PENNSYLVANIA BUSINESS CAMPUS
Township of Horsham,
Xxxxxxxxxx County,
Pennsylvania
NET LEASE AGREEMENT
between
PENNSYLVANIA BUSINESS CAMPUS DELAWARE, INC.
(Landlord)
and
LEXIN PHARMACEUTICAL CORPORATION
(Tenant)
TABLE of CONTENTS
Section Page
------- ----
1. Reference Data ................................................. 1,2,3
2. Demise ......................................................... 4
3. Lease Term ..................................................... 4
4. Rent ........................................................... 6
5. Tenant's Obligations ........................................... 7
6. Operation and Services ......................................... 8
7. Escalation ..................................................... 10
8. Condition of the Premises ...................................... 16
9. Alterations and Fixtures ....................................... 16
10. Landlord's Approval of Tenant's Repairs and
Alterations ................................................... 17
11. Rules and Regulations .......................................... 18
12. Permitted Use .................................................. 18
13. Environmental Matters .......................................... 20
14. Interruption of Services ....................................... 23
15. Fire or Other Casualty ......................................... 24
16. Landlord's Rights to Enter and to Provide
Tenant with Substitute Premises ............................... 25
17. Insurance ...................................................... 27
18. Compliance with Law ............................................ 29
19. Notice of Accident or Breakage ................................. 30
20. Miscellaneous Covenants of Tenant .............................. 30
21. Lease Subordinated ............................................. 32
22. Eminent Domain ................................................. 33
23. Assignment and Subletting ...................................... 34
24. Default ........................................................ 35
25. Landlord's Remedies ............................................ 37
26. Liability of Landlord .......................................... 43
27. Successors and Assigns ......................................... 44
28. Waivers ........................................................ 45
29. Waiver of Trial by Jury ........................................ 45
30. Waiver of Benefits ............................................. 45
31. Severability ................................................... 45
32. Notice ......................................................... 46
33. Brokerage ...................................................... 46
34. Holding Over ................................................... 46
35. Estoppel Certificate by Tenant ................................. 47
36. Security Deposit ............................................... 47
37. Amendment and Modifications .................................... 48
38. Headings and Terms ............................................. 49
39. Recording and Copies ........................................... 49
40. Governing Law .................................................. 49
41. No Joint Venture ............................................... 49
42. Exhibits ....................................................... 49
43. Improvements for Tenant ........................................ Rider
44. Additional Security ............................................ Rider
45. Right of First Refusal ......................................... Rider
46. Tenant's Option to Terminate ................................... Rider
47. Tenant's Right to Audit ........................................ Rider
48. Renewal Term ................................................... Rider
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Exhibit "A" - Outline of Premises
Exhibit "B" - Outline of Lot
Exhibit "C" - Confirmation of Lease Term
Exhibit "D" - Scope of Work Letter and Space Plan
Exhibit "E" - Electrical Modifications
Exhibit "F" - Hazardous Materials Exhibit "G" - Research Animals
Exhibit "H" - Escrow Agreement
Exhibit "I" - First Refusal Space
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Lease Dated: March 29, 1994
1. Reference Data.
Any reference in this Lease to the following subjects shall
incorporate therein the data stated for the subject(s) in this Section:
(a) LANDLORD: Pennsylvania Business Campus Delaware,
Inc., a Delaware corporation
(b) LANDLORD's ADDRESS:
c/o GSIC Realty Corporation
000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
(c) TENANT: Lexin Pharmaceutical Corporation
a Delaware Corporation
(d) TENANT's ADDRESS:
000 Xxxxxxxx Xxxxx
Xxxxxxxx Plaza II, Suite 226,
Horsham, PA 19044
(e) LEASED PREMISES:
BUILDING ADDRESS: Rock Plaza III
000-000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
LEASED PREMISES XXXX XX: Xxxxx # 000
LEASED BUILDING AREA: 12,786 square feet
TENANT's PERCENTAGE OF BUILDING: 34.10%
(based upon 37,500 square feet in the Building)
(f) LEASE TERM: Sixty (60) months
(g) COMMENCEMENT DATE August 1, 1994
(h) EXPIRATION DATE: July 31, 1999
(i) ANNUAL FIXED RENT: (See Below)
MONTHLY FIXED RENT: (See Below)
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Year Annual Fixed Rent Monthly Fixed Rent
---- ----------------- ------------------
1 $ 86,944.80 $7,245.40
2 $ 92,698.50 $7,724.88
3 $ 95,895.00 $7,991.25
4 $105,484.50 $8,790.38
5 $111,877.50 $9,323.13
(j) RENEWAL TERM: See Section 48
(k) ADDRESS FOR NOTICES TO LANDLORD:
Pennsylvania Business Campus Delaware, Inc.
c/o GSIC Realty Corporation
000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: P.B.C. Investment Manager
With a required copy to:
Tower Realty Management Corporation
000 Xxxxxxxxx Xxxx
Campus Center Suite 107
Horsham, Pennsylvania 19044
Attention: Office Park Manager
(1) ADDRESS FOR NOTICES TO TENANT:
Rock Plaza III
000-000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
(m) PERMITTED USE: Biotechnology, research and
development, manufacturing,
distribution and office support for
such uses
(n) LANDLORD's AGENT: Tower Realty Management Corporation
(o) COOPERATING BROKER: Xxxxxxx-Xxxxx Co.
(p) SECURITY DEPOSIT: None
(q) ADDRESS FOR RENT PAYMENTS:
Pennsylvania Business Campus Delaware, Inc.
X.X. Xxx 000000
Xxxxxx, Xxxxx 00000
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SPECIAL SECTIONS NO. 43 TO NO. 48 INCLUSIVE NOT PROVIDED IN
STANDARD FORM OF LEASE BUT FORMING A PART HEREOF, ARE
ATTACHED HERETO IN RIDER CONSISTING OF 8 PAGES.
The parties hereto hereby agree that the information set forth in this
Section 1 accurately sets forth certain data regarding their agreement with
respect to the Leased Premises and agree that such data is hereby incorporated
into this Lease and that any reference in this Lease to the foregoing subjects
shall mean the information set forth for the subjects in this Section 1.
PENNSYLVANIA BUSINESS CAMPUS
DELAWARE, INC.
By: /s/ Guy F. Tcheau
-----------------------------------------
Name: Guy F. Tcheau
Title: Senior Investment Manager
(Corporate Seal) Attest: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Investment Manager
LEXIN PHARMACEUTICAL CORPORATION
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: President
(Corporate Seal) Attest: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
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2. Demise.
Landlord, in consideration of the rent to be paid and the covenants and
agreements set forth herein to be performed by Tenant, hereby demises and leases
to Tenant and Tenant hereby takes and hires from Landlord, for the Lease Term
and at the rents hereinafter described, the Leased Premises identified in
Section 1(e) ("Premises"), as said Premises are outlined in red on Exhibit "A"
attached hereto, initialed and made a part hereof, said Premises being located
in the Building identified in Section 1(e), which Building is located upon that
certain lot or ground outlined in blue on Exhibit "B" attached hereto, initialed
and made part hereof ("Lot"), TOGETHER WITH the non-exclusive right to use the
parking and driveway areas now or hereafter constructed on the Lot and all
common facilities of the Building, in common with Landlord, other tenants of
Landlord, and their invitees, licensees, employees, officers, servants,
contractors and visitors, provided, however, that in no event shall Tenant, its
invitees, licensees, employees, officers, servants, contractors and/or visitors
be entitled to use more than Tenant's Percentage of Building, as set forth in
Section 1(e), of the parking spaces now or hereafter located on the Lot (the
non-exclusive right to use the parking and driveway areas on the Lot and the
common facilities of the Building and the Premises are hereinafter collectively
referred to as the "Leased Premises") . The Leased Premises are a part of a
surrounding office park known as of this date as the Pennsylvania Business
Campus, which is owned by Landlord (the "Office Park").
3. Lease Term.
The Lease Term described in Section 1(f) shall commence on the
Commencement Date set forth in Section 1(g) and shall unless otherwise extended
or terminated as herein provided terminate on the Expiration Date set forth in
Section 1(h) without the necessity of notice from either Landlord or Tenant, and
Tenant shall surrender possession and vacate the Leased Premises on the
Expiration Date. Tenant hereby waives. notice to vacate or quit the Leased
Premises and agrees that Landlord shall be entitled to the benefit of all
provisions of law respecting the summary recovery of the Leased Premises from a
tenant holding over to the same extent as if statutory notice had been
given.
If Tenant takes possession of the Leased Premises after the
"Improvements" (as defined in Section 43 of Rider attached hereto and made a
part hereof) have been substantially completed" (as defined in Section 43 of the
Rider hereto) and prior to the Commencement Date then (i) the Lease Term shall
commence as of the date that Tenant take possession of the Leased Premises, (ii)
notwithstanding the provisions of Section 4, Annual Fixed Rent and Additional
Rent shall be payable in advance on a prorated per
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diem basis for the period from the date that Tenant takes possession to the
Commencement Date, and (iii) such taking of possession prior to the Commencement
Date shall not affect the Expiration Date. Tenant's access to construct the
Improvements shall not be construed to mean Tenant's possession of the Leased
Premises.
If (i) the Improvements are not "substantially completed" on the
Commencement Date, or (ii) the Leased Premises are not ready for Tenant's
occupancy on the Commencement Date by reason of force majeure (defined below),
then Landlord shall not be subject to any liability to Tenant by reason of such
delay and (a) the Lease Term and the obligation to pay Rent shall commence on
the date that the Improvements are "substantially completed", or the date that
the Leased Premises are otherwise ready for Tenant's occupancy, (b) the duration
of the Lease Term, as set forth in Section 1(f), shall not be affected thereby,
and the Expiration Date set forth in Section 1(h) shall be adjusted accordingly
to cover the entire duration of the Lease Term, and (c) such failure to give
possession shall not affect the validity of this Lease or any of the obligations
and covenants of Tenant hereunder as used in this paragraph, force majeure means
fires, windstorm, earthquake, war, or acts of God. Force majeure shall not
include strikes or any other labor disturbance.
Notwithstanding the foregoing, if the Improvements are not
"substantially completed" on the Commencement Date for any reason other than by
reason of force majeure, then the Lease Term shall commence on the Commencement
Date and the Annual Fixed Rent, Additional Rent and all other charges payable by
Tenant hereunder shall commence to accrue on the Commencement Date as if the
delay had not occurred. Regardless of force majeure or any other reason, if the
Improvements are not "substantially completed" by December 31, 1994, then the
Lease Term shall commence on December 31, 1994, and the Annual Fixed Rent,
Additional Rent and all other charges payable by Tenant hereunder shall commence
to accrue on December 31, 1994.
If, pursuant to the provisions of this Section 3, the Lease Term
commences on a date other than the Commencement Date, then, within forty-five
(45) days after the date that the actual commencement date of the Lease Term has
been established, Landlord and Tenant shall execute a Confirmation of Lease Term
in the form attached hereto and made a part hereof as Exhibit "C".
Tenant shall notify Landlord in writing, within thirty (30) days after
the Commencement Date, of any defects in the Improvements (and 120 days with
respect to latent defects), and Landlord shall, upon receipt of such notice,
promptly take reasonable action necessary to correct any such defect. Except for
any defects identified in a written notice from Tenant to Landlord within such
thirty (30) day (and 120 days with respect to latent defects), it shall be
presumed that all work in connection with the Improvements theretofore performed
by or on behalf of Landlord was satisfactorily performed in accordance with the
provisions of this Lease; provided that, to the extent that Landlord receives or
obtains warranties or guarantees from its contractor selected by Landlord to
make the "Improvements" described in Section 43 or from the manufacturers of any
equipment or fixtures to be provided by Landlord as part of the Improvements,
which
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warranties or guarantees extend beyond said thirty (30) day period, Landlord
shall use reasonable efforts to enforce such warranties and guaranties or, at
Landlord's option, assign some or all of same to Tenant, if Tenant gives
Landlord timely notice of a defect or malfunction covered by such guaranties or
warranties.
4. Rent.
During the Lease Term, Tenant shall pay to Landlord the Annual Fixed
Rent as set forth in Sect on 1(i). The Annual Fixed Rent shall be payable by
Tenant beginning on the Commencement Date (unless otherwise provided herein) in
monthly installments equal to he Monthly Fixed Rent as set forth in Section
1(q), in advance on the first day of each month, at the address set forth in
Section 1(q) or at such other place as Landlord may direct Tenant by twenty (20)
days prior written notice; and shall be payable without prior notice or demand,
and without any set-off, deduction or counterclaim whatsoever except that Tenant
shall receive a credit against Annual Fixed Rent payable under this Lease, which
credit shall equal the aggregate Monthly Fixed Rent (less the Operating Expense
Base) actually paid by Tenant to Landlord pursuant to a previous lease between
Tenant and Landlord dated December 17, 1993, for Suite 226 of the Office Park,
and shall be applied to the installments of Monthly Fixed Rent until such credit
is exhausted. Tenant shall also pay to Landlord, as "Additional Rent" hereunder,
the "Operating Expense- Adjustment" (as defined in Section 7.A.), which includes
"Real Estate Taxes" (as defined in Section 7.B.), in accordance with the
provisions of Section 7 hereof, and charges for all electricity consumed upon
the Premises pursuant to Section 6 hereof, and all other sums chargeable to
Tenant hereunder.
All sums payable by Tenant under this Lease, whether or not stated to
be Annual Fixed Rent or Additional Rent, are included in and shall be deemed to
be "Rent" payable by Tenant to Landlord under this Lease, and shall be
collectible by Landlord as Rent and in the event of a default in payment
thereof, Landlord shall have the same rights and remedies as for a failure to
pay Annual Fixed Rent (without prejudice to any other right or remedy
therefor).
If the Lease Term commences on a day other than the first day of a
calendar month, Tenant shall pay to Landlord, on or before the Commencement Date
of the Lease Term, a pro rata portion of the Monthly Fixed Rent from such day
until the first day of the following month, such pro rata portion to be based on
the number of days during the first full calendar month within the Lease Term.
Tenant hereby covenants and agrees to pay all Rent when due, and to pay
interest to Landlord, as Additional Rent, at the "Overdue Interest Rate"
(hereinafter defined) (i) on all overdue installments of Monthly Fixed Rent from
the due date thereof to the date of payment and (ii) on all overdue payments of
Additional Rent or other sums payable to Landlord hereunder from the due date
thereof or from the date of demand for payment, as the case may be, until the
date of payment. As used herein, the
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term "overdue Interest Rate" shall mean and equal. three percent (3%) per annum
over the prime interest rate charged from time to time by (i) Mellon Bank in
Philadelphia, Pennsylvania, or, at Landlord's election, (ii) the largest
commercial bank whose principal office is located in Philadelphia, Pennsylvania.
If Landlord, at any time or times, shall accept any payment of Rent after the
date that same shall become due and payable, such acceptance shall not excuse
delay on subsequent occasions, or constitute, or be construed as, a waiver of
any of Landlord's rights hereunder.
5. Tenant's Obligations.
Throughout the Lease Term and all renewals and extensions thereof, if
any, it shall be the duty and obligation of Tenant, at its sole cost and
expense, unless caused by the gross negligence or intentional acts or omissions
of Landlord or its agents, employees, contractors or invitees regardless of the
cause or fault, to take good care of the Premises, including, but not limited
to, maintenance of the plumbing, interior walls and surfaces (including the
interior surface of exterior walls) , windows, window glass, plate glass, doors,
floors and all other parts of the Leased Premises and all other improvements on
the Leased Premises in good repair and condition, normal wear and tear and
casualty excepted. (as used in Section 15) Tenant shall be responsible for the
cost and expense of all repairs, maintenance and replacements, ordinary as well
as extraordinary, foreseen as well as unforeseen, necessary to maintain the
Premises in good repair and condition (ordinary wear and tear and casualty (as
used in Section 15) alone excepted). All repairs, replacements and renewals,
when necessary, made by Tenant shall be performed in a good and workmanlike
manner, and shall be equal in quality and class to the original work. It is
understood that Tenant shall have the benefit of contractor and manufacturing
warranties and guarantees to the extent provided in Section 3 above in
connection with Tenant's discharge of its obligations under this paragraph, and
that Tenant shall have no obligation to make any structural repairs to the
Building unless the need therefor is caused by Tenant's (or its agents' or
employees') acts or negligence or breach of its obligations under this Lease
and then to the extent such structural repairs are not covered by landlord's
insurance on the Building, including any applicable Landlord deductibles.
Landlord, for Tenant's account, shall obtain a maintenance and service
contract covering the components of the Building ("HVAC") that serve solely the
Leased Premises, and Tenant shall reimburse Landlord, as Additional Rent, for
the entire cost and expense of such contract.
During the Lease Term, and any renewal or extension thereof, Tenant
shall, at Tenant's sole cost and expense, provide janitorial, trash removal and
pest control services to the Leased Premises necessary to keep the Leased
Premises in a clean, orderly and sanitary condition and free of insects,
rodents, vermin and other pests.
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In addition, in performance of Tenant's obligations hereunder, Tenant
shall, at Tenant's sole cost and expense, promptly comply with all laws,
statutes, ordinances, regulation, orders and requirements of all federal, state,
county, township, municipal, local or other governmental authorities having
jurisdiction over Tenant and/or its use and Occupancy of the Leased Premises
and/or any work being performed by Tenant, and the appropriate departments,
commissions, boards and officers thereof, and with the orders, rules and
regulations of the Board of Fire Underwriters or another body hereafter
constituted exercising similar functions thereto. Tenant shall promptly pay for
all work performed pursuant to its repair and maintenance obligations.
If Tenant fails or neglects to proceed with due diligence to commence
and complete any and all repairs and/or replacements in accordance with its
obligations hereunder, Landlord, 30 days after the mailing of written notice to
Tenant (except [a] where such repairs and/or replacements by their nature
require a longer period of time to complete, as said time period is agreed to in
writing by Landlord, or [b} in the case of an emergency, in which case no
written notice shall be required to Tenant), may enter upon the Leased Premises
and cause such repairs and/or replacements to be made for the account and at the
expense of Tenant, and Tenant shall pay to Landlord, as Additional Rent
hereunder, all charges for such repairs and/or replacements within 30 days after
receipt of a xxxx for such charges.
Tenant shall, within 15 days after notice from Landlord, discharge any
mechanics' lien for material or labor claimed to have been furnished to the
Leased Premises on Tenant's behalf, and shall indemnify, defend and hold
Landlord harmless from any and all loss and costs incurred by Landlord in
connection with any mechanics' lien claims as may be filed against the Premises,
the Building or the Lot by reason of work or materials ordered by Tenant. The
provisions of this paragraph shall not be applicable to work performed by
Landlord pursuant to Section 43 of this Lease.
Tenant shall surrender the Leased Premises at the expiration of the
Lease Term or at the earlier termination of this Lease, broom clean and in the
same condition as when received, except for ordinary wear and tear and casualty
alone excepted (as used in Section 15).
6. Operation and Services.
Landlord shall furnish to Tenant and the Leased Premises, as long as
Tenant is not in default under any of the provisions of this Lease, through
Landlord's employees or independent contractors, such services and facilities
that are equal in
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scope and, quality as those being customarily provided by landlords of office
buildings of comparable quality and size to the Building in the vicinity of the
Building.
Hot and cold water for normal lavatory purposes and cold water for
drinking purposes shall be provided by Landlord to all lavatories in the
Building twenty-four (24) hours a day, seven days a week. If Tenant requires
water for additional purposes, Tenant shall pay the cost thereof as shown on a
meter to measure such additional consumption to be installed and maintained on
the Leased Premises at Tenant's sole cost and expense.
Electric service shall be furnished to the Leased Premises Twenty-Four
(24) hours a day, seven days a week in amount(s) sufficient to operate the
fixtures, appliances and equipment referred to below; and Tenant shall pay,
either directly to the public utility supplying such electricity (if a separate
meter is installed upon the Premises to measure consumption by Tenant), or to
Landlord as Additional Rent (if a sub-meter is installed upon the Premises), all
charges for all electricity consumed upon the Premises. In the case of a
sub-meter upon the Premises, Tenant shall pay Additional Rent to Landlord for
metered electric consumption based upon the rates then payable to the public
utility company supplying electricity to the Building. Landlord shall be
responsible for the cost and the expense of installing a separate meter or
sub-meter to measure the electricity consumed by Tenant upon the Premises; and
the cost of same shall be deemed to be a cost of the "Improvements" (as defined
in Section 43). See Page 9A
Landlord shall not be liable in any way to Tenant for any failure or
defect in the supply or character of electric energy furnished on the Leased
Premises by reason of any requirement, act or omission of the public utility
serving the Building with electricity. Tenant's use of electric energy in the
leased Premises shall not at any time exceed the capacity of any of the electric
conductors and equipment in or otherwise serving the Leased Premises, it being
understood and agreed that the capacity of the Building electrical system is
such as to allow, with the modifications set forth in Exhibit "E" the use and
operation of normal office equipment and machines as described in the following
sentence, as well as the lighting fixtures and other electrically powered items,
if any, which are included in the Improvements to be provided by tenant. In
order to insure that such capacity is not exceeded and to avert possible adverse
effect upon the Building electric service, Tenant shall not, without Landlord's
prior written consent in each instance, connect to the Building electric
distribution system any fixtures, appliances or equipment other than lamps,
typewriters and similar small office machines which operate on a voltage in
excess of 110 or make any alterations or additions to the electric system of the
Premises except as provided in Exhibit "E". Should Landlord grant such consent
for any such alterations or additions, all additional risers or other equipment
required
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therefor shall be provided by Landlord and all costs and expenses
thereof shall be paid by Tenant as Additional Rent upon Landlord's
demand.
7. Escalation.
A. Operating Expense.
Subject to the terms of the second following sentence, Tenant shall pay
to Landlord, as Additional Rent hereunder, an amount equal to Tenant's
Percentage of Building, as set forth in Section 1(e), of all operating,
maintenance, management, and repair expenses incurred by Landlord in connection
with the ownership and operation of the Building, the Lot and the Premises for
any "Operating Year" (as defined below), including without limitation the items
described hereafter as "Operating Expense" in Section 7.A. (ii); said payments
shall be made by Tenant in the manner and to the extent as set forth in Section
7.c. The amount of Tenant's Percentage of Building of such expenses is
hereinafter referred to as the "Operating Expense Adjustment." If Tenant
occupies the Leased Premises for less than a full Operating Year during the
Lease Term, the Operating Expense Adjustment shall be prorated on a per-diem
basis based upon the amount of time in such Operating Year that Tenant occupies
the Leased Premises. If the Building is not fully occupied during any Operating
Year during the Lease Term, Tenant's Percentage of Building shall be
recalculated for the purposes of determining Tenant's Operating Expense
Adjustment pursuant to this Section 7, except that such recalculation shall only
be for those expenses of the Operating expense that vary with the occupancy of
the Building. For the purposes of said recalculation, the total rentable square
feet in the Building shall be deemed to equal the average (calculated on a
month-by-month basis) of the rentable area of the Building occupied during the
applicable Operating Year.
As used in this Section 7.A., the following words and terms shall be
defined as hereinafter set forth:
(i) "Operating Expense Statement" shall mean a statement in writing
prepared by Landlord's Agent, setting forth in reasonable detail: (a) the
Operating Expense for the Operating Year (or portion thereof if less than a full
Operating Year) immediately preceding the Operating Year in which the statement
is issued, (b) Tenant's Operating Expense Adjustment for such preceding
Operating Year, prorated if only a part of the Operating Year falls within the
Lease Term, (c) the amount of payments of "Monthly Expense Estimate" (as defined
below) made by Tenant in the Operating Year immediately preceding the Operating
Year in which the statement is issued, and (d) the Monthly Expense Estimate for
each month during the Operating Year in which the Operating Expense Statement is
issued. The Operating Expense Statement for each Operating Year shall be
prepared in accordance with the terms of this Lease and standard accounting
practice
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applicable thereto, and shall be set forth in a financial statement certified
by Landlord to be true and correct, which statement shall be available for
inspection by Tenant, for a period of thirty (30) days after its release to
Tenant, at Landlord's office at the Office Park during normal business hours.
The Operating Expense Statement shall constitute a final determination as
between Landlord and Tenant of Tenant's Operating Expense Adjustment for any
Operating Year.
(ii) "Operating Expense" shall mean the following reasonable expenses
incurred by Landlord in connection with the operation, repair, maintenance and
management of the Building, the Lot and the Leased Premises:
(a) Real Estate Taxes (as defined in Section 7(B));
(b) All reasonable costs and expenses incurred with respect to
the maintenance and repair of (i) the Lot, including without limitation the
grounds, parking areas (including resurfacing and repainting), sidewalks and
landscaping and snow removal, (ii) the Building (excluding structural repairs
thereto except as otherwise provided in subparagraph (k) below) and (iii) the
Leased Premises, and the reasonable costs and expenses of all labor,
contractors, supplies equipment and material incidental thereto; reasonable
(c) Janitorial and cleaning costs and expenses for the Building
(including window washing) and the costs of labor, contractors, material,
supplies and equipment used in connection therewith;
(d) The costs and expenses of all rubbish removal and the costs
of labor, contractors, material, supplies and equipment used in connection
therewith;
(e) The costs and expenses of licenses, permits and similar fees
and charges related to the operation, repair and maintenance of the entire
Building and Lot (excluding the costs and expenses of same related to structural
repairs to the Building except as otherwise provided in subparagraph (k)
below);
(f) Wages payable to employees of Landlord whose duties are
connected with the operation and maintenance of the entire Building and Lot,
including payroll taxes, unemployment insurance costs, and fringe benefits
imposed on Landlord for all Office Park on-site personnel;
(g) Reasonable management fees for the Building and Lot;
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(h) Amounts paid to contractors and subcontractors for work or
services performed in connection with the operation and/or maintenance of the
entire Building and Lot (excluding amounts paid for work or services performed
in connection with structural repairs to the Building except as otherwise
provided in subparagraph (k) below);
(i) Building square foot prorated Office Park administration
costs, including expenses incurred for the operation of the management office
and reasonable rental charges for the management office;
(j) The costs and expenses of all utilities not directly metered
to and paid by Tenant (other than charges for electricity consumed by Tenant at
the Premises, payments for which to be as provided in Section 6 hereof);
(k) The costs and expenses of any capital improvements to the
Building, the Lot and the Leased Premises, whether structural or non-structural,
required -by law (but which was not so required at the time of execution of this
Lease) or which reduce other operation and/or maintenance expenses, such costs
and expenses to be amortized over the reasonable useful life of the capital
improvement, together with interest on the unamortized balance of the cost;
(1) The reasonable costs and expenses associated with all
maintenance and service agreements on equipment, including without limitation
alarm service, heating, air conditioning, ventilating, roof repair, electrical,
elevator (where applicable) and window cleaning and maintenance and the costs
and expenses incurred in the maintenance and repair of the Building heating,
air-conditioning, ventilating, plumbing, electrical and elevator (where
applicable) systems of the Building and the costs of labor, material, supplies,
and equipment used in connection with all of the aforesaid;
(m) Insurance premiums and other charges incurred by Landlord
with respect to all insurance relating to the Building and the Lot and the
operation and maintenance thereof, including, without limitation, fire and
extended coverage insurance, including windstorm, hail, explosion, riot, rioting
attending a strike, civil commotion, aircraft, earthquake, vehicle and smoke
insurance, public liability insurance, elevator insurance (where applicable) ,
workmen's compensation insurance, boiler and machinery insurance, rent
insurance, use and occupancy insurance, and health, accident and group life
insurance of all employees Landlord;
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(n) Reasonable auditing and accounting fees, including
accounting fees incurred in connection with the preparation of the Operating
Expense Statements;
(o) Sales and excise taxes and similar taxes upon any of the
expenses listed herein;
(p) Legal fees with respect to the Office Park other than those
incurred in the negotiation or enforcement of tenant leases; and
(q) Any and all other expenditures by Landlord which are properly
expensed in accordance with generally accepted accounting principles
consistently applied with respect to the operation, repair, maintenance,
protection and management of first class office buildings in the vicinity of the
Office Park.
As used in this Section, interest shall mean and equal three percent
(3%) per annum over the prime interest rate announced from time to time by (i))
Mellon Bank in Philadelphia, Pennsylvania or, at Landlord's election, (ii) the
largest commercial bank whose principal office is located in Philadelphia,
Pennsylvania.
To the extent that any of the aforesaid Operating Expenses are incurred
and/or contracted by Landlord for the Office Park as a whole, Landlord shall
reasonably allocate same to the Building and the Lot; but if Landlord, in
Landlord's sole discretion, does not allocate same to individual lots and
buildings, then, in that event, Operating Expense shall include only a pro-rata
share of such expenses based upon the rentable areas of the Building and of the
Office Park as a whole.
Notwithstanding the foregoing, "Operating Expense" shall not include
expenditures for any of the following:
(a) Repairs or other work occasioned by fire, windstorm or other
insured casualty or hazard, to the extent that Landlord shall receive
proceeds of such insurance;
(b) Leasing commissions, advertising expenses and other costs
incurred in leasing or procuring new tenants;
(c) Repairs or rebuilding necessitated by condemnation;
(d) Depreciation and amortization of the Building, other than
depreciation or amortization of equipment, devices or installations
described in Sections 7.A. (ii) above;
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(e) The salaries and benefits of executive officers of Landlord,
if any; or
(f) Ground lease payments or interest and principal payments on
any mortgage or other indebtedness of Landlord; or
(g) Legal, accounting or other expenses related to Landlord's
refinancing, financing mortgaging or selling of any portion of the
Building;
(h) The cost of correcting latent structural defects in the
Building;
(i) Fines, penalties, judgments or legal fees or court costs
incurred for violation of laws or ordinances by Landlord;
(j) expenses incurred by Landlord in providing services for the
sole benefit of other Building tenants;
(k) expenses incurred by Landlord to cause the Office Park to
comply with Landlord's Environmental Statutes (as defined below and as
in effect on the date of this Lease); and
(l) costs of constructing tenant improvements for other tenants
in the Building.
(iii) "Operating Year" shall mean each calendar year, or such other 12
month period as Landlord may adopt as its fiscal year, occurring during the
Lease Term.
B. Real Estate Taxes Defined.
"Real Estate Tax" shall mean all taxes, liens, charges, imposts and
assessments of every kind and nature, ordinary or extraordinary, foreseen or
unforeseen, general or special, levied, assessed or imposed by any governmental
authority on and/or with respect to the Lot and the Building which Landlord
shall become obligated to pay because of or in connection with the ownership,
leasing and operation of the Lot and the Building. Notwithstanding the
foregoing:
(a) there shall be excluded from Real Estate Tax all income
taxes, excess profit taxes, excise taxes, franchise taxes, estate,
succession, inheritance and transfer taxes and penalties due to
Landlord's lateness or failure to pay Real Estate Tax due provided,
however, that if at any time during the Lease Term the present system
of ad valorem taxation of real property shall be changed or
supplemented so that in lieu of or in addition to the ad valorem tax on
real property, there shall be assessed on Landlord a capital levy or
other tax on the gross rents received with respect to the Lot or the
Building, br any other federal, state, county, municipal or other local
income, franchise, excise or similar tax, assessment, levy or charge
(distinct from any now in effect) measured by or based, in whole or in
part upon any such gross rents or any other tax assessed on Landlord or
the Lot or the Building which is imposed, in whole or in part, in
substitution for or in lieu of any other tax which would otherwise
constitute a Real Estate Tax, then any and all of such taxes,
assessments, levies or charges shall be deemed to be included within
the term "Real Estate Tax", but only to the extent that the same would
be payable if the Lot and the Building were the only property of
Landlord; and
(b) there shall be excluded from Real Estate Tax any tax which
Landlord may be required by law to collect from Tenant for payment to
any governmental authority, which Tenant shall pay separately to
Landlord upon demand as Additional Rent hereunder if and to the extent
Landlord is required by law to collect such tax for any such
governmental authority; and
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(c) there shall be applied against Real Estate Tax any refunds of
Real Estate Tax received in such Operating Year, provided, however,
that the expenses of any contests (administrative or otherwise) of tax
assessments or proceedings for refunds incurred shall be included in
the Operating Year in which same are incurred
C. Payment of Operating Expense Adjustment as Additional Rent.
Tenant shall pay to Landlord, as Additional Rent hereunder, Tenant's
Operating Expense Adjustment, as follows:
(a) Beginning with the Commencement Date and continuing
thereafter on the first day of each month until receipt of the
Operating Expense Statement with respect to the Operating Year during
which the Lease Term commences, Tenant shall pay to Landlord an amount
set by Landlord which is sufficient to pay Landlord's estimate of the
Operating Expense Adjustment for the current Operating Year (or portion
thereof) prior to the expiration of the current Operating Year (the
"Monthly Expense Estimate"). The Monthly Expense Estimate for a period
less than a full calendar month shall be duly prorated.
(b) Within 120 days after the end of each Operating Year,
Landlord shall furnish Tenant an Operating Expense Statement. Within
thirty (30) days following the receipt of such Operating Expense
Statement (the "Expense Adjustment Date"), Tenant shall pay to
Landlord: (i) the amount by which the Operating Expense Adjustment for
the Operating Year (or portion thereof) covered by the Operating
Expense Statement exceeds the aggregate of Monthly Expense Estimates
paid by Tenant with respect to such Operating Year (or portion
thereof); and (ii) the amount by which the Monthly Expense Estimate for
the current Operating Year as shown on the Operating Expense Statement
multiplied by the number of months elapsed in the current Operating
Year (including the month in which payment is made) exceeds the
aggregate amount of payments of the Monthly Expense Estimate
theretofore made in the Operating Year in which the Operating Expense
Statement is issued.
(c) On the first day of the first month following receipt by
Tenant of any annual Operating Expense Statement and continuing
thereafter on the first day of each succeeding month until the issuance
of the next ensuing Operating Expense Statement, Tenant shall pay
Landlord the amount of the Monthly Expense Estimate shown on the
Operating Expense Statement.
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(d) If on any Expense Adjustment Date Tenant's payments of the
installments of the Monthly Expense Estimate for the preceding or
current year's Operating Expense Adjustment is greater than the actual
Operating Expense Adjustment for such preceding Operating Year or
Monthly Expense Estimate for the current year, Landlord shall credit
Tenant with any excess, which credit may be offset by Tenant against
next due installments of Additional Rent. If the Lease Term has expired
prior to the Expense Adjustment Date for the applicable Operating Year
and if Tenant's payments of Monthly Expense Estimate either exceeds or
is less than the Operating Expense Adjustment, Landlord shall send the
Operating Expense Statement to Tenant, and an appropriate payment from
Tenant to Landlord or refund from Landlord to Tenant shall be made on
the Expense Adjustment Date.
8. Condition of the Premises.
Tenant represents that the Leased Premises have been examined by
Tenant. Subject to Landlord's constructing the Improvements as described in
Section 43 and to the provisions of Section 3, tenant hereby accepts and leases
the Leased Premises in their "AS-IS" condition. Tenant acknowledges that neither
Landlord nor Landlord's agents, representatives, employees, servants or
attorneys have made any representations or promises, whether express or implied,
concerning the condition of the Leased Premises, and agrees that Landlord shall
have no obligation to make any alterations or improvements to the Leased
Premises except as otherwise expressly set forth in this Lease.
9. Alterations and Fixtures.
Tenant shall not make any alterations, improvements or additions to the
Leased Premises with out the prior written approval of Landlord except that
Tenant may, after giving Landlord written notice thereof (which notice shall
contain a detailed description of any contemplated alterations or improvements),
make alterations, improvements and/or additions to the Premises that (a) total
less than $5,000.00 and (b) involve interior non-structural work to the
Premises. All alterations or improvements made to the Premises (other than the
Improvements (as hereinafter defined) shall be performed by Tenant at Tenant's
sole cost and expense, in a good and workmanlike manner and in compliance with
all laws, statutes, ordinances, regulations, orders and requirements of all
federal, state, county, township, municipal, local or other governmental
authorities having jurisdiction thereof. Tenant shall, within 15 days after
notice from Landlord, discharge any mechanics' lien for material or labor
claimed to have been furnished to the Leased Premises on Tenant's behalf, and
shall indemnify, defend
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and hold Landlord harmless from and against any and all loss and costs incurred
by Landlord in connection therewith. Tenant shall have the right to remove any
equipment, trade fixtures and furniture installed in the Leased Premises by
Tenant, exercisable (i) during and (ii) at the expiration of the Lease Term or
any renewal thereof, provided that Tenant repairs all damage caused to the
Premises by said removal. Tenant shall not remove any alterations, fixtures or
improvements from the Premises without Landlord's prior written approval.
Landlord, by notice to Tenant in writing not later than thirty (30) days after
the expiration of the Lease Term or any renewal thereof, may request that Tenant
remove (i) any of said alterations, fixtures or improvements caused to be made
to the Premises or the Building by Tenant, or by Landlord on Tenant's behalf
(other than the Improvements) or (ii) any of the fixtures, equipment and
furniture caused to be installed in the Premises or the Building by Tenant, or
by Landlord on Tenant's behalf (other than the Improvements), and, if Landlord
so requests, Tenants shall remove each of said items listed in the request on of
before the Expiration Date or within thirty (30) days of Landlord's notice,
whichever is later, and shall repair any damage caused to the Leased Premises
and the Building by said removal. If Landlord requests such removal and Tenant
fails to perform same. or fails to repair any damage caused by such removal on
or before the time provided herein, Tenant agrees to reimburse and pay Landlord
for the reasonable cost of removing same and/or the reasonable cost of repairing
any damage to the Leased Premises and Building caused by said removal. All of
said alterations, improvements, fixtures, equipment and furniture remaining on
the premises after the Expiration Date, or at such sooner termination date of
this Lease, shall become the property of Landlord unless Landlord shall have
given notice to Tenant requesting removal of same as provided herein.
10. Landlord's Approval of Tenant's Repairs and Alterations.
During the Lease Term, if (a) Tenant (i) is obligated under the
provisions of this Lease to make any repairs and/or replacements to the Leased
Premises, or (ii) desires to make any alterations or improvements to the
Premises, and (b) (i) the estimated cost thereof will exceed the sum of Five
Thousand and 00/100 ($5,000.00) Dollars, or (ii) the exterior or structure of
the Leased Premises or the Building are involved, then Tenant shall not commence
same without first obtaining Landlord's prior written approval to the plans and
specifications of the proposed work, which prompt approval may be withheld at
Landlord's sole discretion. In granting its approval, Landlord, in its sole
reasonable discretion, may require Tenant to deposit security with Landlord (the
amount of such security to be determined solely by Landlord) to assure the
removal by Tenant of such alterations and improvements and the restoration and
repair of the Leased
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Premises upon the Expiration Date or sooner termination of this Lease. All such
work shall be performed by a contractor reasonably acceptable to Landlord and
under the supervision of a registered architect or a registered engineer
reasonably acceptable to Landlord. All such work shall be performed in a good
and workmanlike manner and in compliance with all laws, statutes, ordinances,
regulations, orders and requirements of all federal, state, county, township,
local or other governmental authorities having jurisdiction thereof. Prior to
the commencement of any work in connection with all repairs, replacements,
alterations or improvements to the Leased Premises to be performed by Tenant
pursuant to any of the provisions of this Lease, Tenant shall supply Landlord in
every case with satisfactory evidence of the following items: (a) the
procurement of all necessary permits and authorizations from the various
governmental authorities having jurisdiction over the Leased Premises, (b) the
due filing of a satisfactory waiver against mechanics' liens, (c) Tenant's
workmen's compensation insurance, public liability insurance, and property
damage insurance in amounts, form and content, and with companies satisfactory
to Landlord, and Cd) Contractor's workmen's compensation insurance, public
liability insurance, and property damage insurance in amounts, form and content,
and with companies satisfactory to Landlord. Tenant shall, within 15 days after
notice from Landlord, discharge any mechanics' lien for material or labor
claimed to have been furnished to the Leased Premises on Tenant's behalf, and
shall indemnify, defend and hold Landlord harmless from any and all loss and
costs incurred by Landlord in connection therewith.
11. Rules and Regulations.
Rules and regulations governing the use and occupancy of the Building,
the Leased Premises and/or the Office Park may be promulgated from time to time
by Landlord upon written notice to Tenant; provided that no such rule or
regulation applicable to Tenant or the Leased Premises shall be inconsistent
with the provisions of this Lease or the rights of use and occupancy afforded to
Tenant hereunder. Any such promulgated rules and regulations shall be deemed to
be a part of this Lease with the same force and effect as though written herein.
Tenant shall faithfully observe such rules and regulations and shall cause its
employees, servants, officers, invitees, contractors and agents to faithfully
observe same.
12. Permitted Use.
Tenant shall use and occupy the Leased Premises only in conformity with
law and in compliance with a certain Declaration
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of Covenants, Conditions and Restrictions dated February 28, 1983 and recorded
on March 1, 1983 in Xxxxxxxxxx County Deed Book 4702, page 1770, and for the
purposes permitted under Section 1(m) hereof and for no other purposes. Tenant
shall not use or permit any use of the Leased Premises which creates any safety
hazard, which would be dangerous to the Leased Premises, the Building or the
occupants of same, or which would be disturbing to any adjacent tenants in the
Building or tenants of any adjacent building, or which would cause any increase
in premium for any insurance which the Landlord may then have in effect with
respect to the Leased Premises and/or the Building generally. Tenant shall not
do any of the following in connection with the Leased Premises:
(a) install, use or operate any machinery or equipment that is
harmful to the Leased Premises or the Building;
(b) place any weights in any portion of the Leased Premises
beyond the safe carrying capacity of the floors thereof;
(c) commit waste or permit waste to be committed or allow any
nuisance on or in the Leased Premises or the Building;
(d) vacate or desert the Leased Premises during the Lease Term
except in the event of a permitted sublease or assignment of this Lease
in accordance with Section 23, unless Tenant shall first have requested
and obtained Landlord's consent, which consent, inter alia, shall
depend and be conditioned on Landlord's being furnished with such
assurances as Landlord may require of the continuing performance by
Tenant of its obligations under this Lease;
(e) do or permit to be done any act in violation of(i)the laws,
statutes, ordinances, regulations, orders or requirements of any
governmental authority having jurisdiction over the Leased Premises,
(ii) the provisions of the fire or other insurance policies covering
the Leased Premises and/or the Building now or thereafter obtained by
Landlord or Tenant, or (iii) the rules and regulations promulgated by
Landlord pursuant to Section 11.
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13. Environmental Matters
A. Hazardous Materials
Except as otherwise provided herein and except as may be
permitted pursuant to the provisions of Sections 13 (B) and 13 (C) below, Tenant
shall not bring, allow, use, permit upon, generate or create at, or emit or
dispose from, the Lot, the Building or the Leased Premises, temporarily or
otherwise, any toxic or hazardous gaseous, liquid or solid materials or waste
which may or could pose a hazard to the health or safety of the current or
future occupants of the Leased Premises, the Building or the Lot, or to the
owners or occupants of property adjacent to or in the vicinity of the Lot,
including, without limitation, any "hazardous substances" within the meaning of
the federal Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Sections 9601-9657, as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("XXXX"), Pub. L. Xx. 00-000, 000 Xxxx. 0000 (Xxx.
17, 1986), any "toxic chemical" or "extremely hazardous substance" as defined or
listed pursuant to Title III of "XXXX", "regulated substances", as defined in
title I of the federal Resource Conservation and Recovery Act, 42 U.S.C.
Sections 6991, as amended by Section 205 of the Superfund Amendments and
Reauthorization Act of 1986, or "hazardous waste", as defined under the
Pennsylvania Solid Waste Management Act, Pa. Stat. Xxx. title 35 Sections
6018.101 to 6018.1003 (Xxxxxx Supp. 1986), as any of such laws may be amended
from time to time, or any regulated substances or wastes under any laws which
may be enacted in the future by federal, state or local governmental authorities
concerning protection of the environment. All such materials, substances,
chemicals and wastes are hereinafter referred to as "Hazardous Materials"
B. Certain De Minimis Use of Hazardous Materials
Landlord recognizes that the fluids, and toner materials, and
other substances used in current office photocopying equipment, computer
printers and other office equipment and in chemical compounds routinely used for
light office cleaning and housekeeping may contain chemicals which are Hazardous
Materials. Landlord agrees that the provisions of Section 13 (A) shall not be
regarded as prohibiting Tenant's use of such normal office materials so long as
the quantities are limited to amounts required for normal office use and the
materials are contained, stored and used in conformity with manufacturers'
recommendations and all applicable laws, statutes, ordinances, regulations and
orders now existing or hereinafter enacted.
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C. Uses of Hazardous Materials in Tenants Business Operations
Landlord recognizes that in addition to the materials addressed in
Section 13(B), Tenant will handle store, use, and dispose of certain substances
as specified in Exhibit "F," which are Hazardous Materials in the course of its
usual business operations at the Lot, the Building and the Leased Premises
("Business Materials"). Landlord agrees that the provisions of Section 13 A
shall not be regarded as prohibiting Tenant's handling, storage, use, and
disposal of such Business Materials so long as (1) the quantities are limited to
amounts contained, stored and used in conformity with manufacturers'
recommendations and all applicable laws, statutes ordinances, regulations and
orders now existing or hereinafter enacted, including, without limitation the
Environmental Statutes, (2) waste Business Materials are not disposed of
anywhere on the Leased Premises or in the Office Park, and (3) waste Business
Materials are disposed of in conformity with all applicable laws, statutes,
ordinances, regulations and orders now existing or hereinafter enacted,
including, without limitation the Environmental Statutes; provided, however,
Tenant represents and warrants to Landlord that in addition to its compliance
with all Environmental Statutes (i) the Business Materials will not be stored in
any above-ground or below-ground storage tanks, and (ii) the waste Business
Materials will be disposed of promptly and in any event within 30 days.
D. Compliance with Law, Site Contamination
Without limiting the provisions set forth in Section 13 (A) above, and
without qualification by the provisions of Sections 13(B) and 13(C):
(1) Tenant shall conduct all of its operations at and around the
Leased premises in compliance with all statutes, ordinances, regulations, and
orders pertaining to protection of public health, safety, welfare and the
environment, including but not limited to, those statutes enumerated in Section
13(A) hereinabove, now existing or hereafter enacted, or requirements of common
law, concerning (a) its operations, (b) construction of any improvements, (c)
handling of any materials, (d) discharge, release or emission of any material
into the environment, (e) storage, treatment, or disposal of any waste, or (f)
maintenance of bonds, insurance or other forms of financial responsibility for
claims or closure, at or connected with Tenant's operations at the Leased
Premises (collectively, the "Environmental Statutes"). Tenant shall obtain all
permits, licenses, or approvals and shall make all notifications as required by
any of the Environmental Statutes. Tenant shall at all times comply with the
provisions of any and all such permits, licenses, approvals, or notifications.
Tenant shall allow Landlord or its agent to inspect and, upon request, shall
provide to Landlord copies of: (a) applications or other materials submitted to
any governmental agency in compliance with any of the Environmental Statutes;
(b) any notification submitted to any person or entity pursuant to any of the
Environmental Statutes; (c) any permit, license, approval and any amendment or
modification to any permit, license or approval granted pursuant to any of the
Environmental Statutes; (d) any record or manifest required to be maintained
pursuant to any of the Environmental Statutes; and (e) any correspondence,
notice of violation, summons, order, complaint, or other document received by
Tenant pertaining to compliance with any of the Environmental Statutes or in
connection with Restricted Activities.
(2) Tenant shall not cause or allow the contamination of the
Leased Premises, the Building or the Lot, by or through any of the activities
set forth in Section 13(C)(l) hereof ("Restricted Activities") or by any
Hazardous Material. Tenant shall at all times handle Hazardous Materials in a
manner which will not cause an undue risk of contamination of the Leased
Premises, the Building or the Lot. For purposes of this Section 13, the term
"contamination" shall mean the uncontained presence of Hazardous Materials, or
damage resulting from Restricted Activities at the Leased Premises, the Building
or the Lot, that requires any remedial action, including investigation, studies
and interim remedial actions, under any of the Environmental Statutes.
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E. Indemnification
Tenant, and its successors and assigns, shall indemnity and hold
harmless Landlord, and its successors and assigns, of, from and against any and
all expense, loss or liability suffered by Landlord, or its successors or
assigns, by reason of Tenant's, or its successors' or assigns', breach of any of
the provisions of this Section 13, whether such expense loss or liability is
direct or indirect, foreseen or unforeseen, including, but not limited to, (1)
any and all reasonable expenses that Landlord or its successors and assigns may
incur in complying with any of the Environmental Statutes, (2) any and all
reasonable costs that Landlord, or its successors or assigns, may incur in
studying or remedying any contamination, (3) any and all fines or penalties
assessed upon Landlord, or its successors or assigns, by reasons of failure of
Tenant, or its successors and assigns, to comply with the provisions of this
Section 13, (4) any and all loss of value of the Leased Premises, the Building
or the Lot, by reasons of such failure to comply, and (5) any and all legal fees
and costs incurred by Landlord, or its successors or assigns, in connection with
any of the foregoing.
F. Inspections
Landlord and any environmental consultant retained by Landlord
may, from time to time, at reasonable times, after reasonable prior notice and
accompanied by a representative of Tenant (except in the event of an emergency),
enter the Leased Premises to conduct reasonable inspections, tests, samplings or
other investigations in connection with Tenant's obligations under the
provisions of this Section 13.
G. Remedies
Tenant agrees that a breach by Tenant of any of the provisions
of this Section 13 shall be a breach that requires immediate equitable relief.
Therefore, in the event of a breach by Tenant of any of the provisions of this
Section 13, Landlord shall have the right, in addition to the remedies provided
in Section 25 hereof and all other remedies available at law or equity, to
obtain injunctive relief.
H. Survival
The provisions of this Section 13 shall survive the expiration
or sooner termination of the Lease Term. No subsequent modification or
termination of this Lease by agreement of the parties or otherwise shall be
construed to waive or to modify any provisions of this Section 13 unless the
termination or modification agreement or other document so states in writing.
I. Compliance with Law. Landlord, without inquiry, has no knowledge
nor has Landlord received any notice from any governmental agency to the effect
that any activities at the Building, the Lease Premises and the Lot since
Landlord's acquisition of the Lot have been or are being conducted in violation
in any material respect with any laws or regulations concerning repairs or
construction of any improvements, handling of any materials, discharges to the
air, soil, surface, or groundwater, or storage or disposal of any waste at the
Building, the Leased Premises or the Lot. To its actual knowledge, Landlord
possesses all of the permits, licenses, and similar approvals necessary to
conduct Landlord's activities at the Building, the Leased Premises and the Lot,
and no Hazardous Materials are present at the Building, the Leased Premises or
the Lot at the date hereof.
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14. Interruption of Services.
If Landlord is prevented or delayed in performing any work or providing
any services to the Leased Premises as set forth in this Lease, (including, but
not limited to, any slow-down, interruption or stoppage of any such services for
any reasons) Landlord shall not be liable to Tenant for damage to persons or
property or be in default hereunder as a result thereof, and Tenant shall not be
entitled to any abatement or reduction in Rent by reason thereof (provided,
however, that Landlord shall not include within or attribute to Operating
Expense the cost and expense related to any such service not provided by
Landlord), nor shall the same give rise to a claim in Tenant's favor that such
absence of Building services constitutes actual or constructive, total or
partial, eviction or renders the Leased Premises untenantable.
Landlord, hereby reserves the right to stop, slow-down or interrupt
any service or utility system, when necessary by reason of malfunction,
breakage, accident or emergency, until necessary repairs and/or replacements
have been completed, provided, however, that in each instance of stoppage,
slow-down or interruption, Landlord shall exercise reasonable diligence to
eliminate the cause thereof. Except in case of emergency repairs, Landlord will
give Tenant reasonable advance notice of any contemplated stoppage, slow-down or
interruption and will use reasonable efforts to avoid unnecessary inconvenience
to Tenant by reason thereof.
Landlord shall not be liable in any way to Tenant nor shall there be
any abatement or reduction in rent for any failure or defect in the supply or
character of electric energy or other utility furnished to the Leased Premises
by reason of any requirement, act or omission of the public utilities serving
the Building and/or the Leased Premises unless such failure or defect was caused
by the intentional act or gross negligence of Landlord, its agents or employees;
but if such failure or defect is caused by the act or negligence of Landlord or
of its contractor(s) and the failure continues for more than seventy-two (72)
hours during regular business days, Tenant's sole right, remedy and composition
therefor shall be that Rent shall xxxxx proportionately for the period during
which the failure continues.
Tenant's use of electric energy in the Leased Premises shall not at any
time exceed the capacity of any of the electric conductors and equipment in or
otherwise serving the Building and/or the Leased Premises. If Tenant, in the
sole judgment of Landlord, utilizes electricity, water or any other utility in
any excessive or unreasonable manner, then Landlord shall have the right to
require Tenant to pay for the installation of a separate
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meter for any such utility and to pay for the cost of the use of such utilities
as determined by such meter, both as Additional Rent hereunder.
15. Fire or Other Casualty.
Tenant agrees to give prompt notice to Landlord of any damage or
destruction of the Leased Premises by fire or other casualty.
If, during the Lease Term, or any renewal or extension thereof, the
Building and/or the Leased Premises are so damaged by fire or other casualty
that in Landlord's sole determination the Leased Premises are rendered unfit for
occupancy, then, at Landlord's option and upon written notice thereof to Tenant,
the Lease Term shall terminate as of the date of the occurrence of such damage,
and Tenant shall pay to Landlord Rent apportioned to the date of termination,
and Landlord may enter upon and repossess the Leased Premises without further
notice to Tenant. If Landlord does not elect to terminate the Lease Term as
aforesaid, then Landlord shall repair and restore the Building and/or the Leased
Premises and Landlord may enter and possess the Leased Premises for that
purpose, and if Tenant is deprived of the Leased Premises during such repairs
and restoration, then Annual Fixed Rent only shall be equitably reduced,
apportioned or suspended during the period of time for such repairs and
restoration. Notwithstanding anything herein contained, Tenant may cancel and
terminate this Lease in the event that "substantial Completion" of the Leased
Premises would, in Landlord's reasonable judgment, take more than 365 days from
the date of casualty, provided that Landlord has not previously supplied Tenant
with comparable space elsewhere in the Office Park.
If, during the Lease Term, or any renewal or extension thereof, the
Premises and/or the Building are so damaged by fire or other casualty that such
damage does not render the Premises unfit for occupancy, then Landlord will
promptly and in a good and workmanlike manner repair whatever portion, if any,
of the Premises or of the Building which may have been damaged, and during such
repairs Tenant with Landlord's consent, and the consent of applicable insurance
companies and governmental authorities, may continue in possession of the
Premises and Annual Fixed Rent and the Additional Rent will not be reduced,
apportioned or suspended, except proportionately to the areas of the Premises
which has been damaged and reasonably cannot be utilized by Tenant until the
repairs are completed.
Notwithstanding any other provisions of this Section, if any damage is
caused by or results from, the negligence of Tenant, those claiming under
Tenant, or their employees, servants, officers, contractors or invitees,
respectively, Rent shall not be reduced, suspended or apportioned and Tenant
shall pay, as Additional Rent hereunder upon demand by Landlord, the cost of any
repairs and/or restorations, made or to be made, as a result of such damage to
the extent such repairs are not covered by the insurance Tenant is required to
maintain pursuant to Section 17 of this Lease and are not covered by Landlord's
insurance on the Building, including any applicable Landlord deductibles.
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Tenant acknowledges notice from Landlord that (i) while Landlord shall
maintain appropriate insurance on the Building, which will extend to those
components of the Improvements which become part thereof, Landlord shall not
obtain insurance of any kind on Tenant's alterations or improvements as may be
made by Tenant as referenced in Section 9, or upon any of Tenant's fixtures,
equipment and furniture, (ii) it is Tenant's obligation to obtain such insurance
at Tenant's sole cost and expense, and (iii) Landlord shall not be obligated to
repair any damage thereto or replace the same unless such damage is caused by
the intentional act or gross negligence of Landlord, its agents or
employees.
If in the event of any damage to the Leased Premises and/or the
Building, the available insurance proceeds are insufficient to repair and/or
restore the Building and/or Leased Premises, or if any mortgagee of the Building
shall not permit the application of adequate insurance proceeds for repair
and/or restoration, or if the casualty not be of the type insured against under
standard fire policies with extended type coverage, the Lease Term shall, at the
option of Landlord and upon written notice to Tenant, terminate as of the date
of the occurrence of such casualty, Tenant shall pay to Landlord Rent
apportioned to the date of termination, and Landlord may enter upon and
repossess the Leased Premises without further notice to Tenant.
16. Landlord's Rights to Enter and to Provide Tenant with
Substitute Premises.
(a) Tenant shall permit Landlord, Landlord's agents, servants or
employees, or any other person or persons authorized in writing by Landlord,
upon the giving of twenty-four (24) hours' prior notice to Tenant to enter the
Leased Premises during usual business hours (i) to exhibit the same to
prospective Building purchasers or prospective or current lenders at any time
during the Lease Term or any renewal thereof, and (ii) to exhibit the same to
prospective tenants within six (6) months prior to the expiration of the Lease
Term or any renewal thereof. A representative of Landlord shall always accompany
any such purchaser, tenant or lender on any of the aforesaid inspections.
Landlord shall also have the right, within six (6) months prior to the
expiration of the Lease Term or any renewal thereof, to display the usual "For
Rent" signs in such manner as not to unreasonably interfere with Tenant's
business, and Tenant agrees that Tenant shall not disturb any such signs placed
upon the Leased Premises. The location of all such signs placed upon the Leased
Premises shall be subject to the approval of Tenant, which approval shall not be
unreasonably withheld.
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Landlord, its agents, servants or employees, or any other persons
authorized in writing by Landlord also may enter the Leased Premises during the
hours between 7 a.m. and 6:30 p.m. on business days and 8:00 a.m. and 1:00 p.m.
on Saturdays at reasonable hours, and without the giving of notice to Tenant,
(a) to inspect the same, including conducting such tests as Landlord may
require, (b) to determine whether Tenant is complying with all its obligations
hereunder, (c) to supply janitor and cleaning service and any other service(s)
to be provided by Landlord to Tenant under the provisions of this Lease, (d) to
make repairs required of Landlord hereunder, or to make repairs to any adjoining
space or utility service, or to make repairs, alterations or improvements to any
other portion of the Building, and (e) to perform any work therein that may be
necessary (i) to comply with any laws, statutes, ordinances, regulations, orders
and requirements of all governmental authorities having jurisdiction over the
Leased Premises, or (ii) to prevent waste or deterioration of the Leased
Premises or the Building; provided, however, that all such work shall be done as
promptly as reasonably possible and so as to cause as little interference to
Tenant as reasonably possible. Landlord may, during the progress of any work in
the Leased Premises, keep and store upon the Leased Premises, in areas mutually
convenient to Landlord and Tenant, all necessary materials, tools and equipment
required for said work. Landlord shall at all times have and retain a key with
which to unlock all of the doors in, on or about the Leased Premises, and
Landlord shall have the right to use any and all means which Landlord may deem
proper to open said doors in an emergency in order to obtain entry to the Leased
Premises, and any entry to the Premises obtained by Landlord by any of said
means or otherwise shall not under any emergency circumstances be construed or
deemed to be a forcible or unlawful entry into or a detainer of the Leased
Premises, or any eviction, actual or constructive, of Tenant from the Leased
Premises or any portion thereof.
Landlord shall use reasonable efforts not to interfere with Tenant's
business when it enters the Leased Premises pursuant to this Section 16.
(b) Landlord shall have the right at any time during the Lease Term,
upon giving Tenant not less than sixty (60) days prior written notice, to
provide and furnish Tenant with space elsewhere in the Office Park of
approximately the same size as the Premises and remove and place Tenant in
comparable (i.e., improved) such space, in which event Landlord will pay all
reasonable costs and expenses incurred to effect the relocation of Tenant.
Should Tenant refuse to permit Landlord to relocate Tenant to such new space at
the end of such sixty (60) day period, such refusal shall constitute an Event of
Default hereunder entitling Landlord to terminate this Lease as of the end of
such sixty (60) day period without the necessity of any further notice or
opportunity to
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cure being afforded to Tenant. If Landlord moves Tenant to such new space, this
Lease and all of its provisions shall remain in full force and effect and be
deemed applicable to such new space, and such new space shall thereafter be
deemed to be the Premises as though Landlord and Tenant had entered into an
express written amendment of this Lease with respect thereto.
17. Insurance.
A. Tenant shall not do or commit, or suffer or permit to be done or
committed, any act or thing as a result of which either (i) any policy of
insurance of any kind on or in connection with the Leased Premises shall become
void, invalid or suspended, or (ii) the insurance risk on the Building or the
Leased Premises shall (in the opinion of the insuring companies) be rendered
more hazardous. Tenant shall pay to Landlord, as Additional Rent hereunder, the
amount of any increase in premium costs for such insurance resulting from any
breach of this covenant.
B. At Tenant's sole cost and expense, Tenant shall procure and
maintain throughout the Lease Term and any renewals or extensions thereof:
(i) Commercial General Liability Insurance ("Insurance") on a coverage
form at least as broad as the most recent edition of Commercial General
Liability Form (CG0001) published by ISO Commercial Risk Services,
Inc., naming Landlord and Landlord's Agent as Additional Insureds using
an endorsement form at least as broad as the most recent edition of
Additional Insured-Managers or Lessors of Premises Endorsement Form
(CG2011) as published by ISO Commercial Risk Services, Inc. The limits
of such insurance shall be no less than:
Each Occurrence Limit $2,000,000
General Aggregate Limit $2,000,000
Products/Completed Operations Aggregate Limit $2,000,000
Personal Injury and Advertising Injury Limit $2,000,000
Fire Damage (Any One Fire) $ 50,000
Medical Expense (Any One Person) $ 5,000
covering Bodily Injury, Personal Injury and Property Damage Liability
occasioned by or arising out of or in connection with the use,
operation and occupancy of the Leased Premises. Such Commercial General
Liability Insurance policy shall cover events that occur during the
policy period regardless of when the claim is made. Such Insurance
shall be primary insurance to any other insurance that may be available
to
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Landlord. Any other insurance available to Landlord shall be
non-contributing with, and excess to, such Insurance.
(ii) Workers Compensation As required by state law
(iii) Employers Liability Insurance
Bodily Injury by Accident $250,000 Each Accident
Bodily Injury by Disease $250,000 Each Employee
Bodily Injury by Disease $250,000 Policy Limit
(iv) Property Insurance insuring Tenant's business personal property
and all tenant improvements in which Tenant has an insurable interest
against direct risk of loss, and insuring Tenant's business income.
Such coverage shall be provided on coverage forms at least as broad as
the standard Building and Personal Property Coverage Form (CP0010),
Business Income Coverage Form (CP0030), Boiler and Machinery Coverage
Form (BM0025), Causes of Loss Special Form (CP1030), and Sprinkler
Leakage-Earthquake Extension (CP1039) all as published by ISO
Commercial Risk Services, Inc. Replacement cost valuation must apply to
such policies. The limit of coverage required for business personal
property shall be equal to 100% of the current replacement cost value
of such business personal property. The limit of coverage for business
income shall be equal to the Tenant's annual total anticipated net
earnings.
C. Landlord may require reasonable increases in the limits set
forth in this Section from time to time. The carriers providing all coverages
required by this Section shall be obligated to provide Landlord with thirty (30)
days' advance written notice of any cancellation, material change or
non-renewal. Tenant shall provide renewal certificates to Landlord at least
thirty (30) days prior to the expiration of such policies. All insurance
required hereunder shall be provided by insurers who maintain a general policy
holder's rating of "A" and a financial rating of not less than Class "X' in the
most recent issue of Best's Insurance Reports, and be otherwise acceptable to
the Landlord. Copies of all such policies and endorsements, certified by the
insurers, shall be supplied to Landlord and all other parties named as
additional insureds within ten (10) days of demand therefor. On or before the
Commencement Date Tenant shall provide Landlord and all other parties named as
additional insureds with satisfactory evidence that such insurance is in full
force and effect or effectively renewed and that the insurance premiums for such
insurance have been paid for the first year of the Lease Term. All such
insurance shall be in form satisfactory to Landlord.
D. Within ten (10) days of written demand, Tenant shall provide
Landlord, at Tenant's expense, with such increased amount of existing insurance,
and
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such other insurance as Landlord or Landlord's lender may reasonably require
to afford Landlord and Landlord's lender adequate protection. If, on account of
the failure of Tenant to comply with the provisions of this Section, Landlord is
adjudged a co-insurer by its insurance carrier, then, any loss or damage
Landlord shall sustain by reason thereof, including attorneys' fees and costs,
shall be borne by Tenant and shall be immediately paid by Tenant upon receipt of
a xxxx therefor and evidence of such loss. Landlord and Landlord's Agent make no
representation that the limits of liability specified to be carried by Tenant
under this Lease are adequate to protect Tenant. If Tenant believes that any
such insurance coverage is insufficient, Tenant shall provide, at its own
expense, such additional insurance as Tenant deems adequate.
E. Notwithstanding anything to the contrary herein, to the extent of
insurance proceeds received with respect to any loss or damage, Tenant and
Landlord each waive any right of recovery against the other party for such loss
or damage suffered by such party with respect to the Lot, the Building, or the
Leased Premises, the contents of same, or any operation therein, whether or not
such loss is caused by the fault or negligence of the other party. Landlord and
Tenant shall each obtain from their respective insurers, if commercially
available, under policies of property insurance maintained by either of them at
any time during the term hereof insuring or covering the Lot, the Building, the
Leased Premises or any portion thereof or operations therein, a waiver of all
rights of subrogation which the insurer of one party might have against the
other party, and Landlord and Tenant shall each indemnify the other against any
loss or expense, including reasonable attorneys' fees, resulting from the
failure to obtain such waiver.
F. Landlord agrees to maintain during the Lease Term property
insurance in a amount at least equal, in Landlord's judgement, to the
replacement cost of the Building.
18. Compliance with Law.
Tenant shall, at its sole cost and expense, comply promptly with all
laws, ordinances, statutes, notices, requirements, orders, rules, regulations
and recommendations (whatever the nature thereof may be) of any and all federal,
state, county, township, municipal or other governmental authorities or of the
Board of Fire Underwriters or any insurance organizations, associations or
companies, with respect to the Leased Premises and Tenant's use and occupancy
thereof, and any property appurtenant thereto; provided that the foregoing shall
not require Tenant to make any structural changes or capital improvements to the
Building unless required as a result of Tenant's (or Tenant's agents' or
employees') acts or negligence or breach of its obligation under this Lease and
to the extent such structural repairs are not covered by Landlord's insurance in
the Building, including any applicable Landlord deductibles. Tenant also agrees
that it shall not knowingly do or commit, or suffer to be done or committed
anywhere upon the Leased Premises, any act or thing
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contrary to any of the laws, ordinances, statutes, notices, requirements,
orders, rules, regulations and recommendations hereinabove referred to in this
Section.
To the extent that alterations and/or new construction (as those terms
are defined under the Americans with Disabilities Act ("ADA") have been
performed with respect to or affecting the Lot and the Building, including
common areas, between January 26, 1992, and the date hereof, such alterations
and/or new construction was performed in compliance with the applicable
provisions of Title III of the ADA.
With respect to the Lot and that portion of the Building not occupied
by tenants, Landlord shall comply with all laws, ordinances statutes, and
regulations of federal, state, county, township, municipal or other governmental
authorities. Landlord also agrees that it shall not knowingly do or commit
anywhere upon the Lot or the Building, any act or thing contrary to any of the
laws, ordinances, statutes, and regulations hereinabove referred to in this
Section.
19. Notice of Accident or Breakage.
Tenant shall give to Landlord prompt written notice (within 48 hours of
occurrence) of (i) any accident occurring on or about the Leased Premises, and
(ii) any breakage or defects in the roof, window glass, wires, plumbing or
heating or cooling apparatus, elevators or other apparatus in or about the
Leased Premises. Failure to provide such notice shall not be deemed an Event of
Default.
20. Miscellaneous Covenants of Tenant.
Tenant shall faithfully perform and comply with all of the provisions,
covenants and conditions to be performed and complied with by Tenant hereunder,
and, in addition thereto, Tenant shall:
(a) secure and maintain in effect any governmental approvals,
licenses and permits as may be required for Tenant's use and occupancy
of the Leased Premises in accordance with Section 12 (it being
understood that Landlord shall obtain any permits required for the
construction or installation of the Improvements and so that the
Premises may be lawfully occupied for general office purposes only at
the commencement of the Lease Term);
(b) not place, erect, maintain or display any sign or other
marking of any kind whatsoever on the Lot, the Building or the Leased
Premises without the prior written approval of the Landlord, which
approval shall not be unreasonably withheld delayed or conditioned for
a single sign, provided that the same conforms to all applicable laws
and ordinances and to the sign standards as are then established by
Landlord generally;
(c) not, without the advance written consent of Landlord,
exhibit, sell or offer for sale on the Leased Premises, the Lot or in
the Building, any article or thing except those articles and things
connected with the permitted use of the Leased Premises by Tenant set
forth in Section 12, if any;
(d) will not make or permit to be made any use of the Lot, the
Building. or the Leased Premises or any part thereof which (i) would
violate any of the covenants, agreements, terms, provisions and
conditions of this Lease, (ii) is directly or indirectly forbidden by
any statute, law,
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ordinance or governmental regulation (iii) may be dangerous to life,
limb, or property, (iv) may invalidate or increase the premium cost of
any policy of insurance carried on the Lot, the Building or the
Leased Premises or covering the operation of any of same, (v) will
suffer or permit the Lot, the Building or the Leased Premises or any
part thereof to be used in any manner (including the bringing or
storage of any materials thereon) so as to impair or tend to impair the
character, reputation or appearance of the Lot, the Building or the
Leased Premises in the sole judgment of Landlord, or (vi) will impair
or interfere with any services performed by Landlord, its agents,
employees, servants, officers and contractors, for the Lot, the
Building or the Leased Premises, if any;
(e) not (i) advertise the business, profession or activities of
Tenant conducted on the Leased Premises in a manner which violates the
letter or spirit of any code of ethics adopted by any recognized
association or organization pertaining to such business, profession or
activities, (ii) use the name of the Building or the Leased Premises
for any purposes other than that of the business address of Tenant, or
(iii) use any picture or likeness of the Building or the Leased
Premises in any circulars, notices, advertisements or correspondence
without Landlord's prior written consent in each instance which consent
shall not be unreasonably withheld;
(f) not (i) use the Building or the Leased Premises for human
housing accommodations or human lodging or sleeping purposes, (ii) use
any illumination other than electric lighting in the Leased Premises,
(iii) use or permit to be brought in or kept upon, temporarily or
otherwise, the Building or the Leased Premises, any flammable fluids
such as gasoline, kerosene, naphtha, or benzene, or any explosive,
radioactive materials or other articles and/or substances deemed
hazardous to life, limb or property except as set forth in Exhibit
(g) not contract for any work or service which might involve the
employment of labor incompatible with Landlord's employees or employees
of contractors doing work or performing services by or on behalf of
Landlord, provided that the foregoing shall not be construed so as to
prevent Tenant from contracting with the third party supplier of its
choice for office supplies and/or coffee services;
(h) not (i) use, keep or permit to be used or kept upon,
temporarily or otherwise, the Building or the Lease& Premises, any foul
or noxious gas or substance (ii) permit or suffer the Building or the
Leased Premises to be occupied or used in a manner offensive or
objectionable to the Landlord by reason of noise, odors and/or
vibrations, (iii)
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interfere in any way with adjacent tenants or buildings, or (iv) permit
any animals or birds to be brought in or kept in about the Leased
Premises or the Building other than those animals used for research
purposes as set forth in Exhibit "G" and as otherwise acceptable to
Landlord, which Tenant represents will be in compliance with all
federal, state and local laws and regulations pertaining to animal
research, including all laws and regulations of the Federal Food and
Drug Administration;
(i) pay to Landlord, as Additional Rent hereunder, an amount
equal to any increase in insurance premiums payable by Landlord arising
or resulting from any breach of any provision of this Section, which
payment shall be in addition to all other remedies available to
Landlord hereunder and at law;
(j) not use the Lot for any purpose other than parking and
ingress and egress. Tenant's Percentage of Building set forth in
Section 1(e) shall be the basis for determining the number of parking
spaces on the Lot which shall be available to Tenant for the use of
Tenant and Tenant's employees and invitees; and
(k) not use the interior common areas of the Building, including
but not limited to, the hallways, lobbies, elevators, and stairways for
any purpose other than ingress or egress to or from the Leased Premises
and shall not obstruct same.
21. Lease Subordinated.
This Lease is and shall be subject and subordinate at all times to the
lien of any mortgage, deed of trust, ground lease and/or other instrument of
encumbrance, including declarations of covenants and restrictions and similar
recorded instruments, heretofore or hereafter placed by Landlord upon all or any
part of the Leased Premises, the Building or the Office Park, and to all
renewals, modifications, amendments, consolidations, replacements and extensions
thereof (all of which are hereinafter referred to collectively as a "mortgage");
and any such subordination shall be automatic, without the necessity of further
action on the part of Tenant to effectuate such subordination. Notwithstanding
the foregoing, if deemed appropriate by Landlord or if requested by the holder
of any mortgage, Tenant shall, at the request of Landlord or the holder of any
mortgage, attorn to such holder, and shall execute, enseal, acknowledge and
deliver, upon demand by Landlord or such holder, (i) such further instrument or
instruments evidencing such subordination of Tenant's right, title and interest
under this Lease to the lien of any such mortgage or instrument, and (ii) such
further instrument or instruments of attornments, as shall be desired by such
holder. If Tenant is requested to execute and deliver any instrument confirming
and evidencing subordination and/or attornment as aforesaid, but fails to
deliver same to Landlord within ten (10) days of request, Tenant
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hereby irrevocably appoints Landlord as attorney-in-fact for Tenant with full
power and authority to execute and deliver such instrument or instruments.
Notwithstanding the foregoing, this provision for subordination shall not apply
to a mortgage unless the mortgagee shall agree in writing that so long as Tenant
shall attorn to it and remain in compliance with the terms of this Lease, the
leasehold estate granted to Tenant hereunder shall not be terminated or
disturbed by any action to foreclose such mortgage or by any other action.
Landlord shall obtain such an agreement from all mortgagees to whose interest
this Lease is subordinate.
22. Eminent Domain.
If the entire or substantially the entire Lot or Building should be
taken for any public or quasi-public use under any governmental law, statute or
regulation, or should be taken by right of eminent domain or any other right, or
should be sold to the condemning authority in lieu of condemnation, then this
Lease shall terminate as of the date when physical possession of the Lot or the
Building is taken by the condemning authority.
In the event of (a) a partial (less than substantial) taking of the Lot
(which, in Landlord's reasonable opinion significantly impairs the usability of
the portions thereof not occupied by the Building, or of the Building) or of the
Building (regardless of whether or not the Premises are affected by said
taking), Landlord shall have the right to terminate this Lease, or (b) a taking
of the Premises or a partial taking of the Lot or the Building, Tenant shall
have the right to terminate this Lease but only if (i) the taking of the
Premises occurs within the last year of the Lease Term or any renewal thereof,
or (ii) Tenant provides clear and convincing evidence to Landlord that any
partial taking of the Premises or the Building would cause the remainder to be
impractical for Tenant's business purposes. Landlord or Tenant may exercise the
aforesaid right or rights to terminate this Lease in its entirety as aforesaid
by giving written notice to the other within sixty (60) days after the date of
the vesting of title in such proceeding, specifying a date not more than thirty
(30) days after the giving such notice as the date for such termination.
In the event of any total or partial taking of the Leased Premises,
Landlord shall be entitled to receive the entire award in any such proceeding;
and Tenant hereby assigns any and all right, title and interest of Tenant now or
hereafter arising in or to any such award any part thereof, and hereby waives
all rights against Landlord and the condemning authority, except that Tenant
shall have the right to claim and prove in any such proceeding and to receive
any award which may be made, if any, specifically for damages or condemnation of
Tenant's movable trade fixtures, equipment and relocation expenses.
If this Lease is not terminated after the eminent domain proceeding
under the aforesaid provisions, (a) Landlord shall promptly commence to repair
or restore the Leased Premises to a tenantable condition for Tenant's uses and
complete same with diligence, except for delays caused by (i) Landlord's
inability
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to obtain materials, (ii) Acts of God, as said term is legally defined and
construed, (iii) strikes, fire or weather, (iv) act of governmental authority,
or (v) any other cause beyond the reasonable control of Landlord; (b) the Annual
Fixed Rent (and, correspondingly, the Monthly Fixed Rent) shall be equitably
reduced from and after the date that title vests in the condemnor for the
balance of the Lease Term taking into account the character and the amount of
the taking; (c) Tenant's Percentage of Building shall be adjusted to reflect the
balance of rentable area remaining as the Premises subsequent to said eminent
domain proceeding.
23. Assignment and Subletting.
Tenant shall not (i) assign, pledge, mortgage or otherwise transfer or
encumber this Lease, (ii) sublet all or any part of the Leased Premises or (iii)
permit the Leased Premises to be occupied or used by anyone other than Tenant or
its employees, without Landlord's prior written consent in each instance, which
consent will be in form satisfactory to Landlord and may include such reasonable
conditions as Landlord deems appropriate, and which consent Landlord agrees not
to unreasonably withhold. Notwithstanding anything herein to the contrary, it
shall not be deemed to be unreasonable for Landlord to withhold its consent to
any of the aforesaid actions by Tenant (a) if the reputation, financial
responsibility, or business of a proposed assignee or subtenant is
unsatisfactory to Landlord in its reasonable determination, (b) if Landlord
deems the business of a proposed assignee or subtenant to be not consonant with
that of other tenants in the vicinity of the Leased Premises, (c) if the
intended use by the proposed assignee or subtenant conflicts with any commitment
made by Landlord to any other tenant in the vicinity of the Leased Premises, or
(d) if the proposed assignee or subtenant is to pay Tenant rents that are less
than the then current market rental rate for the Office Park, as determined by
Landlord. Tenant specifically acknowledges that the Leased Premises form a part
of the Office Park and that Landlord may exercise its sole discretion in
determining whether a proposed assignee or subtenant may be acceptable to
Landlord and within the scope of Landlord's concept of the sound and prudent
management of the Office Park.
Tenant agrees to pay to Landlord on demand, as Additional Rent
hereunder, reasonable costs and counsel fees incurred by Landlord in connection
with any request by Tenant for Landlord's consent to any assignment or
subletting by Tenant. Tenant's request for consent shall be in writing and shall
contain the name, address, and description of the business of the proposed
assignee or subtenant, its most recent financial statements and other evidence
of financial responsibility, its intended use of
-34-
the Leased Premises, and the terms and conditions of the proposed assignment or
subletting. Within thirty (30) days after receipt of such request, Landlord
shall either: (a) grant or refuse consent; or (b) elect to require Tenant (i) to
execute an assignment of this Lease or a sublease of Tenant's interest hereunder
to Landlord or its designee upon the same terms and conditions as are contained
herein, together with an assignment of Tenant's interest as sublessor in any
such proposed sublease, or (ii) if the request is for consent to a proposed
assignment of this Lease, to terminate this Lease and the Term hereof effective
as of the last day of the third month following the month in which the request
was received.
Each assignee hereunder shall assume and shall be deemed to have
assumed this Lease and all of the provisions herein, and shall be and remain
jointly and severally liable with Tenant for all payments due from Tenant to
Landlord hereunder and for the due performance of and compliance with all of the
terms, covenants, conditions and provisions herein contained on Tenant's part to
be complied with and performed. No assignment of this Lease by Tenant shall be
binding upon Landlord unless the assignee shall deliver to Landlord an
instrument in recordable form containing a covenant of assumption by the
assignee in form acceptable to Landlord provided that the failure or refusal of
the assignee to execute the same shall not release the assignee from its
liability as set forth herein. Tenant shall pay to Landlord all profits derived
by Tenant from any permitted assignment of this Lease or sublease of the Leased
Premises.
Tenant shall not enter into any lease, assignment, sublease, license,
concession or other agreement for the use, occupancy or utilization of the
Leased Premises or any portion thereof other than in compliance with Section 12
hereof.
Any consent by Landlord hereunder shall not constitute a waiver of
strict future compliance by Tenant of the provisions of this Section 23 or a
release of Tenant from the full performance by Tenant of all of the terms,
covenants, provisions, or conditions contained in this Lease.
Tenant shall not (a) mortgage, pledge or otherwise encumber its
interest in this Lease, or (b) grant any license, concession or other right of
occupancy of the Leased Premises or any portion thereof, without the prior
written consent of Landlord which consent shall not be unreasonably withheld.
24. Default.
Notwithstanding any other provisions in this Lease to the contrary, it
shall be an "Event of Default" under this Lease if (i) Tenant fails to pay to
Landlord any installment of Annual
-35-
Fixed Rent, Additional Rent or any other sum payable by Tenant hereunder when
due and such failure continues for period of fifteen (15) days after the date of
written notice thereof by or on behalf of Landlord, provided, however, that
Landlord shall not be required to give any such notice, and Tenant shall not be
entitled to receive any such period of grace, more than once in any 12 month
period during the Lease Term, (ii) Tenant vacates the Leased Premises (except as
may be permitted pursuant to the provisions of Section 12(d)) or uses or
occupies the Leased Premises otherwise than as permitted by the provisions of
this Lease, or assigns or sublets, or purports to assign or sublet the Lease or
the Leased Premises or any part thereof, otherwise than in accordance with, and
upon the conditions set forth in Section 23 hereof, (iii) Tenant fails to
observe or perform any other covenant or agreement of Tenant herein contained or
fails to comply with any other provision of this Lease, and such failure
continues after the date of written notice thereof by or on behalf of Landlord
for a period of thirty (30) days and such additional time not to exceed sixty
(60) days, as is necessary to cure such failure, provided that the cure of such
failure has commenced within the aforesaid thirty (30) day period, Tenant
notifies Landlord in writing of the procedures that Tenant will follow to
complete the cure and Tenant proceeds diligently thereafter to cure such failure
within such additional time period not to exceed sixty (60) days, (iv) without
Landlord's prior written consent, Tenant removes or attempts to remove or
manifests an intention to remove all or a substantial portion of Tenant's
property from the Leased Premises otherwise than in the ordinary and usual
course of business, (v) Tenant makes any assignment for the benefit of its
creditors; Tenant commits an act of bankruptcy or files a petition or commences
any proceeding under any bankruptcy or insolvency law; a petition is filed or
any proceeding is commenced against Tenant under any bankruptcy, reorganization,
creditor adjustment, debt rehabilitation or insolvency law and such petition or
proceeding is not dismissed within sixty (60) days; Tenant is adjudicated a
bankrupt; Tenant by an act indicates its consent to, approval of, or
acquiescence in, or a court approves, a petition filed or proceeding commenced
against Tenant under any bankruptcy, reorganization, creditor adjustment, debt
rehabilitation or insolvency law; a receiver or trustee or other officer is
appointed for Tenant or for a substantial part of Tenant's assets or for
Tenant's interest in this Lease; any attachment or execution against a
substantial part of Tenant's assets or of Tenant's interest in this Lease
remains unstayed or undismissed for a period of more than ten (10) days; a
substantial part of Tenant's assets or Tenant's interest in this Lease is taken
by legal process in an action against Tenant; Tenant becomes insolvent in the
bankruptcy or equity sense; a liquidator, receiver, custodian, sequester,
conservator, trustee or other similar judicial officer is applied for by Tenant
or appointed by Tenant.
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25. Landlord's Remedies.
(a) Upon the occurrence of an Event of Default hereunder,
Landlord may, at any time thereafter and in addition to all other
available legal or equitable rights and remedies, elect anyone or more
of the following remedies:
(i) accelerate and declare to be immediately due and payable,
and xxx for and recover, all unpaid Annual Fixed Rent for the
unexpired period of the Lease Term (and also all Additional Rent
as the amount(s) of same can be determined) (said amounts to be
discounted to present value using an interest rate of 5%) as if
by the terms of this Lease the same were payable in advance (and
for the purposes of determining in the first instance accelerated
Additional Rent payable by Tenant under Sections 6 and 7 of this
Lease, the monthly charges for electricity under Section 6 arid
the Monthly Expense Estimate for Operating Expense under Section
7, as billed to Tenant for the month in which the Event of
Default occurred, shall be deemed to continue in those amounts
throughout the period to which the acceleration applies; and any
over or under payment shall be adjusted following Tenant's
payment of the accelerated amount, as the actual amounts are
determined pursuant to the applicable provisions of this Lease),
together with all reasonable legal fees and other expenses
incurred by Landlord in connection with the enforcement of any of
Landlord's rights and remedies hereunder, and/or
(ii) whether or not Landlord has elected to accelerate Rent
in accordance with subsection 25 (a) (i), or whether or not
Landlord has elected to terminate this Lease in accordance with
subsection 25 (a) (iii) below, distrain, collect or bring an
action for such Annual Fixed Rent and Additional Rent as being
rent in arrears, or may enter judgment therefor in an amicable
action as herein elsewhere provided for in case of rent in
arrears, or may file a Proof of Claim in any bankruptcy or
insolvency proceeding for such Annual Fixed Rent and Additional
Rent, or may institute any other proceedings, whether similar or
dissimilar to the foregoing, to enforce payment thereof, and/or
(iii) whether or not Landlord has elected to accelerate Rent
in accordance with subsection 25 (a) (i), terminate this Lease
and the Lease Term by giving written notice thereof to Tenant
and, upon the expiration of fifteen (15) days after the giving of
such notice, the Lease Term and the estate hereby
-37-
granted shall expire and terminate with the same force and legal
effect as though the date of such notice was the Expiration Date,
and all rights of Tenant hereunder shall expire and terminate,
and Tenant shall thereupon quit and surrender the Leased
Premises to Landlord in the condition specified in Section 5 and
Tenant shall remain liable as hereinafter provided.
(b) Upon the occurrence of an Event of Default, at any time
thereafter and in addition to all available legal or equitable rights
and remedies, Landlord may, whether or not the Lease Term has been
terminated in accordance with subsection 25 (a) (iii), terminate or
suspend Tenant's right to possession of the Leased Premises and
re-enter upon and repossess the Leased Premises or any part thereof by
force, summary proceedings, ejectment or otherwise, remove all persons
and property therefrom, and have, hold and enjoy the Leased Premises
and the rents and profits therefrom. Landlord shall be under no
liability for or by reason of any such entry, repossession or removal;
and no such re-entry or taking of possession of the Leased Premises by
Landlord shall be construed as an election on Landlord's part to
terminate the Lease Term unless a written notice of such intention is
given to Tenant pursuant to subsection 25 (a) (iii) or unless the
termination of this Lease is decreed by a court of competent
jurisdiction.
(c) At any time or from time to time after the repossession of
the Leased Premises or any part thereof pursuant to subsection 25 (b),
whether or not. the Lease Term shall have been terminated pursuant
subsection 25 (a) (iii), Landlord shall use commercially reasonable
efforts, in its own name as agent for Tenant if the Lease Term has not
been terminated or in its own behalf if this Lease has been terminated,
relet all or any part of the Leased Premises for the account of Tenant
for such term or terms (which may be greater or less than the period
which would otherwise have constituted the balance of the Lease Term)
and on such conditions and provisions (which may include concessions or
free rent) as Landlord, in its absolute and sole discretion, may
determine, and Landlord may collect and receive any rents payable by
reason of such reletting. Notwithstanding the foregoing,
(1) Landlord shall not be required to (i) accept any tenant
offered by Tenant, (ii) observe any instruction given by Tenant
about such reletting, (iii) endeavor to relet if Landlord has
other space available or which will become available elsewhere in
the Building or the Office Park, or (iv) relet to any tenant
whose business or proposed use would be
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inconsistent or not compatible, in Landlord's sole opinion, with
the overall leasing, use and occupancy of the Building or
Office Park or whose financial responsibility or standing is not
satisfactory to Landlord. For the purpose of such reletting,
Landlord may decorate or make repairs, changes, alterations or
additions in or to the Leased Premises or any part thereof to the
extent deemed by Landlord to be desirable or convenient, and the
cost of such decoration, repairs, changes, alterations or
additions shall be charged to and be payable by Tenant as
Additional Rent hereunder, as will any reasonable brokerage and
legal fees expended by Landlord in connection with such
reletting. No reletting shall be deemed to be a surrender and
acceptance of the Leased Premises.
(2) Net rent received by Landlord from any third party tenant
as a result of reletting the Premises (i.e., net of all costs of
the reletting, including but not limited to, brokerage fees, free
rent or other concessions paid or credited to the third party
tenant, the cost of refurbishing or fitting-up the space, legal
and other expenses incurred as a result of Tenant's default and
those incurred in reletting) during or attributable to the period
ending on the Expiration Date, shall be credited against the Rent
otherwise payable by Tenant during the remainder of the Lease
Term, in inverse order against the last Rent payments to be made
under the provisions of this Lease.
(d) No expiration or termination of the Lease Term pursuant
subsection 25 (a) (iii) or by operation of law or otherwise, no
repossession of the Leased Premises or any part thereof pursuant
subsection 25(b), or otherwise, and no reletting of the Leased Premise
or any part thereof pursuant to subsection 25(c), shall relieve Tenant
of any of its liabilities and obligations hereunder, all of which shall
survive such expiration, termination, repossession or reletting.
(e) In the event of any expiration or termination of this Lease
or any repossession of the Leased Premises or any part thereof by
reason of an occurrence of an Event of Default, where Landlord has not
elected to accelerate Rent pursuant to subsection 25(a)(i), Tenant
shall pay to Landlord the Annual Fixed Rent, the Additional Rent and
all other sums required to be paid by Tenant hereunder to and including
the date of such expiration, termination or repossession; and,
thereafter, Tenant shall, until the end of what would have been the
expiration of the Lease Term in
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the absence of such expiration, termination or repossession, and
whether or not the Leased Premises or any part thereof shall have been
relet, be liable to Landlord for, and shall pay to Landlord, as
liquidated and agreed current damages, the Annual Fixed Rent, the
Additional Rent and all other sums which would have been payable by
Tenant to Landlord under this Lease in the absence of such expiration
termination or repossession, less the net proceeds, if any, of any
reletting effected for the account of Tenant pursuant to subsection 25
(c), after deducting from such proceeds all of Landlord's reasonable
expenses in connection with such reletting (including, without
limitation, all related repossession costs, brokerage commissions,
legal expenses, attorneys' fees, employees' expenses, alteration and
redecoration costs and expenses of preparation for reletting). Tenant
shall pay such current damages to Landlord on the days on which the
Monthly Fixed Rent would have been payable under this Lease in the
absence of such expiration, termination or repossession, and Landlord
shall be entitled to recover the same from Tenant on each such day.
(f) In the event of any expiration or termination of this Lease
or any repossession of the Leased Premises or any part thereof by
reason of the occurrence of an Event of Default, whether or not
Landlord shall have collected any current damages pursuant to
subsection 25 (e), Landlord shall be entitled to recover from Tenant,
and Tenant shall pay to Landlord on demand, unless Tenant has paid the
whole accelerated rent pursuant to subsection 25 (a) (i), as and for
liquidated and agreed final damages for Tenant's default and in lieu of
current damages beyond the date of such demand (it being agreed that it
would be impracticable or extremely difficult to fix the actual
damages), an amount equal to the excess, if any, of (a) the Annual
Fixed Rent, the Additional Rent and all other sums which would be
payable under the Lease for the remainder of the Lease Term from the
date of such demand (or, if it be earlier, the date to which Tenant
shall have satisfied in full its obligations under subsection 25(e) to
pay current damages), to the date that would have been the Expiration
Date of the Lease Term in the absence of such expiration, termination
or repossession, discounted at the rate of six percent (6%) per annum,
over (b) the then fair rental value of the Leased Premises for the same
period, discounted at the rate of six percent (6%) per annum. If any
statute or rule of law shall validly limit the amount of such
liquidated final damages to an amount that is less than the amount
above agreed upon, Landlord shall be entitled to the maximum amount
allowable under such statute or rule of law.
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(g) CONFESSION OF JUDGMENT Tenant, in consideration of the
execution of this Lease by Landlord and the covenants and agreements on
the part of Landlord herein contained, and fully comprehending the
relinquishment of certain rights including rights of pre-judgment
notice and hearing, hereby expressly authorizes any attorney of any
Court of Record to accept service of process for, to appear for, and to
confess judgment against Tenant in any and all actions brought
hereunder by Landlord against Tenant (i) to recover possession of the
Leased Premises (and Tenant agrees that upon the entry of each judgment
for said possession a Writ of Possession or other appropriate process
may issue forthwith). Such authority shall not be exhausted by one
exercise thereof, but judgment may be confessed from time to time as
often as occasion therefore shall exist. Such powers may be exercised
during as well as after the expiration or termination of the original
Lease Term and during and at any time after any extension or renewal of
the Lease Term.
(h) In any amicable action for ejectment, Landlord shall first
cause to be filed in such action an affidavit made by Landlord or
someone acting for it setting forth facts necessary to authorize the
entry of judgment of which facts such affidavit shall be conclusive
evidence, and if a true copy of this Lease be filed in such action (and
of the truth of the copy such affidavit shall be sufficient evidence),
it shall not be necessary to file the original as a warrant of
attorney, any rule of court, custom or practice to the contrary.
(i) Any and all property which may be removed from the Leased
Premises by Landlord pursuant to the authority of this Lease or of law,
to which Tenant is or may be entitled, may be handled, removed or
stored by Landlord at the sole risk, cost and expense of Tenant, and
Landlord shall in no event be responsible for the value, preservation
or safekeeping thereof. Tenant shall pay to Landlord, upon demand, any
and all reasonable expenses incurred in such removal and all storage
charges against such property so long as the same shall be in
Landlord's possession or under Landlord's control. Any such property of
Tenant not removed from the Leased Premises or retaken from storage by
Tenant within
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thirty (30) days after the end of the Lease Term or of Tenant's right
to possession of the Leased Premises, however terminated, shall be
conclusively deemed to have been forever abandoned by Tenant and either
may be retained by Landlord as its property or may be disposed of in
such manner as Landlord may see fit.
(j) No receipt of money by Landlord from Tenant after the
termination of this Lease or after the service of any notice or after
the commencement of any suit, or after final judgment for possession of
the Leased Premises shall reinstate, continue or extend the Lease Term
or affect any such notice, demand or suit or imply consent for any
action for which Landlord's consent is required.
(k) Tenant expressly waives the right to three (3) months and
fifteen (15) or thirty (30) days notice required under certain
circumstances by the Pennsylvania Landlord and Tenant Act of 1951,
Tenant hereby agreeing that the respective notice periods provided for
in this Lease shall be sufficient in either or any such case.
(l) All remedies available to Landlord hereunder and at law and
in equity shall be cumulative and concurrent. No determination of this
Lease or taking or recovery of possession of the Leased Premises shall
deprive Landlord of any remedies or actions against Tenant for Annual
Fixed Rent, Additional Rent, other charges or damages for the breach of
any covenant or condition herein contained, nor shall the bringing of
any such action or the resort to any other remedy or right for the
recovery of same be construed as a waiver or release of the right to
insist upon the forfeiture and to obtain possession.
(m) All of the rights and remedies of Landlord shall be
applicable to and available against any and all assignees subtenants of
Tenant.
(n) Tenant agrees that if it shall at any time fail to make any
payment to third parties or perform any other act on its part to be
made or performed under this Lease, Landlord may, but shall not be
obligated to, after notice or demand to Tenant and failure of Tenant,
within five (5) days after receipt of such notice, to make such payment
or commence (and thereafter diligently prosecute) such performance,
without waiving or releasing Tenant from any of its obligations under
this Lease, make such payment or perform such other act to the extent
Landlord may deem desirable and in connection therewith, to pay
reasonable expenses and employ legal counsel. Tenant agrees to pay
Landlord's reasonable attorney's fees if legal action is required in
-42-
Landlord's judgment to enforce performance by Tenant of any condition,
obligation or requirement hereunder. All sums paid by Landlord pursuant
to this Section and all expenses in connection therewith, together with
interest thereon at the Overdue Interest Rate calculated from the date
of payment by Landlord, shall be deemed to be Additional Rent hereunder
and shall be payable upon demand by Landlord and Landlord shall have
the same rights and remedies for the non-payment thereof as in the case
of default in the payment of Annual Fixed Rent.
26. Liability of Landlord.
(a) Tenant covenants and agrees to exonerate, indemnify, defend,
protect and save Landlord, its employees, officers and servants and
Landlord's Agent, harmless from and against any and all claims,
actions, demands, expenses, costs, charges, obligations, penalties,
orders, judgments, liabilities, losses, suits and damages which may be
imposed upon, incurred by or asserted against them or any one of them
by reason of (i) any accident or matter occurring on the Premises,
causing injury to persons (including loss of life) or damage to
property (including but not limited to the Premises), unless such
accident or other matter resulted from Landlord's breach of this Lease
or the negligence or otherwise tortious act of Landlord, its employees,
officers and servants or Landlord's agent, (ii) the failure of Tenant
to fully and faithfully perform its obligations hereunder and to comply
with the conditions of this Lease, (iii) the negligence or otherwise
tortious act of Tenant, its employees, servants, officers, agents,
contractors, invitees, licensees, or visitors or anyone in or about the
Lot, the Building or the Leased Premises on behalf or at the invitation
or right of Tenant, and (iv) the use, occupancy or maintenance of the
Leased Premises.
If any such action or proceeding is brought against Landlord, its
employees, servants or officers, or against Landlord's Agent, by reason
of any such claim, Tenant shall (i) defend such action or proceeding
upon written notice from Landlord, with counsel approved by Landlord in
writing, which approval shall not be unreasonably withheld, and (ii)
further indemnify, defend and save Landlord, its employees, servants
and officers, and Landlord's Agent harmless from and against all costs,
expenses, counsel fees, liabilities, orders and judgments incurred or
rendered in or about any such action or proceeding.
(b) Landlord, its employees, servants and officers and Landlord's
Agents, shall not be liable for consequential
-43-
damages, or loss of profits or income or interruption of business
occurring to Tenant, its agents, servants, employees, officers,
contractors, invitees, licensees, visitors or any other person, firm,
corporation or entity, arising out of or resulting from any claim of
breach of this Lease or of the Lease obligations attributable to
Landlord, its employees, servants and officers and Landlord's Agent, or
from any negligent or otherwise tortious act of Landlord, its
employees, servants and officers and Landlord's Agent, and Tenant shall
indemnify and hold harmless Landlord, its employees, servants and
officers and Landlord's Agent, from and against any and all such
liability as may be asserted.
(c) The term "Landlord" as used in this Lease, so far covenants
or agreements on the part of the Landlord are concerned, shall be
limited to mean and include only the owner or owners of the Landlord's
interest in this Lease at the time in question, and in the event of any
transfer or transfers of such interest, the Landlord herein named (and
in case of any subsequent transfer, the then transferee) shall be
automatically freed and relieved, from and after the date of such
transfer, of all liability as respects the performance of any covenants
or agreements on the part of the Landlord contained in this Lease
thereafter to be performed. The liability of Landlord under this Lease
shall be and is hereby limited to Landlord' interest in the Leased
Premises, and no other assets of Landlord shall be affected by reason
of any liability which Landlord may have to Tenant or to any other
person by reason of this Lease, the execution thereof, or the
acquisition of Landlord's interest.
(d) Landlord and Landlord's Agent shall not be liable for any
loss or damage to persons or property resulting from fire, explosion,
falling plaster, glass, tile or sheetrock, steam, gas, electricity,
water or rain which may leak from any part of the Premises, the
Building, or the Lot, or from the pipes, appliances or plumbing works
therein or from the roof, street or subsurface or whatsoever, except to
the extent caused by or due to the gross negligence or willful acts of
Landlord.
27. Successors and Assigns.
The provisions of this Lease shall be binding upon and shall inure to
the benefit of the parties hereunder and their respective successors and
permitted assigns; provided that Landlord and each successive owner of the
Building and the Lot shall be liable only for such obligations of Landlord
hereunder that accrue during the period of its ownership of the Building
-44-
and the Lot, or interest and provided further that the liability of the Landlord
hereunder shall be limited to the Landlord's estate or other title or interest
in the Leased Premises.
28. Waivers.
No delay or forbearance by either Landlord or Tenant in exercising any
of their respective rights or remedies hereunder or in undertaking or performing
any act or matter which is not expressly required to be undertaken by such party
hereunder shall be construed to be a waiver of any of such party's rights or
remedies hereunder or to represent any agreement by such party to undertake or
perform such act or matter thereafter, or to be a waiver of such party's right
to enforce the other party's strict performance under all provisions of this
Lease.
29. Waiver of Trial by Jury.
Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other on any matters whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use of or occupancy of
the Leased Premises and/or any claim or injury or damage and any emergency
statutory remedy or any other statutory remedy.
30. Waiver of Benefits.
Tenant waives the benefits of all existing and future Rent control
Legislation and Statutes and similar governmental rules and regulations, whether
in time of war or not, to the extent permitted by law.
31. Severability.
If any of the provisions in this Lease or the application thereof to
any person or circumstances, shall, to any extent, be invalid, illegal or
otherwise unenforceable, the remainder of this Lease, and the application of
such provision to any person or circumstances, other than those as to whom or
which it is held invalid, illegal or unenforceable, shall not be affected
thereby, and every provision in this Lease shall be valid and enforceable to the
fullest extent permitted by law.
-45-
32. Notice.
All notices or other communications required or permitted hereby shall
be effective only if the same are in writing and signed by the party giving the
notice or by an agent or other person authorized in writing to so act on behalf
of such party. Notices to Tenant may be given by leaving same at the Leased
Premises during business hours or by mailing same to Tenant at the address set
forth in Section 1-(l) by registered or certified mail, return receipt
requested, or at such other address as Tenant shall specify by notice to
Landlord pursuant hereto, and notices to Landlord must be mailed to Landlord at
the address stated in Section 1(k) by registered or certified mail, return
receipt requested, or at such other address as Landlord shall specify by notice
to Tenant pursuant hereto. All notices shall, unless otherwise specified herein,
be deemed to have been given (i) on the date when same are delivered, if
delivered, or (ii) two days after the date when the same are deposited in the
mail.
33. Brokerage.
Tenant represents and warrants that it has not dealt with any broker,
agent, finder or other person in connection with the negotiation for or the
obtaining of this Lease or the Leased Premises, and that no broker, agent,
finder or other person brought about the transaction contemplated by this Lease,
other than Landlord's Agent or a cooperating broker identified in Section 1(o),
and Tenant agrees to indemnify and hold Landlord harmless from and against any
and all claims, costs (including attorneys' fees) and liability for commissions
or other compensation claimed by any other broker, agent, finder or other person
claiming a commission or other form of compensation by virtue of having been
employed or engaged by Tenant or having dealt with Tenant with regard to this
Lease. The provisions of this Section shall survive the termination of this
Lease.
34. Holding Over.
If Tenant retains possession of the Leased Premises or any part
thereof after the Expiration Date or sooner termination of the Lease Term or any
extension thereof, Tenant shall pay to Landlord rent monthly in advance on the
first day of each month at a rate that is one and one-half (1 1/2) times the
Monthly Fixed Rent specified in Section 1(i) or such adjusted Month Fixed Rent
then payable, together with all Additional Rent required to be paid by Tenant
under this Lease for the time that the Tenant thus remains in possession and, in
addition thereto, shall pay to Landlord an amount equal to all damages,
consequential as well as direct, sustained by reason of Tenant's retention of
possession of the
-46-
leased Premises. If Tenant remains in possession of the Leased Premises, or any
part thereof, after the Expiration Date or sooner termination of the Lease Term,
such holding over shall, at the election of the Landlord expressed in a written
notice to the Tenant and not otherwise, constitute a renewal of this Lease (i)
from month to month or, if the notice shall advise that unless Tenant vacates
the Leased Premises within thirty (30) days thereafter, a longer, tenancy shall
commence at the expiration of such thirty (30) day period, either (ii) from year
to year or (iii) such lesser period as Landlord may elect, in accordance with
such notice (in any case, at double the Monthly Fixed Rent rate, as aforesaid).
The provisions of this Section do not exclude Landlord's rights of re-entry or
any other right hereunder.
35. Estoppel Certificate by Tenant.
Tenant from time to time, within ten (10) days after Landlord's written
request, shall execute, acknowledge and deliver to Landlord a statement in
writing certifying (a) 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 identifying the modifications), (b) the dates to which
Annual Fixed Rent, Additional Rent and all other charges have been paid, (c)
that, to Tenant's knowledge, Landlord is not in default under any provision of
this Lease, and, if the Landlord is in default, specifying each such default,
and (d) such other items and matters as may be reasonably requested by Landlord,
it being understood that any such statement so delivered by Tenant to Landlord
may be relied upon by Landlord, any landlord under any ground or underlying
lease, any prospective purchaser, any existing or prospective mortgagee, any
assignee of any mortgage secured by the Leased Premises, or any prospective
assignee of Landlord's interest in this Lease. Tenant hereby irrevocably
appoints Landlord as its attorney-in-fact with full power to execute and
deliver, in the name of Tenant, any such certificate or certificates.
-47-
37. Amendment and Modifications.
This Lease contains the entire agreement between the parties hereto
relating to the subject matter contained herein, and shall not be amended,
modified or supplemented unless by agreement in writing signed by both Landlord
and Tenant; and if any such agreement be for the acceptance of the surrender of
the Leased Premises, cancellation of this Lease, reduction of Rent, change of
the Lease Term, or any other matter which would impose any further material
obligation on Landlord or which would relieve Tenant of any of its obligations
or liability hereunder, the same shall not be valid unless it is approved in
writing by all mortgagees and holders of any estate of interest in the Leased
Premises by virtue of leases or other instruments expressly referred to herein
or which are then of record. Neither party hereto has made any representations
or promises to the other except as expressly contained herein. This Lease
supersedes all prior negotiations, agreements, informational brochures, letters,
promotional information and other statements and materials made or furnished by
Landlord or its agents. The submission of this Lease by Landlord, its attorneys
or agents, for examination or execution by Tenant, does not constitute a
reservation of (or option for) the Leased Premises in favor of Tenant and Tenant
shall have no right or interest in the Leased Premises and Landlord shall have
no liability hereunder, unless and until this Lease is executed and delivered by
Landlord. No rights, easements or licenses are acquired in the Lot or in any
land adjacent thereto, by Tenant by implication or otherwise, except as
expressly set forth in this Lease.
-48-
38. Headings and Terms.
The title, captions, headings and table of contents of this Lease are
for convenience of reference only and shall not in any way be utilized to
construe or interpret the agreement of the parties as otherwise set forth
herein. The term "Landlord" and term "Tenant" as used herein shall mean, where
appropriate, all persons acting by or on behalf of the respective parties,
except as to any required approvals, consents or amendments, modifications or
supplements hereunder, where such terms shall only mean the parties originally
named on the first page of this Lease as Landlord and Tenant, respectively, and
their agents so authorized in writing.
39. Recording and Copies.
This Lease shall not be recorded in whole or in memorandum form by
either party without the prior written consent of the other. In the event of
variation or discrepancy, the Landlord's original copy of this Lease shall
control.
40. Governing Law.
This Lease shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania.
41. No Joint Venture.
This Lease shall create only the relationship of landlord and tenant
between Landlord and Tenant and no estate shall pass out of Landlord. Nothing
herein is intended to be construed as creating a joint venture or partnership
relationship between the parties hereto.
42. Exhibits.
All exhibits referred to in this Lease are attached hereto and shall be
deemed an integral part hereof.
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SEE RIDER ATTACHED HERETO AND MADE A PART HEREOF FOR SECTIONS 43
THROUGH 48 INCLUSIVE.
THE UNDERSIGNED TENANT ACKNOWLEDGES THAT IT FULLY UNDERSTANDS THE
CONFESSION OF JUDGMENT CONTAINED IN SECTION 25(g) HEREOF AND THAT THE
LANDLORD-TENANT RELATIONSHIP CREATED HEREBY IS COMMERCIAL IN NATURE AND
THAT THE UNDERSIGNED WAIVES ANY RIGHT TO A HEARING WHICH WOULD
OTHERWISE BE A CONDITION TO LANDLORD's OBTAINING THE JUDGMENTS
AUTHORIZED BY SECTION 25(g).
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed in Section 1 and below on the date first set forth above in Section 1.
PENNSYLVANIA BUSINESS CAMPUS
DELAWARE, INC.
By: /s/ Guy F. Tcheau
-----------------------------------
Name : Guy F. Tcheau
Title: Senior Investment Manager
(Corporate Seal)
Attest: /s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Investment Manager
LEXIN PHARMACEUTICAL CORPORATION
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx, Ph.D.
Title: President
(Corporate Seal)
Attest: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
-50-
RIDER
ATTACHED TO AND MADE A PART OF LEASE AGREEMENT
DATED MARCH 29, 1994 ("LEASE") BETWEEN
PENNSYLVANIA BUSINESS CAMPUS DELAWARE, INC. ("LANDLORD"),
AND LEXIN PHARMACEUTICAL CORPORATION ("TENANT")
FOR SUITE NO. 111, 000-000 XXXX XXXX
XXXXXXX, XXXXXXXXXXXX
All capitalized terms utilized but not defined herein shall have the
meanings assigned to such terms in the Lease.
43. Improvements.
A. Tenant's Entry.
Tenant shall be permitted to enter the Leased Premises in advance
of the Commencement Date for the purposes set forth in this Section 43. Except
for Tenant's obligation to pay Annual Fixed Rent and Additional Rent on account
of Operating Expenses (which obligations shall commence on the Commencement
Date), during such early occupancy of the Leased Premises, Tenant shall comply
with all provisions of this Lease pertaining to Tenant's occupancy and use of
the Leased Premises.
B. Work to be Performed.
1. Subject to the terms and conditions set forth in this
Section 43, Tenant shall be permitted to construct and complete the improvements
("Tenant's Work") to the Leased Premises for Tenant's occupancy thereof
described in the Tenant's Scope of Work Letter attached hereto as Exhibit "D"
and made a part hereof. Promptly following the date of this Lease, Tenant shall
cause IPS Integrated Project Services, an architect chosen by Tenant, or a
substitute architect approved in writing by Landlord ("Tenant's Architect"), to
prepare construction drawings and specifications for the construction of
Tenant's Work ("Tenant's Plans and Specifications") consistent with Exhibit "D"
to the extent that Tenant's Architect has not already done so. Tenant has
delivered to Landlord that portion of Tenant's Plans and Specifications
comprised of a space plan (with reflected ceiling plan) for the Leased Premises
and that portion of Tenant's Plans and Specifications showing the placement of
HVAC equipment. Tenant shall cause Tenant's Architect to deliver to Landlord the
remainder of Tenant's Plans and Specifications prior to March 23, 1994. Tenant's
Plans and Specifications shall include, without limitation, a partitions, doors
and layout plan, a reflected ceiling plan, a finishes plan, a mechanical and
electrical plan and an HVAC plan (for a minimum of three HVAC units). Tenant's
Plans and Specifications shall be subject to
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Landlord's written approval prior to the commencement of construction, which
approval shall not be unreasonably withheld, and Tenant's Work shall be
constructed in accordance with Tenant's Plans and Specifications as approved in
writing by Landlord. Within ten business (10) days of receipt by Landlord,
Landlord shall either approve Tenant's Plans and Specifications or deliver to
Tenant its written objections to Tenant's Plans and Specifications. Landlord
similarly shall respond to corrections made by Tenant to Tenant's Plans and
Specifications within ten (10) business days of receipt. No variations or
additions to Tenant's Plans and Specifications may be made without the prior
written consent of Landlord, which consent shall not be unreasonably withheld,
provided that no variations or additions shall be made except pursuant to a
written change order under which Tenant shall pay any increased costs associated
therewith, to the extent such increased costs raise the total cost of Tenant's
Work above "Landlord's Share" (defined below). The foregoing notwithstanding,
Tenant may make minor changes in Tenant's Work that do not materially alter the
work described on Exhibit "D"; provided that Tenant notifies Landlord of such
changes.
2. Tenant's Work shall be performed by IPS Integrated Project
Services, a construction manager selected by Tenant, or a substitute
construction manager approved in advance in writing by Landlord ("Tenant's
Construction Manager") and under the supervision of IFS Integrated Project
Services ("Tenant's Architect") and IPS Integrated Project Services, a
registered engineer selected by Tenant, or a substitute engineer approved in
advance in writing by Landlord ("Tenant's Engineer"). Tenant shall enter into a
written construction contract with Tenant's Construction Manager, which contract
shall be approved in writing by Landlord. Such construction contract shall
include a schedule of values approved by Landlord, shall stipulate a maximum
price for the cost of Tenant's Work ("Contract Price"), and shall provide for a
ten percent (10%) retainage on all installments of the contract price payable
to Tenant's Construction Manager prior to final completion. All work performed
with respect to Tenant's Work shall be performed in a good and workmanlike
manner and in compliance with all laws, statutes, ordinances, regulations,
orders and requirements of all federal, state, county, township, local or other
governmental authorities having jurisdiction with respect thereto, including,
without limitation the Americans with Disabilities Act. Prior to the
commencement of any work as provided for herein, Tenant shall supply Landlord
with satisfactory evidence of (a) the procurement of all necessary permits and
authorizations for the construction of Tenant's Work from the various
governmental authorities having jurisdiction over the Building, (b) the due and
timely filing of a waiver against mechanics' liens, satisfactory to Landlord, by
the contractors and subcontractors hired by Tenant to perform Tenant's Work, (c)
Tenant's workmen's compensation insurance,
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public liability insurance and property damage insurance in amounts, form and
content, and with companies reasonably satisfactory to Landlord, and (d)
Tenant's Construction Manager's workmen's compensation insurance, public
liability insurance, and property damage insurance, in amounts, form and
content, and with companies satisfactory to Landlord. Landlord shall have the
right to enter the Leased Premises during the construction of Tenant's Work to
observe the execution and progress of the work. Notwithstanding any other
provision of this Lease to the contrary, Tenant's Construction Manager's failure
to perform shall not relieve Tenant of the duty to perform and complete Tenant's
work in the manner set forth herein.
C. Payments of Costs of Tenant's Work.
Landlord shall reimburse Tenant, in an amount not to exceed
"Landlord's Share" (defined below) in the aggregate, for payments made by Tenant
to Tenant's Construction Manager in respect of requisitions for payment
submitted by Tenant's Construction Manager on account of completed portions of
Tenant's Work, such reimbursement to be made by Landlord within ten (10) days
following receipt of a copy of Tenant's check and transmittal letter to Tenant's
Construction Manager evidencing that Tenant has paid the full amount of the
applicable requisition of payment, subject to following conditions:
(1) All requisitions for payment shall be on A.I.A. standard
form (which form shall include a release by the contractor/payee) and shall be
submitted by Tenant's Construction Manager to Tenant and to Landlord for
Landlord's approval.
(2) Until final completion of Tenant's Work, all
requisitions for payment shall reflect a ten percent (10%) retainage.
(3) Landlord shall not be required to pay for Landlord's
Share of payments made by Tenant in respect of requisitions for payment more
often than monthly.
(4) Landlord shall not be required to pay Landlord's Share
with respect to any requisition for payment unless and until the work covered
thereby has been certified by Tenant's Architect and Landlord's architect, if
Landlord so elects, to have been performed and completed in a good and
workmanlike manner and in conformity with Tenant's Plans and Specifications.
In no event shall Landlord be required to pay in excess of $18.50 per square
foot multiplied by the number of square feet of space in the Leased Premises,
plus an amount of $50,000 towards the purchase and installation of an HVAC
system ("Landlord's Share"), in the aggregate, on account of Tenant's Work, and
Tenant shall
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pay the full cost and expense of Tenant's Work in excess of such amount
("Tenant's Share")
44. Additional Security.
A. Escrow Deposit. contemporaneously with the execution and
delivery of this Lease by Tenant, Tenant has deposited with CoreStates Bank,
N.A. ("Escrow Agent") the amount of $282,500 ("Escrow Funds") to be held in
escrow as security for Tenant's obligations hereunder. Escrow Agent shall hold
and disburse the Escrow Funds as provided herein and in the Escrow Agreement
substantially in the form attached hereto as Exhibit "H".
B. Disbursements to Tenant. Provided Tenant has not committed an
Event of Default, which is ongoing, of any of its obligations set forth in this
Lease, at the end of each Lease Year of the Lease Term, until all of the Escrow
Funds have been disbursed, Landlord, in accordance with the terms of the Escrow
Agreement, shall instruct the Escrow Agent to pay to Tenant from the Escrow
Funds, an amount equal to 50 percent (50%) of all installments of Monthly Fixed
Rent paid by Tenant to Landlord during such period, plus all interest accrued on
the Escrow Funds. Within thirty (30) days following the expiration or earlier
termination of the initial Lease Term (other than as a result of an Event of
Default hereunder) and compliance by Tenant with its obligations under this
Lease, Landlord shall instruct the Escrow Agent to pay to Tenant all of Escrow
Funds then remaining in the Escrow Account, if any, including all accrued
interest.
C. Application of Escrow Funds in the Event of Default. If at any
time an Event of Default shall have occurred, Landlord shall be entitled, at its
sole discretion, (i) to receive the Escrow Funds or any part thereof and apply
the same to payment of (A) any Annual Fixed Rent, Additional Rent and/or
additional charges then past due, (B) any expense incurred by Landlord in curing
any Event of Default by Tenant hereunder, (c) any other sums due to Landlord in
connection with such Event of Default or the curing thereof, including, without
limitation, any damages and expenses (including attorneys' fees) incurred by
Landlord by reason of such Event of Default; or (ii) to retain the same in
liquidation of all or part of the damages suffered by Landlord by reason of such
default. If any portion of the Escrow Funds is so used or applied, Tenant shall,
within five (5) days after written demand therefor, deposit cash with Escrow
Agent in an amount sufficient to restore the Escrow Funds to the same amount as
prior to such Event of Default. All expenses relating to the Escrow Account
shall be borne by Tenant.
45. Right of First Refusal.
Tenant shall have, and is hereby granted, a right of first refusal
("Right of First Refusal")
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set forth in this Section 45, regarding that certain 10,000 (approximately)
rentable square feet of space located in the Building, adjacent to the Leased
Premises and outlined in blue on the floor plan attached hereto, initialed and
made a part hereof as Exhibit "I" ("First Refusal Space"). In the event Landlord
receives (or submits) a bona fide proposal to lease all or any portion of the
First Refusal Space from (or to) any third party and if Landlord is prepared to
lease the First Refusal Space to the third party on such terms, Landlord shall
give Tenant notice and a copy of the proposed terms of such lease, and Tenant
shall have the right (but not the obligation) to lease all of the First Refusal
Space as is described in such proposal on the terms set forth in Landlord's
notice by giving notice thereof to Landlord within fourteen (14) days after the
time Tenant receives such notice from Landlord; provided that if Tenant
exercises its Right of First Refusal, Tenant shall lease the greater of 5,000
rentable square feet of the First Refusal Space or the portion to be leased
pursuant to the third party proposal. If Tenant fails to exercise the foregoing
Right of First Refusal within fourteen (14) days after the time Tenant receives
Landlord's notice, such Right of First Refusal shall terminate, Landlord shall
have the right to lease such First Refusal Space to any third party and Landlord
shall have no further obligation to offer to lease the First Refusal Space to
Tenant. If Tenant elects to exercise such Right of First Refusal, Tenant shall
lease the First Refusal Space upon the same terms and conditions set forth in
Landlord's offer, and within thirty (30) days after Tenant's election, Landlord
and Tenant shall execute an agreement (i) consistent with the terms and
conditions of said offer and (ii) otherwise substantially in the form of this
Lease acceptable to Landlord and Tenant.
If Tenant fails to exercise the foregoing Right of First Refusal
within fourteen (14) days after the time Tenant receives Landlord's notice,
Landlord agrees not to enter into a lease with the third party on terms that are
materially more advantageous (in Landlord's reasonable opinion) to such third
party than the terms set forth in the bona fide proposal until Landlord has
again given Tenant notice and a copy of the proposed terms of such lease and an
additional forty-eight (48) hours to exercise Tenant's Right of First Refusal in
accordance with the foregoing paragraph. In addition, Landlord agrees to use its
best reasonable efforts to apprise Tenant of interest by third parties in the
First Refusal Space that will result, in Landlord's opinion, in a bona fide
proposal from (or to) such third party to lease the First Refusal Space.
Notwithstanding any other provisions of this Section 45 to the
contrary, the Right of First Refusal shall not be exercisable or available to
Tenant if (i) at the time such right would otherwise be exercisable, an Event of
Default, as defined in Section 24, has occurred and is continuing, or (ii)
Tenant shall
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have previously delivered to Landlord a "Termination Notice" (defined in Section
46). Exercise of the Right of First Refusal while an Event of Default has
occurred is continuing of any of its obligations hereunder or after Tenant shall
have delivered to Landlord a Termination Notice, shall be null and void and
shall confer no obligations upon Landlord.
46. Tenant's Option to Terminate.
Tenant shall have the right to terminate this Lease in advance of the
Expiration Date upon the last day of the third (3rd) year of the Lease Term
("Termination Date"), which right shall be exercisable by Tenant's giving
written notice thereof to Landlord ("Termination Notice") at least 120 days
prior to the Termination Date; provided, however that Tenant shall not have the
right to terminate provided in this Section if an Event of Default has occurred
and is continuing either at the time the Termination Notice is received or as of
the Termination Date; and provided further, that the terms and conditions of
this Section 46 are satisfied. On or before the Termination Date, Tenant shall
vacate and surrender the Leased Premises to Landlord in the condition the Leased
Premises are required to be returned at the expiration of the Lease Term. Tenant
agrees to pay all Rent, whether Annual Fixed Rent or Additional Rent, which
becomes payable or accrues during the period of time from the date Tenant's
Termination Notice is received by Landlord until the Termination Date,
regardless of whether Tenant vacates the Leased Premises prior to the
Termination Date. In addition, Tenant shall pay to Landlord, on or before the
Termination Date, an amount equal to $144,535 ("Termination Fee"). In the event
Tenant shall have previously leased the First Refusal Space pursuant to Section
45, Tenant's Termination Notice also shall cause the Lease to terminate with
respect the First Refusal Space and the Termination Fee payable by Tenant shall
be increased by the sum of the unamortized portion, as of the applicable
Termination Date, of (a) all costs and expenses incurred by Landlord in
constructing improvements to the First Refusal Space (if any), and (b) all
brokers' and co-brokers' commissions paid or payable by Landlord with respect to
leasing the First Refusal Space to Tenant, which amounts Landlord will amortize
on a straight line basis over the remaining Lease Term at the interest rate of
10 percent (10%) per annum.
47. Tenant's Right to Audit.
No more often than once in each Lease Year, Tenant, at its sole cost
and expense, shall have the right to review Landlord's record pertaining to
Operating Expenses at reasonable times with at least five (5) days' prior
written notice. If such review reveals that Operating Expenses have been
overstated, Landlord shall reimburse to Tenant the amount overpaid by Tenant.
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48. Renewal Term.
Tenant shall have the right and option to extend the Lease Term for
one (1) extension term of five (5) years ("Extension Term") at an Annual Fixed
Rent equal to the "Extension Term Annual Fixed Rent" (below defined), but
otherwise upon the same terms and conditions contained in this Lease; provided,
however, that the provisions of Section 45 and 46 shall not apply during the
Extension Term. Tenant's right and option to extend the Lease Term shall be
exercisable by giving Landlord prior written notice thereof at least one hundred
eighty (180) days prior to the Expiration Date. Tenant's option to extend shall
be exercisable provided that at the time of the exercise of such option and upon
the date on which the Extension Term would commence, Tenant shall not be in
default of any of its obligations or covenants under this Lease, including any
"Event of Default", as defined herein, that is continuing on such dates.
The "Extension Term Annual Fixed Rent" payable during the first year
of the Extension Term shall equal the Annual Fixed Rent for year 5 of the Lease
Term multiplied by a traction, the numerator of which shall be the Index
(defined below) in effect for the last full month of the Lease Term, and the
denominator of which shall be the Base Index. The foregoing notwithstanding, in
no event shall the Extension Term Annual Fixed Rent be less than the Annual
Fixed Rent for year 5 of the Lease Term. As used herein, "Index" shall mean the
"Revised Consumer Price Index for Urban Wage Earners and Clerical Workers"
published by the Bureau of Labor Statistics for the United States Department of
Labor for Philadelphia-Wilmington-Trenton, PA-DE-NJ-MD, (1982-84-100). If the
Index shall hereafter be converted to a different standard reference base or
otherwise revised, the determination of the Extension Term Annual Fixed Rent
shall be made with the use of such conversion factor, formula or table for
converting the Index as may be published by the Bureau of Labor Statistics or,
if said Bureau shall not publish the same, then with the use of such conversion
factor, formula or table for converting the Index as may be published by the
Bureau of Labor Statistics or, if said Bureau shall not publish the same, then
wit the use of such conversion factor, formula or table as may be published by
Prentice Hall, Inc., or failing such publication, by any other nationally
recognized published or similar statistical information. If the Index shall
cease to be published, then, for the purposes of this Section, there shall be
substituted for the Index such other comparable index as Landlord shall
reasonably determine. As used herein, "Ease Index" shall mean the Index in
effect for the month of February 1994.
In the second through fifth years of the Extension Term, the Extension
Term Annual Fixed Rent for each year shall equal the Extension Term Annual Fixed
Rent for the first year of the Extension Term (as calculated above) multiplied
by a
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fraction, the numerator of which shall be the Index in effect for the last
full month of the year immediately preceding the upcoming Extension Term year,
and the denominator of which shall be the Index in effect in the last month of
the initial Lease Term.
IN WITNESS WHEREOF, the parties hereto have caused this
Rider to be executed on their behalf by their duly authorized representatives on
the date first set forth above in Section 1.
PENNSYLVANIA BUSINESS CAMPUS
DELAWARE, INC.
By: /s/ Guy F. Tcheau
-------------------------------------
Name : Guy F. Tcheau
Title: Senior Investment Manager
(Corporate Seal)
Attest: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Investment Manager
LEXIN PHARMACEUTICAL CORPORATION
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx, Ph.D.
Title: President
(Corporate Seal)
Attest: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
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EXHIBIT A
Engineering drawing of 000-000 Xxxx Xxxx
Xxxxxxx Xx, 00000
Latest Rev A Date: 10/16/92
EXHIBIT B
Engineering Drawing of Pennsylvania Business Campus depicting location of
buildings on the campus and specifically drawing attention to
Building 10 - Rock Plaza 3 - (101 - 000 Xxxx Xxxx)
EXHIBIT "C"
CONFIRMATION OF LEASE TERM
THIS CONFIRMATION OF LEASE TERM is made this 16th ______ day of August,
1994 by and between PENNSYLVANIA BUSINESS CAMPUS DELAWARE, INC., a Delaware
corporation ("Landlord"), and LEXIN PHARMACEUTICAL CORPORATION, a Delaware
corporation ("Tenant")
W I T N E S E T H:
WHEREAS, by that certain Lease Agreement dated March 29, 1994, between
the parties hereto (the "Lease"), Landlord leased to Tenant and Tenant leased
and took from Landlord, certain Leased Premises for the Lease Term and upon the
terms and conditions more specifically set forth in the Lease (capitalized terms
used but not defined herein shall have the meanings assigned to them in the
Lease);
WHEREAS, the Lease provides that Landlord and Tenant shall execute a
confirmation of the actual commencement date of the Lease Term when such date
has been determined;
NOW THEREFORE, the parties hereto, intending to be legally bound
hereby, agree that the Lease Term commenced on July 25, 1994 (the "Actual
Commencement Date") and that the Lease Term will therefore expire on July 24,
1999.
Tenant acknowledges that: (i) it is in possession of the Leased
Premises; (ii) the Lease is in full force and effect; (iii) Landlord is not in
default under the Lease; and (iv) the Leased Premises are accepted by Tenant as
having been completed in accordance with the provisions of the Lease.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed on their behalf by their duly authorized representatives on the day and
year first above written.
PENNSYLVANIA BUSINESS CAMPUS
DELAWARE, INC.
By: /S/ Guy F. Tcheau
----------------------------------------
Name : Guy F. Tcheau
Title: Senior Investment Manager
(Corporate Seal)
Attest: /S/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Investment Manager
LEXIN PHARMACEUTICAL CORPORATION
By: /S/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx, Ph.D.
Title: President
(Corporate Seal)
Attest: /S/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
EXHIBIT "D"
SCOPE OF WORK
Overview
Alexin Pharmaceuticals intends to fit-out an existing building in the
Pennsylvania Business Campus located in Horsham, Pennsylvania. Alexin will
convert the building to house offices, research areas, and support areas for
maintenance, shipping and receiving.
Scope
1) Office Area: A 2,500 square foot office space. This office will consist of
low partitioned cubicles and fixed office partitions. It will also house a
325 square foot lobby, a 250 square foot mens and womens toilet facility,
and a 450 square foot common kitchen and eating area for employees.
2) Research Area: The research area will consist of a process development lab
of 750 square feet, a recovery area of 200 square feet, a centrifuge area
of 200 square feet, fermentation area of 1,000 square feet, a microbial lab
of 200 square feet, a refrigerated storage area of 200 square feet, and a
quality assurance area of 1,000 square feet.
3. Support Area: The support areas will include a wash and storage area of
500 square feet, a utility space of 200 square feet, a maintenance area of
200 square feet, a shipping/receiving/ quarantine area of 2,500 square
feet.
4. Utilities: Each of the above areas will require utilities for plumbing,
heating, cooling and electrical services. The utilities shall be defined on
the architects and engineers drawings.
5. Drawing List: The Scope of Work is further delineated in the
architectural/engineering drawings prepared by IPS, Inc. for which a
drawing list appears below.
Al Architectural Floor Plan
A2 Architectural Reflected Ceiling Plan
Ml Heating, Ventilating and Air Conditioning Floor Plan
M2 Heating, Ventilating and Air conditioning Equipment, Schedules and
Details
P1 Underground Plumbing and Potable Water Piping Systems
P2 Details, Schedules and Process Equipment Hookups
PS Sprinkler Requirements
E1 Electrical Power Requirements
E2 Electrical Lighting Requirements
SP-2 Space Plan drawing by IPS Integrated Project Services dated 1/14/94
are attached as Exhibit D.
D-1
EXHIBIT E
ELECTRICAL MODIFICATIONS
Landlord shall provide a 480 volt, 800 amp electrical service to the
Lot. The Landlord is responsible for the cost of providing the electrical
service and primary meter.
Tenant will require electrical power over and above what is required
for the use and operation of normal office equipment. Additional power is
required to power research related items such as, but not limited to, ice
machines, autoclaves, compressors, reheat coils, Neslab coolers, hoods,
freezers, refrigerators, glass washers, dry heat oven, homogenizer, centrifuges,
and other miscellaneous lab equipment. Tenant agrees that Tenant's electric
requirements will not exceed the capacity of a 480 volt, 800 amp electrical
service.
EXHIBIT F
HAZARDOUS MATERIALS
Tenant will comply with all federal, state, and local ordinances for
the use of hazardous materials. Tenant will use small quantities of organic
compounds (e.g. alcohol, acetone, hydrogen peroxide, etc.) for cleaning and
research purposes. Quantities will be limited by the limitation set forth in the
latest edition of the BOCA code. It is Tenant's responsibility to obtain all
permits required for the handling, storage, and disposal of these materials.
EXHIBIT G
RESEARCH ANIMALS
A. Regulations pertaining to the animals
1. No animal shall weigh more than 10 pounds.
2. No more than 20 animals shall be present within the Leased Premises at
any point in tine.
3. The only types of animals permitted in the Leased Premises are laboratory
rats, mice and rabbits.
4. No audible noise or odor shall emanate beyond the perimeter walls of the
Leased Premises.
5. Transportation of animals in and out of the Leased Premises shall only
occur through the loading docks in the rear of the Building and in a
concealed manner.
6. Storage of animals shall be within a closed space at least 10 feet from
demising and perimeter walls of Leased Premises and not visible to public
areas.
7. No animals or animal waste shall be disposed of within the Leased
Premises, lot and campus including dumpsters.
B. Cure Period upon Default; Landlord's Remedy
Upon the occurrence of any complaint from another tenant in the Office
Park or any other person relating to the presence of the animals in the Leased
Premises, including, but not limited to, complaints caused by the violation of
any of the regulations in Section A, above, or complaints by animal rights
activists, than all experiments shall cease within 24 hours of such occurrence,
and Tenant shall have 48 hours to cure the cause of the complaint to Landlord's
satisfaction and the complaining tenant's satisfaction, if applicable. If Tenant
is unable to cure the cause of the complaint as provided in the foregoing
sentence, then Tenant shall remove all animals from the Leased Premises and the
Office Park within 24 hours. Failure to do so shall constitute an Event of
Default under this Lease, and Landlord shall be entitled to exercise all rights
and remedies hereunder, including the right to seek indemnification under
Section 26(a) of this Lease.
EXHIBIT H
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made as of this 1st day of April, 1994 by and
among Pennsylvania Business Campus Delaware Inc., a Delaware corporation having
an address at c/o GSIC Realty Corporation, 000 xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx xxxx, Xxxxxxxxxx 00000 ("Landlord"), Lexin Pharmaceutical Corporation, a
Pennsylvania corporation having an address as Rock Plaza III, 000-000 Xxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000 ("Tenant") and CoreStates Bank N.A., a national
banking association having an address at 000 Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 ("Escrow Agent").
Witnesseth
WHEREAS, Landlord and Tenant have entered into that certain Net Lease
Agreement (the "Lease") dated March 29, 1994 pursuant to which Landlord has
leased to Tenant approximately 12,786 square feet of space in the building known
as Rock Plaza III and located in the Pennsylvania Business Campus, Horsham
Township, Xxxxxxxxxx County, Pennsylvania; and
WHEREAS, pursuant to section 44 of the Lease, Tenant is required to
deposit with Escrow Agent the sum of Two Hundred Eighty-Two Thousand Five
Hundred Dollars ($282,500.00) (the
"Deposit") at the tine or the execution of the Lease to be held in escrow as
security for Tenant's obligations thereunder; and
WHEREAS, this Escrow Agreement is being executed and delivered by the
parties hereto in accordance with the provisions of Section 44 of the Lease. The
form of this Escrow Agreement is attached to the Lease as Exhibit H; and
WHEREAS, Landlord, Tenant and Escrow Agent desire to set forth herein
the terns upon which the Escrow Funds (as hereinafter defined) shall be held in
escrow and released therefrom.
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and agreements contained herein and in the Loans, the parties hereto
intending to be legally bound, hereby agree as follows:
1. Definitions. All capitalized terms not defined herein shall xxxx the
meaning ascribed to them in the Lease.
2. Escrow Agent's Duties Landlord and Tenant hereby appoint CoreStates
Bank, N.A. as Escrow Agent hereunder, and CoreStates Bank, N.A. hereby accepts
such appointment. Escrow Agent's duties hereunder are limited to the holding and
disbursing of the Escrow funds an provided herein, the giving of notices to
Landlord and Tenant as provided herein and such other duties as are set forth
herein. No duties or obligations shall be implied to Escrow Agent.
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3. Escrow Funds. Upon the execution of the Lease, Tenant shall pay the
Deposit to Escrow Agent which shall be held in escrow by Escrow Agent as
security for Tenant's obligations under the Lease. Escrow Agent shall invest the
Deposit in a Corefund Treasury Reserve Money Market Mutual Fund from which the
Escrow Agent or its affiliate may receive compensation and hold and disburse the
Deposit, with any interest accrued thereon (collectively. the "Escrow Funds"),
pursuant to the terms hereof. Escrow Agent shall be responsible solely for the
safekeeping of the Escrow Funds. For tax reporting purposes, all interest shall
be treated as received by Tenant.
4. Disbursements
(a) Provided that an Event of Default has not occurred and is
continuing under the Lease at the end of the then applicable Lease Year (as
hereinafter defined) and until all the Escrow Funds have been disbursed,
Landlord shall instruct Escrow Agent in writing (the "Payment Notice") to pay to
Tenant from the Escrow Funds the amount set forth by Landlord in the Payment
notice, which amount shall be equal to fifty percent (50%) of all installments
of Monthly Fixed Rent paid by Tenant to Landlord during the preceding Lease
Year, plus all interest accrued on the Deposit during such Lease Year. Escrow
Agent shall make such payment to Tenant within five (5) days of receipt of the
payment Notice from landlord. For purposes hereof, the term Lease Year" shall
mean a period of twelve (12) consecutive, full calendar months, the first of
which shall commence on the first day of the
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first month which occurs after the Commencement Date, or if the Commencement
Date falls on the first day of a month, then on the Commencement Date.
(b) If Landlord fails to deliver the Payment Notice to Escrow Agent
within fifteen (15) days of the end of a Lease Year and an Event of Default has
not occurred and is not continuing, Tenant shall have the right to deliver the
Payment Notice to Escrow Agent and, provided that the Escrow Agent has not
received a notice from the Landlord that an Event of Default has occurred and is
continuing under the Lease, Escrow Agent shall pay to Tenant the amount set
forth therein within five (5) days of receipt of such notice; provided that
Tenant has given Landlord prior written notice of Landlord's failure to deliver
the Payment Notice and Landlord has not sent such Payment Notice within five (5)
business days of receiving such notice from Tenant.
(c) within thirty (30) days following the expiration or earlier
termination of the Initial Lease Term (other than as a result of an Event of
Default thereunder) and compliance by Tenant with its obligations under the
Lease, Landlord shall instruct Escrow Agent in writing to pay to Tenant, and
thereupon Escrow Agent shall pay to Tenant within five (5) days of such
instruction, all of the Escrow Funds then remaining in the Escrow Account, if
any.
(d) if at any time an Event of Default shall have occurred under the
Lease, Landlord shall be entitled, at its sole discretion, to direct the Escrow
Agent, in writing, with a copy to Tenant, to disburse the Escrow Funds to
Landlord, and within five (5) days or such written direction, Escrow Agent shall
4
disburse the Escrow Funds to Landlord, which Escrow Funds Landlord shall use and
apply in accordance with Section 44 of the Lease thereof. It any portion of the
Escrow funds are so used or applied, Landlord shall notify Tenant, in writing,
with a copy to Escrow Agent, of the amounts so used or applied and Tenant shall,
within five (5) days after such notice, deposit with Escrow Agent an amount
sufficient to restore the Escrow Funds to the same amount as prior to such Event
of Default.
5. Escrow Agent; Indemnity.
(a) Escrow Agent shall not be liable for the performance or
nonperformance of any term of the Lease by either Tenant or Landlord. It is
further agreed and understood that, except in case of its' gross negligence or
willful misconduct, Escrow Agent shall not be liable for the disposition of the
Escrow Funds or for any error or judgment or for any act taken or omitted to be
taken in good faith or in reliance on any written notice or other document
believed by it to be genuine and to be signed or submitted by an authorized
signatory of Landlord or Tenant.
(b) Escrow Agent shall be paid the sum of $2,000.00 per year for
its services performed hereunder and each or the parties hereto hereby
indemnities and holds Escrow Agent harmless from and against any and all costs,
damages and expenses, including reasonable attorneys' fees and disbursements, it
may incur or sustain in connection with acting as Escrow Agent hereunder.
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(c) In the event of a dispute between Landlord and Tenant with
respect to the Escrow Funds, Escrow Agent shall have the right to deposit the
Escrow funds into a court of competent jurisdiction and Escrow Agent shall be
released and discharged or all obligations with respect to the Escrow Funds.
(d) Escrow Agent is an escrow holder only and is responsible solely
for the obligations stated herein to be performed by Escrow Agent, and Escrow
Agent shall not be liable for any action taken or omitted by it in good faith
with regard to such obligations. Escrow Agent is not authorized, and shall not
be required, to determine questions of fact or law.
6. Replacement of Escrow Agent.
(a) Escrow Agent nay resign and be discharged of the obligation
created by this Escrow Agreement by executing and delivering to Landlord and
Tenant a notice of its resignation as Escrow Agent and specifying the date when
such resignation is expected to take effect. Upon receiving such notice of
resignation, Tenant shall appoint a successor Escrow Agent; provided, however,
that the successor Escrow Agent must be a federally insured financial
institution and provided further that Tenant shall receive the prior written
consent of Landlord, which consent shall not be unreasonably withheld. Any
resignation of Escrow Agent shall become effective upon acceptance of
appointment by the successor Escrow Agent.
(b) If Escrow Agent shall be dissolved or if its property or
affairs shall be taken under the control of any state
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or federal court or administrative body or agency because of insolvency or
bankruptcy or for any other reason, a successor shall be appointed by Tenant as
set forth in subparagraph 6(a).
(c) Notwithstanding anything to the contrary contained herein,
Tenant shall have the right, upon five (5) days prior written notice to Escrow
Agent, to discharge Escrow Agent from its obligations hereunder and appoint a
successor Escrow Agent; provided, that the successor Escrow Agent must be a
federally insured financial institution and provided further that Tenant shall
receive the prior written consent of Landlord, which consent shall not be
unreasonably withheld.
(d) Any successor Escrow Agent appointed pursuant to this Escrow
Agreement shall execute, acknowledge and deliver to Landlord and Tenant an
instrument accepting such appointment hereunder, and thereupon such successor
Escrow Agent, without any further act, deed or conveyance, shall become duly
vested with all of the property, rights, powers, trust, duties and obligations
of its predecessor hereunder, with the same effect as if originally named Escrow
Agent and upon notice thereof, the predecessor Escrow Agent shall immediately
pay over or deliver to the successor Escrow Agent the Escrow Funds and all
records with respect thereto then held by it. Upon request of such successor
Escrow Agent, the predecessor Escrow Agent, Landlord and Tenant shall execute
and deliver an instrument confirming the transfer to such successor Escrow Agent
all the property, rights, powers and trusts of the predecessor Escrow Agent.
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7. Modification. This Escrow Agreement may not be modified, changed,
amended or terminated, except in writing signed by all of the parties hereto.
8. Governing Law. This Escrow Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania
without any regard to conflicts of law.
9. Successors arid Assigns. This Escrow Agreement shall be binding
upon, inure to the benefit of and be enforceable by the respective successors
and permitted assigns or the parties hereto.
10. Assignment. This Escrow Agreement may not be assigned without the
express prior written consent of all parties.
11. Entire Agreement. This Escrow Agreement and the Lease contain the
entire understanding of the parties with respect to the subject matter hereof.
There are no representations, promises, warranties, covenants or other
undertakings other than as expressly set forth herein and in the Lease.
12. Notices. Any notice, demand, instruction or communication given
pursuant to this Escrow Agreement shall be in writing and shall be delivered by
personal service, Federal Express, certified mail, return receipt requested,
postage pre-paid, telegraph, telex or facsimile and addressed to the parties at
their addresses set forth above. Any of such addresses may be
8
changed at any time upon written notice of such change given in accordance with
this Paragraph 12. Each notice hereunder shall be deemed given on the date it is
delivered in the case of personal service, or the date it is deposited with
Federal Express in the case of Federal Express, or the data it is deposited with
the Postal Service in the case of certified nail, return receipt requested, or
when properly transmitted in the case of telegraph, telex or facsimile
transmission.
13. Counterparts. This Escrow Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which, when
taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the day and year first above written.
TENANT:
LEXIN PHARMACEUTICAL CORPORATION
By: /S/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X Xxxx, Ph.D.
Title: President
LANDLORD:
PENNSYLVANIA BUSINESS CAMPUS DELAWARE, INC.
By: /S/ Guy F. Tcheau
----------------------------------------
Name : Guy F. Tcheau
Title: Senior Investment Manager
ESCROW AGENT:
CORESTATES BANK, N.A.
By: /S/ Xxxxx Xxxxxxxx
----------------------------------------
Name : Xxxxx Xxxxxxxx
Title: Corporate Trust Officer
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EXHIBIT I
Latest Rev A Date: 10/16/92
