order and repair, reasonable
wear and tear excepted;
(c) surrender the Leased Space at the end of this Lease in the
same condition in which Tenant has agreed to keep it during the term hereof;
(d) be responsible for the maintenance of all plumbing and
other fixtures in the Leased Space, whether installed by Landlord or by Tenant,
except for Building lavatories which will be maintained by Landlord subject to
paragraph 8(e) hereof. Lessor shall be responsible for ordinary wear and tear of
all plumbing fixtures, kitchen appliances, and other fixtures in the balance of
the Leased Space that are owned
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by Lessor (i.e.. includes replacement of lightbulbs, lighting fixtures etc.).
Any damage caused by negligence of Lessee shall be the responsibility of Lessee.
(e) be responsible (except to the extent provided in paragraph
10 hereof) for repairs and replacements to the Leased Space and in the Building
(including Building lavatories) made necessary by reason of damage thereto
caused by Tenant or its agents, servants, invitees or employees;
(f) comply with all laws and all enactment's and regulations
of any governmental authority relating or applicable to Tenant's occupancy of
the Leased Space, and hold Landlord harmless form all consequences for failure
to do so;
(g) promptly notify Landlord of any damage to or defects in
the Leased Space, and of any injuries to persons or property which occur
therein;
(h) pay for any alterations, improvements or additions to the
Leased space and any light bulbs, tubes and other non-standard Building items,
other than those referred to in paragraph 3 hereof, made by or for Tenant, and
allow a lien to attach to the Building with respect to any of the foregoing;
(i) comply with the rules and regulations set forth in Exhibit
D hereto and with all reasonable changes in and additions to such rules and
regulations (notice of which is given by Landlord to Tenant); such rules and
regulations are and all such changes and additions will be part of this Lease;
(j) comply with all reasonable recommendations of Landlord's
or Tenant's insurance carriers relating to layout, use and maintenance of the
Leased Space.
7. NEGATIVE COVENANTS OF TENANT. Tenant will not:
(a) damage the Leased Space or any other part of the
Buildings, or use any part of the Building not designated for use by Tenant
except as such right is given by special written arrangement apart from this
Lease;
(b) bring into or permit to be kept in the Leased Space any
dangerous, explosive, radioactive or obnoxious substances;
(c) have property of substantial size or quantity delivered to
or removed from the Leased Space without first making arrangements satisfactory
to Landlord;
(d) bring into the Leased Space or use any furniture or
equipment that might be harmful thereto or harmful or annoying to others in the
Building, or place any weight in the Leased Space beyond its safe carrying
capacity (which, unless Tenant is otherwise notified by Landlord, is 200 pounds
per square foot live load); or
(e) conduct itself or permit its agents, servants, employees,
guests or visitors to conduct themselves in a manner which in Landlord's
judgment is improper or unsafe.
8. TENANT'S ACTIONS REQUIRING LANDLORD'S CONSENT.
Without the prior written consent of Landlord, Tenant will
not:
(a) make any use of the Leased Space other than that described
in paragraph 1 hereof;
(b) voluntarily or involuntarily assign, mortgage or pledge
this Lease or sublet all or any part of the Leased Space, except in strict
compliance with the provisions of paragraph 14 hereof;
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(c) alter, improve or add to the Leased Space (all
alterations, improvements, additions and fixtures will belong to Landlord and
remain in the Leased Space at the end of this Lease except that if Landlord asks
that any of the same be removed, Tenant will do so and will restore or repair
any damage to the Leased Space caused by such installation or removal, all at
Tenant's expense);
(d) remove any of Tenant's property from the Leased Space
except such as can be carried by Tenant and as would be reasonable and customary
for persons occupying similar space to remove.
9. ADDITIONAL RIGHTS OF LANDLORD. Landlord may at reasonable times
inspect the Leased Space, show it to prospective tenants during the last year of
the original or any extended term, and alter, improve, repair or add to it to
the extent that Landlord thinks necessary for the protection and maintenance of
the Leased Space or other parts of the Building.
10. LOSS, DAMAGE OR INJURY; INSURANCE.
(a) Tenant will be responsible for and hereby relieves
Landlord from and indemnifies Landlord against all liability by reason or any
injury, damage or loss to any person or property which occurs in the Leased
Space or in any other part of the Building, and which is caused wholly or in
part by the negligence of Tenant, its agents, servants, invitees or employees.
Tenant further releases Landlord from all liability for damage to or loss of any
property of Tenant or any third party which may result from the leakage of water
into the Leased Space, or from any other cause unless resulting from the gross
negligence of Landlord, its agents or employees. Tenant will maintain in force,
and at Landlord's request will produce evidence of, general public liability
insurance with a limit of no less than $1,000,000 per occurrence. Tenant shall
name Landlord as additional insured under the policy. Tenant shall name Landlord
as additional insured under the policy. Lessee shall provide Lessor with a
certificate of insurance within thirty (30) days of full execution of the Lease
Agreement.
(b) Notwithstanding any other provision herein, Landlord and
Tenant hereby release each other, to the extent of the other's insurance
coverage, from liability for loss or damage to the property of the party
granting such release, even if the loss or damage occurred through the
negligence of such other party or its agents, servants, invitees or employees,
provided that this release shall be effective only with respect to loss or
damage occurring during such time as the relevant insurance policy of the party
granting such release contains a clause to the effect that this release does not
affect such policy or the right of the insured to recover thereunder. Each party
will use its best efforts to the end that its policies of insurance will contain
such a clause, but if an additional premium is charged for such waiver, the
party benefiting therefrom, if it desires to have the waiver, will pay to the
other the amount of such additional premium promptly upon being billed therefor.
(c) Tenant will not do anything which would result in the
cancellation, suspension or increase in the rate of fire insurance or other
insurance carried by Landlord; and if any cancellation, suspension or increase
in the rate of fire insurance or other insurance is stated by any insurance
company or by the applicable Insurance Rating Bureau to be due to any activity
or equipment of Tenant in or about the Leased Space or the Building, such
statement shall be conclusive evidence that the increase in such rate is due to
such activity or equipment and, as a result thereof, Tenant shall be liable for
such increase and shall reimburse Landlord therefor upon demand, and any such
sum shall be considered additional rent payable with the monthly installment of
rent next becoming due.
11. RESTORATION OF DAMAGE. If the Leased Space is damaged by fire or
other casualty, Landlord will restore the Leased Space (but not Tenant's
property located therein) with reasonable promptness at Landlord's expense,
except that Tenant may be liable for restoration costs under paragraph 5(e)
hereof, unless the damage to the building is so extensive that Landlord
determines not to restore it, in which event Landlord will so notify Tenant
within sixty (60) days after the occurrence of such casualty and this Lease will
thereupon terminate.
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Landlord will not be liable to Tenant for any interruption in use of the Leased
Space which results from damage to any part of the building, but rent will be
proportionately suspended during any period of time when any part (or all) of
the Leased Space is untenantable.
12. CONDITION OF LEASED SPACE. Landlord leases the Leased Space in its
condition when the term of this Lease begins and without any representation with
respect to it or any duty to repair or alter it except as stated in paragraph 3,
4 and 5 hereof.
13. DEFAULT BY TENANT.
(a) Each of the following shall constitute an event of default (an
"Event of Default") hereunder:
(i) If Tenant fails to pay when due all amounts due hereunder,
including, without limitation, base rent and additional rent; or
(ii) If Tenant fails to perform any of its other obligations
hereunder within ten (10) days after written notice of any such failure has been
given by Landlord; or
(iii) If Tenant abandons or vacates the Leased Space or
removes therefrom all or substantially all of its property; or
(iv) If Tenant files a petition commencing a voluntary case
under the Federal Bankruptcy Code (Title 11 of the United States Code), as now
or hereafter in effect, or under any similar law, or files a petition in
bankruptcy or for reorganization or for an arrangement pursuant to any state
bankruptcy law or any similar state law, or, if Tenant is then a banking
organization, if Tenant files an application for voluntary liquidation or
dissolution applicable to banking organizations; or
(v) If an involuntary case against Tenant as debtor is
commenced by a petition under the Federal Bankruptcy Code (Title 11 of the
United States Code), as now or hereafter in effect, or under any similar law; or
a petition or answer proposing the adjudication of Tenant as a bankrupt or its
reorganization pursuant to any state bankruptcy law or any similar state law
shall be filed in any court and shall not be dismissed, discharged or denied
within sixty (60) days after the filing thereof, or if Tenant shall consent or
acquiesce in the filing thereof; or
(vi) If a custodian, receiver, trustee or liquidator of Tenant
or of all or substantially all of Tenant's property or of the Leased Space shall
be appointed in any proceedings brought by Tenant; or if any such custodian,
receiver, trustee or liquidator shall be appointed in any proceedings brought
against Tenant and shall not be discharged within sixty (60) days after such
appointment; or if Tenant shall consent to or acquiesce in such appointment;
(vii) If Tenant shall generally not pay Tenant's debts as such
debts become due, or shall make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts generally as they become
due;
Then Landlord will have the right to do, once or more often, any one or more of
the following:
(i) declare due and payable and xxx to recover all unpaid rent
and additional rent, and all rent and additional rent for the unexpired term of
this Lease, and all costs and commissions provided or permitted by law;
(ii) declare this Lease terminated;
(iii) enter the Leased Space and sell any property in it;
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(iv) lease all or any part of the Leased Space to any other
person with or without first altering the same;
(v) confess judgment on behalf of Tenant for all amounts due
hereunder with interest, costs and an attorneys' commission of five percent (5%)
using this Lease or a copy as authority for such action; and
(vi) enter an action and judgment in ejectment against Tenant,
using this Lease or a copy as authority and causing a writ of possession to be
issued.
(b) Tenant hereby empowers any attorney or any court of record to
appear for it one or more times and to take on its behalf any or all of the
actions described in (v) and (vi) immediately above, including the entry of
judgment by confession, agreement or otherwise .
(c) If a default by Tenant not involving the payment of money occurs
and is of such a nature that it cannot reasonably be cured within ten (10) days
after written notice as aforesaid, Landlord will not exercise any right, power
or remedy hereunder so long as Tenant is proceeding with due diligence, in good
faith and with continuity to complete the curing of such default, provided that
in all cases the default is completely cured within sixty (60) days after such
written notice, and if not so cured within such 60-day period then Landlord
shall be fully empowered to exercise any right, power or remedy hereunder.
14. EMINENT DOMAIN. If all or part of the Building is taken or
condemned for public use (or if the Owner elects to convey title to the
condemnor by a deed in lieu of condemnation), then at the option of Landlord
this Lease will end as of the date title vests in the condemnor and rent will
xxxxx for the Leased Space. Tenant will have no claim against Landlord or the
condemnor as a result of such condemnation or conveyance except to the extent
that an award shall specifically include an amount in respect of Tenant's moving
expenses.
15. ASSIGNMENT AND SUBLETTING.
(a) In the event Tenant desires to assign this Lease or sublet the
Leased Space or any part thereof, Tenant shall give Landlord written notice of
such desire at least sixty (60) days in advance of the date on which Tenant
desires to enter into such assignment or sublease. Landlord shall then have a
period of thirty (30) days following receipt of such notice within which to
notify Tenant in writing that Landlord elects any of the following options
(which options shall be in writing and shall be the sole and absolute discretion
of Landlord which may not be unreasonably withheld): (i) to terminate this Lease
as to the space affected by the proposed assignment or sublease as of the date
specified by Tenant, in which event Tenant will be relieved of all further
obligations hereunder after such date as to such space; or (ii) to permit Tenant
to assign or sublet such space subject, however, to subsequent written approval
of the proposed assignee or sublessee by Landlord; provided, however, that if
the rental rate agreed upon between Tenant and its sublessee is greater than the
rental rate then payable under this Lease, then eighty percent (80%) of such
excess rental (and of each installment thereof) shall be paid by Tenant to
Landlord as additional rent hereunder within five (5) days of Tenant's receipt
thereof and the remaining twenty percent (20%) of such excess rental (and of
each installment thereof) shall be retained by Tenant; or (iii) to refuse to
consent to Tenant's assignment or to Tenant's subletting such space and to
continue this Lease in full force and effect as to the entire Leased Space. If
Landlord fails to notify Tenant in writing of Landlord's election within such
thirty (30) day period, Landlord shall be deemed to have elected option (iii)
above.
(b) In respect of the foregoing: (i) no assignment or subletting by
Tenant shall relieve Tenant of any obligation under this Lease; (ii) any
attempted assignment or sublease by Tenant in violation of the terms and
conditions of this paragraph shall be void; and (iii) the provisions of this
paragraph shall apply fully to any subsequent assignment or subletting by an
assignee or sublessee.
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(c) For purposes of this paragraph any transfer or change in control of
Tenant (or any sublessee or assignee) by operation of law or otherwise shall be
deemed an assignment hereunder including, without limitation, any merger,
consolidation, dissolution or any change in the controlling equity interests of
Tenant or any subtenant or assignee (in a single transaction or a series of
related transactions).
16. EXTENSION OF TERM; WAIVER; HOLDING OVER.
(a) This Lease will end at the conclusion of the term stated in
paragraph 1 hereof unless it is continued as provided below. Landlord by notice
to Tenant at least ninety (90) days before the end of such term may state its
desire to continue this Lease for an additional period of time upon the same
terms and conditions or upon such other terms and conditions as it may specify
in such notice. If such a notice is given and Tenant fails to notify Landlord
within thirty (30) days thereafter that Tenant does not agree to such
continuation, this Lease will be continued for the additional term and upon the
terms specified by Landlord in its notice. Tenant waives, to the extent
permissible under law, all rights to receive any notice to quit the Leased Space
at termination of this Lease (whether on conclusion of the term or any renewal
thereof or on earliest termination following a default by Tenant).
(b) If Tenant retains possession of the Leased Space or any part
thereof after termination of this Lease by expiration of the lease term or
otherwise, Tenant shall pay Landlord: (i) as agreed liquidated damages (and not
as a penalty) for such wrongful retention alone, an amount, calculated on a per
diem basis for each day of such wrongful retention, equal to twice the annual
base rent and the additional rent for the time Tenant thus remains in
possession, and (ii) all other damages, costs and expenses sustained by Landlord
by reason of Tenant's wrongful retention. Without limiting any rights and
remedies of Landlord resulting by reason of the wrongful holding over by Tenant,
or creating any right in Tenant to continue in possession of the Leased Space,
all of Tenant's obligations with respect to the use, occupancy and maintenance
of the Leased Space shall continue during such period of wrongful retention.
17. RELOCATION OF TENANT. Landlord, after ninety (90) days' prior
written notice, may require Tenant to move from the Leased Space to another
location of comparable size in the building in order to permit Landlord to
consolidate the Leased Space with other space leased or proposed to be leased by
another existing or prospective tenant in the Building; provided, however, that
in the event of receipt of any such notice, Tenant, by written notice to
Landlord given within forty-five (45) days following its receipt of Landlord's
notice, may elect not to move to the other space and in lieu thereof may
terminate this Lease effective on the date of the proposed relocation set forth
in Landlord's notice. In the event of any such relocation: (a) Landlord will pay
all expenses of preparing and decoration the relocated premises so that they
will be substantially similar to the Leased Space and, in addition, will pay the
expense of moving Tenant's furniture and equipment to the relocated premises;
and (b) Landlord and Tenant will execute a modification of or supplement to this
Lease in respect of and identifying such relocated premises, such to be
otherwise on terms identical to the terms hereof.
18. NOTICES. All notices hereunder to be effective must be in writing
and delivered at or sent registered or certified mail to Landlord at its
principal office in Upper Dublin Township and to Tenant at the address stated
after its name above, or at such other address as either party may hereafter
give the other for such purpose. Notices will be deemed to have been given when
so delivered or mailed by certified mail, return receipt requested.
19. DELAYS IN EXERCISING RIGHTS. No delay or omission by Landlord or
Tenant in exercising any right upon any default by the other will impair any
such right or be construed as a waiver of any such default or an acquiescence in
it. No waiver of any default will affect any later default or impair any rights
of Landlord or Tenant with respect thereto. No single, partial or full exercise
of any right by Landlord or Tenant will preclude other or further exercise
thereof.
20. ESTOPPEL CERTIFICATES. Each party shall, at any time and from time
to time, at the request of the other party, upon not less than five (5) days'
notice, if given in person, or ten (10) days' notice, if given
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by mail, execute and deliver to the other a statement certifying that this Lease
is unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), certifying the dates to which the base rent and additional rent
have been paid, and stating whether or not, to the best knowledge of the signer,
the other party is in default in performance of any of its obligations under
this Lease, and, if so, specifying each such default of which the signer may
have knowledge, it being intended that any such statement delivered pursuant
hereto may be relied upon by others with whom the party requesting such
certificate may be dealing.
21. ATTORNMENT. If the lessor of a superior lease or the holder of a
superior mortgage will succeed to Landlord's interest in the Building or the
rights of Landlord under this Lease, whether through possession or foreclosure
action delivery of a lease or a deed or otherwise, then at the election of such
party so succeeding to Landlord's rights (herein sometimes called "successor
landlord"), Tenant shall attorn to and recognize such successor landlord as
Tenant's landlord under this Lease, and shall promptly execute and deliver any
instrument that such successor landlord may reasonably request to evidence such
attornment. Tenant hereby irrevocably appoints such successor landlord Tenant's
attorney-in-fact to execute and deliver such instrument for and on behalf of
Tenant. Tenant hereby waives any right Tenant may have under any present or
future law to terminate this Lease or surrender the Leased Space by reason of
the institution of any proceeding to terminate a superior lease or action to
foreclose a superior mortgage, and this Lease shall not be affected by any such
proceeding or action unless and until the lessor of the superior lease, or
holder of the superior mortgage, elects in such proceeding or action to
terminate this Lease.
22. CONSENTS. Wherever in this Lease it is provided that either party
shall not unreasonably withhold consent or approval or shall exercise its
judgment reasonably, such consent or approval or exercise of judgment shall also
not be unreasonably delayed. In the event of a final determination by a court of
competent jurisdiction to the effect that a requested consent was unreasonably
withheld or delayed, the requested consent shall be deemed to have been granted
for all purposes of this Lease; provided, however, that the party who shall have
refused or failed to give such consent at all or in a timely manner shall not
have any liability to the other party therefor.
23. LIMITATION OF LIABILITY. Tenant shall look only to Landlord's
interest in the Building and land upon which it is situated (or the proceeds
thereof) for the satisfaction of Tenant's remedies for the collection of any
judgment by Landlord in the event of any default by Landlord under this Lease,
and no other property or other assets of Landlord shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to this Lease, the relationship of Landlord and
tenant hereunder or Tenant's use and occupancy of the Leased Space.
24. ACCESS; CHANGES IN BUILDING FACILITIES.
(a) For the purpose of exercising Landlord's rights as set
forth in paragraph 4, 8, and 10 hereof, Tenant will permit Landlord, or its
agents or other representatives, access to the Leased Space, without charge
therefor to Landlord and without diminution of the base rent or additional rent
payable by Tenant; provided, however, that such access shall not be exercised in
such a manner as unreasonably to interfere with Tenant's use of the Leased
Space.
(b) Tenant shall permit Landlord to install, use and maintain
pipes, ducts and conduits within the demising walls, bearing columns and
ceilings of the Leased Space, provided that the installation work is performed
at such times and by such methods as will not materially interfere with Tenant's
use of the Leased Space, or damage the appearance thereof, materially reduce the
floor area thereof or materially affect Tenant's layout. Where access doors are
required for mechanical trades in or adjacent to the Leased Space, Landlord
shall furnish and install such access doors and confine their location, whatever
practicable, to closets, coat rooms, toilet rooms, corridors and kitchen or
pantry rooms; and Landlord and Tenant shall cooperate with each other in the
location of Landlord's and Tenant's facilities requiring such access doors.
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(c) Landlord reserves the right at any time, without incurring
any liability to Tenant therefor, to make such changes in or to the Building and
the fixtures and equipment thereof, as well as in or to the street entrances,
halls, passages, elevators and stairways thereof, as it may deem necessary or
desirable; provided that there shall be no change detracting from the character
or quality of the Building as a Class A office building, and that there shall be
no unreasonable interference with the use of the Leased Space or with the use of
the Building facilities serving the Leased Space and no material reduction in
rentable area of the Leased Space or in the services furnished to the Leased
Space. Should there be a reduction of the rentable area of the Leased Space by
reason of a change permitted under this paragraph, the base rent hereunder shall
be reduced and additional rent and credits hereunder shall be appropriately
adjusted upon such reduction in rentable area.
25. SECURITY DEPOSIT. Landlord acknowledges that it has received a
security deposit of $8,430.52 prior to the execution of this Lease. Upon the
occurrence of any Event of Default by Tenant, Landlord may from time to time and
without prejudice to any other remedy, use the security deposit to the extent
necessary to make good any arrears of base rent or additional rent, or any other
damage, injury, expense or liability caused to Landlord by such Event of
Default, any remaining balance of such security deposit to be returned by
Landlord to Tenant within a reasonable period of time after the termination of
this Lease. However, the security deposit shall not be considered an advance
payment of rental or a measure of Landlord's damages in case of default by
Tenant. Tenant shall be entitled to receive and shall receive no interest on
such security deposit, and Landlord may commingle the same with other monies of
Landlord. If Landlord shall ever use the security deposit to pay the sums
described above, Tenant shall immediately deposit with Landlord an additional
security deposit equal to the amount so used.
26. PARTIES BOUND, ETC. This Lease will bind and inure to the benefit
of (a) Landlord, its successors and assigns, and (b) Tenant and such of its
successors and assigns as are approved by Landlord under paragraphs 14 hereof.
27. MISCELLANEOUS.
(a) Tenant acknowledges that neither Landlord nor any broker,
agent or employee of Landlord has made any representations or promises with
respect to the Leased Space or the Building except as herein expressly set
forth, and no rights, privileges, easements or licenses are acquired by Tenant
except as herein expressly set forth. Tenant, by taking possession of the Leased
Space, shall accept the same "as is", and such taking of possession shall be
conclusive evidence that the Leased Space and the Building are in good and
satisfactory condition at the time of such taking of possession.
(b) Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture of or between Landlord and
Tenant, or to create any other relationship between the parties hereto other
than that of landlord and tenant.
(c) Landlord recognizes Xxxxx Organization as the sole broker
procuring this Lease and shall pay such broker a commission thereof pursuant to
a separate agreement between such broker and Landlord. Landlord and Tenant each
represent and warrant to each other that except as set forth herein neither of
them has employed any broker, agent or finder in carrying on the negotiations
relating to this Lease. Landlord shall indemnify and hold Tenant harmless from
and against any claim or claims for brokerage or other commissions arising from
or out of any breach of the foregoing representation and warranty by the
respective indemnitors.
(d) "Landlord" means the Landlord named herein. "Tenant" means
all names which appear before that term at the beginning of this Lease,
irrespective of the pronoun used herein with respect to that term.
(e) Each provision hereof constitutes an independent covenant,
enforceable separately from each other covenant hereof.
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(f) This Lease contains the entire agreement of Landlord and
Tenant (except for any changes and additions to rules and regulations pursuant
to paragraph 5(i) hereof), and is subject to change only by a written statement
referring to this Lease and signed by Landlord and Tenant.
(g) This Lease will be governed by the laws of the
Commonwealth of Pennsylvania.
28. PUBLIC AUTHORITY.
Tenant hereby empowers Landlord to act on its behalf (and hereby names
Landlord as its Power of Attorney for such purposes) to obtain any permits,
certificates of occupancy, licenses, or other filings required by any
governmental agency in regards to the work, construction or improvements to be
performed by Tenant on the Lease Space. Tenant agrees that all contact with, and
notices from, governmental agencies will be handled by Landlord or Landlord's
agent, and Tenant will not seek to obtain such permits or licenses without
written approval by Landlord.
29. Attached hereto and made a part of this Lease are the following:
1. Exhibit A
2. Exhibit B
3. Exhibit C
LANDLORD
------------------------------- ----------------------------------
Witness New York Drive Associates, LLC
------------------------------- -----------------------------------
Witness General Partner
TENANT
------------------------------ -----------------------------------
Witness Biosonics Inc.
------------------------------ -----------------------------------
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CERTIFICATE
The undersigned, Secretary of ____________________________________, a
____________________________ corporation (the "Company"), hereby certifies to
Xxxxxxx Office Associates that ______________________________ is the duly
elected and incumbent ___________________________ of the Company, authorized by
action taken by the board of directors of the Company at a meeting duly called
and held at which a quorum was present and acting throughout or by unanimous
written consent of the directors of the Company, which authorization is in full
force and effect as of the date hereof, to execute and deliver on behalf of the
Company the within Lease.
IN WITNESS WHEREOF, the undersigned has executed and sealed this
Certificate as of this ______ day of _________________, 19____.
{CORPORATE SEAL} ________________________________________
Biosonics Inc. , Secretary
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EXHIBIT A
To Lease Dated _________
Between
New York Drive Associates, LLC("Landlord")
and
Biosonics Inc. ("Tenant")
DRAWING OF LEASED SPACE
(Pursuant to Paragraph 1 of the Lease)
and
COMPLETION OF IMPROVEMENTS
(Pursuant to Paragraph 4 of the Lease)
"as-is" possession
14
EXHIBIT B
To Lease Dated ______________
Between
New York Drive Associates, LLC ("Landlord")
and
Biosonics Inc. ("Tenant")
ADJUSTMENTS TO BASIC RENT
(Pursuant to Paragraph 2 of the Lease)
1. DEFINITIONS. As used in this exhibit B, the following terms shall have
the following meanings:
(a) "Actual Utility Costs" shall mean all of Landlord's utility costs
incurred in the operation and maintenance of the Building (and the underlying
land), related facilities in operation, and such facilities added in subsequent
years as may be determined by Landlord to be necessary or desirable.
Utility costs will be computed on the accrual basis and in accordance with the
terms of this Lease.
The term "Utility Costs" as used herein shall include the Cost of all utilities
for the Building, including, but not limited to, the cost of water, sewer,
power, heating, lighting, air conditioning and ventilating (excluding those
costs billed to specific tenants).
(b) "Impositions" shall mean all taxes, assessments and governmental
charges, whether federal, state, county or municipal, and whether they be by
taxing districts or authorities presently taxing the Building (and the
underlying land) or by others subsequently created or otherwise, and any other
taxes and assessments attributable to the Building (and the underlying land) or
their operation, whether or not directly paid by Landlord, excluding, however,
federal and state taxes or income, death taxes, excess profit taxes, franchise
taxes or other taxes imposed or measured on or by the income of Landlord from
the operation of the Building or imposed in connection with any change of
ownership of the Building or the underlying land; Impositions shall not include
any assessment on expansion or modification of the office complex which the
Leased Premises are a part.
(c) The "Initial Utility Cost" shall be the Actual Utility Costs for 1/1/96
to 12/31/96. The "Initial Tax Basic Cost" shall be the total Impositions billed
for the calendar year 1/1/96 to 12/31/96.
(d) "Computed Utility Costs" shall mean, with respect to each calendar year
during the term of this Lease, the Actual Utility Costs for such year computed
in accordance with the provisions of paragraph 1 (a) of this Exhibit B. The term
"Tenant's Share of Computed Utility costs" shall mean, with respect to any
calendar year, the Computed Utility Costs for such year, less the Initial
Utility Cost divided by the net rentable area of office space in the building
and (z) multiplied by the number of square feet of net rentable area contained
within the Leased Space.
(e) "Tenant's Share of Computed Tax Expenses" shall mean, with respect to
each calendar year the Impositions for such year less the Initial Tax Basic Cost
divided by the net rentable area of the office space
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in the building and (z) multiplied by the number of square feet of net rentable
area contained within the Leased Space.
2. ADJUSTMENTS FOR UTILITY COSTS. For each calendar year during the term of
this Lease, commencing 1997, prior to January 1 of each such year (or prior to
the commencement of the term of this Lease as to the year in which such
commencement occurs), Landlord shall provide Tenant, in writing, with a
comparison of the Initial Utility Cost with the projected Tenant's Share of
Computed Utility Costs with respect to such year and thereafter Tenant shall pay
an adjusted base rent for such year which shall include an appropriate amount on
account of the excess of such projected Tenant's Share of Computed utility costs
over the Initial utility Cost. Landlord shall, within a period of one hundred
fifty (150) days (or as soon thereafter as possible) after the close of each
such calendar year, provide Tenant a statement of the Utility Costs for such
year prepared by a certified public accountant of recognized standing, and a
calculation (based thereon) prepared by Landlord of Tenant's Share of Computed
Utility Costs for such year. If Tenant's share of Computed Utility Costs for
such year is greater than the projected amount theretofore paid by Tenant for
such year, Tenant shall pay to Landlord within thirty (30) days after Tenant's
receipt of the statement the amount of such excess. However, if Tenant's Share
of Computed Utility Costs for such year is less than the projected amount
theretofore paid by Tenant for such year, Landlord shall credit the amount of
such overpayment to the next rent due under this Lease. Any sums payable by
Tenant under this paragraph 2 of Exhibit C shall be deemed additional rent.
3. ADJUSTMENTS FOR TAX INCREASES. For each calendar year during the term of
this lease, commencing 1997, prior to January 1 of each such year (or prior to
the commencement of the term of this Lease as to the year in which such
commencement occurs), Landlord shall provide Tenant, in writing, with a
comparison of the Initial Tax Basic Cost with the projected Tenant's Share of
Computed Tax Expenses with respect to such year, and thereafter Tenant shall pay
an adjusted base rent for such year which shall include an appropriate amount on
account of the excess of such projected Tenant's Share of Computed Tax Expenses
over the Initial Tax Basic Cost. Landlord shall, within a period of one hundred
fifty (150) days (or as soon thereafter as possible after the close of each such
calendar year, provide Tenant with a statement of the Impositions for such year
prepared by a certified public accountant or recognized standing, and a
calculation (based thereon) prepared by Landlord of Tenant's share of Computed
Tax Expenses for such year. If Tenant's Share of Computed Tax Expenses for such
year is greater than the projected amount theretofore paid by Tenant for such
year, Tenant shall pay to Landlord within thirty (30) days after Tenant's
receipt of the statement the amount of such excess. However, if Tenant's Share
of Computed Tax Expenses for such year is less than the projected amount
theretofore paid by Tenant for such year, Landlord shall credit the amount of
such overpayment to the next rent due under this Lease. Any sums payable by
Tenant under this paragraph 3 of Exhibit B shall be deemed additional rent.
4. PRO-RATIONS. should this Lease commence or terminate at any time other
than the first day of a calendar year, Tenant's Share of Computed Utility Costs
and Tenant's Share of Computed Tax Expenses referred to in paragraph 2 and 3 of
this Exhibit C shall be calculated, for the commencement or termination year
only, by the following formula:
Days Occupied X Tenant's Share of = Adjusted Tenant's Share
-------------
Computed Utility of Computed Utility
Costs (or Tenant's Costs (or Adjusted
Share of Computed Tenant's Share of
Tax Expenses) Computed Tax Expenses
5. AUDIT. Tenant shall have the right at all reasonable times, and at its
sole expense, to audit Landlord's books and records for any item relating to
this Lease for any year or years for which additional rental
16
payments become due, or at Landlord's sole discretion Landlord will provide such
audit prepared by a certified public accountant. If such audit reveals greater
than a five percent (5%) discrepancy, Landlord shall reimburse Tenant for its
audit cost and revise its xxxxxxxx to reflect the error.
17
EXHIBIT C
To Lease Dated _________________
Between
New York Drive Associates, LLC ("Landlord")
and
Biosonics Inc. ("Tenant")
RULES AND REGULATIONS
(Pursuant to Paragraph 5(i) of the Lease)
1. Tenant will not:
(a) Use any portion of the Building for any purpose other than that for
which it is intended, or in a manner which may cause damage to the Building or
to property of others located therein, or which may interfere with the comfort
or convenience of others using the Building.
(b) Place any sign or advertising notice in any part of the Building except
as approved by Landlord.
(c) Place or store anything in or on the Building other than in the Leased
Space.
(d) Xxxx, paint, drill into or otherwise damage or deface any part of the
Leased Space or other parts of the Building without Landlord's written
permission or supervision.
(e) Hang or shake anything out of any window or place anything on outside
window xxxxx.
(f) Permit any animals in the Building or the surrounding land, or leave or
keep, except in such places as Landlord may designate for that purpose, any
bicycles vehicles or conveyances.
(g) Use any window shades not previously approved by Landlord in writing.
(h) Add to or change any locks in the Leased Space.
(i) Abuse or misuse the lavatory or toilet facilities in the Building.
(j) Xxxx or prepare food in the Leased Space expect in the utility kitchen
if one is called for by the plans for the Leased Space.
(l) Use the Lease Space for lodging or sleeping, or for any immoral or
illegal purpose.
(m) Occupy or permit to be occupied any portion of the Leased Space as an
office for a public stenographer or typist or as an employment bureau.
(n) Use any advertising or take any other action which in Landlord's
judgment might tend to affect adversely the reputation of the Building and its
desirability as a building for offices.
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2. The Building and adjacent land outside the Leased Space is under the
exclusive control of Landlord. Tenant will not obstruct any part of such
property or throw or place anything in it unless it is designated for that
purpose by Landlord. No one but Landlord and its employees will be allowed on
the roof of the Building or in any of the basement areas except those (if any)
which are designated for use by Tenant.
3. Except during normal working hours, Landlord may exclude persons from the
Building unless they sign a register and show a building pass signed by Landlord
and Tenant.
4. Tenant will lock outer doors before leaving the Leased Space at the end of
the day, and return all keys to the Leased space or any other part of the
Building at the end of this Lease.
5. The carrying in or out of furniture or other bulky material may be
restricted by Landlord to hours when the inconvenience caused to other tenants
will be minimized.
6. Tenant will obtain and use protective mats or carpet covers to be used
under desk chairs and all areas where coffee or other liquids are prepared for
convenience of tenant.
7. Tenant may change locks in the existing suite provided that two copies of
each new key is provided to management.
