LEASE
BETWEEN
BALA PLAZA PROPERTY, INC.,
LANDLORD,
AND
PHILADELPHIA CONSOLIDATED HOLDING CORP.,
A PENNSYLVANIA CORPORATION,
TENANT
DATED AS OF MARCH 1, 2006
TABLE OF CONTENTS
PAGE
ARTICLE 1 BASIC LEASE PROVISIONS................................................................. 1
ARTICLE 2 PREMISES, TERM, RENT................................................................... 8
SECTION 2.1 LEASE OF PREMISES.............................................................. 8
SECTION 2.2 COMMENCEMENT DATE.............................................................. 8
SECTION 2.3 PAYMENT OF RENT................................................................ 9
SECTION 2.4 [INTENTIONALLY OMITTED]........................................................ 9
SECTION 2.5 AREA OF PREMISES AND BUILDING.................................................. 9
ARTICLE 3 USE AND OCCUPANCY...................................................................... 9
SECTION 3.1 PERMITTED USES................................................................. 9
SECTION 3.2 PARKING........................................................................ 9
ARTICLE 4 CONDITION OF THE PREMISES.............................................................. 11
SECTION 4.1 CONDITION...................................................................... 11
ARTICLE 5 ALTERATIONS............................................................................ 12
SECTION 5.1 TENANT'S ALTERATIONS........................................................... 12
SECTION 5.2 MANNER AND QUALITY OF ALTERATIONS.............................................. 13
SECTION 5.3 REMOVAL OF TENANT'S PROPERTY................................................... 13
SECTION 5.4 MECHANIC'S LIENS............................................................... 14
SECTION 5.5 LABOR RELATIONS................................................................ 14
SECTION 5.6 TENANT'S COSTS................................................................. 14
SECTION 5.7 TENANT'S EQUIPMENT............................................................. 14
SECTION 5.8 LEGAL COMPLIANCE............................................................... 14
SECTION 5.9 FLOOR LOAD..................................................................... 14
ARTICLE 6 REPAIRS................................................................................ 15
SECTION 6.1 LANDLORD'S REPAIR AND MAINTENANCE.............................................. 15
SECTION 6.2 TENANT'S REPAIR AND MAINTENANCE................................................ 15
SECTION 6.3 RESTORATIVE WORK............................................................... 15
ARTICLE 7 INCREASES IN TAXES AND OPERATING EXPENSES.............................................. 16
SECTION 7.1 DEFINITIONS.................................................................... 16
SECTION 7.2 TENANT'S TAX PAYMENT........................................................... 18
SECTION 7.3 TENANT'S OPERATING PAYMENT..................................................... 19
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SECTION 7.4 NON-WAIVER; DISPUTES........................................................... 21
SECTION 7.5 PRORATION...................................................................... 21
SECTION 7.6 NO REDUCTION IN RENT........................................................... 21
ARTICLE 8 REQUIREMENTS OF LAW.................................................................... 22
SECTION 8.1 COMPLIANCE WITH REQUIREMENTS................................................... 22
SECTION 8.2 FIRE AND LIFE SAFETY........................................................... 23
ARTICLE 9 SUBORDINATION.......................................................................... 23
SECTION 9.1 SUBORDINATION AND ATTORNMENT................................................... 23
SECTION 9.2 FUTURE CONDOMINIUM DECLARATION................................................. 23
ARTICLE 10 SERVICES............................................................................... 24
SECTION 10.1 ELECTRICITY.................................................................... 24
SECTION 10.2 EXCESS ELECTRICITY............................................................. 24
SECTION 10.3 ELEVATORS...................................................................... 25
SECTION 10.4 HEATING, VENTILATION AND AIR CONDITIONING...................................... 25
SECTION 10.5 OVERTIME HVAC.................................................................. 25
SECTION 10.6 CLEANING....................................................................... 25
SECTION 10.7 WATER.......................................................................... 26
SECTION 10.8 REFUSE REMOVAL................................................................. 26
SECTION 10.9 DIRECTORY...................................................................... 26
SECTION 10.10 TENANT ACCESS TO PREMISES...................................................... 26
SECTION 10.11 TELECOMMUNICATIONS............................................................. 26
SECTION 10.12 SERVICE INTERRUPTIONS.......................................................... 26
SECTION 10.13 SERVICE ADDITIONS AND OMISSIONS................................................ 27
ARTICLE 11 INSURANCE; PROPERTY LOSS OR DAMAGE..................................................... 28
SECTION 11.1 TENANT'S INSURANCE............................................................. 28
SECTION 11.2 WAIVER OF SUBROGATION.......................................................... 29
SECTION 11.3 RESTORATION.................................................................... 30
SECTION 11.4 LANDLORD'S TERMINATION RIGHT................................................... 30
SECTION 11.5 TENANT'S TERMINATION RIGHT..................................................... 31
SECTION 11.6 FINAL 18 MONTHS................................................................ 31
SECTION 11.7 LANDLORD'S LIABILITY........................................................... 31
ARTICLE 12 EMINENT DOMAIN......................................................................... 32
SECTION 12.1 TAKING......................................................................... 32
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SECTION 12.2 AWARDS......................................................................... 32
SECTION 12.3 TEMPORARY TAKING............................................................... 33
ARTICLE 13 ASSIGNMENT AND SUBLETTING.............................................................. 33
SECTION 13.1 CONSENT REQUIREMENTS........................................................... 33
SECTION 13.2 TENANT'S NOTICE; LANDLORD'S TERMINATION OPTION................................. 33
SECTION 13.3 CONDITIONS TO ASSIGNMENT/SUBLETTING............................................ 34
SECTION 13.4 BINDING ON TENANT; INDEMNIFICATION OF LANDLORD................................. 36
SECTION 13.5 TENANT'S FAILURE TO COMPLETE................................................... 37
SECTION 13.6 PROFITS........................................................................ 37
SECTION 13.7 PERMITTED TRANSFERS............................................................ 37
SECTION 13.8 ASSUMPTION OF OBLIGATIONS...................................................... 39
SECTION 13.9 TENANT'S LIABILITY............................................................. 39
SECTION 13.10 LISTINGS IN BUILDING DIRECTORY................................................. 39
SECTION 13.11 LEASE DISAFFIRMANCE OR REJECTION............................................... 39
ARTICLE 14 ACCESS TO PREMISES..................................................................... 40
SECTION 14.1 LANDLORD'S ACCESS.............................................................. 40
SECTION 14.2 BUILDING NAME.................................................................. 40
SECTION 14.3 [INTENTIONALLY OMITTED]........................................................ 40
SECTION 14.4 LIGHT AND AIR.................................................................. 41
ARTICLE 15 DEFAULT................................................................................ 41
SECTION 15.1 TENANT'S DEFAULTS.............................................................. 41
SECTION 15.2 LANDLORD'S REMEDIES............................................................ 42
SECTION 15.3 LANDLORD'S DAMAGES............................................................. 44
SECTION 15.4 INTEREST....................................................................... 45
SECTION 15.5 [INTENTIONALLY OMITTED]........................................................ 45
SECTION 15.6 OTHER RIGHTS OF LANDLORD....................................................... 45
ARTICLE 16 LANDLORD'S RIGHT TO CURE; FEES AND EXPENSES............................................ 46
ARTICLE 17 NO REPRESENTATIONS BY LANDLORD; LANDLORD'S APPROVAL.................................... 46
SECTION 17.1 NO REPRESENTATIONS............................................................. 46
SECTION 17.2 NO MONEY DAMAGES............................................................... 46
SECTION 17.3 REASONABLE EFFORTS............................................................. 47
ARTICLE 18 END OF TERM............................................................................ 47
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SECTION 18.1 EXPIRATION..................................................................... 47
SECTION 18.2 HOLDOVER RENT.................................................................. 47
ARTICLE 19 QUIET ENJOYMENT........................................................................ 47
ARTICLE 20 NO SURRENDER; NO WAIVER................................................................ 48
SECTION 20.1 NO SURRENDER OR RELEASE........................................................ 48
SECTION 20.2 NO WAIVER...................................................................... 48
ARTICLE 21 WAIVER OF TRIAL BY JURY; COUNTERCLAIM.................................................. 48
SECTION 21.1 JURY TRIAL WAIVER.............................................................. 48
SECTION 21.2 WAIVER OF COUNTERCLAIM......................................................... 48
ARTICLE 22 NOTICES................................................................................ 49
ARTICLE 23 RULES AND REGULATIONS.................................................................. 49
ARTICLE 24 BROKER................................................................................. 49
ARTICLE 25 INDEMNITY.............................................................................. 50
SECTION 25.1 TENANT'S INDEMNITY............................................................. 50
SECTION 25.2 LANDLORD'S INDEMNITY........................................................... 50
SECTION 25.3 DEFENSE AND SETTLEMENT......................................................... 50
ARTICLE 26 MISCELLANEOUS.......................................................................... 51
SECTION 26.1 DELIVERY....................................................................... 51
SECTION 26.2 TRANSFER OF REAL PROPERTY...................................................... 51
SECTION 26.3 LIMITATION ON LIABILITY........................................................ 51
SECTION 26.4 RENT........................................................................... 51
SECTION 26.5 ENTIRE DOCUMENT................................................................ 51
SECTION 26.6 GOVERNING LAW.................................................................. 51
SECTION 26.7 UNENFORCEABILITY............................................................... 51
SECTION 26.8 LEASE DISPUTES................................................................. 52
SECTION 26.9 LANDLORD'S AGENT............................................................... 52
SECTION 26.10 ESTOPPEL....................................................................... 52
SECTION 26.11 CERTAIN INTERPRETATIONAL RULES................................................. 53
SECTION 26.12 PARTIES BOUND.................................................................. 53
SECTION 26.13 MEMORANDUM OF LEASE............................................................ 53
SECTION 26.14 COUNTERPARTS................................................................... 53
SECTION 26.15 SURVIVAL....................................................................... 53
SECTION 26.16 INABILITY TO PERFORM........................................................... 53
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SECTION 26.17 [INTENTIONALLY OMITTED]........................................................ 53
SECTION 26.18 [INTENTIONALLY OMITTED]........................................................ 53
SECTION 26.19 FINANCIAL STATEMENTS........................................................... 54
SECTION 26.20 CHANGES TO REAL PROPERTY....................................................... 54
SECTION 26.21 TAX STATUS. TAX STATUS OF BENEFICIAL OWNER..................................... 54
ARTICLE 27 [INTENTIONALLY OMITTED]................................................................ 55
EXHIBITS
Exhibit A Land
Exhibit A-1 Existing Premises Floor Plan
Exhibit A-2 Additional Second Floor Space Floor Plan
Exhibit A-3 Additional Third Floor Space Floor Plan
Exhibit A-4 Surrender Space Floor Plan
Exhibit A-5 Right of First Offer Space Floor Plans
Exhibit A-6 Landlord's Detailed Budget Drawings
Exhibit B Definitions
Exhibit C [Intentionally Omitted]
Exhibit D Design Standards
Exhibit E Cleaning Specifications
Exhibit F Rules and Regulations
Exhibit G Construction Rules and Regulations
Exhibit H Subordination, Non-Disturbance and Attornment Agreement -
Existing Mortgage
Exhibit I Subordination, Non-Disturbance and Attornment Agreement - Existing
Ground Lease
RIDER
Rider 1 ADDITIONAL PROVISIONS
R1-A TERMINATION OF EXISTING LEASE
R1-B IMPROVEMENTS TO PREMISES
R1-C OPTION TO EXTEND TERM
R1-D REIMBURSEMENT ALLOWANCE
R1-E LANDLORD'S HVAC WORK
R1-F IMPROVEMENTS TO THIRD FLOOR RESTROOMS
R1-G BUILDING SIGN
R1-H FITNESS CENTER
R1-I DELICATESSEN
R1-J CONDITIONS TO EFFECTIVENESS
R1-K RIGHT OF FIRST OFFER
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LEASE
This Lease (the "Lease") is made as of March 1, 2006 on this 16th day of
March, 2006 ("Effective Date"), between Bala Plaza Property, Inc., a Delaware
corporation ("Landlord"), and Philadelphia Consolidated Holding Corp., a
Pennsylvania corporation ("Tenant").
Landlord and Tenant, intending to be legally bound, hereby agree as
follows:
ARTICLE 1
BASIC LEASE PROVISIONS
PREMISES Initially, the Premises shall consist of 91,768 rentable
square feet of space comprising Suite XX-00, Xxxxx XX-00,
Xxxxx XX-00, Xxxxx XX-00, Xxxxx 000, Suite 111, Suite 113,
Suite 117, Suite 124, Suite 200, Suite 208, Suite 209, Suite
212, Suite 216, Suite 000, Xxxxx 000, Xxxxx 000, Xxxxx 000,
Xxxxx 000 and Suite 412, all as shown outlined or
cross-hatched on Exhibit A-1 hereto (sometimes referred to
herein as the "Existing Premises") and currently leased to
Tenant pursuant to the Existing Lease (as defined in Rider
1-A).
On the Additional Second Floor Space Commencement Date
(defined below in this Article 1), Xxxxx 000, Xxxxx 000,
Xxxxx 000, and Suite 243 in the Building, comprising 18,825
rentable square feet of space on the second floor of the
Building and shown outlined or cross-hatched on Exhibit A-2
hereto (the "Additional Second Floor Space"), shall be added
to and become part of the Premises.
On the Additional Third Floor Space Commencement Date
(defined below in this Article 1), Suite 300 in the
Building, comprising 24,928 rentable square feet of space on
the third floor of the Building and shown outlined or
cross-hatched on Exhibit A-3 hereto (the "Additional Third
Floor Space"), shall be added to and become part of the
Premises.
Tenant shall have the right, exercisable by delivering
written notice to Landlord on or before March 31, 2006, to
surrender and vacate, as of a date specified in such notice
(which date must be on or before June 30, 2007 (the
"Surrender Date")), 7,159 rentable square feet of space
known as Suite 402 and Suite 412 (the "Surrender Space") and
located on the fourth floor of the Building and as shown
outlined or cross-hatched on Exhibit A-4, following which
the rentable square footage of the Premises shall be reduced
by 7,159 rentable square feet.
Therefore: (a) if Tenant exercises its right to surrender
and vacate the Surrender Space, the total rentable square
footage of the
Premises shall be 128,362, after giving effect to the
addition to the Premises of the Additional Second Floor
Space and the Additional Third Floor Space, and the deletion
from the Premises of the Surrender Space; and (b) if Tenant
does not exercise its right to surrender and vacate the
Surrender Space, the total rentable square footage of the
Premises shall be 135,521, after giving effect to the
addition to the Premises of the Additional Second Floor
Space and the Additional Third Floor Space.
BUILDING The building, fixtures, equipment and other improvements and
appurtenances now located or hereafter erected, located or
placed upon the Land and known as One Bala Plaza, Bala
Cynwyd, Pennsylvania
COMPLEX One, Two and Three Bala Plaza, as further defined on Exhibit
B
LAND The real property described on Exhibit A to this Lease
REAL PROPERTY The Complex, the Building, the Common Areas and the Land
COMMENCEMENT
DATE Existing Premises: March 1, 2006
Additional Second Floor Space: The date (the "ADDITIONAL
SECOND FLOOR SPACE COMMENCEMENT DATE") on which the
Additional Second Floor Space Improvements (as defined in
Rider R1-B) are Substantially Completed.
Additional Third Floor Space: The date (the "ADDITIONAL
THIRD FLOOR SPACE COMMENCEMENT DATE") on which the
Additional Third Floor Space Improvements (as defined in
Rider R1-B) are Substantially Completed.
RENT
COMMENCEMENT
DATE Existing Premises: March 1, 2006
Additional Second Floor Space: The later date to occur (the
"ADDITIONAL SECOND FLOOR SPACE RENT COMMENCEMENT DATE") of
either (a) the date on which the Additional Second Floor
Space Improvements are Substantially Completed, or (b)
October 1, 2006. For the avoidance of doubt, if the
Additional Second Floor Space Improvements are Substantially
Completed before October 1, 2006, then the Additional Second
Floor Space Commencement Date shall occur and Tenant shall
be entitled to use and occupy the Additional Second Floor
Space from and after such date of Substantial Completion,
but Tenant's obligation to pay Fixed Rent and Additional
Rent in respect of Taxes and Operating Expenses
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for the Additional Second Floor Space shall not commence
until October 1, 2006, which will be the Additional Second
Floor Space Rent Commencement Date in such event.
Additional Third Floor Space: The later date to occur (the
"ADDITIONAL THIRD FLOOR SPACE RENT COMMENCEMENT DATE") of
either (a) the date on which the Additional Third Floor
Space Improvements are Substantially Completed, or (b)
October 1, 2007. For the avoidance of doubt, if the
Additional Third Floor Space Improvements are Substantially
Completed before October 1, 2007, then the Additional Third
Floor Space Commencement Date shall occur and Tenant shall
be entitled to use and occupy the Additional Third Floor
Space from and after such date of Substantial Completion,
but Tenant's obligation to pay Fixed Rent and Additional
Rent in respect of Taxes and Operating Expenses for the
Additional Third Floor Space shall not commence until
October 1, 2007, which will be the Additional Third Floor
Space Rent Commencement Date in such event.
EXPIRATION DATE February 28, 2014, or the last day of any renewal or
extended term, if the Term of this Lease is extended in
accordance with any express provision hereof.
TERM The period commencing on the Commencement Date and
ending on the Expiration Date.
PERMITTED USES Executive and general offices with customary appurtenant
uses such as vending, kitchenette(s), etc.
BASE YEAR Surrender Space (if tenant exercises its right to vacate and
surrender the Surrender Space): Calendar Year 2005.
Existing Premises (including the Surrender Space if tenant
does not exercise its right to surrender and vacate the
Surrender Space): Calendar Year 2006
Additional Second Floor Space: Calendar Year 2006
Additional Third Floor Space: Calendar Year 2006
TENANT'S
PROPORTIONATE
SHARE Initially, Tenant's Proportionate Share shall be 25.1243%,
being the sum of (a) 1.9600%, which is Tenant's
Proportionate Share with respect to the Surrender Space, and
(b) 23.1643%, which is Tenant's Proportionate Share with
respect to the Existing Premises, excluding the Surrender
Space.
-3-
Effective on the Additional Second Floor Space Commencement
Date, Tenant's Proportionate Share shall be increased by
5.1539%
Effective on the Additional Third Floor Space Commencement
Date, Tenant's Proportionate Share shall be increased by
6.8248%
Effective on the Surrender Date, if Tenant exercises its
right to surrender and vacate the Surrender Space, Tenant's
Proportionate Share shall be decreased by 1.9600%
Therefore: (a) if Tenant exercises its right to surrender
and vacate the Surrender Space, then after giving effect to
the addition to the Premises of the Additional Second Floor
Space and the Additional Third Floor Space, and the deletion
from the Premises of the Surrender Space, Tenant's
Proportionate Share shall be 35.1430%, being the sum of (i)
23.1643%, which is Tenant's Proportionate Share with respect
to the Existing Premises, excluding the Surrender Space,
(ii) 5.1539%, which is Tenant's Proportionate Share with
respect to the Additional Second Floor Space, and (iii)
6.8248%, which is Tenant's Proportionate Share with respect
to the Additional Third Floor Space; and (b) if Tenant does
not exercise its right to surrender and vacate the Surrender
Space, then after giving effect to the addition to the
Premises of the Additional Second Floor Space and the
Additional Third Floor Space, Tenant's Proportionate Share
shall be 37.103%, being the sum of (i) 25.1243%, which is
Tenant's Proportionate Share with respect to the Existing
Premises, including the Surrender Space, (ii) 5.1539%, which
is Tenant's Proportionate Share with respect to the
Additional Second Floor Space, and (iii) 6.8248%, which is
Tenant's Proportionate Share with respect to the Additional
Third Floor Space.
AREA OF BUILDING The rentable area of the Building shall be deemed 365,256
square feet, as agreed by Landlord and Tenant.
AREA OF PREMISES Existing Premises: 91,768 rentable square feet
Additional Second Floor Space: 18,825 rentable square feet
Additional Third Floor Space: 24,928 rentable square feet
Surrender Space: 7,159 rentable square feet
Therefore: (a) if Tenant exercises its right to surrender
and vacate the Surrender Space, the total rentable square
footage of the Premises shall be 128,362, after giving
effect to the addition to the Premises of the Additional
Second Floor Space and the Additional Third Floor Space, and
the deletion from the Premises of the
-4-
Surrender Space; and (b) if Tenant does not exercise
its right to surrender and vacate the Surrender Space,
the total rentable square footage of the Premises
shall be 135,521, after giving effect to the addition
to the Premises of the Additional Second Floor Space
and the Additional Third Floor Space.
FIXED RENT
PERIOD ANNUAL FIXED RENT
ANNUAL FIXED RENT
MONTHLY FIXED PER RENTABLE
SURRENDER SPACE* ANNUAL BASE RENT* RENT* SQUARE FOOT*
------------------------- ----------------- -------------- ----------------
3/1/06 to Surrender Date* $171,816.00* $14,318.00* $24.00 /rsf*
EXISTING PREMISES ANNUAL FIXED RENT
(EXCLUDING THE SURRENDER MONTHLY FIXED PER RENTABLE
SPACE)* ANNUAL BASE RENT* RENT* SQUARE FOOT*
------------------------- ----------------- -------------- ----------------
3/1/06 to 2/28/14* $1,861,398.00* $155,116.50* $22.00 /rsf*
EXISTING PREMISES ANNUAL FIXED RENT
(INCLUDING THE SURRENDER ANNUAL BASE MONTHLY FIXED PER RENTABLE
SPACE)** RENT** RENT** SQUARE FOOT**
------------------------- ----------------- -------------- ----------------
3/1/06 to 2/28/14** $2,018,896.00** $168,241.33** $22.00 /rsf**
ANNUAL FIXED RENT
ADDITIONAL SECOND FLOOR MONTHLY FIXED PER RENTABLE
SPACE ANNUAL BASE RENT RENT SQUARE FOOT
------------------------- ----------------- -------------- ------------------
Additional Second Floor
Space Rent Commencement
Date to 2/28/14 $414,150.00 $34,512.50 $22.00 /rsf
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ANNUAL FIXED RENT
ADDITIONAL THIRD FLOOR MONTHLY FIXED PER RENTABLE
SPACE ANNUAL BASE RENT RENT SQUARE FOOT
------------------------- ----------------- -------------- ----------------
Additional Third Floor
Space Rent Commencement
Date to 2/28/14 $548,416.00 $45,701.33 $22.00 /rsf
* Applicable if Tenant exercises its right to surrender and
vacate the Surrender Space, and not applicable if Tenant
does not exercise such right.
** Assumes that Tenant does not exercise its right to
surrender and vacate the Surrender Space, and not applicable
if Tenant does exercise such right.
For March, 2006, Tenant shall pay Fixed Rent and Additional
Rent in respect of Taxes and Operating Expenses based upon
the assumption that Tenant will not exercise its right to
surrender and vacate the Surrender Space, and if Tenant does
exercise such right, then Landlord shall invoice Tenant for
the amount of Fixed Rent and Additional Rent in respect of
Taxes and Operating Expenses that Tenant should have paid in
March, 2006, and Tenant shall pay such invoice within 30
days after delivery of such invoice by Landlord to Tenant.
$0.61/rsf in each of the above rates of Annual Fixed Rent
per rentable square foot represents rent contractually owed
by Tenant but forgiven by Landlord under the Existing Lease
(as defined in Rider R1-A) as a result of the early
termination of the Existing Lease under Rider R1-A of this
Lease. Such amount (totaling $412,000) represents
non-receipt of the amount of rent contractually owing by
Tenant to Landlord under the Existing Lease but not paid
upon termination of the Existing Lease and is therefore an
incentive to Tenant to enter into this Lease.
ADDITIONAL RENT All sums other than Fixed Rent payable by Tenant to
Landlord under this Lease and any work letter, exhibits,
riders or other attachments hereto, including Tenant's Tax
Payment, Tenant's Operating Payment, late charges, overtime
or excess service charges, supplemental chilled water
charges, damages, and interest and other costs related to
Tenant's failure to perform any of its obligations under
this Lease
RENT Fixed Rent and Additional Rent, collectively
-6-
INTEREST RATE The lesser of (i) 4% per annum above the then-current Base
Rate, and (ii) the maximum rate permitted by applicable law
SECURITY DEPOSIT None.
TENANT'S ADDRESS
FOR NOTICES Philadelphia Consolidated Holding Corp
Xxxxx 000
Xxx Xxxx Xxxxx
Xxxx Xxxxx, XX 00000
LANDLORD'S
ADDRESS FOR
NOTICES Bala Plaza Property, Inc.
c/o Tishman Speyer Properties, L.P.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Financial Officer
Copies to:
Bala Plaza Property, Inc.
c/o Tishman Speyer Properties, L.P.
Xxx Xxxx Xxxxx
Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attention Property Manager
and:
Tishman Speyer Properties, L.P.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Legal Officer
LANDLORD'S
ADDRESS FOR
PAYMENT Bala Plaza Property, Inc.
c/o Tishman Speyer Properties, L.P.
00 Xxxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
TENANT'S BROKER
EBI Commercial and Tishman Speyer Properties, L.P.
LANDLORD'S AGENT Tishman Speyer Properties, L.P. or any other person
designated at any time and from time to time by Landlord as
Landlord's Agent and their successors and assigns
-7-
TENANT'S
CONTRIBUTION $1,150,000.00
GROUND LEASE That certain Ground Lease dated December 10, 2003 between
Bala Plaza, Inc. ("Prime Landlord"), as fee owner and ground
landlord, and Bala Plaza Property, Inc., as ground tenant,
pursuant to which Landlord has acquired the right to use and
operate the Complex, including, without limitation, entering
into leases for space in the Building, as the same may be
amended from time to time.
All capitalized terms used in this Lease without definition are defined in
Exhibit B.
ARTICLE 2
PREMISES, TERM, RENT
SECTION 2.1 LEASE OF PREMISES. Subject to the terms of this Lease,
Landlord leases to Tenant and Tenant leases from Landlord the Premises for the
Term. In addition, Landlord grants to Tenant the right to use, on a
non-exclusive basis and in common with other tenants, the Common Areas.
SECTION 2.2 COMMENCEMENT DATE. The Term of this Lease shall commence on
the Commencement Date and, unless sooner terminated or extended as hereinafter
provided, shall end on the Expiration Date. If Landlord does not tender
possession of the Additional Second Floor Space or the Additional Third Floor
Space to Tenant on or before any specified date, for any reason whatsoever,
Landlord shall not be liable for any damage thereby caused, this Lease shall not
be void or voidable thereby, and the Term shall not commence until Landlord
tenders possession of the Additional Second Floor Space or the Additional Third
Floor Space, as applicable, to Tenant. Landlord shall be deemed to have tendered
possession of the Additional Second Floor Space or the Additional Third Floor
Space, as applicable, to Tenant upon the giving of notice by Landlord to Tenant
stating that such space is vacant, in the condition required by this Lease and
available for Tenant's occupancy. No failure to tender possession of the
Additional Second Floor Space or the Additional Third Floor Space to Tenant on
or before any specified date shall affect any other obligations of Tenant
hereunder. There shall be no postponement of the Additional Second Floor Space
or the Additional Third Floor Space (or the corresponding Rent Commencement Date
with respect to the Additional Second Floor Space or the Additional Third Floor
Space, as applicable) for (i) any delay in the tender of possession to Tenant
which results from any Tenant Delay or (ii) any delays by Landlord in the
performance of any Punch List Items related to the Additional Second Floor Space
Improvements or the Additional Third Floor Space Improvements (as each such term
is defined in Rider R1-B), as applicable (Tenant shall have available to it the
remedy described below in this Section 2.2 in the case of any such delay by
Landlord in performing any Punch List Items). Once the Additional Second Floor
Space and the Additional Third Floor Space Commencement Date are determined,
Landlord and Tenant shall execute an agreement stating the Additional Second
Floor Space Commencement Date, the Additional Third Floor Space Commencement
Date, the respective Rent Commencement Dates and the Expiration Date, but the
failure to do so will not affect the determination of such dates.
-8-
If Landlord fails to perform and complete any Punch List Items within 30 days
after the creation of the list of Punch List Items and such failure continues
for more than 30 days after notice by Tenant to Landlord of such failure, or if
such failure is of a nature that it cannot be completely remedied within 30
days, failure by Landlord to commence to remedy such failure within said 30
days, and thereafter diligently prosecute to completion all steps necessary to
completely remedy such failure within 90 days, Tenant may perform and complete
such Punch List Items at Landlord's expense. All costs and expenses reasonably
incurred by Tenant in connection with any such performance and completion by
Tenant shall be paid by Landlord to Tenant within 30 days after Landlord
receives an invoice therefor from Tenant, which shall be accompanied by true and
complete copies of invoices and other reasonable support for the costs and
expenses invoiced.
SECTION 2.3 PAYMENT OF RENT. Tenant shall pay to Landlord at Landlord's
Address for Payment, or at such other place as Landlord shall designate in
writing from time to time, without notice or demand, and without any set-off,
counterclaim, abatement or deduction whatsoever, except as may be expressly set
forth in this Lease, in lawful money of the United States by wire transfer of
funds or by good check (i) Fixed Rent in equal monthly installments, in advance,
on the first day of each month during the Term, commencing on the Rent
Commencement Date, and (ii) Additional Rent, at the times and in the manner set
forth in this Lease.
SECTION 2.4 [INTENTIONALLY OMITTED].
SECTION 2.5 AREA OF PREMISES AND BUILDING. Landlord and Tenant agree that
the Area of the Premises and the Area of the Building set forth in Article 1
shall be conclusive and binding on both parties regardless of any measurement of
the Premises and/or of the Building after the date hereof.
ARTICLE 3
USE AND OCCUPANCY
SECTION 3.1 PERMITTED USES. Tenant may use and occupy the Premises for the
Permitted Uses and for no other purpose. Tenant shall not use or occupy or
permit the use or occupancy of any part of the Premises in a manner constituting
a Prohibited Use. If Tenant uses the Premises for a purpose constituting a
Prohibited Use, violating any Requirement, or causing the Building to be in
violation of any Requirement, then Tenant shall promptly discontinue such use
upon notice of such violation. Tenant, at its expense, shall procure and at all
times maintain and comply with the terms and conditions of all licenses and
permits required for the lawful conduct of the Permitted Uses in the Premises.
SECTION 3.2 PARKING.
(a) At no separate charge to Tenant, Landlord shall maintain
sufficient parking on the Land in reasonable proximity to the Building to
support 3.1 unreserved parking spaces per 1,000 square feet of the Building, and
shall not grant parking rights to persons or entities other than tenants if such
grant would cause the available unreserved parking for tenants
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of the Building to be reduced below 3.1 unreserved parking spaces per 1,000
square feet of the Building. Parking for Tenant and its employees and visitors
shall be on a "first come, first served," unassigned basis, in common with
Landlord and other tenants at the Property, and their employees and visitors,
and, subject to the preceding sentence, other persons to whom Landlord shall
grant the right or who shall otherwise have the right to use the same. In
addition, at no extra cost to Tenant, Tenant shall have the right to use nine
(9) undesignated parking spaces for regular automobiles, and one (1)
undesignated parking space for a van, in the Executive Parking Lot behind the
Building. Landlord reserves the right to: (w) adopt reasonable rules and
regulations pertaining to parking, (x) assign or reserve specific spaces
provided that (1) Landlord must continue to maintain the minimum unreserved
parking space ratio set forth in the first sentence of this Section 3.2(a), and
(2) if any spaces are to be assigned or reserved for the benefit of any office
space tenant or other occupant or user of the Building (excluding any spaces
that are so assigned or reserved as of the Effective Date or are so assigned or
reserved for retail or medical tenants), Tenant shall be given the right to
obtain assigned or reserved spaces, in proportion to the size of the Premises,
on terms at least as favorable as those granted to any other tenant, (y) reserve
spaces for disabled persons, and (z) restrict full-size vans and other large
vehicles to specific areas of the parking lot. If notwithstanding Landlord's
maintenance of the aforesaid parking ratio of 3.1 unreserved parking spaces per
1,000 square feet of the Building, finding an available parking space on the
Land becomes unreasonably difficult during Ordinary Business Hours, Landlord and
Tenant shall in good faith discuss proposed solutions and Landlord shall
implement any agreed upon solution (such agreement not to be unreasonably
withheld by either Landlord or Tenant) as soon as practicable under the
circumstances. The costs and expenses incurred by Landlord in the implementation
of any parking solution shall be included in Operating Expenses provided that
such costs and expenses are not otherwise excluded from the definition of
Operating Expenses set forth in Section 7.1(e).
(b) Landlord reserves the right to temporarily close all or a
portion of the parking areas or facilities in order to make repairs or perform
maintenance services, or to alter, modify, re-stripe or renovate the same, or in
connection with special tenant events, provided that (i) during such temporary
closure Landlord shall furnish alternate parking for Tenant and its employees
and visitors within the Complex, free of charge, and (ii) except when it is not
reasonably practicable, Landlord shall make such temporary closures outside of
Ordinary Business Hours.
(c) Landlord shall have the right to reasonably designate times when
cars must be moved from the parking lot for the purpose of performing snow
removal, cleaning or other maintenance, repair and replacement work, provided
that except when it is not reasonably practicable, such designated times will be
outside of Ordinary Business Hours.
(d) Cars must be parked entirely within the stall lines, and only
small or other qualifying cars may be parked in areas reserved for such cars;
all directional signs, arrows and speed limits must be observed; spaces reserved
for disabled persons must be used only by vehicles properly designated; washing,
waxing, cleaning or servicing of any vehicle in the parking lot is prohibited;
every xxxxxx is required to park and lock his own car, except to the extent that
Landlord adopts a valet parking system; parking is prohibited in areas: (i) not
striped or designated for parking, (ii) aisles, (iii) where "no parking" signs
are posted, (iv) on ramps, and (v) loading areas and other specially designated
areas. Any vehicle not parked in a proper
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manner may be issued a violation and towed at the vehicle owner's expense.
Delivery trucks and vehicles shall use only those areas designated therefor.
(e) Parking stickers, key cards or any other devices or forms of
identification or entry shall remain the property of Landlord. Such devices must
be displayed as requested and may not be mutilated in any manner. The serial
number of the parking identification device may not be obliterated. Devices are
not transferable and any device in the possession of an unauthorized holder will
be void. If an employee of Tenant has more than one vehicle, he or she may use
the same parking device for all registered vehicles. Such employee may also
purchase additional parking devices. In any event, all vehicles must be
registered with Landlord or any garage manager. Loss or theft of parking
identification, key cards or other such devices must be reported to Landlord or
any garage manager immediately. Any parking devices reported lost or stolen
which are found on any unauthorized car will be confiscated and the illegal
holder will be subject to prosecution. Lost or stolen devices found by Tenant or
its employees must be reported to Landlord or the office of the garage
immediately. If an employee of Tenant does not have his or her card, he or she
should obtain a one-day visitor pass from the Landlord or garage manager.
(f) Tenant agrees that it and its employees shall observe reasonable
safety precautions in the use of the parking areas or facilities garage and
shall at all times abide by the foregoing rules and regulations as well as any
additional rules and regulations promulgated by Landlord governing the use of
the parking areas or facilities that are not inconsistent with the requirements
of Article 23 of this Lease. It is understood and agreed that Landlord does not
assume any responsibility for any damage or loss to any parked automobiles or to
any personal property located therein, or for any injury sustained by any person
in or about the parking areas or facilities. Except in connection with a
permitted assignment of this Lease or a permitted sublease of the Premises or a
portion thereof, neither Tenant nor any Tenant employee nor any other party
claiming by, through or under Tenant shall assign, sublet, license or otherwise
transfer or allow the use of any of Tenant's parking rights under this Lease.
ARTICLE 4
CONDITION OF THE PREMISES
SECTION 4.1 CONDITION. Tenant is and has been in possession of the
Existing Premises and agrees to accept possession of the Existing Premises in
the condition existing on the Commencement Date "as is" and, subject to (i)
Landlord's maintenance and repair obligations set forth in this Lease, and (ii)
Landlord's obligations under Riders R1-B, R1-D and R1-E of Rider 1, Landlord has
no obligation to perform or pay for any work, supply any materials, incur any
expense or make any alterations or improvements to prepare the Existing Premises
for Tenant's occupancy. Tenant has inspected the Additional Second Floor Space
and the Additional Third Floor Space and agrees to accept possession of the
Additional Second Floor Space and the Additional Third Floor Space Premises in
their "as is" condition on the Additional Second Floor Space Commencement Date
and the Additional Third Floor Space Commencement Date, respectively, subject to
(a) Landlord's maintenance and repair obligations set forth in this Lease, and
(b) Landlord's obligations under Riders R1-B, R1-D and R1-E of Rider 1.
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ARTICLE 5
ALTERATIONS
SECTION 5.1 TENANT'S ALTERATIONS.
(a) Tenant shall not make any alterations, additions or other
physical changes in or about the Premises (collectively, "ALTERATIONS") without
Landlord's prior written consent, which shall not be unreasonably withheld,
conditioned or delayed. Notwithstanding the foregoing, Tenant shall have the
right, without having to obtain Landlord's prior consent (but subject to the
notice requirement set forth in Section 5.1(b)) to (i) make decorative
Alterations such as painting, wall coverings and floor coverings (collectively,
"DECORATIVE ALTERATIOns"), and (ii) make Alterations that meet all of the
following criteria ("PERMITTED MINOR NON-STRUCTURAL ALTERATIONS"): (A) the total
cost (labor and materials) of making the Alterations is less than $50,000, (B)
the Alterations are non-structural and do not affect any Building Systems, (C)
the Alterations affect only the Premises and are not visible from outside of the
Premises, (D) the Alterations do not affect the certificate of occupancy issued
for the Building or the Premises, and (E) the Alterations do not violate any
Requirement.
(b) PLANS AND SPECIFICATIONS. Prior to making any Alterations (other
than Decorative Alterations), Tenant, at its expense, shall (i) submit to
Landlord for its approval, detailed plans and specifications ("Plans") of each
proposed Alteration, and with respect to any Alteration affecting any Building
System, evidence that the Alteration has been designed by, or reviewed and
approved by, Landlord's designated engineer for the affected Building System,
(ii) obtain all permits, approvals and certificates required by any Governmental
Authorities, (iii) furnish to Landlord duplicate original policies or
certificates of worker's compensation (covering all persons to be employed by
Tenant, and Tenant's contractors and subcontractors in connection with such
Alteration), commercial general liability (including property damage coverage)
and business auto insurance and Builder's Risk coverage (as described in Article
11) all in such form, with such companies, for such periods and in such amounts
as Landlord may reasonably require, naming Landlord, Landlord's Agent, any
Lessor and any Mortgagee as additional insureds, and (iv) furnish to Landlord
reasonably satisfactory evidence of Tenant's ability to complete and to fully
pay for such Alterations (excluding Decorative Alterations and Permitted Minor
Non-Structural Alterations). Tenant shall give Landlord not less than 5 Business
Days notice prior to performing any Decorative Alteration or Permitted Minor
Non-Structural Alteration, which notice shall contain a description of such
Decorative Alteration or Permitted Minor Non-Structural Alteration. Landlord
shall have 10 Business Days after receipt of the Plans within which to approve
or disapprove of the Plans for any proposed Alterations (other than Decorative
Alterations and Permitted Minor Non-Structural Alterations). If Landlord fails
to timely approve or disapprove the Plans within such 10 Business Day period and
Tenant gives a second written request therefor to Landlord, then if Landlord
does not specifically disapprove of the Plans within five Business Days after
Landlord's receipt of such second written request, the second request shall be
deemed approved by Landlord.
(c) GOVERNMENTAL APPROVALS. Tenant, at its expense, shall, as and
when required, promptly obtain certificates of partial and final approval of any
Alterations that may be required by any Governmental Authority and shall furnish
Landlord with copies thereof, together
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with "as-built" Plans for such Alterations prepared on an AutoCAD Computer
Assisted Drafting and Design System (or such other system or medium as Landlord
may accept), using naming conventions issued by the American Institute of
Architects in June, 1990 (or such other naming conventions as Landlord may
accept) and magnetic computer media of such record drawings and specifications
translated in DFX format or another format acceptable to Landlord.
SECTION 5.2 MANNER AND QUALITY OF ALTERATIONS. All Alterations shall be
performed (a) in a good and workmanlike manner and free from defects using only
labor forces which work in harmony with other labor forces in the Building as
described below, (b) substantially in accordance with the Plans, and by
contractors approved by Landlord, and (c) in compliance with all Requirements,
the terms of this Lease and all construction procedures and regulations then
prescribed by Landlord, including, without limitation, the construction rules
and regulations set forth on Exhibit H, and (d) at Tenant's expense. All
materials and equipment shall be of first quality and at least equal to the
applicable standards for the Building then established by Landlord, and no such
materials or equipment (other than Tenant's Property) shall be subject to any
lien or other encumbrance. Any approval by Landlord contained in, or provided
pursuant to, this Article permitting Tenant to perform any Alterations pursuant
to this Article is contingent upon such Alterations being performed by workmen
and mechanics working in harmony, and not interfering, with labor employed by
Landlord, Landlord's contractors or by any other tenants or their contractors.
To that end, Landlord hereby notifies Tenant that the labor forces that have
traditionally worked at the Building have been union labor forces. If at any
time during the course of the Alterations, any workmen or mechanics performing
the Alterations are unable to work in harmony, or interfere, with labor employed
by Landlord, Landlord's contractors or by any other tenants or their
contractors, then the approval granted by Landlord to Tenant for such
Alterations (either in Section 5.1 (a) with respect to Decorative Alterations or
Permitted Minor Non-Structural Alterations, or in a separate consent or approval
by Landlord, with respect to other Alterations), may be withdrawn by Landlord
upon 48 hours, written notice to Tenant, and Tenant shall thereafter cause the
Alterations to cease and shall restore the Premises to the condition as existed
prior to the commencement of such Alterations.
SECTION 5.3 REMOVAL OF TENANT'S PROPERTY. Tenant's Property shall remain
the property of Tenant and Tenant may remove the same at any time on or before
the Expiration Date. On or prior to the Expiration Date, Tenant shall, unless
otherwise directed by Landlord, at Tenant's expense, remove any Specialty
Alterations and close up any slab penetrations in the Premises. Tenant shall
repair and restore, in a good and workmanlike manner, any damage to the Premises
or the Building caused by Tenant's removal of any Alterations or Tenant's
Property or by the closing of any slab penetrations, and upon default thereof,
Tenant shall reimburse Landlord for Landlord's cost of repairing and restoring
such damage. Any Specialty Alterations or Tenant's Property not so removed shall
be deemed abandoned and Landlord may retain or remove and dispose of same, and
repair and restore any damage caused thereby, at Tenant's cost and without
accountability to Tenant. All other Alterations shall become Landlord's property
upon termination of this Lease.
Notwithstanding anything contained in this Section 5.3 to the contrary,
Tenant shall not be required to remove any of the Specialty Alterations that
exist in the Premises as of the Effective Date except for the internal staircase
and the electronic security access system that exist in the Premises as of the
Effective Date and any internal staircase constructed after the
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Effective Date (whether or not Landlord approved such staircase without giving
Tenant notice at the time of the approval that Tenant would be required to
remove same pursuant to this Section 5.3), which must be removed by Tenant in
accordance with this Section 5.3.
SECTION 5.4 MECHANIC'S LIENS. Tenant, at its expense, shall discharge any
lien or charge recorded or filed against the Real Property in connection with
any work done or claimed to have been done by or on behalf of, or materials
furnished or claimed to have been furnished to, Tenant, within 30 days after
Tenant's receipt of notice thereof by payment, filing the bond required by law
or otherwise in accordance with law.
SECTION 5.5 LABOR RELATIONS. Tenant shall not employ, or permit the
employment of, any contractor, mechanic or laborer, or permit any materials to
be delivered to or used in the Building, if, in Landlord's reasonable judgment,
such employment, delivery or use will interfere or cause any conflict with other
contractors, mechanics or laborers engaged in the construction, maintenance or
operation of the Building by Landlord, Tenant or others. If such interference or
conflict occurs, upon Landlord's request, Tenant shall cause all contractors,
mechanics or laborers causing such interference or conflict to leave the
Building immediately.
SECTION 5.6 TENANT'S COSTS. Tenant shall pay promptly to Landlord, within
30 days after invoice, all reasonable out-of-pocket costs actually incurred by
Landlord in connection with Tenant's Alterations, including costs incurred in
connection with (a) Landlord's review of the Alterations (including review of
requests for approval thereof) and (b) the provision of Building personnel
during the performance of any Alteration, to operate elevators or otherwise to
facilitate Tenant's Alterations. In addition, Tenant shall pay to Landlord, upon
demand, an administrative fee in an amount equal to 1.25% of the total cost of
such Alterations. At Landlord's request, Tenant shall deliver to Landlord
reasonable supporting documentation evidencing the hard and soft costs incurred
by Tenant in designing and constructing any Alterations.
SECTION 5.7 TENANT'S EQUIPMENT. Tenant shall provide notice to Landlord
prior to moving any heavy machinery, heavy equipment, freight, bulky matter or
fixtures (collectively, "Equipment") into or out of the Building and shall pay
to Landlord any costs actually incurred by Landlord in connection therewith. If
such Equipment requires special handling, Tenant agrees (a) to employ only
persons holding all necessary licenses to perform such work, (b) all work
performed in connection therewith shall comply with all applicable Requirements
and (c) such work shall be done only during hours designated by Landlord.
SECTION 5.8 LEGAL COMPLIANCE. The approval of Plans, or consent by
Landlord to the making of any Alterations, does not constitute Landlord's
representation that such Plans or Alterations comply with any Requirements.
Landlord shall not be liable to Tenant or any other party in connection with
Landlord's approval of any Plans, or Landlord's consent to Tenant's performing
any Alterations. If any Alterations made by or on behalf of Tenant, require
Landlord to make any alterations or improvements to any part of the Building in
order to comply with any Requirements, Tenant shall pay all costs and expenses
incurred by Landlord in connection with such alterations or improvements.
SECTION 5.9 FLOOR LOAD. Tenant shall not place a load upon any floor of
the Premises that exceeds 80 pounds per square foot "live load". Landlord
reserves the right to reasonably
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designate the position of all Equipment which Tenant wishes to place within the
Premises, and to place reasonable limitations on the weight thereof.
ARTICLE 6
REPAIRS
SECTION 6.1 LANDLORD'S REPAIR AND MAINTENANCE. Landlord shall operate,
maintain and, except as provided in Section 6.2 hereof, make all necessary
repairs (both structural and nonstructural) to (i) the Building Systems, and
(ii) the Common Areas, in conformance with standards applicable to Comparable
Buildings.
SECTION 6.2 TENANT'S REPAIR AND MAINTENANCE. Tenant shall promptly, at its
expense and in compliance with Article 5, make all nonstructural repairs to the
Premises and the fixtures, equipment and appurtenances therein (including all
electrical and plumbing systems in and exclusively serving the Premises from the
point of connection to the Building Systems) and all Specialty Alterations; but
excluding repairs, maintenance and replacement of exterior windows, atrium
windows, exterior signs, the base Building heating, ventilation and air
conditioning systems located in the Premises, the base Building life safety
systems located in the Premises and non-Specialty Alteration lightbulbs, lamps
and ballasts located in the Premises, which shall be repaired, maintained and
replaced as necessary by Landlord and, to the extent applicable, the cost of
such repairs, maintenance and replacements will be included in Operating
Expenses (collectively, "TENANT FIXTURES"), as and when needed to preserve the
Premises in good working order and condition, except for reasonable wear and
tear and damage for which Tenant is not responsible. All damage to the Building
or to any portion thereof or to any Tenant Fixtures requiring structural or
nonstructural repair caused by or resulting from any act, omission, neglect or
improper conduct of a Tenant Party or the moving of Tenant's Property or
Equipment into, within or out of the Premises by a Tenant Party, shall be
repaired at Tenant's expense by Tenant or by Landlord in accordance with the
allocation of repair responsibilities set forth above. All Tenant repairs shall
be of good quality utilizing new construction materials.
SECTION 6.3 RESTORATIVE WORK. Landlord reserves the right to make
all changes, alterations, additions, improvements, repairs or replacements to
the Building and Building Systems, including changing the arrangement or
location of entrances or passageways, doors and doorways, corridors, elevators,
stairs, toilets or other Common Areas (collectively, "RESTORATIVE WORK"), as
Landlord reasonably deems necessary or desirable, and to take all materials into
the Premises required for the performance of such Restorative Work, provided
that (a) the level of any Building service shall not decrease in any material
respect from the level required of Landlord in this Lease as a result thereof
(other than temporary changes in the level of such services during the
performance of any such Restorative Work, which shall be minimized) and (b)
Tenant is not deprived of access to the Premises in condition and under
conditions reasonably conducive to the conduct of Tenant's business. Landlord
shall use commercially reasonable efforts to avoid (or, if unavoidable, to
minimize) interference with Tenant's use and occupancy of the Premises during
the performance of such Restorative Work including, without limitation,
performing such Restorative Work outside of Ordinary Business Hours. Except to
the extent provided in Section 10.12, there shall be no Rent abatement or
allowance to Tenant for a diminution of rental value, no actual or constructive
eviction of Tenant, in whole or in part, no
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relief from any of Tenant's other obligations under this Lease, and no liability
on the part of Landlord by reason of inconvenience, annoyance or injury to
business arising from Landlord, Tenant or others performing, or failing to
perform, any Restorative Work.
ARTICLE 7
INCREASES IN TAXES AND OPERATING EXPENSES
SECTION 7.1 DEFINITIONS. For the purposes of this Article 7, the following
terms shall have the meanings set forth below:
(a) "ASSESSED VALUATION" shall mean the amount for which the Real
Property is assessed by any Governmental Authority for the purpose of imposition
of Taxes.
(b) "BASE OPERATING EXPENSES" shall mean the Operating Expenses for
the Base Year.
(c) "BASE TAXES" shall mean the Taxes payable on account of the Base
Year.
(d) "CALENDAR YEAR" shall mean each calendar year all or any portion
of which occurs during the Term and "Comparison Year" shall mean any Calendar
Year commencing subsequent to the Base Year.
(e) "OPERATING EXPENSES" shall mean the aggregate of all costs and
expenses paid or incurred by or on behalf of Landlord in connection with the,
operation, repair and maintenance of the Real Property, including, but not
limited to, the following:
(i) capital improvements incurred after the Base Year only if
such capital improvement either (A) is reasonably intended to result in a
reduction in Operating Expenses (as for example, a labor-saving improvement)
provided, the amount included in Operating Expenses in the Base Year or any
Comparison Year shall not exceed an amount equal to the savings reasonably
anticipated to result from the installation and operation of such improvement,
and/or (B) is made during the Base Year or any Comparison Year in compliance
with Requirements first applicable to the Complex after the Effective Date. Such
capital improvements shall be amortized (with interest at the Base Rate) on a
straight-line basis over the useful life of such improvement as Landlord shall
reasonably determine, and the amount included in Operating Expenses in the Base
Year or any Comparison Year shall be equal to the annual amortized amount; and
(ii) costs of maintaining and operating (including the
reasonable rental value thereof for not more than 5,000 square feet, which
cannot exceed rental rates for comparable space in Comparable Buildings) the
management and engineering offices, if any, for the Building, provided that if
in any Comparison Year the number of square feet of such spaces is changed, then
the Base Year Operating Expenses will be adjusted to reflect what such costs and
rental value would have been if the number of square feet of such spaces in the
Base Year had been the same as the number of square feet of such spaces in the
Comparison Year in question.
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Operating Expenses shall not include any Excluded Expenses.
If during all or part of the Base Year or any Comparison Year, Landlord
shall not furnish any particular item(s) of work or service (which would
otherwise constitute an Operating Expense) to any leasable portions of the
Building for any reason, then, for purposes of computing Operating Expenses for
such period, the amount included in Operating Expenses for such period shall be
increased by an amount equal to the costs and expenses that would have been
reasonably incurred by Landlord during such period if Landlord had furnished
such item(s) of work or service to such portion of the Building. In determining
the amount of Operating Expenses for the Base Year or any Comparison Year, if
less than 95% of the Building rentable area is occupied by tenants at any time
during the Base Year or such Comparison Year, then Operating Expenses shall be
determined for the Base Year or such Comparison Year to be an amount equal to
the like expenses which would normally be expected to be incurred had such
occupancy been 95% throughout the Base Year or such Comparison Year. If in any
Comparison Year the cost of premiums for insurance coverage with respect to
terrorist acts and occurrences is less than the cost of such premiums included
in Base Operating Expenses, Landlord may subtract from Base Operating Expenses
an amount equal to the difference in the cost of such premiums commencing with
such Comparison Year.
(f) "STATEMENT" shall mean a statement containing a comparison of
(i) the Taxes payable for the Base Year and for any Comparison Year, or (ii) the
Base Operating Expenses and the Operating Expenses payable for any Comparison
Year.
(g) "TAXES" shall mean (i) all real estate taxes, assessments, sewer
and water rents, Business Improvement District assessments and charges, and
other governmental levies, impositions or charges, whether general, special,
ordinary, extraordinary, foreseen or unforeseen, which may be assessed, levied
or imposed upon all or any part of the Real Property or in connection with the
use thereof (including any transit, personal property, sales, rental, use, gross
receipts, or occupancy taxes, vault rental and other taxes and assessments), and
(ii) all expenses (including reasonable attorneys' fees and disbursements and
experts' and other witnesses' fees) incurred in contesting any of the foregoing
or the Assessed Valuation of the Real Property not in excess of the amount of
the reduction achieved (but such expenses will not be included in Base Taxes if
incurred during the Base Tax Year). Taxes shall not include (x) interest or
penalties incurred by Landlord as a result of Landlord's late payment of Taxes,
(y) franchise, transfer, gift, inheritance, estate or net income taxes imposed
upon Landlord, or (z) deed transfer, transfer of economic interests or
recordation taxes. For purposes hereof, "Taxes" for any Calendar Year shall be
deemed to be the Taxes which are assessed, levied or imposed for such Calendar
Year regardless of when due or paid. If any Taxes are assessed on a fiscal year
(rather than a Calendar Year), Landlord shall have the right to equitably
allocate such Taxes on a Calendar Year basis. If Landlord elects to pay any
assessment in annual installments, then (i) such assessment shall be deemed to
have been so divided and to be payable in the maximum number of installments
permitted by law, and (ii) there shall be deemed included in Taxes for each
Comparison Year the installments of such assessment becoming payable during such
Comparison Year, together with interest payable during such Comparison Year on
such installments and on all installments thereafter becoming due as provided by
law, all as if such assessment had been so divided. If at any time the methods
of taxation prevailing on the Effective Date shall be altered so that in lieu of
or as an addition to the whole or any part of Taxes, there shall be assessed,
levied or imposed
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(1) a tax, assessment, levy, imposition or charge based on the income or rents
received from the Real Property whether or not wholly or partially as a capital
levy or otherwise, (2) a tax, assessment, levy, imposition or charge measured by
or based in whole or in part upon all or any part of the Real Property and
imposed upon Landlord, (3) a license fee measured by the rents, or (4) any other
tax, assessment, levy, imposition, charge or license fee however described or
imposed, including business improvement district impositions then all such
taxes, assessments, levies, impositions, charges or license fees or the part
thereof so measured or based shall be deemed to be Taxes.
SECTION 7.2 TENANT'S TAX PAYMENT.
(a) If the Taxes payable for any Comparison Year exceed the Base
Taxes, Tenant shall pay to Landlord Tenant's Proportionate Share of such excess
("Tenant's Tax Payment"). For each Comparison Year, Landlord shall furnish to
Tenant a statement setting forth Landlord's reasonable estimate of Tenant's Tax
Payment for such Comparison Year (the "Tax Estimate"). Tenant shall pay to
Landlord on the 1st day of each month during such Comparison Year an amount
equal to 1/12 of the Tax Estimate for such Comparison Year. If Landlord
furnishes a Tax Estimate for a Comparison Year subsequent to the commencement
thereof, then (i) until the 1st day of the second month following the month in
which the Tax Estimate is furnished to Tenant, Tenant shall pay to Landlord on
the 1st day of each month an amount equal to the monthly sum payable by Tenant
to Landlord under this Section 7.2 during the last month of the preceding
Comparison Year, (ii) promptly after the Tax Estimate is furnished to Tenant or
together therewith, Landlord shall give notice to Tenant stating whether the
installments of Tenant's Tax Estimate previously made for the preceding
Comparison Year were greater or less than the installments of Tenant's Tax
Estimate to be made for such Comparison Year in accordance with the Tax
Estimate, and (x) if there shall be a deficiency, Tenant shall pay the amount
thereof within 30 days after demand therefor, or (y) if there shall have been an
overpayment, Landlord shall credit the amount thereof against subsequent
payments of Rent due hereunder, and (iii) on the 1st day of the second month
following the month in which the Tax Estimate is furnished to Tenant, and on the
1st day of each month thereafter throughout the remainder of such Comparison
Year, Tenant shall pay to Landlord an amount equal to 1/12 of the Tax Estimate.
(b) As soon as reasonably practicable after Landlord has determined
the Taxes for a Comparison Year, Landlord shall furnish to Tenant a Statement
for such Comparison Year. If the Statement shall show that the sums paid by
Tenant under Section 7.2(a) exceeded the actual amount of Tenant's Tax Payment
for such Comparison Year, Landlord shall credit the amount of such excess
against subsequent payments of Rent due hereunder. If the Statement for such
Comparison Year shall show that the sums so paid by Tenant were less than
Tenant's Tax Payment for such Comparison Year, Tenant shall pay the amount of
such deficiency within 30 days after delivery of the Statement to Tenant.
(c) Only Landlord may institute proceedings to reduce the Assessed
Valuation of the Real Property and the filings of any such proceeding by Tenant
without Landlord's consent shall constitute an Event of Default. If the Taxes
payable for the Base Year are reduced, the Base Taxes shall be correspondingly
revised, the Additional Rent previously paid or payable on account of Tenant's
Tax Payment hereunder for all Comparison Years shall be recomputed on
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the basis of such reduction, and Tenant shall pay to Landlord within 10 Business
Days after being billed therefor, any deficiency between the amount of such
Additional Rent previously computed and paid by Tenant to Landlord, and the
amount due as a result of such recomputations. If Landlord receives a refund of
Taxes for any Comparison Year, Landlord shall credit against subsequent payments
of Rent due hereunder, an amount equal to Tenant's Proportionate Share of the
refund, net of any expenses incurred by Landlord in achieving such refund, which
amount shall not exceed Tenant's Tax Payment paid for such Comparison Year.
Landlord shall not be obligated to file any application or institute any
proceeding seeking a reduction in Taxes or the Assessed Valuation. The benefit
of any exemption or abatement relating to all or any part of the Real Property
shall accrue solely to the benefit of Landlord and Taxes shall be computed
without taking into account any such exemption or abatement.
(d) Tenant shall be responsible for any applicable occupancy or rent
tax now in effect or hereafter enacted and, if such tax is payable by Landlord,
Tenant shall promptly pay such amounts to Landlord, upon Landlord's demand.
(e) Tenant shall be obligated to make Tenant's Tax Payment
regardless of whether Tenant may be exempt from the payment of any Taxes as the
result of any reduction, abatement or exemption from Taxes granted or agreed to
by any Governmental Authority, or by reason of Tenant's diplomatic or other
tax-exempt status.
(f) Tenant's obligations to pay Taxes (or any other amounts)
accruing during, or relating to, the period prior to expiration or earlier
termination of this Lease, shall survive such expiration or termination.
Landlord may reasonably estimate all or any of such obligations within a
reasonable time before, or any time after, such expiration or termination.
Tenant shall pay the full amount of such estimate, and any additional amount due
after the actual amounts are determined, in each case within 30 days after
Landlord sends a statement therefor. If the actual amount is less than the
amount Tenant pays as an estimate, Landlord shall refund the difference within
30 days after such determination is made.
SECTION 7.3 TENANT'S OPERATING PAYMENT.
(a) If the Operating Expenses payable for any Comparison Year exceed
the Base Operating Expenses (excluding any Base Operating Expenses that are
non-recurring), Tenant shall pay to Landlord Tenant's Proportionate Share of
such excess ("Tenant's OPERATING PAYMENT"). For each Comparison Year, Landlord
shall furnish to Tenant a written statement setting forth Landlord's reasonable
estimate of Tenant's Operating Payment for such Comparison Year (the "EXPENSE
ESTIMATE"). Tenant shall pay to Landlord on the first day of each month during
such Comparison Year an amount equal to 1/12 of the Expense Estimate. If
Landlord furnishes an Expense Estimate for a Comparison Year subsequent to the
commencement thereof, then (a) until the 1st day of the second month following
the month in which the Expense Estimate is furnished to Tenant, Tenant shall pay
to Landlord on the 1st day of each month an amount equal to the monthly sum
payable by Tenant to Landlord under this Section 7.3 during the last month of
the preceding Comparison Year, (b) promptly after the Estimate is furnished to
Tenant or together therewith, Landlord shall give notice to Tenant stating
whether the installments of Tenant's Operating Payment previously made for the
preceding Comparison Year were greater or less than the installments of Tenant's
Operating
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Payment to be made for such Comparison Year in accordance with the Estimate, and
(i) if there shall be a deficiency, Tenant shall pay the amount thereof within
30 days after demand therefor, or (ii) if there shall have been an overpayment,
Landlord shall credit the amount thereof against subsequent payments of Rent due
hereunder, and (c) on the 1st day of the second month following the month in
which the Expense Estimate is furnished to Tenant, and on the 1st day of each
month thereafter throughout the remainder of such Comparison Year, Tenant shall
pay to Landlord an amount equal to 1/12 of Tenant's Operating Payment shown on
the Expense Estimate.
(b) On or before May 1st of each Comparison Year, Landlord shall
furnish to Tenant a Statement for the immediately preceding Comparison Year. If
the Statement shows that the sums paid by Tenant under Section 7.3(a) exceeded
the actual amount of Tenant's Operating Payment for such Comparison Year,
Landlord shall credit the amount of such excess against subsequent payments of
Rent due hereunder. If the Statement shows that the sums so paid by Tenant were
less than Tenant's Operating Payment for such Comparison Year, Tenant shall pay
the amount of such deficiency within 30 days after Tenant's receipt of the
Statement.
(c) Tenant's Proportionate Share Adjustments; Allocations Within
Complex. Landlord may separately determine Taxes and Expenses for the Property
and other buildings in the Complex. If any Taxes or Expenses (or components
thereof) apply to the Property and other areas of the Complex (including,
without limitation, costs of shared parking facilities and other common areas,
and a shared management office), Landlord shall allocate the same in accordance
with sound accounting and management practices and any instruments or agreements
pertaining to the sharing or allocation of the same. In the alternative,
Landlord shall have the right to determine, in accordance with sound accounting
and management practices, Tenant's Proportionate Share of Taxes and Expenses (or
components thereof) based upon the combined total of the same for the Property
and all or any such other buildings and areas of the Complex, in which event
Tenant's Proportionate Share shall be based on the ratio of the rentable area of
the Premises to the rentable area of such buildings. If the Property or Complex
shall contain non-office uses during any period, Landlord may determine, in
accordance with sound accounting and management practices, Tenant's
Proportionate Share of Taxes and Expenses for only the office portion of the
Property or Complex (or for only the non-office portion, if this Lease permits
non-office use of the Premises); in such event, Tenant's Proportionate Share
shall be based on the ratio of the rentable area of the Premises to the rentable
area of such portion for such period. Tenant's Proportionate Share shall be
subject to such other adjustments for such periods as may be applicable pursuant
to Section 7.1(e)(ii), above, and pursuant to the definition of Tenant's
Proportionate Share in Article 1.
(d) Tenant's obligations to pay Operating Expenses (or any other
amounts) accruing during, or relating to, the period prior to expiration or
earlier termination of this Lease, shall survive such expiration or termination.
Landlord may reasonably estimate all or any of such obligations within a
reasonable time before, or any time after, such expiration or termination.
Tenant shall pay the full amount of such estimate, and any additional amount due
after the actual amounts are determined, in each case within 30 days after
Landlord sends a Statement therefor. If the actual amount is less than the
amount Tenant pays as an estimate, Landlord shall refund the difference within
30 days after such determination is made.
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SECTION 7.4 NON-WAIVER; DISPUTES.
(a) Landlord's failure to render any Statement on a timely basis
with respect to any Comparison Year shall not prejudice Landlord's right to
thereafter render a Statement with respect to such Comparison Year or any
subsequent Comparison Year, nor shall the rendering of a Statement prejudice
Landlord's right to thereafter render a corrected Statement for that Comparison
Year.
(b) Each Statement sent to Tenant shall be conclusively binding upon
Tenant unless Tenant (i) pays to Landlord when due the amount set forth in such
Statement, without prejudice to Tenant's right to dispute such Statement, and
(ii) within 180 days after such Statement is sent, sends a notice to Landlord
objecting to such Statement and specifying the reasons therefor. Tenant agrees
that Tenant will not employ, in connection with any dispute under this Lease,
any person or entity who is to be compensated in whole or in part, on a
contingency fee basis. If the parties are unable to resolve any dispute as to
the correctness of such Statement within 30 days following such notice of
objection, either party may refer the issues raised to a reputable independent
public accounting firm selected by Landlord (and not a firm engaged or seeking
engagement as Landlord's accountants) and reasonably acceptable to Tenant, and
the decision of such accountants shall be conclusively binding upon Landlord and
Tenant. In connection therewith, Tenant, such accountants and all other persons
to whom Tenant gives any of the information obtained in connection with such
review shall execute and deliver to Landlord a confidentiality agreement, in
form and substance reasonably satisfactory to Landlord, whereby such parties
agree not to disclose to any third party any of the information obtained in
connection with such review. Tenant shall pay the fees and expenses relating to
such procedure, unless such accountants determine that Landlord overstated
Operating Expenses by more than 5% for such Comparison Year, in which case
Landlord shall pay such fees and expenses. Except as provided in this Section
7.4, Tenant shall have no right whatsoever to dispute, by judicial proceeding or
otherwise, the accuracy of any Statement.
SECTION 7.5 PRORATION. If the Rent Commencement Date is not January 1, the
Additional Rent for the applicable Calendar Year shall be apportioned on the
basis of the number of days in the year from the Rent Commencement Date to the
following December 31. If the Expiration Date occurs on a date other than
December 31st, any Additional Rent under this Article 7 for the Calendar Year in
which such Expiration Date occurs shall be apportioned on the basis of the
number of days in the period from January 1st to the Expiration Date. Upon the
expiration or earlier termination of this Lease, any Additional Rent under this
Article 7 shall be adjusted or paid within 30 days after submission of the
Statement for the last Calendar Year.
SECTION 7.6 NO REDUCTION IN RENT. In no event shall any decrease in
Operating Expenses or Taxes in any Comparison Year below the Base Operating
Expenses or Base Taxes, as the case may be, result in a reduction in the Fixed
Rent or any other component of Additional Rent payable hereunder.
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ARTICLE 8
REQUIREMENTS OF LAW
SECTION 8.1 COMPLIANCE WITH REQUIREMENTS.
(a) TENANT'S COMPLIANCE. Tenant, at its expense, shall comply with
all Requirements applicable to the Premises; and/or Tenant's use or occupancy
thereof; provided, however, that Tenant shall not be obligated to comply with
any Requirements requiring any structural alterations to the Building or any
alterations or repairs to any Building System unless the application of such
Requirements arises from (i) the specific manner and/or nature of Tenant's use
or occupancy of the Premises, as distinct from general office use, (ii)
Alterations made by Tenant, or (iii) a breach by Tenant of any provisions of
this Lease. Any repairs or alterations required for compliance with applicable
Requirements shall be made (1) at Tenant's expense by Tenant in compliance with
Article 5 if such repairs or alterations are nonstructural and do not affect any
Building System, and to the extent such repairs or alternations do not affect
areas outside the Premises, or (2) at Landlord's expense, by Landlord if such
repairs or alterations are structural or affect any Building System, or to the
extent such repairs or alterations affect areas outside the Premises or are not
Tenant's responsibility under the first sentence of this subsection 8.1(a). If
Tenant obtains knowledge of any failure to comply with any Requirements
applicable to the Premises, Tenant shall give Landlord prompt notice thereof.
(b) HAZARDOUS MATERIALS. Tenant shall not cause or permit (i) any
Hazardous Materials to be brought onto the Real Property, (ii) the storage or
use of Hazardous Materials in or about the Building or Premises (subject to the
second sentence of this Section 8.1(b)) or (iii) the escape, disposal or release
of any Hazardous Materials within or in the vicinity of the Building. Nothing
herein shall be deemed to prevent Tenant's use of any Hazardous Materials
customarily used in the ordinary course of office work, provided such use is in
accordance with all Requirements. Tenant shall be responsible, at its expense,
for all matters directly or indirectly based on, or arising or resulting from
the presence of Hazardous Materials at the Real Property which is caused or
permitted by a Tenant Party. Tenant shall provide to Landlord copies of all
communications received by Tenant with respect to any Requirements relating to
Hazardous Materials, and/or any claims made in connection therewith. Landlord or
its agents may perform environmental inspections of the Premises at any time.
(c) LANDLORD'S COMPLIANCE. Landlord shall comply with (or cause to
be complied with) all Requirements applicable to the Real Property which are not
the obligation of Tenant, to the extent that non-compliance would adversely
impair or affect Tenant's use and occupancy of the Premises for the Permitted
Uses.
(d) LANDLORD'S INSURANCE. Tenant shall not cause or permit any
action or condition that would (i) invalidate or conflict with Landlord's
insurance policies, (ii) violate applicable rules, regulations and guidelines of
the Fire Department, Fire Insurance Rating Organization or any other authority
having jurisdiction over the Building, (iii) cause an increase in the premiums
of fire insurance for the Building over that payable with respect to Comparable
Buildings, or (iv) result in Landlord's insurance companies' refusing to insure
the Building or any property therein in amounts and against risks as reasonably
determined by Landlord. If fire
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insurance premiums increase as a result of Tenant's failure to comply with the
provisions of this Section 8.1, Tenant shall promptly cure such failure and
shall reimburse Landlord for the increased fire insurance premiums paid by
Landlord as a result of such failure by Tenant.
SECTION 8.2 FIRE AND LIFE SAFETY. Any modifications to the Building fire
alarm and life safety systems required by Tenant or completed as part of the
Improvements shall be at Tenant's sole cost and expense, subject (if applicable)
to the application of Landlord's Contribution pursuant to the terms of Rider
R1-B. If the Fire Insurance Rating Organization or any Governmental Authority or
any of Landlord's insurers requires or recommends any modifications and/or
alterations be made or any additional equipment be supplied in connection with
the sprinkler system or fire alarm and life-safety system serving the Building
by reason of Tenant's business, any Alterations performed by Tenant or the
location of the partitions, Tenant's Property, or other contents of the
Premises, Landlord (to the extent outside of the Premises) or Tenant (to the
extent within the Premises) shall make such modifications and/or Alterations,
and supply such additional equipment, in either case at Tenant's expense.
ARTICLE 9
SUBORDINATION
SECTION 9.1 SUBORDINATION AND ATTORNMENT.
(a) By its execution of this Amendment, Landlord has informed Tenant
that Landlord is the lessee under the Ground Lease. Landlord represents and
warrants to Tenant that, as of the date hereof, (a) there are no Mortgages that
constitute a lien or charge on the whole or any portion of the Building or the
Land (or Landlord's interest in the Building, the Land or this Lease) except for
the mortgage that is described in the form of Subordination, Non-Disturbance and
Attornment Agreement that is attached hereto as Exhibit H (the "EXISTING
MORTGAGE"), and (b) there are no Superior Leases covering the whole or any
portion of the Land or the Building except for the Ground Lease. Within 30 days
after the Effective Date, Landlord shall deliver to Tenant a Subordination,
Non-Disturbance and Attornment Agreement in the form attached hereto as Exhibit
H, from the holder of the Existing Mortgage. Simultaneously with the execution
and delivery of this Lease by Landlord, Landlord shall deliver to Tenant a
Subordination, Non-Disturbance and Attornment Agreement in the form attached
hereto as Exhibit I, from Bala Plaza, Inc., the Lessor under the Ground Lease.
(b) Tenant agrees to subordinate the leasehold estate created by
this lease and the rights of Tenant hereunder to the lien of any Mortgage that
hereafter constitutes a lien or charge on the whole or any portion of the
Building or the Land (or Landlord's interest in the Building, the Land or this
Lease) or to any Superior Lease that hereafter covers the whole or any portion
of the Land or the Building provided that the holder of such Mortgage or the
Lessor under such Superior Lease enters into a Subordination, Non-Disturbance
and Attornment Agreement substantially in the form of Exhibit H and I,
respectively (and Tenant agrees to execute and deliver such agreement in such
event).
SECTION 9.2 FUTURE CONDOMINIUM DECLARATION. This Lease and Tenant's rights
hereunder are and will be subject and subordinate to any condominium
declaration, by-laws and
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other instruments (collectively, the "CONDOMINIUM DOCUMENTS") which may be
recorded in order to subject the Building to a condominium form of ownership
pursuant to the laws of the Commonwealth of Pennsylvania, provided that the
Condominium Documents do not by their terms increase the Rent, materially
increase Tenant's non-Rent obligations or materially and adversely affect
Tenant's rights under this Lease. At Landlord's request, and subject to the
foregoing proviso, Tenant will execute and deliver to Landlord an amendment of
this Lease confirming such subordination and modifying this Lease to conform to
such condominium regime.
ARTICLE 10
SERVICES
SECTION 10.1 ELECTRICITY. Subject to any Requirements or any public
utility rules or regulations governing energy consumption, Landlord shall make
or cause to be made, customary arrangements with utility companies and/or public
service companies to furnish electric current to the Premises for Tenant's use
in accordance with the Design Standards set forth in Exhibit D. If Landlord
reasonably determines by the use of an electrical consumption survey or by other
reasonable means that Tenant is using electric current (including overhead
fluorescent fixtures) in excess of .4 kilowatt hours per square foot of usable
area in the Premises per month, as determined on an annualized basis, or 4 xxxxx
per useable square foot of demand load ("Excess ELECTRICAL USAGE"), then
Landlord shall have the right to charge Tenant an amount equal to Landlord's
reasonable estimate of Tenant's Excess Electrical Usage, and shall have the
further right to install a separate electric current meter, submeter or check
meter in the Premises (a "METER") to measure the amount of electric current
consumed in the Premises. The cost of such Meter, special conduits, wiring and
panels needed in connection therewith and the installation, maintenance and
repair thereof shall be paid by Tenant. Tenant shall pay to Landlord, from time
to time, but no more frequently than monthly, for its Excess Electrical Usage at
the Premises, plus Landlord's charge equal to 10% of Tenant's Excess Electrical
Usage for Landlord's costs of maintaining, repairing and reading such Meter. The
rate to be paid by Tenant for submetered electricity shall include any taxes or
other charges in connection therewith.
SECTION 10.2 EXCESS ELECTRICITY. Tenant shall at all times comply with the
rules and regulations of the utility company supplying electricity to the
Building. Tenant shall not use any electrical equipment which, in Landlord's
reasonable judgment, would exceed the capacity of the electrical equipment
serving the Premises or which interferes with the electrical service to other
tenants of the Building. If Landlord determines that Tenant's electrical
requirements necessitate installation of any additional risers, feeders or other
electrical distribution equipment (collectively, "ELECTRICAL EQUIPMENT"), or if
Tenant provides Landlord with evidence reasonably satisfactory to Landlord of
Tenant's need for excess electricity and requests that additional Electrical
Equipment be installed, Landlord shall, at Tenant's expense, install such
additional Electrical Equipment, provided that Landlord, in its sole judgment,
determines that (a) such installation is practicable and necessary, (b) such
additional Electrical Equipment is permissible under applicable Requirements,
and (c) the installation of such Electrical Equipment will not cause permanent
damage to the Building or the Premises, cause or create a hazardous condition,
entail excessive or unreasonable alterations, interfere with or limit electrical
usage by other tenants or occupants of the Building or exceed the limits of the
switchgear or other
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facilities serving the Building, or require power in excess of that available
from the utility company serving the Building.
SECTION 10.3 ELEVATORS. Landlord shall provide passenger elevator service
for the Premises 24 hours per day, 7 days per week; provided, however, Landlord
may limit passenger elevator service during non-Ordinary Business Hours.
SECTION 10.4 HEATING, VENTILATION AND AIR CONDITIONING. Landlord shall
furnish to the Premises heating, ventilation and air-conditioning ("HVAC") in
accordance with the Design Standards during Ordinary Business Hours. Landlord
shall have access to all air-cooling, fan, ventilating and machine rooms and
electrical closets and all other mechanical installations of Landlord
(collectively, "MECHANICAL INSTALLATIONS"), and Tenant shall not construct
partitions or other obstructions which may interfere with Landlord's access
thereto or the moving of Landlord's equipment to and from the Mechanical
Installations. No Tenant Party shall at any time enter the Mechanical
Installations or tamper with, adjust, or otherwise affect such Mechanical
Installations. Landlord shall not be responsible if the HVAC System fails to
provide cooled or heated air, as the case may be, to the Premises in accordance
with the Design Standards by reason of (i) any equipment installed by, for or on
behalf of Tenant, which has an electrical load in excess of the average
electrical load and human occupancy factors for the HVAC System as set forth on
Exhibit D, or (ii) any rearrangement of partitioning or other Alterations made
or performed by, for or on behalf of Tenant. Tenant shall install, if missing,
blinds or shades on all windows, which blinds and shades shall be subject to
Landlord's approval, and shall keep operable windows in the Premises closed, and
lower the blinds when necessary because of the sun's position, whenever the HVAC
System is in operation or as and when required by any Requirement. Tenant shall
cooperate with Landlord and shall abide by the rules and regulations which
Landlord may reasonably prescribe for the proper functioning and protection of
the HVAC System.
SECTION 10.5 OVERTIME HVAC. The Fixed Rent does not include any charge to
Tenant for the furnishing of HVAC to the Premises during any periods other than
Ordinary Business Hours ("OVERTIME PERIODS"). If Tenant desires HVAC services
during Overtime Periods, Tenant shall deliver notice to the Building office
requesting such services by 2:00 p.m. of the Business Day on which or preceding
the date such services are to be provided; provided, however, that Landlord
shall use reasonable efforts to arrange such service on such shorter notice as
Tenant shall provide. If Landlord furnishes HVAC service during Overtime
Periods, Tenant shall pay to Landlord for such HVAC at Landlord's then
established rate for such service in the Building, which rate must (i) be the
standard rate as is charged by Landlord to all tenants of the Building and if
charged based on the zone served, shall be prorated among the tenants using HVAC
in the same zone during the same Overtime Period, and (ii) be comparable to the
rates for overtime HVAC charged by owners of Comparable Buildings.
SECTION 10.6 CLEANING. Landlord shall cause the Premises (excluding any
portions thereof used for the storage, preparation, service or consumption of
food or beverages, as an exhibition area or classroom, for storage, as a
shipping room, mail room or similar purposes, for exercise facilities, as a
trading floor, or primarily for operation of computer, data processing,
reproduction, duplicating or similar equipment) to be cleaned, substantially in
accordance with the standards set forth in Exhibit E. Landlord reserves the
right to modify such standards from
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time-to-time provided that Landlord's cleaning standards shall be reasonably
consistent with those provided in Comparable Buildings. Any areas of the
Premises which Landlord is not required to clean hereunder or which require
additional cleaning shall be cleaned, at Tenant's expense, by Landlord's
cleaning contractor for such charge as Landlord establishes from time to time
equal to Landlord's cost to provide such cleaning service. Landlord's cleaning
contractor and its employees shall have access to the Premises at all times
except between 8:00 a.m. and 5:30 p.m. on weekdays which are not Observed
Holidays.
SECTION 10.7 WATER. Landlord shall provide hot and cold water in the
lavatories, drinking fountains and janitor's closets on each floor of the
Building. If Tenant requires water in excess of that used by a normal office
building tenant of similar size using its premises for normal office use, Tenant
shall pay for the cost of bringing water to the Premises and Landlord may
install a meter to measure the water. Tenant shall pay the cost of such
installation, and for all maintenance, repairs and replacements thereto, and for
the reasonable charges of Landlord for the water consumed.
SECTION 10.8 REFUSE REMOVAL. Landlord shall provide refuse removal
services at the Building for ordinary office refuse and rubbish. Tenant shall
pay to Landlord, Landlord's reasonable charge for such removal to the extent
that the refuse generated by Tenant exceeds the refuse customarily generated by
general office tenants. Tenant shall not dispose of any refuse in the Common
Areas, and if Tenant does so, Tenant shall be liable for Landlord's reasonable
charge for such removal. Tenant shall, at its sole cost and expense, comply with
all present and future Requirements regarding the collection, sorting,
separation, and recycling of trash. Each separately sorted category of trash
shall be placed in separate receptacles as directed by Landlord.
SECTION 10.9 DIRECTORY. Landlord shall list Tenant on all of the Building
directories located in the first floor lobbies of the Building. The Building
directory listing Tenant's name will be shared with other Building tenants and
space on the directory shall be equitably apportioned amongst the tenants.
SECTION 10.10 TENANT ACCESS TO PREMISES. Tenant shall have access to the
Premises 24 hours a day, seven days a week. Outside of Ordinary Business Hours,
Building access will be monitored by an electronic card or key security and
access system or any such successor system installed and maintained by Landlord.
Tenant shall be responsible for access control to the Premises at Tenant's sole
cost and expense.
SECTION 10.11 TELECOMMUNICATIONS. If Tenant requests that Landlord grant
access to the Building to a telecommunications service provider designated by
Tenant for purposes of providing telecommunications services to Tenant, Landlord
shall use its good faith efforts to respond to such request within 30 days.
Tenant acknowledges that nothing set forth in this Section shall impose any
affirmative obligation on Landlord to grant such request and that Landlord, in
its sole discretion, shall have the right to determine which telecommunications
service providers shall have access to Building facilities.
SECTION 10.12 SERVICE INTERRUPTIONS. Landlord reserves the right to
suspend any service when necessary, by reason of Unavoidable Delays, accidents
or emergencies, or for Restorative
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Work which, in Landlord's reasonable judgment, are necessary or appropriate
until such Unavoidable Delay, accident or emergency shall cease or such
Restorative Work is completed and Landlord shall not be liable for any
interruption, curtailment or failure to supply services. Landlord shall use
commercially reasonable efforts to avoid, or if unavoidable, to minimize
interference with Tenant's use and occupancy of the Premises as a result of any
such interruption, curtailment or failure or defect in any such service, or
change in the supply, character and/or quantity of, electrical service, and to
restore any such services, remedy such situation and minimize any interference
with Tenant's business. Notwithstanding the foregoing or any other provision of
this Section 10.12, Landlord's performance of Restorative Work shall be subject
to the provisions of Section 6.3 above. Except as provided below, the exercise
of any such right or the occurrence of any such failure by Landlord shall not
constitute an actual or constructive eviction, in whole or in part, entitle
Tenant to any compensation, abatement or diminution of Rent, relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Landlord
or any Indemnified Party by reason of inconvenience to Tenant, or interruption
of Tenant's business, or otherwise. Landlord shall not be liable in any way to
Tenant for any failure, defect or interruption of, or change in the supply,
character and/or quantity of electrical service furnished to the Premises for
any reason except if attributable to the gross negligence or willful misconduct
of Landlord.
Notwithstanding the foregoing or any other contrary provision of this
Lease, if Tenant is prevented from using for the conduct of its business, and
does not use for the conduct of its business, the Premises or any material
portion thereof, for the applicable Eligibility Period (defined below) as a
result of any reason other than the negligence or willful misconduct of any
Tenant Party, including, without limitation by reason of (i) any Restorative
Work performed by Landlord after the Commencement Date not necessitated by the
negligence or willful misconduct of any Tenant Party, or (ii) the failure of
Landlord or its agents or contractors to provide to the Premises any of the
utilities and services required to be provided under this Lease not caused by
the negligence or willful misconduct of any Tenant Party or otherwise due to the
occurrence of a casualty or condemnation, or (iii) any failure to provide access
to the Premises and not caused by the negligence or willful misconduct of any
Tenant Party or otherwise due to the occurrence of a casualty or condemnation;
or (iv) an Unavoidable Delay, then, in any and all such events, Tenant's
obligation to pay Fixed Rent, Tenant's Operating Payment and Tenant's Tax
Payment shall be abated or reduced, as the case may be, retroactively from the
third day that Tenant is so prevented from using for the conduct of its business
and does not so use for the conduct of its business, the Premises or any
material portion thereof, and continuing for such time that Tenant continues to
be so prevented from using for the conduct of its business, and does not so use
for the conduct of its business, the Premises or a material portion thereof, in
the proportion that the rentable square feet of the portion of the Premises that
Tenant is prevented from using, and does not so use, bears to the total rentable
square feet of the Premises. As used herein, "ELIGIBILITY PERIOD" means 15
consecutive Business Days except when Restorative Work performed by Landlord
after the Commencement Date and not necessitated by the negligence or willful
misconduct of any Tenant Party is the reason why Tenant is prevented from using
the Premises for the conduct of its business, in which case "ELIGIBILITY PERIOD"
means five consecutive Business Days.
SECTION 10.13 SERVICE ADDITIONS AND OMISSIONS. Except with respect to the
services that Landlord otherwise agrees to provide as set forth in this Article,
Landlord shall have the
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right to add, modify and/or curtail any Building services as Landlord determines
appropriate from time to time in Landlord's sole discretion.
ARTICLE 11
INSURANCE; PROPERTY LOSS OR DAMAGE
SECTION 11.1 TENANT'S INSURANCE.
(a) Tenant, at its expense, shall obtain and maintain in full force
and effect the following insurance policies throughout the term of the Lease:
(i) a policy of commercial general liability insurance on an
occurrence basis against claims for personal injury, bodily injury, death and/or
property damage occurring in or about the Building, under which Tenant is
insured and Landlord, Landlord's Agent and any Lessors and any Mortgagees whose
names have been furnished to Tenant are named as additional insureds (the
"INSURED PARTIES"). Such insurance shall provide primary coverage without
contribution from any other insurance carried by or for the benefit of the
Insured Parties, and Tenant shall obtain blanket broad-form contractual
liability coverage to insure its indemnity obligations set forth in Article 25.
The minimum limits of liability applying exclusively to the Premises shall be a
combined single limit with respect to each occurrence in an amount of not less
than $10,000,000 provided, however, that Landlord shall retain the right to
require Tenant to increase such coverage from time to time to that amount of
insurance which is then being customarily required by landlords for similar
office space in Comparable Buildings. The deductible or self insured retention
for such policy shall not exceed $10,000. Tenant may satisfy the limits of
liability required herein with a combination of umbrella and/or excess policies
of insurance, provided that such policies comply with all of the provisions
hereof (including, without limitation, with respect to scope of coverage and
naming of the Insured Parties);
(ii) insurance against loss or damage by fire, and such other
risks and hazards as are insurable under then available standard forms of
"Special Form Causes of Loss" or "All Risk" property insurance policies,
insuring all Alterations and improvements to the Premises (including the
Improvements) to the extent such Alterations and improvements exceed the cost of
the improvements typically performed in connection with the initial occupancy of
tenants in the Building ("BUILDING STANDARD INSTALLATIONS"), for the full
insurable value thereof or replacement cost thereof, having a deductible amount,
if any, not in excess of $25,000;
(iii) during the performance of any Alteration, until
completion thereof, Builder's Risk insurance on an "all risk" basis and on a
completed value form including a Permission to Complete and Occupy endorsement,
for full replacement value covering the interest of Landlord and Tenant (and
their respective contractors and subcontractors) in all work incorporated in the
Building and all materials and equipment in or about the Premises;
(iv) Workers' Compensation Insurance or similar insurance, in
form and amounts required by law, whether common law or by statute, and
Employer's Liability with a combined single limit with respect to each
occurrence, each policy and each employee of $1,000,000; and
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(v) if the Building or Real Property includes a parking garage
or surface parking lot that is utilized by Tenant, Commercial Automobile
Liability Insurance for any owned, non-owned or hired vehicles with a combined
single limit with respect to each occurrence in an amount of not less than
$1,000,000.
(b) All insurance required to be carried by Tenant (i) shall contain
a provision that (x) no act or omission of Tenant shall affect or limit the
obligation of the insurance company to pay the amount of any loss sustained, and
(y) shall be noncancellable and/or no material change in coverage shall be made
thereto unless the Insured Parties receive 30 days' prior notice of the same by
certified mail, return receipt requested or by a recognized overnight delivery
service and (ii) shall be effected under valid and enforceable policies issued
by reputable insurers admitted to do business in the Commonwealth of
Pennsylvania and rated in Best's Insurance Guide, or any successor thereto as
having a "Best's Rating" of "A-" or better and a "Financial Size Category" of at
least "X" or better or, if such ratings are not then in effect, the equivalent
thereof or such other financial rating as Landlord may at any time consider
appropriate. The policy must include a provision which provides that the rights
of Landlord under such insurance policy shall not be prejudiced or interfered
with notwithstanding any gross negligence or willful misconduct of Tenant or any
Tenant Parties.
(c) On or prior to the Commencement Date, Tenant shall deliver to
Landlord appropriate policies of insurance, including evidence of waivers of
subrogation required to be carried pursuant to this Article 11 and that the
Insured Parties are named as additional insureds (the "Policies"). Evidence of
each renewal or replacement of the Policies shall be delivered by Tenant to
Landlord at least 10 days prior to the expiration of the Policies. In lieu of
the Policies, Tenant may deliver to Landlord a certification from Tenant's
insurance company (on the form currently designated "Xxxxx 27" (Evidence of
Property Insurance) and "Xxxxx 25-S" (Certificate of Liability Insurance), or
the equivalent, provided that attached thereto is an endorsement to Tenant's
commercial general liability policy naming the Insured Parties as additional
insureds), which endorsement is at least as broad as ISO policy form "CG 20 11
Additional Insured - Managers or Lessors of Premises (pre-1999 edition) and
which endorsement expressly provides coverage for the negligence of the
additional insureds, which certification shall be binding on Tenant's insurance
company, and which shall expressly provide that such certification (i) conveys
to the Insured Parties all the rights and privileges afforded under the Policies
as primary insurance, (ii) contains an unconditional obligation of the insurance
company to advise all Insured Parties in writing by certified mail, return
receipt requested or by a recognized overnight delivery service, at least 30
days in advance of any termination or change to the Policies that would affect
the interest of any of the Insured Parties, and (iii) the "additional insured"
endorsement shall be at least as broad as ISO policy form `CG 20 11 Additional
Insured - Managers or Lessors of Premises' (pre-1999 edition) and expressly
provides coverage for the additional insured's negligence arising out of the
Tenant's use of the Premises.
(d) Any claims made against such insurance policies shall survive
the expiration of the Lease. All rights that inure to the benefit of the
Landlord shall not be prejudiced by the expiration of the Lease.
SECTION 11.2 WAIVER OF SUBROGATION. Notwithstanding any other provision
hereof, each party hereby waives any claim against the other and the other's
agents, officers or
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employees, for damage to property by insurable casualty, it being understood
that each party will look solely to the proceeds, if any, of property insurance
and that the insurers will not be entitled to recover from the other party
hereto for such damage, by way of subrogation or otherwise. Tenant acknowledges
that Landlord shall not carry insurance on, and shall not be responsible for,
(i) damage to any Above Building Standard Installations, (ii) Tenant's Property,
and (iii) any loss suffered by Tenant due to interruption of Tenant's business
resulting from casualty.
SECTION 11.3 RESTORATION.
(a) If the Premises are damaged by fire or other casualty, or if the
Building is damaged such that Tenant is deprived of reasonable access to the
Premises, the damage shall be repaired by Landlord, to substantially the
condition of the Premises prior to the damage, but Landlord shall have no
obligation to repair or restore (i) Tenant's Property or (ii) except as provided
in Section 11.3(b), any Alterations or improvements to the Premises, to the
extent such Alterations or improvements exceed Building Standard Installations
("ABOVE BUILDING STANDARD INSTALLATIONS"). So long as Tenant is not in default
beyond applicable grace or notice provisions in the payment or performance of
its obligations under this Section 11.3, and provided Tenant timely delivers to
Landlord either Tenant's Restoration Payment (as hereinafter defined) or the
Restoration Security (as hereinafter defined) or Tenant expressly waives any
obligation of Landlord to repair or restore any of Tenant's Above Building
Standard Installations, then until the restoration of the Premises is
Substantially Completed or would have been Substantially Completed but for
Tenant Delay, Fixed Rent, Tenant's Tax Payment and Tenant's Operating Payment
shall be reduced in the proportion by which the area of the part of the Premises
which is not usable (or accessible ) and is not used by Tenant bears to the
total area of the Premises.
(b) As a condition precedent to Landlord's obligation to repair or
restore any Above Building Standard Installations, Tenant shall (i) pay to
Landlord upon demand a sum ("TENANT'S RESTORATION PAYMENT") equal to the amount,
if any, by which (A) the cost, as estimated by a reputable independent
contractor designated by Landlord, of repairing and restoring all Alterations
and Improvements in the Premises to their condition prior to the damage, exceeds
(B) the cost of restoring the Premises with Building Standard Installations, or
(ii) furnish to Landlord security (the "RESTORATION SECURITY") in form and
amount reasonably acceptable to Landlord to secure Tenant's obligation to pay
all costs in excess of restoring the Premises with Building Standard
Installations. If Tenant shall fail to deliver to Landlord either (1) Tenant's
Restoration Payment or the Restoration Security, as applicable, or (2) a waiver
by Tenant, in form satisfactory to Landlord, of all of Landlord's obligations to
repair or restore any of the Above Building Standard Installations, in either
case within 15 days after Landlord's demand therefor, Landlord shall have no
obligation to restore any Above Building Standard Installations and Tenant's
abatement of Fixed Rent, Tenant's Tax Payment and Tenant's Operating Payment
shall cease when the restoration of the Premises (other than any Above Building
Standard Installations) is Substantially Complete.
SECTION 11.4 LANDLORD'S TERMINATION RIGHT. Notwithstanding anything to the
contrary contained in Section 11.3, if the Premises are totally damaged or are
rendered wholly untenantable, or if the Building shall be so damaged that, in
Landlord's reasonable opinion, substantial alteration, demolition, or
reconstruction of the Building shall be required (whether or not the Premises
are so damaged or rendered untenantable), then in either of such events,
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Landlord may, not later than 60 days following the date of the damage, terminate
this Lease by notice to Tenant, provided that if the Premises are not damaged,
Landlord may not terminate this Lease unless Landlord similarly terminates the
leases of other tenants in the Building aggregating at least 50% of the portion
of the Building occupied for office purposes immediately prior to such damage.
If this Lease is so terminated, (a) the Term shall expire upon the 30th day
after such notice is given, (b) Tenant shall vacate the Premises and surrender
the same to Landlord, (c) Tenant's liability for Rent shall cease as of the date
of the damage, and (d) any prepaid Rent for any period after the date of the
damage shall be refunded by Landlord to Tenant.
SECTION 11.5 TENANT'S TERMINATION RIGHT. If the Premises are totally
damaged and are thereby rendered wholly untenantable, or if the Building shall
be so damaged that Tenant is deprived of reasonable access to the Premises, and
if Landlord elects to restore the Premises, Landlord shall, within 60 days
following the date of the damage, cause a contractor or architect selected by
Landlord to give notice (the "RESTORATION NOTICE") to Tenant of the date by
which such contractor or architect estimates the restoration of the Premises
(excluding any Above Building Standard Installations) shall be Substantially
Completed. If such date, as set forth in the Restoration Notice, is more than 18
months from the date of such damage, then Tenant shall have the right to
terminate this Lease by giving notice (the "TERMINATION NOTICE") to Landlord not
later than 30 days following delivery of the Restoration Notice to Tenant. If
Tenant delivers a Termination Notice, this Lease shall be deemed to have
terminated as of the date of the giving of the Termination Notice, in the manner
set forth in the second sentence of Section 11.4.
SECTION 11.6 FINAL 18 MONTHS. Notwithstanding anything to the contrary in
this Article 11, if any damage during the final 18 months of the Term renders
the Premises wholly untenantable, either Landlord or Tenant may terminate this
Lease by notice to the other party within 30 days after the occurrence of such
damage and this Lease shall expire on the 30th day after the date of such
notice. For purposes of this Section 11.6, the Premises shall be deemed wholly
untenantable if Tenant shall be precluded from using more than 50% of the
Premises for the conduct of its business and Tenant's inability to so use the
Premises is reasonably expected to continue for more than 90 days.
SECTION 11.7 LANDLORD'S LIABILITY. Any Building employee to whom any
property shall be entrusted by or on behalf of Tenant shall be deemed to be
acting as Tenant's agent with respect to such property and neither Landlord nor
its agents shall be liable for any damage to such property, or for the loss of
or damage to any property of Tenant by theft or otherwise. None of the Insured
Parties shall be liable for any injury or damage to persons or property or
interruption of Tenant's business resulting from fire or other casualty, any
damage caused by other tenants or persons in the Building or the parking garage
or by construction of any private, public or quasi-public work, or any latent
defect in the Premises or in the Building or the parking garage (except that
Landlord shall be required to repair the same to the extent provided in Article
6). No penalty shall accrue for delays which may arise by reason of adjustment
of fire insurance on the part of Landlord or Tenant, or for any Unavoidable
Delays arising from any repair or restoration of any portion of the Building,
provided that Landlord shall use reasonable efforts to minimize interference
with Tenant's use and occupancy of the Premises during the performance of any
such repair or restoration.
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ARTICLE 12
EMINENT DOMAIN
SECTION 12.1 TAKING.
(a) TOTAL TAKING. If all or substantially all of the Real Property,
the Complex, the Building or the Premises shall be acquired or condemned for any
public or quasi-public purpose (a "TAKING"), this Lease shall terminate and the
Term shall end as of the date of the vesting of title and Rent shall be prorated
and adjusted as of such date.
(b) PARTIAL TAKING. Upon a Taking of only a part of the Real
Property, the Complex, the Building or the Premises then, except as hereinafter
provided in this Article 12, this Lease shall continue in full force and effect,
provided that from and after the date of the vesting of title, Fixed Rent and
Tenant's Proportionate Share shall be modified to reflect the reduction of the
Premises and/or the Building as a result of such Taking.
(c) LANDLORD'S TERMINATION RIGHT. Whether or not the Premises are
affected, Landlord may, by notice to Tenant, within 60 days following the date
upon which Landlord receives notice of the Taking of all or a portion of the
Real Property, the Complex, the Building or the Premises, terminate this Lease,
provided that Landlord elects to terminate leases (including this Lease)
aggregating at least 50% of the portion of the Building occupied for office
purposes immediately prior to such Taking.
(d) TENANT'S TERMINATION RIGHT. If the part of the Real Property so
Taken contains more than 20% of the total area of the Premises occupied by
Tenant immediately prior to such Taking, or if, by reason of such Taking, Tenant
no longer has reasonable means of access to the Premises, Tenant may terminate
this Lease by notice to Landlord given within 30 days following the date upon
which Tenant is given notice of such Taking. If Tenant so notifies Landlord,
this Lease shall end and expire upon the 30th day following the giving of such
notice. If a part of the Premises shall be so Taken and this Lease is not
terminated in accordance with this Section 12.1 Landlord shall restore that part
of the Premises not so Taken to a self-contained rental unit substantially
equivalent (with respect to character, quality, appearance and services) to that
which existed immediately prior to such Taking, excluding Tenant's Property and
Above Building Standard Installations.
(e) APPORTIONMENT OF RENT. Upon any termination of this Lease
pursuant to the provisions of this Article 12, Rent shall be apportioned as of,
and shall be paid or refunded up to and including, the date of such termination.
SECTION 12.2 AWARDS. Upon any Taking, Landlord shall receive the entire
award for any such Taking, and Tenant shall have no claim against Landlord or
the condemning authority for the value of any unexpired portion of the Term or
Tenant's Alterations; and Tenant hereby assigns to Landlord all of its right in
and to such award. Nothing contained in this Article 12 shall be deemed to
prevent Tenant from making a separate claim in any condemnation proceedings for
the then value of any Tenant's Property or Above Building Standard
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Installations included in such Taking and for any moving expenses, provided any
such award is in addition to, and does not result in a reduction of, the award
made to Landlord.
SECTION 12.3 TEMPORARY TAKING. If all or any part of the Premises is Taken
temporarily during the Term for any public or quasi-public use or purpose,
Tenant shall give prompt notice to Landlord and the Term shall not be reduced or
affected in any way and Tenant shall continue to pay all Rent payable by Tenant
without reduction or abatement and to perform all of its other obligations under
this Lease, except to the extent prevented from doing so by the condemning
authority, and Tenant shall be entitled to receive any award or payment from the
condemning authority for such use, which shall be received, held and applied by
Tenant as a trust fund for payment of the Rent falling due.
ARTICLE 13
ASSIGNMENT AND SUBLETTING
SECTION 13.1 CONSENT REQUIREMENTS.
(a) NO ASSIGNMENT OR SUBLETTING. Except as expressly set forth
herein, Tenant shall not assign, mortgage, pledge, encumber, or otherwise
transfer this Lease, whether by operation of law or otherwise, and shall not
sublet, or permit, or suffer the Premises or any part thereof to be used or
occupied by others (whether for desk space, mailing privileges or otherwise),
without Landlord's prior consent in each instance, which consent shall not be
unreasonably withheld, conditioned or delayed so long as no Event of Default
then exists. Any assignment, sublease, mortgage, pledge, encumbrance or transfer
in contravention of the provisions of this Article 13 shall be void and shall
constitute an Event of Default.
(b) COLLECTION OF RENT. If, without Landlord's consent, this Lease
is assigned or transferred, or any part of the Premises is sublet or occupied by
anyone other than Tenant or this Lease is encumbered (by operation of law or
otherwise), Landlord may collect rent from the assignee, subtenant or occupant,
and apply the net amount collected to the Rent herein reserved. No such
collection shall be deemed a waiver of the provisions of this Article 13, an
acceptance of the assignee, transferee, subtenant or occupant as tenant, or a
release of Tenant from the performance of Tenant's covenants hereunder, and in
all cases Tenant shall remain fully liable for its obligations under this Lease.
(c) FURTHER ASSIGNMENT/SUBLETTING. Landlord's consent to any
assignment, transfer or subletting shall not relieve Tenant from the obligation
to obtain Landlord's consent to any further assignment, transfer or subletting.
In no event shall any permitted subtenant assign or encumber its sublease or
further sublet any portion of its sublet space, or otherwise suffer or permit
any portion of the sublet space to be used or occupied by others, without
Landlord's prior consent in each instance, which consent shall not be
unreasonably withheld, conditioned or delayed so long as no Event of Default
then exists.
SECTION 13.2 TENANT'S NOTICE; LANDLORD'S TERMINATION OPTION.
(a) If Tenant desires to assign or transfer this Lease or sublet all
or any portion of the Premises, Tenant shall give notice thereof to Landlord,
which notice shall be
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accompanied by (i) in the case of a proposed assignment or transfer, the date
Tenant desires the assignment or transfer to be effective, and (ii) in the case
of a proposed sublease, a description of the portion of the Premises to be
sublet and the desired commencement date of such sublease.
(b) Any notice sent by Tenant under Section 13.2(a) may propose
alternate transactions (for example, an assignment or a subletting), in which
case Landlord may exercise its rights which are set forth below in Section
13.2(c) as to whichever of such transactions Landlord wishes (or Landlord may
refrain from exercising its rights as to any such transactions).
(c) Any notice given by Tenant under Section 13.2(a) shall be deemed
an irrevocable 30 day offer from Tenant to Landlord of the right, at Landlord's
option, (1) if the proposed transaction is an assignment or transfer of this
Lease, to terminate this Lease with respect to the entire Premises, (2) if the
proposed transaction is a sublease of 75% or more of the rentable square footage
of the Premises and the term of such sublease (including any extension options
provided for under the sublease) would either be for 75% or more of the then
remaining Term of this Lease (without regard to any then unexercised extension
options under this Lease) or for a period expiring during the last 18 months of
the Term of this Lease (without regard to any then unexercised extension options
under this Lease, but considering all extension options granted under the
proposed sublease), to terminate this Lease with respect to the entire Premises,
or (3) if Landlord elects not to exercise its termination right under clause (2)
or if the proposed transaction is a sublease that does not fall within the
criteria set forth in clause (2), to terminate this Lease with respect to the
space that Tenant proposes to sublease (the "PARTIAL SPACE"). Such option may be
exercised by notice from Landlord to Tenant within 30 days after delivery of
Tenant's notice. If Landlord exercises its option to terminate all or a portion
of this Lease, (a) this Lease shall end and expire with respect to all or a
portion of the Premises, as the case may be, on the date that such assignment,
transfer or sublease was to commence, provided that such date is in no event
earlier than 90 days after the date Landlord receives the above notice unless
Landlord agrees to such earlier date, (b) Rent shall be apportioned, paid or
refunded as of such date, (c) Tenant, upon Landlord's request, shall enter into
an amendment of this Lease ratifying and confirming such total or partial
termination, and setting forth any appropriate modifications to the terms and
provisions hereof, and (d) Landlord shall be free to lease the Premises (or any
part thereof) to Tenant's prospective assignee, transferee or subtenant, if any.
Tenant shall pay all costs to make the Partial Space a self-contained rental
unit and to install any required Building corridors.
SECTION 13.3 CONDITIONS TO ASSIGNMENT/SUBLETTING.
(a) If Landlord does not exercise its termination option provided
under Section 13.2(c) with respect to a proposed assignment or transfer of this
Lease or a proposed subletting by Tenant, then Tenant shall have a period of one
year from the date that Tenant gives notice of the proposed assignment, transfer
or subletting under Section 13.2(a) to deliver to Landlord written notice of a
proposed assignment or transfer by Tenant or a proposed subletting by Tenant, as
applicable, which notice must be accompanied by the following information: (i)
the date Tenant desires the assignment, transfer or subletting to be effective,
(ii) a true and complete statement reasonably detailing the identity of the
proposed assignee, transferee or subtenant (any such proposed assignee,
transferee or subtenant may hereafter be referred to herein as a "TRANSFEREE"),
the nature of its business and its proposed use of the Premises, (iii)
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current financial information with respect to the Transferee, including its most
recent financial statements, and (iv) any other information Landlord may
reasonably request.
(b) If Tenant delivers the information required under Section
13.3(a) within the one year period described in Section 13.3(a), and provided
that no Event of Default then exists, Landlord shall grant or deny its consent
to the proposed assignment, transfer or subletting within 10 Business Days after
delivery by Tenant to Landlord of such information.
(c) Landlord's consent to any proposed assignment, transfer or
subletting shall not be unreasonably withheld or conditioned, provided that:
(i) in Landlord's reasonable judgment, the Transferee is
engaged in a business or activity, and the Premises will be used in a manner,
which (1) is in keeping with the then standards of the Building, (2) is for the
Permitted Uses, (3) does not violate any restrictions set forth in this Lease,
any Mortgage or Superior Lease or any negative covenant as to use of the
Premises required by any other lease in the Building, and (4) will not attract a
volume, frequency or type of visitor or employee to the Building which is not in
keeping with the then standards of the Building and will not impose an excessive
demand on or use of the facilities or services of the Building;
(ii) the Transferee is reputable with financial means to
perform all of its obligations under this Lease or the sublease, as the case may
be;
(iii) neither the Transferee nor any person which, directly or
indirectly, controls, is controlled by, or is under common control with, the
Transferee, but excluding in all cases Related Entities, is then an occupant of
the Building and Landlord then has comparable space available in the Building;
(iv) there shall be not more than six subtenants on each floor
of the Premises provided, however, that Related Entities shall not be counted
for purposes of this Section 13.3(c)(iv);
(v) Tenant shall, upon demand, reimburse Landlord for all
reasonable expenses incurred by Landlord in connection with such assignment or
sublease, including any investigations as to the acceptability of the Transferee
and all legal costs reasonably incurred in connection with the granting of any
requested consent; and
(vi) the Transferee shall not be entitled, directly or
indirectly, to diplomatic or sovereign immunity, regardless of whether the
Transferee agrees to waive such diplomatic or sovereign immunity, and shall be
subject to the service of process in, and the jurisdiction of the courts of, the
Commonwealth of Pennsylvania.
(d) With respect to each and every subletting, transfer and/or
assignment approved by Landlord under the provisions of this Lease:
(i) except in the case of a Related Entity, the form of the
proposed assignment, transfer agreement or sublease shall be reasonably
satisfactory to Landlord;
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(ii) no sublease shall be for a term ending later than one day
prior to the Expiration Date;
(iii) except in the case of a Related Entity, no Transferee
shall take possession of any part of the Premises, until an executed counterpart
of such sublease, transfer agreement or assignment has been delivered to
Landlord and approved by Landlord as provided in Section 13.8;
(iv) if an Event of Default occurs prior to the effective date
of such assignment, transfer or subletting, then Landlord's consent thereto, if
previously granted, shall be immediately deemed revoked without further notice
to Tenant, and if such assignment or subletting would have been permitted
without Landlord's consent pursuant to Section 13.7, such permission shall be
void and without force and effect, and in either such case, any such assignment,
transfer or subletting shall constitute a further Event of Default hereunder;
and
(v) each sublease shall be subject and subordinate to this
Lease and to the matters to which this Lease is or shall be subordinate; and
Tenant and each Transferee shall be deemed to have agreed that upon the
occurrence and during the continuation of an Event of Default hereunder, Tenant
has hereby assigned to Landlord, and Landlord may, at its option, accept such
assignment of, all right, title and interest of Tenant as sublandlord under such
sublease, together with all modifications, extensions and renewals thereof then
in effect and such Transferee shall, at Landlord's option, attorn to Landlord
pursuant to the then executory provisions of such sublease, except that Landlord
shall not be (A) liable for any previous act or omission of Tenant under such
sublease, (B) subject to any counterclaim, offset or defense not expressly
provided in such sublease, which theretofore accrued to such Transferee against
Tenant, (C) bound by any previous modification of such sublease not consented to
by Landlord or by any prepayment of more than one month's rent, (D) bound to
return such Transferee's security deposit, if any, except to the extent Landlord
shall receive actual possession of such deposit and such Transferee shall be
entitled to the return of all or any portion of such deposit under the terms of
its sublease, or (E) obligated to make any payment to or on behalf of such
Transferee, or to perform any work in the subleased space or the Building, or in
any way to prepare the sublet space for occupancy, beyond Landlord's obligations
under this Lease. The provisions of this Section 13.3(d)(v) shall be
self-operative, and no further instrument shall be required to give effect to
this provision, provided that the Transferee shall execute and deliver to
Landlord any instruments Landlord may reasonably request to evidence and confirm
such subordination and attornment.
SECTION 13.4 BINDING ON TENANT; INDEMNIFICATION OF LANDLORD.
Notwithstanding any assignment, transfer or subletting or any acceptance of rent
by Landlord from any Transferee, Tenant shall remain fully liable for the
payment of all Rent due and for the performance of all the covenants, terms and
conditions contained in this Lease on Tenant's part to be observed and
performed, and any default under any term, covenant or condition of this Lease
by any Transferee or anyone claiming under or through any Transferee shall be
deemed to be a default under this Lease by Tenant. Tenant shall indemnify,
defend, protect and hold harmless Landlord from and against any and all Losses
resulting from any claims that may be made against Landlord by the Transferee or
anyone claiming under or through any Transferee or by any brokers or other
persons claiming a commission or similar compensation in connection with the
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proposed assignment, transfer or sublease, irrespective of whether Landlord
shall give or decline to give its consent to any proposed assignment, transfer
or sublease, or if Landlord shall exercise any of its options under this Article
13.
SECTION 13.5 TENANT'S FAILURE TO COMPLETE. If Landlord consents to a
proposed assignment, transfer or sublease and Tenant fails to execute and
deliver to Landlord such assignment, transfer or sublease within 120 days after
the giving of such consent or the amount of space subject to such sublease
varies by more than 20% from that specified in the notice given by Tenant to
Landlord pursuant to Section 13.2(b), then Tenant shall again comply with all of
the provisions and conditions of Sections 13.2, 13.3 and 13.4 before assigning
or transferring this Lease or subletting all or part of the Premises.
SECTION 13.6 PROFITS. If Tenant enters into any assignment, transfer or
sublease permitted hereunder or consented to by Landlord, Tenant shall, within
60 days of Landlord's consent to such assignment, transfer or sublease, deliver
to Landlord a list of Tenant's reasonable third-party brokerage fees and legal
fees paid or to be paid in connection with such transaction (collectively,
"TRANSACTION COSTS"), together with a list of all of Tenant's Property to be
transferred to such Transferee. Tenant shall deliver to Landlord evidence of the
payment of such Transaction Costs promptly after the same are paid. In
consideration of such assignment or subletting, Tenant shall pay to Landlord:
(a) In the case of an assignment or transfer, on the effective date
of the assignment or transfer, 50% of all sums and other consideration paid to
Tenant by the Transferee for or by reason of such assignment or transfer
(including, except to the extent prohibited by Section 26.21, sums paid for the
sale or rental of Tenant's Property, less, the then fair market or rental value
thereof, as reasonably determined by Landlord) after first deducting the
Transaction Costs; or
(b) In the case of a sublease, 50% of any consideration payable
under the sublease to Tenant by the Transferee which exceeds on a per square
foot basis the Fixed Rent and Additional Rent accruing during the term of the
sublease in respect of the subleased space (together with, except to the extent
prohibited by Section 26.21, any sums paid for the sale or rental of Tenant's
Property, less, the then fair market or rental value thereof, as reasonably
determined by Landlord) after first deducting the Transaction Costs. The sums
payable under this clause shall be paid by Tenant to Landlord monthly as and
when paid by the subtenant to Tenant.
SECTION 13.7 PERMITTED TRANSFERS.
(a) PERMITTED BUSINESS PURPOSE ASSIGNMENTS AND TRANSFERS. If Tenant
is a legal entity, the transfer (by one or more transfers), directly or
indirectly, by merger, consolidation, operation of law or otherwise, of a
majority of the stock or other beneficial ownership interest in Tenant
(collectively, "OWNERSHIP INTERESTS") or of all or substantially all of the
assets of Tenant shall be deemed a voluntary assignment or transfer of this
Lease. Without limiting the generality of the foregoing, for purposes of this
Article, the terms "assign" and "transfer" shall be deemed to include (x) the
issuance of new Ownership Interests which results in a majority of the Ownership
Interests in Tenant being held by a person or entity which does
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not hold a majority of the Ownership Interests in Tenant on the Effective Date
and (y) except as provided below, the sale or transfer of all or substantially
all of the assets of Tenant in one or more transactions and the merger or
consolidation of Tenant into or with another business entity. However,
notwithstanding any provision of this Article 13 (or any other provision of this
Lease) to the contrary, the provisions of Sections 13.1, 13.2, 13.4 and 13.5
shall not apply to, and without limitation thereof, Landlord's prior consent
shall not be required for:
(i) the transfer of Ownership Interests in Tenant if and so
long as Tenant is publicly traded on a nationally recognized stock exchange;
(ii) a merger or consolidation of Tenant with or into any
entity (where by operation of law such surviving or resulting entity assumes all
of the assets, obligations and liabilities of Tenant including, without
limitation, the obligations and liabilities of Tenant under this Lease) or an
assignment of this Lease to a purchaser of all or substantially all of the
assets of Tenant, so long as with respect to transfers permitted under this
clause (ii), (A) Tenant certifies that such transfer or assignment was made for
a legitimate independent business purpose and not for the purpose of assigning
or transferring this Lease, (B) the successor to or assignee of Tenant has a net
worth computed in accordance with generally accepted accounting principles at
least equal to the greater of (x) the net worth of Tenant at the Effective Date
or (y) the net worth of Tenant as of the date that the most recent amendment to
this Lease was entered into by Landlord and Tenant, (C) proof satisfactory to
Landlord of such net worth is delivered to Landlord (x) at least 10 days prior
to the effective date of any such merger, consolidation, assignment or transfer,
to the extent Tenant is permitted under applicable law to deliver same to
Landlord prior to such effective date, or (y) no more than 10 days after the
effective date of any such merger, consolidation, assignment or transfer, to the
extent Tenant is not permitted under applicable law to deliver same to Landlord
prior to such effective date, and (D) the purchaser/assignee executes and
delivers to Landlord on or before the effective date of any such purchase of all
or substantially all of the assets of Tenant a written assumption of all of
Tenant's obligations and liabilities under this Lease, which shall be in a form
and substance reasonably acceptable to Landlord and shall be executed and
delivered on or prior to the effective date of the transfer, with an original
executed counterpart to Landlord.
(b) RELATED ENTITIES. Notwithstanding any provision of this Article
13 (or any other provision of this Lease) to the contrary, the provisions of
Sections 13.1, 13.2, 13.3(c)(iii), 13.3(c)(iv), 13.4 and 13.5 shall not apply
to, and without limitation thereof, Landlord's prior consent shall not be
required for the assignment or transfer of this Lease to, or the sublease of all
or part of the Premises for any Permitted Use to, any business entity which
controls, is controlled by, or is under common control with the original Tenant
(a "RELATED ENTITY"). Any such assignment, transfer or sublease shall not
relieve, release, impair or discharge any of Tenant's obligations hereunder. For
the purposes hereof, "CONTROL" shall be deemed to mean ownership of not less
than 50% of all of the Ownership Interests of such corporation or other business
entity.
(c) APPLICABILITY. Notwithstanding the foregoing, Tenant shall have
no right to assign or transfer this Lease or sublease all or any portion of the
Premises without Landlord's consent pursuant to this Section 13.7 if Tenant is
not the initial Tenant herein named or a person or entity who acquired Tenant's
interest in this Lease in a transaction approved by Landlord or a
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transaction permitted under this Section 13.7. The limitations set forth in this
Section 13.7 shall apply to Transferee(s) and guarantor(s) of this Lease, if
any, and any transfer by any such entity in violation of this Section 13.7 shall
be a transfer in violation of Section 13.1.
SECTION 13.8 ASSUMPTION OF OBLIGATIONS. No assignment or transfer of this
lease by Tenant shall be effective unless and until the Transferee executes,
acknowledges and delivers to Landlord an agreement in form and substance
reasonably satisfactory to Landlord whereby the Transferee (a) assumes Tenant's
obligations under this Lease and (b) agrees that, notwithstanding such
assignment or transfer, the provisions of Section 13.1 hereof shall be binding
upon it in respect of all future assignments and transfers.
SECTION 13.9 TENANT'S LIABILITY. The joint and several liability of Tenant
and any successors-in-interest of Tenant and the due performance of Tenant's
obligations under this Lease shall not be discharged, released or impaired by
any agreement or stipulation made by Landlord, or any grantee or assignee of
Landlord, extending the time, or modifying any of the terms and provisions of
this Lease, or by any waiver or failure of Landlord, or any grantee or assignee
of Landlord, to enforce any of the terms and provisions of this Lease.
SECTION 13.10 LISTINGS IN BUILDING DIRECTORY. The listing of any name
other than that of Tenant on the doors of the Premises, the Building directory
or elsewhere shall not vest any right or interest in this Lease or in the
Premises, nor be deemed to constitute Landlord's consent to any assignment or
transfer of this Lease or to any sublease of the Premises or to the use or
occupancy thereof by others. Any such listing shall constitute a privilege
revocable in Landlord's discretion by notice to Tenant. Notwithstanding the
foregoing, Tenant shall be entitled to all listings presently existing and to
future listings of like kind in accordance with past practice. The foregoing
shall not be deemed to limit Landlord's right to modify or replace any
directories for the Building so long as the modified or replacement directory
provides substantially the same or more benefit to Tenant as the then existing
directory that is the subject of the modification or replacement.
SECTION 13.11 LEASE DISAFFIRMANCE OR REJECTION. If at any time after an
assignment by Tenant named herein, this Lease is not affirmed or is rejected in
any bankruptcy proceeding or any similar proceeding, or upon a termination of
this Lease due to any such proceeding, Tenant named herein, upon request of
Landlord given after such disaffirmance, rejection or termination (and actual
notice thereof to Landlord in the event of a disaffirmance or rejection or in
the event of termination other than by act of Landlord), shall (a) pay to
Landlord all Rent and other charges due and owing by the assignee to Landlord
under this Lease to and including the date of such disaffirmance, rejection or
termination (and Tenant shall be subrogated to Landlord's claim to the extent of
such payments), and (b) as "tenant," enter into a new lease of the Premises with
Landlord for a term commencing on the effective date of such disaffirmance,
rejection or termination and ending on the Expiration Date, at the same Rent and
upon the then executory terms, covenants and conditions contained in this Lease,
except that (i) the rights of Tenant named herein under the new lease shall be
subject to the possessory rights of the assignee under this Lease and the
possessory rights of any persons or entities claiming through or under such
assignee or by virtue of any statute or of any order of any court, (ii) such new
lease shall require all defaults existing under this Lease to be cured by Tenant
named herein with due diligence, and (iii) such new lease shall require Tenant
named herein to pay all Rent which, had this Lease not
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been so disaffirmed, rejected or terminated, would have become due under the
provisions of this Lease after the date of such disaffirmance, rejection or
termination with respect to any period prior thereto. If Tenant named herein
defaults in its obligations to enter into such new lease for a period of 10 days
after Landlord's request, then, in addition to all other rights and remedies by
reason of default, either at law or in equity, Landlord shall have the same
rights and remedies against Tenant named herein as if it had entered into such
new lease and such new lease had thereafter been terminated as of the
commencement date thereof by reason of Tenant's default thereunder.
ARTICLE 14
ACCESS TO PREMISES
SECTION 14.1 LANDLORD'S ACCESS.
(a) Landlord, Landlord's agents and utility service providers
servicing the Building may erect, use and maintain concealed ducts, pipes and
conduits in and through the Premises provided such use does not cause the usable
area of the Premises to be reduced beyond a de minimis amount. Landlord shall
promptly repair any damage to the Premises caused by any work performed pursuant
to this Article 14.
(b) Landlord, any Lessor or Mortgagee and any other party designated
by Landlord and their respective agents shall have the right to enter the
Premises at all reasonable times, upon reasonable notice (which notice may be
oral) except in the case of emergency, to examine the Premises, to show the
Premises to prospective purchasers, Mortgagees, Lessors or tenants and their
respective agents and representatives or others and to perform Restorative Work
to the Premises or the Building.
(c) All parts (except surfaces facing the interior of the Premises)
of all walls, windows and doors bounding the Premises, all balconies, terraces
and roofs adjacent to the Premises, all space in or adjacent to the Premises
used for shafts, stacks, stairways, mail chutes, conduits and other mechanical
facilities, Building Systems; Building facilities and Common Areas are not part
of the Premises, and Landlord shall have the use thereof and access thereto
through the Premises for the purposes of Building operation, maintenance,
alteration and repair.
SECTION 14.2 BUILDING NAME. Landlord has the right at any time to change
the name, number or designation by which the Building or the Complex is commonly
known, provided that Landlord shall not name the Building for any person or
entity who is not (a) a tenant of the Building who leases more space in the
Building than Tenant at the time of the naming, (b) the owner of the Land and
Building or (c) a party to a Superior Lease, including, without limitation, the
Ground Lease. The restrictions in the preceding sentence shall continue until
the earlier to occur of (i) the date that Tenant ceases to occupy at least
90,000 rentable square feet in the Building for the conduct of its business,
(ii) the date that this Lease is terminated, or (iii) the Expiration Date, as
the same may be extended under Rider R1-C.
SECTION 14.3 [INTENTIONALLY OMITTED].
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SECTION 14.4 LIGHT AND AIR. If at any time any windows of the Premises are
temporarily darkened or covered over by reason of any Restorative Work (which
Landlord will use all reasonable efforts to avoid or if unavoidable Landlord to
minimize the duration and the effect thereof), any of such windows are
permanently darkened or covered over due to any Requirement or there is
otherwise a diminution of light, air or view by another structure which may
hereafter be erected (whether or not by Landlord), Landlord shall not be liable
for any damages and Tenant shall not be entitled to any compensation or
abatement of any Rent, nor shall the same release Tenant from its obligations
hereunder or constitute an actual or constructive eviction.
ARTICLE 15
DEFAULT
SECTION 15.1 TENANT'S DEFAULTS. Each of the following events shall be an
"EVENT OF DEFAULT" hereunder:
(a) Tenant fails to pay when due any installment of Rent and such
default shall continue for five days after notice of such default is given to
Tenant except that if Landlord shall have given two such notices of default in
the payment of any Rent in any 12 month period, Tenant shall not be entitled to
any further notice of its delinquency in the payment of any Rent until such time
as 12 consecutive months shall have elapsed without Tenant having failed to make
any such payment when due, and the occurrence of any default in the payment of
any Rent within such 12 month period which continues for 5 days after the giving
of two such notices shall constitute an Event of Default; or
(b) Tenant fails to observe or perform any other term, covenant or
condition of this Lease and such failure continues for more than 30 days (10
days with respect to a default under Section 3.1) after notice by Landlord to
Tenant of such default, or if such default (other than a default under Section
3.1) is of a nature that it cannot be completely remedied within 30 days,
failure by Tenant to commence to remedy such failure within said 30 days, and
thereafter diligently prosecute to completion all steps necessary to remedy such
default, provided in all events the same is completed within 90 days; or
(c) Tenant files a voluntary petition in bankruptcy or insolvency,
or is adjudicated a bankrupt or insolvent, or files any petition or answer
seeking any reorganization, liquidation, dissolution or similar relief under any
present or future federal bankruptcy act or any other present or future
applicable federal, state or other statute or law, or makes an assignment for
the benefit of creditors or seeks or consents to or acquiesces in the
appointment of any trustee, receiver, liquidator or other similar official for
Tenant or for all or any part of Tenant's property; or
(d) a court of competent jurisdiction shall enter an order, judgment
or decree adjudicating Tenant bankrupt, or appointing a trustee, receiver or
liquidator of Tenant, or of the whole or any substantial part of its property,
without the consent of Tenant, or approving a petition filed against Tenant
seeking reorganization or arrangement of Tenant under the bankruptcy laws of the
United States, as now in effect or hereafter amended, or any state thereof,
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and such order, judgment or decree shall not be vacated or set aside or stayed
within 60 days from the date of entry thereof; or
SECTION 15.2 LANDLORD'S REMEDIES.
(a) Upon the occurrence of an Event of Default, Landlord, at its
option, and without limiting the exercise of any other right or remedy Landlord
may have on account of such Event of Default under this Lease or applicable
Requirements, and without any further demand or notice, may give to Tenant
notice of (i) the termination of this Lease, in which event this Lease and the
Term shall come to an end and expire (whether or not the Term shall have
commenced) upon the termination date set forth in such notice with the same
force and effect as if the date set forth in the notice was the Expiration Date
stated herein, and/or (ii) the termination of Tenant's right of possession of
the Premises, in which event Tenant's right of possession of the Premises shall
come to an end and expire (whether or not the Term shall have commenced) upon
the termination date set forth in such notice; and Tenant shall then quit and
surrender the Premises to Landlord, but Tenant shall remain liable for damages
as provided in this Article 15 and/or, to the extent permitted by applicable
Requirements, Landlord may remove all persons and property from the Premises,
which property shall be stored by Landlord at a warehouse or elsewhere at the
risk, expense and for the account of Tenant. Any termination notice may be given
simultaneously with any notice of default given to Tenant.
(b) POSSESSION/RELETTING. If this Lease and the Term, or Tenant's
right to possession of the Premises, terminate as provided in Section 15.2(a):
(i) SURRENDER OF POSSESSION. Tenant shall quit and surrender
the Premises to Landlord, and Landlord and its agents may immediately, or at any
time after such termination, re-enter the Premises or any part thereof, without
notice, either by summary proceedings, or by any other applicable action or
proceeding, or by force (to the extent permitted by applicable Requirements) or
otherwise in accordance with applicable legal proceedings (without being liable
to indictment, prosecution or damages therefor), and may repossess the Premises
and dispossess Tenant and any other persons from the Premises and remove any and
all of their property and effects from the Premises.
(ii) LANDLORD'S RELETTING. Landlord, at Landlord's option, may
relet all or any part of the Premises from time to time, either in the name of
Landlord or otherwise, to such tenant or tenants, for any term ending before, on
or after the Expiration Date, at such rental and upon such other conditions
(which may include concessions and free rent periods) as Landlord, in its sole
discretion, may determine. Landlord shall have no obligation to accept any
tenant offered by Tenant and shall not be liable for failure to relet or, in the
event of any such reletting, for failure to collect any rent due upon any such
reletting; and no such failure shall relieve Tenant of, or otherwise affect, any
liability under this Lease. However, to the extent required by law, Landlord
shall use reasonable efforts to mitigate its damages but shall not be required
to divert prospective tenants from any other portions of the Building. Landlord,
at Landlord's option, may make such alterations, decorations and other physical
changes in and to the Premises as Landlord, in its sole discretion, considers
advisable or necessary in connection with such reletting or proposed reletting,
without relieving Tenant of any liability under this Lease or otherwise
affecting any such liability.
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(c) TENANT'S WAIVER. Tenant, on its own behalf and on behalf of all
persons claiming through or under Tenant, including all creditors, hereby waives
all rights which Tenant and all such persons might otherwise have under any
Requirement (i) to the service of any notice of intention to re-enter or to
institute legal proceedings, (ii) to redeem, or to re-enter or repossess the
Premises, (iii) to restore the operation of this Lease, after (A) Tenant shall
have been dispossessed by judgment or by warrant of any court or judge, (B) any
re-entry by Landlord, or (C) any expiration or early termination of the term of
this Lease, whether such dispossess, re-entry, expiration or termination shall
be by operation of law or pursuant to the provisions of this Lease, and (iv) to
any notice to quit the Premises. Tenant hereby waives all errors and defects of
a procedural nature in any proceedings brought against it by Landlord under this
Lease. Tenant further waives the right to any notices to quit or otherwise as
may be specified in the Landlord and Tenant Act of Pennsylvania of April 6, 1951
(68 P.S.C.A. Section 250.101 et seq.), as the same may have been or may
hereafter be amended, including, but not limited to, the three months and 15 or
30 days notices, and agrees that the notices provided in this Lease shall be
sufficient in any case where a longer period may be statutorily specified. The
words "re-enter," "re-entry" and "re-entered" as used in this Lease shall not be
deemed to be restricted to their technical legal meanings.
(d) TENANT'S BREACH. Upon the breach or threatened breach by Tenant,
or any persons claiming through or under Tenant, of any term, covenant or
condition of this Lease, Landlord shall have the right to enjoin such breach and
to invoke any other remedy allowed by law or in equity as if re-entry, summary
proceedings and other special remedies were not provided in this Lease for such
breach. The rights to invoke the remedies set forth above are cumulative and
shall not preclude Landlord from invoking any other remedy allowed at law or in
equity.
(e) CONFESSION OF JUDGMENT FOR POSSESSION OF PREMISES. TENANT HEREBY
EXPRESSLY AUTHORIZES THE PROTHONOTARY, CLERK OR ANY ATTORNEY OR ANY COURT OF
RECORD TO ACCEPT SERVICE OF PROCESS FOR, TO APPEAR FOR, AND TO CONFESS JUDGMENT
AGAINST TENANT AND ALL PERSONS CLAIMING UNDER TENANT IN ANY AND ALL ACTIONS
BROUGHT HEREUNDER BY LANDLORD AGAINST TENANT TO RECOVER POSSESSION OF THE
PREMISES (IN EJECTMENT OR OTHERWISE), WITHOUT ANY LIABILITY ON THE PART OF SAID
ATTORNEY, FOR WHICH THIS LEASE SHALL BE SUFFICIENT WARRANT, AND TENANT AGREES
THAT UPON THE ENTRY OF SUCH JUDGMENT, A WRIT OF POSSESSION OR OTHER APPROPRIATE
PROCESS MAY ISSUE FORTHWITH (WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER).
THIS WARRANT OF ATTORNEY SHALL NOT BE EXHAUSTED BY ONE EXERCISE, BUT JUDGMENT
MAY BE CONFESSED FROM TIME TO TIME, AS OFTEN AS OCCASION THEREFOR SHALL EXIST.
SUCH POWERS MAY BE EXERCISED DURING AS WELL AS AFTER THE EXPIRATION OR
TERMINATION OF THE TERM AND DURING AND AT ANY TIME AFTER ANY EXTENSION OR
RENEWAL OF THE TERM.
THIS SECTION 15.2(e) SETS FORTH A WARRANT OF ATTORNEY FOR AN ATTORNEY TO CONFESS
JUDGMENT AGAINST TENANT. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS
JUDGMENT AGAINST TENANT, TENANT, FOLLOWING
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CONSULTATION WITH (OR DECISION NOT TO CONSULT WITH) SEPARATE COUNSEL FOR TENANT
AND WITH KNOWLEDGE OF THE LEGAL EFFECT HEREOF, HEREBY KNOWINGLY, INTENTIONALLY
AND VOLUNTARILY WAIVES UNCONDITIONALLY ANY AND ALL RIGHTS TENANT HAS OR MAY HAVE
TO PRE-JUDGMENT AND PRE-EXECUTION NOTICE AND AN OPPORTUNITY FOR HEARING UNDER
THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES OF AMERICA, THE
COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE.
TENANT SPECIFICALLY ACKNOWLEDGES THAT LANDLORD HAS RELIED ON THE WARRANT OF
ATTORNEY SET FORTH IN THIS SECTION 15.2(e) IN ENTERING INTO THIS LEASE WITH
TENANT AND THAT THE LANDLORD-TENANT RELATIONSHIP CREATED HEREBY IS COMMERCIAL IN
NATURE.
LANDLORD HEREBY AGREES THAT SO LONG AS THE INITIAL TENANT, PHILADELPHIA
CONSOLIDATED HOLDING CORP., OR ANY OF ITS RELATED ENTITIES, IS THE TENANT UNDER
THIS LEASE, LANDLORD WILL NOT EXERCISE THE REMEDY UNDER THIS SECTION 15.2(e).
SECTION 15.3 LANDLORD'S DAMAGES.
(a) AMOUNT OF DAMAGES. If this Lease and the Term, or Tenant's right
to possession of the Premises, terminate as provided in Section 15.2(a), then:
(i) Tenant shall pay to Landlord all items of Rent payable
under this Lease by Tenant to Landlord prior to the date of termination;
(ii) Landlord may retain all monies, if any, paid by Tenant to
Landlord, whether as prepaid Rent, a Security Deposit or otherwise, which
monies, to the extent not otherwise applied to amounts due and owing to
Landlord, shall be credited by Landlord against any damages payable by Tenant to
Landlord;
(iii) Tenant shall pay to Landlord, in monthly installments,
on the days specified in this Lease for payment of installments of Fixed Rent,
any Deficiency; it being understood that Landlord shall be entitled to recover
the Deficiency from Tenant each month as the same shall arise, and no suit to
collect the amount of the Deficiency for any month, shall prejudice Landlord's
right to collect the Deficiency for any subsequent month by a similar
proceeding; and
(iv) whether or not Landlord shall have collected any monthly
Deficiency, Tenant shall pay to Landlord, on demand, in lieu of any further
Deficiency and as liquidated and agreed final damages, a sum equal to the amount
by which the Rent for the period which otherwise would have constituted the
unexpired portion of the Term (assuming the Additional Rent during such period
to be the same as was payable for the year immediately preceding such
termination or re-entry, increased in each succeeding year by 4% (on a
compounded basis)) exceeds the then fair and reasonable rental value of the
Premises, for the same period (with both amounts being discounted to present
value at a rate of interest equal to 2% below the then Base Rate) less the
aggregate amount of Deficiencies theretofore collected by Landlord pursuant to
the provisions of Section 15.3(a)(iii) for the same period. If, before
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presentation of proof of such liquidated damages to any court, commission or
tribunal, the Premises, or any part thereof, shall have been relet by Landlord
for the period which otherwise would have constituted the unexpired portion of
the Term, or any part thereof, the amount of rent reserved upon such reletting
shall be deemed prima facie, to be the fair and reasonable rental value for the
part or the whole of the Premises so relet during the term of the reletting.
(b) RELETTING. If the Premises, or any part thereof, shall be relet
together with other space in the Building, the rents collected or reserved under
any such reletting and the expenses of any such reletting shall be equitably
apportioned for the purposes of this Section 15.3. Tenant shall not be entitled
to any rents collected or payable under any reletting, whether or not such rents
exceeds the Fixed Rent reserved in this Lease. Nothing contained in Article 15
shall be deemed to limit or preclude the recovery by Landlord from Tenant of the
maximum amount allowed to be obtained as damages by any Requirement, or of any
sums or damages to which Landlord may be entitled in addition to the damages set
forth in this Section 15.3.
SECTION 15.4 INTEREST. If any payment of Rent is not paid when due,
interest shall accrue on such payment, from the date such payment became due
until paid at the Interest Rate. Tenant acknowledges that late payment by Tenant
of Rent will cause Landlord to incur costs not contemplated by this Lease, the
exact amount of such costs being extremely difficult and impracticable to fix.
Such costs include, without limitation, processing and accounting charges, and
late charges that may be imposed on Landlord by the terms of any note secured by
a Mortgage covering the Premises. Therefore, in addition to interest, if any
amount is not paid when due, a late charge equal to 5% of such amount shall be
assessed; provided, however, that on 2 occasions during any Calendar Year of the
Term, Landlord shall give Tenant notice of such late payment and Tenant shall
have a period of 5 days thereafter in which to make such payment before any late
charge is assessed. Such interest and late charges are separate and cumulative
and are in addition to and shall not diminish or represent a substitute for any
of Landlord's rights or remedies under any other provision of this Lease.
SECTION 15.5 [INTENTIONALLY OMITTED].
SECTION 15.6 OTHER RIGHTS OF LANDLORD. If Tenant fails to pay any
Additional Rent when due, Landlord, in addition to any other right or remedy,
shall have the same rights and remedies as in the case of a default by Tenant in
the payment of Fixed Rent. If Tenant is in arrears in the payment of Rent,
Tenant waives Tenant's right, if any, to designate the items against which any
payments made by Tenant are to be credited, and Landlord may apply any payments
made by Tenant to any items Landlord sees fit, regardless of any request by
Tenant. Following the occurrence and during the continuance of an Event of
Default, Landlord reserves the right, without liability to Tenant and without
constituting any claim of constructive eviction, to suspend furnishing or
rendering to Tenant any property, material, labor, utility or other service,
whenever Landlord is obligated to furnish or render the same at the expense of
Tenant, if (but only for so long as) Tenant is in arrears in paying Landlord for
such items for more than five days after notice from Landlord to Tenant
demanding the payment of such arrears. If a party fails to pay any Rent or other
sum owing when due or a party otherwise fails to fully and timely perform its
obligations under this Lease and the other party engages an attorney in
connection with such failure, the failing party shall pay upon demand the
reasonable attorneys' fees incurred by the other party regardless of whether
legal action is initiated in connection with such failure.
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ARTICLE 16
LANDLORD'S RIGHT TO CURE; FEES AND EXPENSES
Following the occurrence and during the continuance of an Event of
Default, Landlord, without waiving such default, may perform such obligations at
Tenant's expense: (a) immediately, and without notice, in the case of emergency
or if the default (i) materially interferes with the use by any other tenant of
the Building, (ii) materially interferes with the efficient operation of the
Building, (iii) results in a violation of any Requirement, or (iv) results or
will result in a cancellation of any insurance policy maintained by Landlord,
and (b) in any other case if such default continues after applicable notice and
cure periods, or if no such period is specified, then 10 days from the date
Landlord gives notice of the defaulted obligation. All costs and expenses
incurred by Landlord in connection with any such performance by it and all costs
and expenses, including reasonable counsel fees and disbursements, incurred by
Landlord in any action or proceeding (including any unlawful detainer
proceeding) brought by Landlord or in which Landlord is a party to enforce any
obligation of Tenant under this Lease and/or right of Landlord in or to the
Premises, shall be paid by Tenant to Landlord on demand, with interest thereon
at the Interest Rate from the date incurred by Landlord. Except as expressly
provided to the contrary in this Lease, all costs and expenses which, pursuant
to this Lease are incurred by Landlord and payable to Landlord by Tenant, and
all charges, amounts and sums payable to Landlord by Tenant for any property,
material, labor, utility or other services which, pursuant to this Lease,
attributable directly to Tenant's use and occupancy of the Premises or presence
at the Building, or at the request and for the account of Tenant, are provided,
furnished or rendered by Landlord, shall become due and payable by Tenant to
Landlord within 30 days after receipt of Landlord's invoice for such amount.
ARTICLE 17
NO REPRESENTATIONS BY LANDLORD; LANDLORD'S APPROVAL
SECTION 17.1 NO REPRESENTATIONS. Except as expressly set forth herein,
Landlord and Landlord's agents have made no warranties, representations,
statements or promises with respect to the Building, the Real Property or the
Premises and no rights, easements or licenses are acquired by Tenant by
implication or otherwise. Tenant is entering into this Lease after full
investigation and is not relying upon any statement or representation made by
Landlord not embodied in this Lease.
SECTION 17.2 NO MONEY DAMAGES. Wherever in this Lease Landlord's consent
or approval is required, if Landlord refuses to grant such consent or approval,
whether or not Landlord expressly agreed that such consent or approval would not
be unreasonably withheld, Tenant shall not make, and Tenant hereby waives, any
claim for money damages (including any claim by way of set-off, counterclaim or
defense) based upon Tenant's claim or assertion that Landlord unreasonably
withheld or delayed its consent or approval. Tenant's sole remedy shall be an
action or proceeding to enforce such provision, by specific performance,
injunction or declaratory judgment. In no event shall Landlord be liable for,
and Tenant, on behalf of itself and all other Tenant Parties, hereby waives any
claim for, any indirect, consequential or punitive
-46-
damages, including loss of profits or business opportunity, arising under or in
connection with this Lease.
SECTION 17.3 REASONABLE EFFORTS. For purposes of this Lease, "reasonable
efforts" by Landlord shall not include an obligation to employ contractors or
labor at overtime or other premium pay rates or to incur any other overtime
costs or additional expenses whatsoever.
ARTICLE 18
END OF TERM
SECTION 18.1 EXPIRATION. Upon the expiration or other termination of this
Lease, Tenant shall quit and surrender the Premises to Landlord vacant, broom
clean and in good order and condition, ordinary wear and tear and damage for
which Tenant is not responsible under the terms of this Lease excepted, and
Tenant shall remove all of Tenant's Property and Tenant's Specialty Alterations,
subject to the provisions of Section 5.3.
SECTION 18.2 HOLDOVER RENT. Landlord and Tenant recognize that Landlord's
damages resulting from Tenant's failure to timely surrender possession of the
Premises may be substantial, may exceed the amount of the Rent payable
hereunder, and will be impossible to accurately measure. Accordingly, if
possession of the Premises is not surrendered to Landlord on the Expiration Date
or sooner termination of this Lease, in addition to any other rights or remedies
Landlord may have hereunder or at law, Tenant shall (a) pay to Landlord for each
month (or any portion thereof) during which Tenant holds over in the Premises
after the Expiration Date or sooner termination of this Lease, a sum equal to
150% of the Rent payable under this Lease for the last full calendar month of
the Term, (b) in the case of any holdover in excess of sixty (60) days, be
liable to Landlord for (1) any payment or rent concession which Landlord may be
required to make to any tenant obtained by Landlord for all or any part of the
Premises (a "NEW TENANT") in order to induce such New Tenant not to terminate
its lease by reason of the holding-over by Tenant, and (2) the loss of the
benefit of the bargain if any New Tenant shall terminate its lease by reason of
the holding-over by Tenant, and (c) in the case of any holdover in excess of
thirty (30) days, indemnify Landlord against all claims for damages by any New
Tenant. No holding-over by Tenant, nor the payment to Landlord of the amounts
specified above, shall operate to extend the Term hereof or to establish a month
to month or any other tenancy. Nothing herein contained shall be deemed to
permit Tenant to retain possession of the Premises after the Expiration Date or
sooner termination of this Lease, and no acceptance by Landlord of payments from
Tenant after the Expiration Date or sooner termination of this Lease shall be
deemed to be other than on account of the amount to be paid by Tenant in
accordance with the provisions of this Section 18.2.
ARTICLE 19
QUIET ENJOYMENT
Provided this Lease is in full force and effect and no Event of Default
then exists, Tenant may peaceably and quietly enjoy the Premises without
hindrance by Landlord or any person lawfully claiming through or under Landlord,
subject to the terms and conditions of this Lease
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and to all Superior Leases and Mortgages (with the benefit of the Subordination,
Non-Disturbance and Attornment Agreements described in Section 9.1).
ARTICLE 20
NO SURRENDER; NO WAIVER
SECTION 20.1 NO SURRENDER OR RELEASE. No act or thing done by Landlord or
Landlord's agents or employees during the Term shall be deemed an acceptance of
a surrender of the Premises, and no provision of this Lease shall be deemed to
have been waived by Landlord, unless such waiver is in writing and is signed by
Landlord.
SECTION 20.2 NO WAIVER. The failure of either party to seek redress for
violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease, or any of the Rules and Regulations, shall not be
construed as a waiver or relinquishment for the future performance of such
obligations of this Lease or the Rules and Regulations, or of the right to
exercise such election but the same shall continue and remain in full force and
effect with respect to any subsequent breach, act or omission. The receipt by
Landlord of any Rent payable pursuant to this Lease or any other sums with
knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly Rent herein stipulated shall be deemed to be other than
a payment on account of the earliest stipulated Rent, or as Landlord may elect
to apply such payment, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or pursue any other remedy
provided in this Lease.
ARTICLE 21
WAIVER OF TRIAL BY JURY; COUNTERCLAIM
SECTION 21.1 JURY TRIAL WAIVER. Landlord and Tenant hereby waive trial by
jury in any action, proceeding or counterclaim brought by either party against
the other in connection with any matters in any way arising out of or connected
with this Lease, the relationship of Landlord and Tenant, Tenant's use or
occupancy of the Premises, any guaranty of all or any portion of Tenant's
liabilities under this Lease or the enforcement of any remedy under any statute,
emergency or otherwise.
SECTION 21.2 WAIVER OF COUNTERCLAIM. If Landlord commences any summary
proceeding against Tenant, Tenant will not interpose any counterclaim of any
nature or description in any such proceeding (unless failure to interpose such
counterclaim would preclude Tenant from asserting in a separate action the claim
which is the subject of such counterclaim), and will not seek to consolidate
such proceeding with any other action which may have been or will be brought in
any other court by Tenant.
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ARTICLE 22
NOTICES
Except as otherwise expressly provided in this Lease, all consents,
notices, demands, requests, approvals or other communications given under this
Lease shall be in writing and shall be deemed sufficiently given or rendered if
delivered by hand (provided a signed receipt is obtained) or if sent by
registered or certified mail (return receipt requested) or by a nationally
recognized overnight delivery service making receipted deliveries, addressed to
Landlord and Tenant as set forth in Article 1, and to any Mortgagee or Lessor
who shall require copies of notices and whose address is provided to Tenant, or
to such other address(es) as Landlord, Tenant or any Mortgagee or Lessor may
designate as its new address(es) for such purpose by notice given to the other
in accordance with the provisions of this Article 22. Any such approval,
consent, notice, demand, request or other communication shall be deemed to have
been given on the date of receipted delivery, refusal to accept delivery or when
delivery is first attempted but cannot be made due to a change of address for
which no notice is given or three Business Days after it shall have been mailed
as provided in this Article 22, whichever is earlier.
ARTICLE 23
RULES AND REGULATIONS
All Tenant Parties shall observe and comply with the Rules and
Regulations, as supplemented or amended from time to time. Landlord reserves the
right, from time to time, to adopt additional Rules and Regulations and to amend
the Rules and Regulations then in effect. Nothing contained in this Lease shall
impose upon Landlord any obligation to enforce the Rules and Regulations or
terms, covenants or conditions in any other lease against any other Building
tenant, and Landlord shall not be liable to Tenant for violation of the same by
any other tenant, its employees, agents, visitors or licensees. Landlord agrees
not to enforce the Rules and Regulations more stringently against Tenant than
against other tenants of the Building in general.
ARTICLE 24
BROKER
Each of Landlord and Tenant represents and warrants to the other that
neither it nor its agents have dealt with any broker in connection with this
Lease other than Landlord's Agent and Tenant's Broker and that no other broker,
finder or like entity procured or negotiated this Lease or is entitled to any
fee or commission in connection herewith. Each of Landlord and Tenant shall
indemnify, defend, protect and hold the other party harmless from and against
any and all Losses which the indemnified party may incur by reason of any claim
of or liability to any broker, finder or like agent (other than Landlord's Agent
and Tenant's Broker) arising out of any dealings claimed to have occurred
between the indemnifying party and the claimant in connection with this Lease,
and/or the above representation being false. Landlord shall pay Landlord's Agent
and Tenant's Broker their respective commissions earned in connection with this
Lease pursuant to separate agreements.
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ARTICLE 25
INDEMNITY
SECTION 25.1 TENANT'S INDEMNITY. Tenant shall not do or permit to be done
any act or thing upon the Premises or the Building which may subject Landlord to
any liability or responsibility for injury, damages to persons or property or to
any liability by reason of any violation of any Requirement, and shall exercise
such control over the Premises as to fully protect Landlord against any such
liability. Except to the extent of any such injury or damage resulting from the
gross negligence or willful misconduct of Landlord or Landlord's agents or
employees, Tenant shall indemnify, defend, protect and hold harmless each of the
Indemnitees from and against any and all claims and Losses, resulting from any
claims (i) against the Indemnitees arising from any act, omission or negligence
of all Tenant Parties, (ii) against the Indemnitees arising from any accident,
injury or damage to any person or to the property of any person and occurring in
the Premises, and (iii) against the Indemnitees resulting from any breach,
violation or nonperformance of any covenant, condition or agreement of this
Lease on the part of Tenant to be fulfilled, kept, observed or performed.
SECTION 25.2 LANDLORD'S INDEMNITY. Landlord shall indemnify, defend and
hold harmless Tenant from and against all Losses incurred by Tenant arising from
any accident, injury or damage to any person or the property of any person in or
about the Common Areas (specifically excluding the Premises) unless attributable
to the negligence or willful misconduct of any of the Tenant Parties.
SECTION 25.3 DEFENSE AND SETTLEMENT. If any claim, action or proceeding is
made or brought against any Indemnitee for which Tenant is responsible to
indemnify, defend, protect and hold harmless the Indemnitee hereunder, then upon
demand by an Indemnitee, Tenant, at its sole cost and expense, shall resist or
defend such claim, action or proceeding in the Indemnitee's name (if necessary),
by attorneys approved by the Indemnitee, which approval shall not be
unreasonably withheld (attorneys for Tenant's insurer shall be deemed approved
for purposes of this Section 25.3). Notwithstanding the foregoing, an Indemnitee
may retain its own attorneys to participate or assist in defending any claim,
action or proceeding involving potential liability in excess of the amount
available under Tenant's liability insurance for such claim and Tenant shall pay
the reasonable fees and disbursements of such attorneys. If Tenant fails to
diligently defend or if there is a legal conflict or other conflict of interest,
then Landlord may retain separate counsel at Tenant's expense. Notwithstanding
anything herein contained to the contrary, Tenant may direct the Indemnitee to
settle any claim, suit or other proceeding provided that (a) such settlement
shall involve no obligation on the part of the Indemnitee other than the payment
of money, (b) any payments to be made pursuant to such settlement shall be paid
in full exclusively by Tenant at the time such settlement is reached, (c) such
settlement shall not require the Indemnitee to admit any liability, and (d) the
Indemnitee shall have received an unconditional release from the other parties
to such claim, suit or other proceeding.
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ARTICLE 26
MISCELLANEOUS
SECTION 26.1 DELIVERY. This Lease shall not be binding upon Landlord or
Tenant unless and until Landlord shall have executed and delivered a fully
executed copy of this Lease to Tenant.
SECTION 26.2 TRANSFER OF REAL PROPERTY. Landlord's obligations under this
Lease shall not be binding upon the Landlord named herein after the sale,
conveyance, assignment or transfer (collectively, a "Transfer") by such Landlord
(or upon any subsequent landlord after the Transfer by such subsequent landlord)
of its interest in the Building or the Real Property, as the case may be, and in
the event of any such Transfer, Landlord (and any such subsequent Landlord)
shall be entirely freed and relieved of all covenants and obligations of
Landlord hereunder arising from and after the date of Transfer and the
transferee of Landlord's interest (or that of such subsequent Landlord) in the
Building or the Real Property, as the case may be, shall be deemed to have
assumed all obligations under this Lease arising from and after the date of
Transfer.
SECTION 26.3 LIMITATION ON LIABILITY. The liability of Landlord for
Landlord's obligations under this Lease shall be limited to Landlord's interest
in the Real Property and Tenant shall not look to any other property or assets
of Landlord or the property or assets of any direct or indirect partner, member,
manager, shareholder, director, officer, principal, employee or agent of
Landlord (collectively, the "Parties") in seeking either to enforce Landlord's
obligations under this Lease or to satisfy a judgment for Landlord's failure to
perform such obligations; and none of the Parties shall be personally liable for
the performance of Landlord's obligations under this Lease.
SECTION 26.4 RENT. All amounts payable by Tenant to or on behalf of
Landlord under this Lease, whether or not expressly denominated Fixed Rent,
Tenant's Tax Payment, Tenant's Operating Payment, Additional Rent or Rent, shall
constitute rent for the purposes of Section 502(b)(6) of the United States
Bankruptcy Code.
SECTION 26.5 ENTIRE DOCUMENT. This Lease (including any schedules and
exhibits referred to herein and all supplementary agreements provided for
herein) contains the entire agreement between the parties regarding the Premises
and all prior negotiations and agreements are merged into this Lease. All of the
schedules and exhibits attached hereto are incorporated in and made a part of
this Lease, provided that in the event of any inconsistency between the terms
and provisions of this Lease and the terms and provisions of the schedules and
exhibits hereto, the terms and provisions of this Lease shall control.
SECTION 26.6 GOVERNING LAW. This Lease shall be governed in all respects
by the laws of the Commonwealth of Pennsylvania (but not including the choice of
law rules thereof).
SECTION 26.7 UNENFORCEABILITY. If any provision of this Lease, or its
application to any person or circumstance, shall ever be held to be invalid or
unenforceable, then in each such event the remainder of this Lease or the
application of such provision to any other person or any other
-51-
circumstance (other than those as to which it shall be invalid or unenforceable)
shall not be thereby affected, and each provision hereof shall remain valid and
enforceable to the fullest extent permitted by law.
SECTION 26.8 LEASE DISPUTES.
(a) The parties agree that all disputes arising, directly or
indirectly, out of or relating to this Lease, and all actions to enforce this
Lease, shall be dealt with and adjudicated in the courts of the Commonwealth of
Pennsylvania or the United States District Court for the Eastern District of
Pennsylvania and for that purpose each party hereby expressly and irrevocably
submits itself to the jurisdiction of such courts. The parties agree that so far
as is permitted under applicable law, this consent to personal jurisdiction
shall be self-operative and no further instrument or action, other than service
of process in one of the manners specified in this Lease, or as otherwise
permitted by law, shall be necessary in order to confer jurisdiction upon it in
any such court.
(b) To the extent that a party has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, such
party irrevocably waives such immunity in respect of its obligations under this
Lease.
SECTION 26.9 LANDLORD'S AGENT. Unless Landlord delivers written notice to
Tenant to the contrary, Landlord's Agent is authorized to act as Landlord's
agent in connection with the performance of this Lease, and Tenant shall be
entitled to rely upon correspondence received from Landlord's Agent. Tenant
acknowledges that Landlord's Agent is acting solely as agent for Landlord in
connection with the foregoing; and none of the direct or indirect partners,
members, managers, officers, shareholders, directors, employees, principals,
agents or representatives of Landlord's Agent shall have any liability to Tenant
in connection with the performance of this Lease, and Tenant waives any and all
claims against any and all of such parties arising out of, or in any way
connected with, this Lease, the Building or the Real Property.
SECTION 26.10 ESTOPPEL. Within 10 Business Days following request from
Landlord, any Mortgagee or any Lessor, Tenant shall deliver to Landlord a
statement executed and acknowledged by Tenant, in form reasonably satisfactory
to Landlord, (a) stating the Commencement Date, the Rent Commencement Date and
the Expiration Date, and that this Lease is then in full force and effect and
has not been modified (or if modified, setting forth all modifications), (b)
setting forth the date to which the Fixed Rent and any Additional Rent have been
paid, together with the amount of monthly Fixed Rent and Additional, Rent then
payable, (c) stating whether or not, to the best of Tenant's knowledge, Landlord
is in default under this Lease, and, if Landlord is in default, setting forth
the specific nature of all such defaults, (d) stating the amount of the
security, if any, under this Lease, (e) stating whether there are any subleases
or assignments affecting the Premises, (f) stating the address of Tenant to
which all notices and communications under the Lease shall be sent, and (g)
responding to any other matters reasonably requested by Landlord, such Mortgagee
or such Lessor. Tenant acknowledges that any statement delivered pursuant to
this Section 26.10 may be relied upon by any purchaser or owner of the Real
Property or the Building or all or any portion of Landlord's
-52-
interest in the Real Property or the Building or any Superior Lease, or by any
Mortgagee, or assignee thereof or by any Lessor, or assignee thereof.
SECTION 26.11 CERTAIN INTERPRETATIONAL RULES. For purposes of this Lease,
whenever the words "include", "includes", or "including" are used, they shall be
deemed to be followed by the words "without limitation" and, whenever the
circumstances or the context requires, the singular shall be construed as the
plural, the masculine shall be construed as the feminine and/or the neuter and
vice versa. This Lease shall be interpreted and enforced without the aid of any
canon, custom or rule of law requiring or suggesting construction against the
party drafting or causing the drafting of the provision in question.
The captions in this Lease are inserted only as a matter of convenience
and for reference and in no way define, limit or describe the scope of this
Lease or the intent of any provision hereof.
SECTION 26.12 PARTIES BOUND. The terms, covenants, conditions and
agreements contained in this Lease shall bind and inure to the benefit of
Landlord and Tenant and, except as otherwise provided in this Lease, to their
respective legal representatives, successors, and assigns.
SECTION 26.13 MEMORANDUM OF LEASE. This Lease shall not be recorded;
however, at Landlord's request, Landlord and Tenant shall promptly execute,
acknowledge and deliver a memorandum with respect to this Lease sufficient for
recording and Landlord may record the memorandum. Within 10 days after the end
of the Term, Tenant shall enter into such documentation as is reasonably
required by Landlord to remove the memorandum of record.
SECTION 26.14 COUNTERPARTS. This Lease may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument.
SECTION 26.15 SURVIVAL. All obligations and liabilities of Landlord or
Tenant to the other which accrued before the expiration or other termination of
this Lease, and all such obligations and liabilities which by their nature or
under the circumstances can only be, or by the provisions of this Lease may be,
performed after such expiration or other termination, shall survive the
expiration or other termination of this Lease. Without limiting the generality
of the foregoing, the rights and obligations of the parties with respect to any
indemnity under this Lease, and with respect to any Rent and any other amounts
payable under this Lease, shall survive the expiration or other termination of
this Lease.
SECTION 26.16 INABILITY TO PERFORM. Each party shall use reasonable
efforts to promptly notify the other of any Unavoidable Delay which prevents
such party from fulfilling any of its obligations under this Lease.
Notwithstanding the foregoing, no Unavoidable Delay shall excuse the timely
performance of any obligation under this Lease which is to be enforced or
discharged by the payment of money.
SECTION 26.17 [INTENTIONALLY OMITTED].
SECTION 26.18 [INTENTIONALLY OMITTED].
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SECTION 26.19 FINANCIAL STATEMENTS. If Tenant ceases to be a public
company, Tenant shall from time to time, within 10 business days after request
by Landlord, deliver to Landlord financial statements (including balance sheets
and income/expense statements) for Tenant's then most recent full and partial
fiscal years immediately preceding such request as to which such reports have
been completed, certified by an independent certified public accountant or
Tenant's chief financial officer and in form reasonably satisfactory to
Landlord. All financial statements delivered by Tenant to Landlord under this
Section 26.19 shall be held by Landlord in confidence and shall only be shared
with mortgagees, prospective mortgagees and prospective purchasers, in each case
under a requirement of confidentiality.
SECTION 26.20 CHANGES TO REAL PROPERTY. Subject to the provisions of this
Lease including, without limitation, the required parking ratios set forth in
Section 3.2 and the provisions of Sections 6.3 and 10.12, Landlord shall have
the following rights (a) to rearrange, change, expand or contract the Common
Areas; (b) to use Common Areas while engaged in making improvements, repairs or
alterations to the Property; and (c) to do and perform such other acts and make
such other changes to the interior of the Building (including, without
limitation, the lobbies, entrances, passageways, doors, doorways, atriums,
corridors, elevators, stairs, public restrooms, loading docks and parking
garage) and the exterior of the Building (including, without limitation, the
facade, roof, sidewalks, exterior windows and arcade), all as Landlord may from
time to time in its sole judgment deem to be appropriate. Subject to the
provisions of this Lease including, without limitation, the provisions of
Sections 6.3 and 10.12, Landlord may exercise any or all of the foregoing rights
without being deemed to be guilty of an eviction, actual or constructive, or a
disturbance of Tenant's business or use or occupancy of the Premises. Tenant
shall have no claim for damages or indemnification against Landlord nor shall
Tenant be entitled to any diminution or abatement of Rent arising from
Landlord's exercise of any or all of the foregoing rights.
SECTION 26.21 TAX STATUS. TAX STATUS OF BENEFICIAL OWNER. Tenant
recognizes and acknowledges that Landlord and/or certain beneficial owners of
Landlord may from time to time qualify as real estate investment trusts pursuant
to Sections 856 et seq. of the Internal Revenue Code of 1986 as amended (the
"Code") and that avoiding (a) the loss of such status, (b) the receipt of any
income derived under any provision of this Lease that does not constitute "rents
from real property" (in the case of real estate investment trusts), and (c) the
imposition of income, penalty or similar taxes (each an "Adverse Event") is of
material concern to Landlord and such beneficial owners. In the event that this
Lease or any documents contemplated hereby could, in the opinion of counsel to
Landlord, result in or cause an Adverse Event, Tenant agrees to cooperate with
Landlord in negotiating an amendment or modification thereof and shall at the
request of Landlord execute and deliver such documents reasonably required to
effect such amendment or modification. Any amendment or modification pursuant to
this Section shall be structured so that the economic results to Landlord and
Tenant and the rights of Landlord and Tenant shall be substantially similar to
those set forth in this Lease without regard to such amendment or modification.
Without limiting any of Landlord's other rights under this Section, Landlord may
waive the receipt of any amount payable to Landlord under this Lease and such
waiver shall constitute an amendment or modification of this Lease with respect
to such payment. Tenant expressly covenants and agrees not to enter into any
sublease or assignment which provides for rental or other payment for such use,
occupancy, or utilization based in whole or in part on the net income or profits
derived by any person from the property leased, used,
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occupied, or utilized (other than an amount based on a fixed percentage or
percentages of receipts or sales), and that any such purported sublease or
assignment shall be absolutely void and ineffective as a conveyance of any right
or interest in the possession, use, occupancy, or utilization of any part of the
Premises.
ARTICLE 27
[INTENTIONALLY OMITTED]
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
LANDLORD:
BALA PLAZA PROPERTY, INC.
a Delaware corporation
By: XXXXX XXXXXXXX
________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice President
TENANT:
PHILADELPHIA CONSOLIDATED HOLDING CORP.,
a Pennsylvania corporation
By: XXXXX X. XXXXXXX, XX.
________________________________
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Pres./CEO
GROUNDLESSOR
BALA PLAZA, INC.
a Delaware corporation
By: XXXXX XXXXXXXX
________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice President
-56-
EXHIBIT A
LAND
LEGAL DESCRIPTION OF SITE
ONE BALA PLAZA
ONE BALA PLAZA
Block/Unit IDS: 1H/36
Parcel Numbers: 40-00-57132-00-5
The One Bala Plaza site is located at the northeast corner of St. Asaphs Road
and Belmont Avenue. The site is irregular in shape and contains a total of 18.74
gross acres (with 2.12 acres in rights-of-ways, net area is 16.62 acres).
The site has +/- 1,150 feet of frontage along the north side of St. Asaphs Road,
+/- 1,000 feet along the east side of Belmont Avenue and +/- 275 feet along the
south side of Righters Ferry Road. The average site depth off St. Asaphs Road is
400-500 feet, with about 500 feet off Belmont Avenue.
Topography is generally level, and visibility is good along St. Asaphs Road.
Visibility along Belmont Avenue and Righters Ferry Road is somewhat restricted
due to the heavily wooded nature of the frontages.
Access to the site is provided by one 50 foot wide macadam paved driveway
opposite Kings Grant Drive, at the southeast portion of the site's St. Asaphs
Road frontage. This entrance is controlled by a traffic signal, with separate
turn lanes into the site. There is no access from either Belmont Avenue or
Righters Ferry Road. Overall access is considered adequate. Kings Grant Drive
extends from the site +/- 750 feet to City Line Avenue (U.S. Route 1).
X-0
XXXXXXX X-0
EXISTING PREMISES FLOOR PLAN
The floor plan which follows is intended solely to identify the general location
of the Existing Premises, and should not be used for any other purpose. All
areas, dimensions and locations are approximate, and any physical conditions
indicated may not exist as shown.
X-0
XXXXXXX X-0
ADDITIONAL SECOND FLOOR SPACE FLOOR PLAN
The floor plan which follows is intended solely to identify the general location
of the Additional Second Floor Space, and should not be used for any other
purpose. All areas, dimensions and locations are approximate, and any physical
conditions indicated may not exist as shown.
X-0
XXXXXXX X-0
ADDITIONAL THIRD FLOOR SPACE FLOOR PLAN
The floor plan which follows is intended solely to identify the general location
of the Additional Third Floor Space, and should not be used for any other
purpose. All areas, dimensions and locations are approximate, and any physical
conditions indicated may not exist as shown.
A-4
EXHIBIT A-4
SURRENDER SPACE FLOOR PLAN
The floor plan which follows is intended solely to identify the general location
of the Surrender Space, and should not be used for any other purpose. All areas,
dimensions and locations are approximate, and any physical conditions indicated
may not exist as shown.
X-0
XXXXXXX X-0
FIRST OFFER SPACE FLOOR PLANS
The floor plans which follow are intended solely to identify the general
location of the First Offer Space, and should not be used for any other purpose.
All areas, dimensions and locations are approximate, and any physical conditions
indicated may not exist as shown
X-0
XXXXXXX X-0
LANDLORD'S DETAILED BUDGET DRAWINGS
A-7
EXHIBIT B
DEFINITIONS
BASE RATE: The annual rate of interest publicly announced from time to
time by Citibank, N.A., or its successor, in New York, New York as its "base
rate" or "prime rate" (or such other term as may be used by Citibank, N.A., from
time to time, for the rate presently referred to as its "base rate").
BUILDING SYSTEMS: The mechanical, electrical, plumbing, sanitary,
sprinkler, heating, ventilation and air conditioning, security, life-safety,
elevator and other service systems or facilities of the Building up to the point
of connection of localized distribution to the Premises (excluding, however,
supplemental HVAC systems of tenants, sprinklers and the horizontal distribution
systems within and servicing the Premises and by which mechanical, electrical,
plumbing, sanitary, heating, ventilating and air conditioning, security,
life-safety and other service systems are distributed from the base Building
risers, feeders, panelboards, etc. for provision of such services to the
Premises).
BUSINESS DAYS: All days, excluding Saturdays, Sundays, Observed Holidays
and other days normally observed as holidays by landlords of other Comparable
Buildings.
CODE: The Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder, as amended.
COMMON AREAS: The lobby, parking garage, plaza and sidewalk areas and
other similar areas of general access at the Building or the Land or designated
for the benefit of Building tenants and the areas on individual multi-tenant
floors in the Building devoted to corridors, elevator lobbies, restrooms, and
other similar facilities serving the Premises.
COMPARABLE BUILDINGS: First class office buildings of comparable age, size
and quality in the Bala Cynwyd and Conshohocken markets of the Commonwealth of
Pennsylvania.
COMPLEX: The three-building complex consisting of One, Two and Three Bala
Plaza (Three Bala Plaza further consists of the East and West buildings which
are connected underground), located in Bala Cynwyd, Pennsylvania, and any common
or public areas or facilities, easements, corridors, lobbies, sidewalks, loading
areas, driveways, landscaped areas, air rights, development rights, parking
rights, skywalks, parking garages and lots, and any and all other rights,
structures or facilities operated or maintained in connection with or for the
benefit of such buildings, and all parcels or tracts of land on which all or any
portion of such buildings or any of the other foregoing items are located, and
any fixtures, machinery, apparatus, systems and equipment, furniture and other
personal property located thereon or therein and used in connection therewith.
DEFICIENCY: The difference between (a) the Fixed Rent and Additional Rent
for the period which otherwise would have constituted the unexpired portion of
the Term (assuming the Additional Rent for each year thereof to be the same as
was payable for the year immediately preceding such termination or re-entry),
and (b) the net amount, if any, of rents collected under any reletting effected
pursuant to the provisions of the Lease for any part of such period (after
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first deducting from such rents all expenses incurred by Landlord in connection
with the termination of this Lease, Landlord's re-entry upon the Premises and
such reletting, including repossession costs, brokerage commissions, attorneys'
fees and disbursements, and alteration costs).
EXCLUDED EXPENSES: (a) Taxes; (b) franchise or income taxes imposed upon
Landlord; (c) mortgage amortization and interest; (d) leasing commissions; (e)
the cost of tenant installations and decorations incurred in connection with
preparing space for any Building tenant, including work letters and concessions;
(f) rental payments made under any ground lease, (g) management fees to the
extent in excess of 3% of the gross rentals and other revenues collected for the
Real Property (plus reimbursable expenses payable in connection with property
management services); (h) wages, salaries and benefits paid to any persons not
directly involved with the management of the Building or the oversight thereof;
(i) legal and accounting fees relating to (A) disputes with tenants, prospective
tenants or other occupants of the Building, (B) disputes with purchasers,
prospective purchasers, mortgagees or prospective mortgagees of the Building or
the Real Property or any part of either, or (C) negotiations of leases,
contracts of sale or mortgages; (j) costs of services provided to other tenants
of the Building on a "rent-inclusion" basis which are not provided to Tenant on
such basis; (k) costs that are reimbursed out of insurance, warranty or
condemnation proceeds, or which are reimbursable by Tenant or other tenants
other than pursuant to an expense escalation clause; (l) costs in the nature of
penalties or fines; (m) costs for services, supplies or repairs paid to any
related entity in excess of costs that would be payable in an "arm's length" or
unrelated situation for comparable services, supplies or repairs; (n)
allowances, concessions or other costs and expenses of improving or decorating
any demised or demisable space in the Building; (o) appraisal, advertising and
promotional expenses in connection with leasing of the Building; (p) the costs
of installing, operating and maintaining a specialty improvement, including a
cafeteria, lodging or private dining facility, or an athletic, luncheon or
recreational club unless Tenant is permitted to make use of such facility
without additional cost (other than payments for key deposits, use of towels, or
other incidental items) or on a subsidized basis consistent with other users;
(q) any costs or expenses (including fines, interest, penalties and legal fees)
arising out of Landlord's failure to timely pay Operating Expenses or Taxes; (r)
costs incurred in connection with the removal, encapsulation or other treatment
of asbestos or any other Hazardous Materials (classified as such on the
Effective Date) existing in the Premises in violation of applicable Requirements
as of the date hereof, and (s) the cost of capital improvements other than those
expressly included in Operating Expenses pursuant to Section 7.1.; (t)
depreciation and amortization of capital improvements, except to the extent
included in Section 7.1; and (u) any costs actually reimbursed under any service
contracts or under the warranty of any general contractor, subcontractor or
supplier and realized by Landlord.
GOVERNMENTAL AUTHORITY: The United States of America, the Commonwealth of
Pennsylvania or any political subdivision, agency, department, commission,
board, bureau or instrumentality of any of the foregoing, now existing or
hereafter created, having jurisdiction over the Real Property.
HAZARDOUS MATERIALS: Any substances, materials or wastes currently or in
the future deemed or defined in any Requirement as "hazardous substances,"
"toxic substances," "contaminants," "pollutants" or words of similar import,
including, but not limited to, the
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Pennsylvania Solid Waste Management Act, Pa. Stat. Xxx. Title 35
Sections 6018.101-1003 (Xxxxxx Supp. 1996).
HVAC SYSTEM: The Building System designed to provide heating, ventilation
and air conditioning.
INDEMNITEES: Landlord, Landlord's Agent, each Mortgagee and Lessor, and
each of their respective direct and indirect partners, officers, shareholders,
directors, members, managers, members, trustees, beneficiaries, employees,
principals, contractors, servants, agents, and representatives.
LEASE YEAR: The first Lease Year shall commence on the Commencement Date
and shall end on the day immediately preceding the first anniversary of the
Commencement Date. Each succeeding Lease Year shall commence on the day
following the end of the preceding Lease Year and shall extend for 12
consecutive months; provided, however, that the last Lease Year shall expire on
the Expiration Date.
LESSOR: A lessor under a Superior Lease, including, but not limited to,
the Ground Lease.
LOSSES: Any and all losses, liabilities, damages, claims, judgments,
fines, suits, demands, costs, interest and expenses of any kind or nature
(including reasonable attorneys' fees and disbursements) incurred in connection
with any claim, proceeding or judgment and the defense thereof, and including
all costs of repairing any damage to the Premises or the Building or the
appurtenances of any of the foregoing to which a particular indemnity and hold
harmless agreement applies.
MORTGAGE(S): Any mortgage, trust indenture or other financing document
which may now or hereafter affect the Premises, the Real Property, the Building
or any Superior Lease and the leasehold interest created thereby, and all
renewals, extensions, supplements, amendments, modifications, consolidations and
replacements thereof or thereto, substitutions therefor, and advances made
thereunder.
MORTGAGEE(S): Any mortgagee, trustee or other holder of a Mortgage.
OBSERVED HOLIDAYS: New Years Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day and Christmas Day and to the extent of utilities or
services provided by union members engaged at the Property, such other holidays
observed by such unions.
ORDINARY BUSINESS HOURS: 8:00 a.m. to 6:00 p.m. on weekdays and 8:00 a.m.
to 1:00 p.m. on Saturdays, excluding Observed Holidays.
PROHIBITED USE: Any use or occupancy of the Premises that in Landlord's
reasonable judgment would: (a) cause damage to the Building or any equipment,
facilities or other systems therein; (b) impair the appearance of the Building;
(c) interfere with the efficient and economical maintenance, operation and
repair of the Premises or the Building or the equipment, facilities or systems
thereof; (d) adversely affect any service provided to, and/or the use and
occupancy by, any Building tenant or occupants; (e) violate the certificate of
occupancy issued for the Premises
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or the Building; (f) materially and adversely affect the first-class image of
the Building, or (g) result in protests or civil disorder or commotion at, or
other disruptions of the normal business activities in, the Building. Prohibited
Use also includes the use of any part of the Premises for: (i) a restaurant or
bar; (ii) the preparation, consumption, storage, manufacture or sale of food or
beverages (except in connection with vending machines (provided that each
machine, where necessary, shall have a waterproof pan thereunder and be
connected to a drain) and/or warming kitchens installed for the use of Tenant's
employees only), liquor, tobacco or drugs; (iii) the business of photocopying,
multilith or offset printing (except photocopying in connection with Tenant's
own business); (iv) a school or classroom; (v) lodging or sleeping; (vi) the
operation of retail facilities (meaning a business whose primary patronage
arises from the generalized solicitation of the general public to visit Tenant's
offices in person without a prior appointment) of a savings and loan association
or retail facilities of any financial, lending, securities brokerage or
investment activity, but this shall not prohibit a credit union for Tenant's
(and Related Entities') employees only; (vii) a payroll office; (viii) a xxxxxx,
beauty or manicure shop; (ix) an employment agency or similar enterprise; (x)
offices of any Governmental Authority, any foreign government, the United
Nations, or any agency or department of the foregoing; (xi) the manufacture,
retail sale, storage of merchandise or auction of merchandise, goods or property
of any kind to the general public which could reasonably be expected to create a
volume of pedestrian traffic substantially in excess of that normally
encountered in the Premises; (xii) the rendering of medical, dental or other
therapeutic or diagnostic services; or (xiii) any illegal purposes or any
activity constituting a nuisance.
PROPERTY: The Building, and any common or public areas or facilities,
easements, corridors, lobbies, sidewalks, loading areas, driveways, landscaped
areas, air rights, development rights, parking rights, skywalks, underground
passageways, parking garages and lots, and any and all other rights, structures
or facilities operated or maintained in connection with or for the benefit of
the Building, and all parcels or tracts of land on which all or any portion of
the Building or any of the other foregoing items are located, and any fixtures,
machinery, apparatus, systems and equipment, furniture and other personal
property located thereon or therein and used in connection therewith.
PUNCH LIST ITEMS: Minor details of construction, decoration and mechanical
adjustments, if any, the noncompletion of which does not materially interfere
with Tenant's use of the Premises or which in accordance with good construction
practices should be completed after the completion of other work in the Premises
or Building.
REQUIREMENTS: All present and future laws, rules, orders, ordinances,
regulations, statutes, requirements, codes and executive orders, extraordinary
and ordinary of (i) all Governmental Authorities, including without limitation,
the Americans With Disabilities Act, 42 U.S.C. Section 12101 (et seq.), and any
law of like import, and all rules, regulations and government orders with
respect thereto, and any of the foregoing relating to Hazardous Materials,
environmental matters, public health and safety matters and landmarks
protection, (ii) any applicable fire rating bureau or other body exercising
similar functions, affecting the Real Property or the maintenance, use or
occupation thereof, or any street, avenue or sidewalk comprising a part of or in
front thereof or any vault in or under the same, (iii) all requirements of all
insurance bodies affecting the Premises, and (iv) utility service providers, and
(v) Mortgagees or Lessors. "Requirements" shall also include the terms and
conditions of any certificate of
B-4
occupancy issued for the Premises or the Building, and any other covenants,
conditions or restrictions affecting the Building and/or the Real Property from
time to time.
RULES AND REGULATIONS: The rules and regulations annexed to and made a
part of this Lease as Exhibit F, as they may be modified from time to time by
Landlord.
SPECIALTY ALTERATIONS: Alterations which are not standard office
installations, such as kitchens (other than a kitchen installed for the use of
Tenant's employees only and of the type normally found in the space of office
tenants in Comparable Buildings), pantries, executive bathrooms, raised computer
floors, computer room installations, supplemental HVAC equipment and components,
safe deposit boxes, vaults, libraries or file rooms requiring reinforcement of
floors, internal staircases, slab penetrations, conveyors, dumbwaiters,
non-Building standard life safety systems, security systems or lighting and
other Alterations of a similar character. All Specialty Alterations are Above
Building Standard Installations.
SUBSTANTIAL COMPLETION: As to any construction performed by any party in
the Premises, "Substantial Completion" or "Substantially Completed" shall mean
(i) that state of completion which will enable Tenant to reasonably utilize the
applicable portion of the Premises for the conduct of its ordinary business,
even though certain work remains to be completed by Landlord, without
unreasonable interruption or disruption (including, without limitation,
disruption caused by unreasonable levels of noise generated by such construction
work) of Tenant's business, and (ii) any required approvals shall have been
issued by the appropriate governmental agencies. Notwithstanding the foregoing,
however, if the date of Substantial Completion is delayed by reason of Tenant
Delay, the applicable portion of the Premises shall be deemed Substantially
Completed as of the date that such portion of the Premises would have been
Substantially Completed but for any such Tenant Delay.
SUPERIOR LEASE(S): The Ground Lease and any ground or underlying lease of
the Real Property or any part thereof hereafter made by Landlord and all
renewals, extensions, supplements, amendments, modifications, consolidations,
and replacements thereof.
TENANT DELAY(S): To the extent that Landlord has an obligation to design,
construct, repair, rebuild, restore, install, order, obtain or complete any base
Building work, Improvements or any other items or improvements at the Building,
a delay in Landlord's completion thereof caused by:
(a) Tenant's request for value engineering or any changes to any
drawings, plans or specifications for the Premises (notwithstanding Landlord's
approval of such changes) after Landlord and Tenant have approved (whether for
construction contract bid purposes or otherwise) such drawings, plans or
specifications;
(b) Tenant's request for improvements, items, materials, finishes or
installations that are not available as needed to meet Landlord's (or Landlord's
contractor's) schedule for Substantial Completion, provided that Landlord (or
Landlord's contractor's) shall notify Tenant of any potential long lead items to
the extent known to Landlord (or Landlord's contractor's) at the time such
material, finish or installation is requested or as soon as reasonably possible
thereafter;
B-5
(c) Tenant's request for or design of Improvements that include
items or improvements not typically found in the office space at Comparable
Buildings;
(d) if Tenant's architect or designer prepares any drawings, plans
or specifications for the Premises, any such drawings, plans or specifications
being (i) incomplete, inaccurate or otherwise deficient, or (ii) deviating from
the approved space plan, applicable code requirements and/or any Requirements;
(e) Tenant's or Tenant's architect's, agent's, representative's or
contractor's interference with the work of Landlord or Landlord's contractor;
(f) Tenant's failure to fully and timely comply with the deadlines
and other terms set forth in this Lease; or
(g) any other act or omission by Tenant or any employee, architect,
agent, representative or contractor of Tenant constituting a Tenant Delay under
the terms of this Lease or any exhibit, rider, annex, schedule, work letter or
other document or agreement entered in connection with this Lease, attached to
this Lease or incorporated in this Lease by reference.
TENANT PARTY(IES): Tenant and any subtenants or occupants of the Premises
and their respective agents, contractors, subcontractors, employees, invitees or
licensees.
TENANT'S PROPERTY: Tenant's movable fixtures and movable partitions,
telephone and other equipment, computer systems, telecommunications, data and
other cabling, trade fixtures, furniture, furnishings, and other items of
personal property which are removable without material damage to the Premises or
the Building.
UNAVOIDABLE DELAYS: A party's inability to fulfill or delay in fulfilling
any of its obligations under this Lease expressly or impliedly to be performed
by such party, if such party's inability or delay is due to or arises by reason
of strikes, labor troubles or by accident, or by any cause whatsoever beyond
such party's reasonable control, including governmental preemption in connection
with a national emergency, permitting and inspection delays, Requirements or
shortages, or unavailability of labor, fuel, steam, water, electricity or
materials, or delays caused by the other party or other tenants, mechanical
breakdown, acts of God, enemy action, civil commotion, fire or other casualty.
B-6
EXHIBIT C
[INTENTIONALLY OMITTED]
C-1
EXHIBIT D
DESIGN STANDARDS
(a) HVAC. The Building HVAC System serving the Premises is designed to
maintain average temperatures within the Premises during Ordinary Business Hours
of (i) not less than 70 (0)F. dry bulb during the heating season when the
outdoor temperature is 10 (0)F. dry bulb and (ii) not more than 75 (0)F. dry
bulb during the cooling season, when the outdoor temperatures are at 92 (0)F.
dry bulb and 75 (0)F. wet bulb, with, in the case of clauses (i) and (ii): (x) a
population load per floor of not more than one person per 120 square feet of
rentable area, other than in dining and other special use areas per floor for
all purposes, (y) 0.083 CFM per rentable square foot of outside air, and (z)
tenant power and light at 4.0 xxxxx per rentable square foot per floor and
shades or blinds fully drawn. Use of the Premises, or any part thereof, in a
manner exceeding any of the foregoing design conditions or arrangement of
partitioning which interferes with normal operation of the air-conditioning
service in the Premises may require changes in the air-conditioning serving the
Premises at Tenant's expense.
(b) Electrical. The Building electrical system serving the Premises is
designed to provide a total of 4.0 xxxxx per usable square foot connected load
for tenants lighting and power to Tenant's convenience outlets.
D-2
EXHIBIT E
CLEANING WORK ("WORK")
TENANT OFFICES
Tenant Offices shall include all areas of the building which are leased
exclusively to individual tenants and which are regularly occupied and used by
such tenants. Tenant Offices include the office of the property manager
("Manager"). Tenant Offices specifically exclude tenant-leased storage areas and
space occupied by retail tenants.
Wherever the cleaning contractor ("Contractor") is required to dust, wipe,
or otherwise clean surfaces in Tenant Offices it is understood that, unless
specifically directed by Manager, Contractor shall not disturb or move papers,
books, picture frames, equipment and similar items for the purpose of cleaning
underneath them, but shall only clean around objects. Should any tenant request
that Contractor move items to clean such surfaces, tenant must provide a "hold
harmless" agreement which indemnifies Contractor, Manager and Landlord (and its
employees and subcontractors) from any loss, claim or damage as a result of the
movement of objects.
1. Nightly
a. Empty any trash containers, and re-line as required; wipe exterior or
interior surfaces of trash containers as needed. Break down all boxes or any
items marked as "trash" and remove to dumpster. Wipe or wash clean trash
containers as necessary before relining.
b. Sweep and remove dust, dirt and debris from all non-carpeted floor
areas using treated or electrostatic dust mop, with particular focus on
kitchens, break rooms, and reception areas (vinyl, wood, vinyl-impregnated wood,
granite, stone, marble, ceramic, etc.).
c. Spot clean with mop all non-carpeted areas and damp mop weekly. Use
special care to ensure that baseboards (vinyl, tile, painted) are not stained by
dirty mop head.
d. Dust, remove debris and wipe clean all horizontal surfaces as necessary
to maintain a first class appearance, including but not limited to cove base,
ledges, wainscoting, hand rails, furniture rungs, xxxxx, seats, reveals, chair
rails and trim, tables, desks and other furniture, transaction counters, picture
frames, bookcases, shelves, file cabinets, lamps, telephones, window xxxxx and
all areas within reach with a 30" dust brush. Door thresholds and brightwork are
a high priority.
e. Damp mop kitchens, break rooms, reception areas, work rooms and similar
areas; storage or file rooms will be mopped as necessary.
f. Vacuum all carpeted areas in the main reception area, all conference
rooms and in the tenant's internal corridors from wall-to-wall, with special
emphasis on edging. In tenant offices, file and storage rooms, workrooms and
other areas of the office less accessible to visitors, vacuum all traffic lanes
and spot vacuum to remove any visible debris in non-traffic lanes.
E-2
g. Spot clean carpeting as necessary to immediately remove any visible
stains. Where spot cleaning leaves the general condition of the carpeted area
unsightly, Contractor shall be responsible for maintaining the carpet using
additional methods (i.e., bonnet, extraction, etc.). Except as specifically
provided herein, carpet cleaning in Tenant Offices is specifically excluded from
the Work and is considered Special Tenant Services (i.e., services that tenant
may contract directly for, at tenant's cost).
h. Clean, polish and sanitize all drinking fountains. Wipe off splash
marks from adjacent wall surfaces.
i. Empty and wipe clean all cigarette urns and ashtrays.
j. Clean all glass furniture tops.
k. Damp wipe and remove dust, debris and stains from all horizontal
resilient non-floor surfaces (plastic laminate countertops, e.g.).
l. Clean, polish and sanitize all sinks and kitchen counter-tops. Wipe off
splash marks from adjacent walls and vertical cabinet surfaces and the exterior
surfaces of countertop appliances. Move counter-top appliances where applicable
(less than 10 pounds) to clean underneath.
m. Spot clean all interior glass (up to 80" in height) in tenant spaces,
including but not limited to side lights, door signs, tenant entrance doors,
glass conference room doors, partitions, mail chutes, display cases, etc. for
the removal of smudges and fingerprints. This Work specifically excludes
interior and exterior faces of curtain wall windows. This Work specifically
excludes full cleaning of interior glass within Tenant Offices, except for glass
suite entry doors and sidelights as well as glass furniture tops, as previously
specified.
n. Spot vacuum upholstered furniture as necessary.
o. Spot clean walls as finishes permit.
2. Weekly
a. Vacuum all carpeted areas in Tenant Offices, from wall-to-wall. Special
emphasis on edging, reception areas and conference rooms.
b. Dust, remove debris and wipe clean all vertical surfaces up to 80
inches in height as necessary to maintain a first class appearance. Remove all
fingerprints and smudges from all reflective surfaces (painted, vinyl
wall-covered, high-finish formica, metal, granite, wood laminate, etc.). Doors,
panels and trim, door glass, switchplates, fingerplates and kickplates, door
hardware, planters, tenant signs, door and wall louvers are a priority.
c. Move, vacuum and clean under, and replace all furniture that can be
easily moved.
d. Replace trashcan liners in all trash receptacles weekly.
E-3
3. Monthly
a. Dust and/or wipe clean exterior surface of wall-mounted light fixtures
and sconces.
b. Dust air supply and return louvers and grilles, removing built-up dust
and dirt. Use chemicals to wipe clean where necessary.
c. Dust all vertical and horizontal window blinds (whether on sidelights,
glass walls or windows) in all Tenant Offices.
4. Quarterly
a. High dusting (those items over 80"), including pipes, ledges, moldings,
wall-mounted light fixtures, louvers, etc.
b. Thoroughly wipe clean all baseboards and cove base, taking care to
avoid leaving water marks.
c. Wash all trash containers.
d. High dusting (those items over 80"), including pipes, ledges, moldings,
wall-mounted light fixtures, louvers, etc.
5. Semi-Annually/Annually
a. Wipe clean and wash as necessary all air supply and return louvers and
grilles, removing built-up dirt and dust at least semi-annually.
b. Wipe or wash all vertical and horizontal window blinds (whether on
sidelights, glass walls or windows) in all Tenant Office areas no less than
annually to remove accumulated debris and dirt.
c. Use special fabric sponge-bricks to remove dirt buildup on fabric
wallcovering, as needed.
d. Dust all clothes closet shelving and coat racks.
6. Annually
a. Dust and wipe clean all light fixture lenses, removing fingerprints no
less than annually. Special attention should be paid to pendant fixtures, which
tend to "catch" insects and other debris.
E-4
CLEANING SPECIFICATIONS - SPECIAL TENANT SERVICES
Special Tenant Services (by way of example rather than limitation). Tenant is
solely responsible for the cost and expense of each Special Tenant Service.
a. Machine scrubbing, machine polishing or buffing, stripping and sealing
of non-carpeted floors in Tenant Offices.
b. Carpet cleaning by any method (bonnet, extraction, host, etc.).
c. Furniture polishing.
d. Polishing of wood paneling or doors.
e. Dishwashing and collection of dishes.
f. Cleaning out refrigerators, microwaves and other appliances and kitchen
cabinetry.
g. Cleaning of all interior glass in tenant spaces (e.g., side lights,
signage, interior doors, partitions, display cases, etc.) other than spot
cleaning for the removal of obvious smudges and fingerprints.
h. Vacuuming under furniture which weighs greater than 20 lbs. and which
needs to be moved to reach floor areas under it.
i. Cleaning of any light fixtures which require disassembly for cleaning.
j. Cleaning of fabric wallcovering.
k. Cleaning of any laboratories, examination rooms or any rooms where
medical services are provided.
l. Removal and legal disposal of medical waste or other hazardous
materials.
E-5
EXHIBIT F
RULES AND REGULATIONS
1. Nothing shall be attached to the outside walls of the Building. Other
than Building standard blinds, no curtains, blinds, shades, screens or other
obstructions shall be attached to or hung in or used in connection with any
exterior window or entry door of the Premises, without the prior consent of
Landlord.
2. No sign, advertisement, notice or other lettering visible from the
exterior of the Premises shall be exhibited, inscribed, painted or affixed to
any part of the Premises without the prior written consent of Landlord. All
lettering on doors shall be inscribed, painted or affixed in a size, color and
style acceptable to Landlord.
3. The grills, louvers, skylights, windows and doors that reflect or admit
light and/or air into the Premises or Common Areas shall not be covered or
obstructed by Tenant, nor shall any articles be placed on the window xxxxx,
radiators or convectors.
4. Landlord shall have the right to prohibit any advertising by any Tenant
which, in Landlord's opinion, tends to impair the reputation of the Building,
and upon written notice from Landlord, Tenant shall refrain from or discontinue
such advertising.
5. The Common Areas shall not be obstructed or encumbered by any Tenant or
used for any purposes other than ingress or egress to and from the Premises and
for delivery of merchandise and equipment in a prompt and efficient manner,
using elevators and passageways designated for such delivery by Landlord.
6. All locks and deadbolts of any kind shall be operable by the Building's
Master Key. No locks shall be placed upon any of the doors or windows by Tenant,
nor shall any changes be made in locks or the mechanism thereof which shall make
such locks inoperable by the Building's Master Key. Tenant shall, upon the
termination of its Lease, deliver to Landlord all keys of stores, offices and
lavatories, either furnished to or otherwise procured by Tenant and in the event
of the loss of any keys furnished by Landlord, Tenant shall pay to Landlord the
cost thereof.
7. Tenant shall keep the entrance door to the Premises closed at all
times.
8. All movement in or out of any freight, furniture, boxes, crates or any
other large object or matter of any description must take place during such
times and in such elevators as Landlord may prescribe. Landlord reserves the
right to inspect all articles to be brought into the Building and to exclude
from the Building all articles which violate any of these Rules and Regulations
or the Lease. Landlord may require that any person leaving the public areas of
the Building with any article to submit a pass, signed by an authorized person,
listing each article being removed, but the establishment and enforcement of
such requirement shall not impose any responsibility on Landlord for the
protection of any Tenant against the removal of property from the Premises.
F-1
9. All hand trucks shall be equipped with rubber tires, side guards and
such other safeguards as Landlord may reasonably require.
10. No Tenant Party shall be permitted to have access to the Building's
roof, mechanical, electrical or telephone rooms without permission from
Landlord.
11. Tenant shall not permit or suffer the Premises to be occupied or used
in a manner offensive or objectionable to Landlord or other occupants of the
Building by reason of noise, odors, vibrations or interfere in any way with
other tenants or those having business therein.
12. Tenant shall not employ any person or persons other than the janitor
of Landlord for the purpose of cleaning the Premises, unless otherwise agreed to
by Landlord. Tenant shall not cause any unnecessary labor by reason of such
Tenant's carelessness or indifference in the preservation of good order and
cleanliness.
13. Tenant shall store all its trash and recyclables within its Premises.
No material shall be disposed of which may result in a violation of any
Requirement. All refuse disposal shall be made only through entry ways and
elevators provided for such purposes and at such times as Landlord shall
designate. Tenant shall use the Building's refuse and recycling contractor(s).
14. Tenant shall not deface any part of the Building. No boring, cutting
or stringing of wires shall be permitted, except with prior consent of Landlord,
and as Landlord may direct.
15. The water and wash closets, electrical closets, mechanical rooms, fire
stairs and other plumbing fixtures shall not be used for any purposes other than
those for which they were constructed and no sweepings, rubbish, rags, acids or
other substances shall be deposited therein. All damages resulting from any
misuse of the fixtures shall be borne by Tenant where a Tenant Party caused the
same.
16. Tenant, before closing and leaving the Premises at any time, shall see
that all lights, water faucets, etc. are turned off. All entrance doors in the
Premises shall be kept locked by Tenant when the Premises are not in use.
17. No animals of any kind (except for seeing eye dogs) shall be brought
into or kept by any Tenant in or about the Premises or the Building. No in-line
roller skates or vehicles (other than bicycles) shall be brought into or kept by
any Tenant in or about the Premises or the Building, except that automobiles may
be kept in the parking garage (if any).
18. Canvassing or soliciting in the Building is prohibited.
19. Employees of Landlord or Landlord's Agent shall not perform any work
or do anything outside of their regular duties, unless under special
instructions from the office of Landlord or in response to any emergency
condition.
20. Landlord reserves the right to prohibit overnight courier, commercial
and other package delivery services from entering the Building, other than to
pick-up packages from or to deliver packages to such central messenger facility
designated by Landlord for the Building.
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21. Landlord reserves the right to exclude from the Building during other
than Ordinary Business Hours all persons who do not present a valid Building
pass. Tenant shall be responsible for all persons for whom a pass shall be
issued at the request of Tenant and shall be liable to Landlord for all acts of
such persons.
22. Tenant shall not use the Premises for any purpose that may be
dangerous to persons or property, nor shall Tenant permit in, on or about the
Premises or Building items that may be dangerous to persons or property,
including, without limitation, firearms or other weapons (whether or not
licensed or used by security guards) or any explosive or combustible articles or
materials.
23. Landlord shall not be responsible to Tenant or to any other person for
the non-observance or violation of these Rules and Regulations by any other
tenant or other person. Tenant shall be deemed to have read these Rules and
Regulations and to have agreed to abide by them as a condition to its occupancy
of the Premises.
24. No person shall smoke, chew or otherwise ingest or use tobacco
products at the Building, the Common Areas (including any sidewalks adjacent to
the Building) or the Premises, except in an area (if any) designated by
Landlord.
Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant(s), but no such waiver by Landlord shall be
construed as a waiver of such Rules and Regulations in favor of any other
tenant, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all tenants of the Building.
F-3
EXHIBIT G
CONSTRUCTION RULES AND REGULATIONS
1. Tenant and/or the general contractor will supply Landlord with a copy
of all permits prior to the start of any work.
2. Tenant and/or the general contractor will post the building permit on a
wall of the construction site while work is being performed.
3. The tenant shall provide, in writing, prior to commencement of the
work, the names and emergency numbers of all subcontractors, the general
contractor superintendent, general contractor's project manager and the
construction manager.
4. No construction is to be started until proper drawings have been
submitted and approved in writing by Landlord.
5. Landlord is to be contacted by Tenant when work is completed for
inspection. All damage to building will be determined at that time.
6. Any work that is to be performed in other than Tenant's premises must
be reviewed and scheduled in advance with the Landlord.
7. Landlord will be notified of all work schedules of all workmen on the
job and will be notified, in writing, in advance, of names of those who may be
working in the building after "normal" business hours.
8. Construction personnel must carry proper identification at all times.
9. All workers are required to wear a shirt, shoes, and full length
trousers.
10. Landlord must approve all roof top equipment and placement. All
penetrations must be cut and flashed by the roof warranty holder of the existing
roof system.
11. Landlord shall designate contractor-parking areas (if any).
12. Contractor must notify Landlord two days prior to an independent air
balancing service by a certified air balance company. Landlord's building
engineer will accompany the contractor during their work. Landlord must receive
a copy of the final approved balance report.
13. Before Landlord makes final payment, five sets of as-built and O&M
manuals as well as a CADD disc must be submitted to Landlord.
14. The general contractor and Tenant shall be responsible for all loss of
their materials and tools and shall hold Landlord harmless for such loss and
from any damages or claims resulting from the work.
15. The general contractor shall maintain insurance coverage throughout
the job of a type(s), in amounts and issued by an insurance company, reasonably
satisfactory to Landlord.
G-1
Prior to the commencement of work, a Certificate of Insurance must be submitted
with the limits of coverage per the limits noted in the Lease with such parties
being named as additional insureds as Landlord requires from time to time.
16. All key access, fire alarm work, or interruption of security hours
must be arranged with the Landlord.
17. Proper supervision shall be maintained at the job site at all times
and Tenant's workmen, mechanics and contractors must not cause or effect any
inconvenience to or interfere with the Buildings operations or Landlord.
Tenant's workmen, mechanics and contractors shall work in harmony with and shall
not interfere with any labor employed by the property manager or any other
Tenant, or their workmen, mechanics and contractors.
18. Landlord is to be notified in advance of all ties into Building
systems, welding, or any work affecting the base building or other tenant spaces
unless agreed to otherwise, all tie-ins to base building fire alarm systems are
performed by Landlord, designated contractor and cost borne by Tenant.
19. The following work, of which Landlord is to be notified in advance,
must be done on overtime and not during normal business hours once any portion
of the building is occupied:
- Demolition which per Building manager's judgment may cause
disruption to other tenants.
- Oil base painting (on multi-tenant floors).
- Gluing of carpeting (on multi-tenant floors).
- Shooting of studs for mechanical fastenings.
- Testing of life safety system, sprinkler tie-ins.
- Work performed in occupied spaces.
- Welding, brazing, soldering and burning with proper fire protection
and ventilation.
- Other activities that, in building manager's judgment, may disturb
other tenants.
20. All Building shutdowns - electrical, plumbing, HVAC equipment, fire
and life-safety must be coordinated with Landlord in advance. Landlord's
procedures for hot work, fire alarm and sprinkler shutdowns must be followed.
Landlord's on-site engineer will detail the requirements summarized below:
- Smoke detectors must be bagged or cleaned daily and placed back in
service at the end of each day.
- Call outs for fire alarm and sprinkler systems must be made with and
only with Landlord's personnel. All systems must be put back into
service at the end of each work day and working correctly.
- Hot work, i.e., torch burning/cutting and welding must be permitted
through Landlord's personnel and contractor must use Landlord's
form.
- When welding, contractor shall provide a fused disconnect switch for
connection to building power supply and a Fire Watch.
- Forms are to be provided at kickoff meeting.
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21. Fire extinguishers supplied by the general contractor must be on the
job-site at all times during demolition and construction.
22. No building materials are to enter the Building by way of main lobby,
and no materials are to be stored in any lobbies or fire stairs at any time.
23. Contractors personnel will use loading dock area for all deliveries
and will not use loading dock for vehicle parking.
24. Passenger elevators shall not be used for moving building materials
and shall not be used for construction personnel except (a) in the event of an
emergency or (b) with the prior approval of the property manager and then only
after protective padding and other protective devices have been installed in the
passenger elevator, as determined by Landlord's building engineer.
25. Protection of hallway carpets, wall coverings, and elevators from
damage with masonite board, carpet, cardboard, or pads is required. They may be
removed from time to time as requested by the Landlord.
26. Public spaces, corridors, elevators, bathrooms, lobby, etc. must be
cleaned immediately after use. Construction debris or materials found in public
areas will be removed at Tenant's cost.
27. Contractors will remove their trash and debris daily or as often as
necessary to maintain cleanliness in the building. Building trash containers are
not to be used for construction debris. Landlord reserves the right to xxxx
Tenant for any cost incurred to clean up debris left by the general contractor
or any subcontractor. Further, the Building staff is instructed to hold the
driver's license of any employee of the contractor while using the freight
elevator to ensure that all debris is removed from the elevator.
28. All construction materials or debris must be stored within the project
confines or in an approved lock-up.
29. Contractors will be responsible for daily removal of waste foods, milk
and soft drink containers, etc. to trash room and will not use any building
trash receptacles but trash receptacles supplied by them.
30. Construction personnel are not to eat in the lobby or in front of
building nor are they to congregate in the lobby or in front of the Building.
31. There will be no smoking, eating, or open food containers in the
elevators, carpeted areas or public lobbies.
32. There will be no alcohol or controlled substances allowed or
tolerated.
33. There will be no yelling or boisterous activities.
34. Radios shall not be played on job site.
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35. Landlord shall grant access to the base building electrical, telephone
and mechanical rooms.
36. No utilities (electricity, water, gas, plumbing) or services to the
tenants are to be cut off or interrupted without first having requested, in
writing, and secured, in writing, the permission of Landlord.
37. No electrical services are to be put on the emergency circuit, without
specific written approval from Landlord.
38. When utility meters are installed, the general contractor must provide
the property manager with a copy of the operating instructions for that
particular meter.
39. All public areas such as elevator lobbies, corridors, toilets and
service halls shall be protected with masonite and other such materials to the
satisfaction of the property manager.
40. Trash and debris resulting from the work shall be confined to either
the interior of the space under construction or an on-site dumpster. If it is a
dumpster, then such debris shall be kept within the confines of the dumpster.
The general contractor shall coordinate the location of the dumpster with the
Landlord and plywood shall be used to protect the surface from damage.
41. Contractor is responsible to keep the construction area safe and in a
workmanlike manner. Machinery noise shall not interfere with the peaceful
enjoyment of any tenant or their invitees to the Building. No smoking in the
Building will be allowed at any time.
42. Clear access to be provided at all times to stairwells,
mechanical/electrical equipment and rooms, elevators, fire hoses, valves, fire
dampers and maintenance sensitive equipment.
43. Adequate lighting is to be provided in construction to achieve a safe
working environment.
44. A Tenant valve tag chart shall be submitted to the Landlord.
45. All piping and wiring systems shall be adequately supported from
Building structure.
46. The cleaning of condenser water pipes shall be done in the presence of
the Landlord's representative with the chemical used per the Building's chemical
treatment company's recommendation.
47. All mechanical and electrical equipment shall have permanent
identification labels affixed.
48. Kitchen exhaust access doors must be clearly identified and accessible
for periodic inspection as required by law.
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49. All telecommunication cabling in common areas, mechanical equipment
rooms, etc. shall be installed in an enclosed raceway and shall be identified.
50. All air handlers, CAV boxes and VAV boxes need pre-filters
(construction filters) installed over filter bank and may require periodic
changes during the construction period until each floor is complete at which
time a change out of filters is required. All units will be required to be
cleaned thoroughly if the system is contaminated and this procedure is not
maintained.
51. After all Tenant construction is complete, the elevator systems need
to be cleaned by the elevator service provider at Tenant's expense. This
includes rails, pits, tops of cabs, machine rooms.
52. To the extent damaged by Tenant or its contractors (or its
subcontractors), (i) all mechanical, telephone, electrical and pump room floors
must be painted at the end of the job; and (ii) damaged, stained or new walls
and pipe, etc. must be painted to match existing pipes and new pipes must match
Landlord's standard colors.
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XXXXXXX X
XXXXXXXXXXXXX, XXX-XXXXXXXXXXX AND ATTORNMENT AGREEMENT - EXISTING MORTGAGE
LaSALLE BANK NATIONAL ASSOCIATION, IN ITS CAPACITY AS TRUSTEE FOR THE
REGISTERED HOLDERS OF LB-UBS COMMERCIAL MORTGAGE TRUST 2004-C1, COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-C1, AND IN ITS CAPACITY AS LEAD
LENDER ON BEHALF OF (I) LUBS, INC. AS TO NOTE A-1B; (II) XXXXXX XXXXXXX CAPITAL
CAPITAL I INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2004-TOP13, AS TO NOTE A-2A; (III) XXXXXX XXXXXXX MORTGAGE CAPITAL INC.,
AS TO NOTE A-2B; (IV) XXXXXX XXXXXXX MORTGAGE CAPITAL INC., AS TO NOTE A-2C;
(V) XXXXXX XXXXXXX MORTGAGE CAPITAL INC., AS TO NOTE A-2D; (VI) TEACHERS
INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, AS TO NOTE B (the "Lender")
- and -
PHILADELPHIA CONSOLIDATED HOLDING CORP.,
a Pennsylvania corporation
(Tenant)
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
Dated: _____________, 2006
Location: One Bala Plaza
Bala Cynwyd, PA
County: Xxxxxxxxxx
PREPARED BY AND UPON
RECORDATION RETURN TO:
Xxxxx X. XxXxx, Esq.
Akin Gump Xxxxxxx Xxxxx & Xxxx
0000 Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
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SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the "Agreement")
made as of the [___] day of [_________], 2006 by and between LaSALLE BANK
NATIONAL ASSOCIATION, IN ITS CAPACITY AS TRUSTEE FOR THE REGISTERED HOLDERS OF
LB-UBS COMMERCIAL MORTGAGE TRUST 2004-C1, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2004-C1, AND IN ITS CAPACITY AS LEAD LENDER ON BEHALF OF
(I) LUBS, INC. AS TO NOTE A-1B; (II) XXXXXX XXXXXXX CAPITAL CAPITAL I INC.,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-TOP13, AS TO NOTE
A-2A; (III) XXXXXX XXXXXXX MORTGAGE CAPITAL INC., AS TO NOTE A-2B; (IV) XXXXXX
XXXXXXX MORTGAGE CAPITAL INC., AS TO NOTE A-2C; (V) XXXXXX XXXXXXX MORTGAGE
CAPITAL INC., AS TO NOTE A-2D; (VI) TEACHERS INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA, AS TO NOTE B (the "Lender"), and PHILADELPHIA CONSOLIDATED HOLDING
CORP., a Pennsylvania corporation, having an address at Xxx Xxxx Xxxxx, Xxxxx
000, Xxxx Xxxxxx, Xxxxxxxxxxxx 00000 ("Tenant").
RECITALS:
X. Xxxxxx Xxxxxxx Mortgage Capital, Inc. ("Xxxxxx") and Xxxxxx Brothers
Bank FSB ("Xxxxxx" and collectively with Xxxxxx, "Original Lenders") made a loan
to Landlord (hereinafter defined) and others as co-borrowers in the original
principal amount of $825,000,000 (the "Loan"), which Loan is evidenced by that
certain Consolidated, Amended and Restated Promissory Note payable to the order
of Original Lenders in the original principal amount of $825,000,000, dated
December 10, 2003 (as amended, increased, renewed, extended, spread,
consolidated, severed, restated, or otherwise changed from time to time, the
"Note").
B. To secure the Loan, Bala Plaza Inc., a Delaware corporation ("BPI"),
and Landlord encumbered (i) certain premises described in Exhibit A attached
hereto owned by BPI, and (ii) the leasehold estate of Landlord in certain
premises described in Exhibit A attached hereto (collectively the "Property"),
by entering into, inter alia, that certain Open-End Mortgage, Assignment of
Leases and Rents and Security Agreement dated as of December 8, 2003, effective
December 10, 2003, in favor of Original Lender (as amended, increased, renewed,
extended, spread, consolidated, severed, restated, or otherwise changed from
time to time, the "Security Instrument") recorded on December 10, 2003, in
Mortgage Book 10913, page 1424, in the Office of the Recorder of Deeds in and
for the County of Xxxxxxxxxx, at Norristown, Pennsylvania.
C. Lender is authorized as the "Lead Lender" pursuant to that certain
Co-Lender Agreement between (among others) Xxxxxx, as the "Note A-1 Lender", and
Xxxxxx, as the "Note A-2 Lender" dated of even date with the Note to act of
behalf of all current holders and owners of the Note and Loan in the execution
and delivery of this Agreement.
D. Tenant is the holder of a leasehold estate in a portion of the Property
under and pursuant to the provisions of a certain Lease dated as of March 1,
2006 between Bala Plaza Property, Inc., as landlord ("Landlord") and Tenant, as
tenant (such lease, as modified and amended as set forth herein being
hereinafter referred to as the "Lease").
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E. Tenant has agreed to subordinate the Lease to the Security Instrument
and to the lien thereof and Lender has agreed to grant non-disturbance to Tenant
under the Lease on the terms and conditions hereinafter set forth.
F. All capitalized terms not otherwise defined herein shall have the same
meaning ascribed thereto in the Security Instrument.
AGREEMENT:
For good and valuable consideration, Tenant and Lender agree as follows:
1. Subordination. The Lease and all of the terms, covenants and provisions
thereof and all rights, remedies and options of Tenant thereunder are and shall
at all times continue to be subject and subordinate in all respects to the
terms, covenants and provisions of the Security Instrument and to the lien
thereof, including without limitation, all renewals, increases, modifications,
spreaders, consolidations, replacements and extensions thereof and to all sums
secured thereby and advances made thereunder with the same force and effect as
if the Security Instrument had been executed, delivered and recorded prior to
the execution and delivery of the Lease.
2. Non-Disturbance. If any action or proceeding is commenced by Lender for
the foreclosure of the Security Instrument or the sale of the Property, Tenant
shall not be named as a party therein unless such joinder shall be required by
law, provided, however, such joinder shall not (i) result in the termination of
the Lease or disturb the Tenant's possession or use of the premises demised
thereunder or (ii) diminish any rights of extension or renewals which may be
effected in accordance with the terms of the Lease. The sale of the Property in
any such action or proceeding and the exercise by Lender of any of its other
rights under the Note or the Security Instrument shall be made subject to all
rights of Tenant under the Lease, provided that at the time of the commencement
of any such action or proceeding or at the time of any such sale or exercise of
any such other rights (a) the Lease shall be in full force and effect and (b)
Tenant shall not be in default beyond any applicable notice, grace or cure
periods under any of the terms, covenants or conditions of the Lease or of this
Agreement on Tenant's part to be observed or performed.
3. Attornment. If Lender or any other subsequent purchaser of the Property
shall become the owner of the Property by reason of the foreclosure of the
Security Instrument or the acceptance of a deed or assignment in lieu of
foreclosure or by reason of any other enforcement of the Security Instrument
(Lender or such other purchaser being hereinafter referred as "Purchaser"), and
the conditions set forth in Section 2 above have been met at the time Purchaser
becomes owner of the Property, the Lease shall not be terminated or affected
thereby but shall continue in full force and effect as a direct lease between
Purchaser and Tenant upon all of the terms, covenants and conditions set forth
in the Lease and in that event, Tenant agrees to attorn to Purchaser and
Purchaser by virtue of such acquisition of the Property shall be deemed to have
agreed to accept such attornment, provided, however, that Purchaser shall not be
(a) liable for the failure of any prior landlord (any such prior landlord,
including Landlord, being hereinafter referred to as a "Prior Landlord") to
perform any obligations of Prior Landlord under the Lease which have accrued
prior to the date on which Purchaser shall become the owner of the Property,
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however, nothing contained herein shall excuse the Purchaser from its
obligations to remedy a continuing problem that existed prior to the time it
obtained possession or title to the property; (b) subject to any offsets,
defenses, abatements or counterclaims which shall have accrued in favor of
Tenant against any Prior Landlord prior to the date upon which Purchaser shall
become the owner of the Property, (c) liable for the return of rental security
deposits, if any, paid by Tenant to any Prior Landlord in accordance with the
Lease unless such sums are actually received by Purchaser, (d) bound by any
payment of rents, additional rents or other sums which Tenant may have paid more
than one (1) month in advance to any Prior Landlord unless (i) such sums are
actually received by Purchaser or (ii) such prepayment shall have been expressly
approved of by Purchaser or (e) bound by any agreement terminating or amending
or modifying the rent, term, commencement date or other material term of the
Lease, or any voluntary surrender of the premises demised under the Lease, made
after the date hereof and without Lender's or Purchaser's prior written consent
prior to the time Purchaser succeeded to Landlord's interest. In the event that
any liability of Purchaser does arise pursuant to this Agreement or the Lease,
such liability shall be limited and restricted to Purchaser's interest (such
interest to include rental income, proceeds from sale, and insurance and
condemnation proceeds received because of damage or destruction or condemnation
to or of the Property) in the Property and shall in no event exceed such
interest.
4. Notice to Tenant. After written notice is given to Tenant by Lender
that the Landlord is in default under the Note and the Security Instrument and
that, pursuant to the Loan Documents, the rentals under the Lease should be paid
to Lender pursuant to the terms of the assignment of leases and rents executed
and delivered by Landlord to Lender in connection therewith, Tenant shall
thereafter pay to Lender or as directed by the Lender, all rentals and all other
monies due or to become due to Landlord under the Lease, provided Landlord has
received a copy of such notice to Tenant, and Landlord hereby expressly
authorizes Tenant to make such payments to Lender without any obligation to
inquire further as to whether or not a default exists under the loan documents
referenced herein (provided Tenant has a reasonable belief that such written
notice is genuine and given by Lender) and hereby releases and discharges Tenant
from any liability to Landlord on account of any such payments.
5. Notice to Lender and Right to Cure. Until such time as the lien of the
Security Instrument is released, Tenant agrees that, notwithstanding any
provisions of the Lease to the contrary, no notice of termination or
cancellation thereof or of an abatement shall be effective unless Lender shall
have received notice of default giving rise to such cancellation or abatement
and shall have failed within thirty (30) days after receipt of such notice to
cure if such default can be cured by the payment of a liquidated sum, or sixty
(60) days after receipt of such notice to cure if such default is of a
non-monetary nature, provided that, if such non-monetary default cannot be cured
within such sixty (60) day period, Lender shall have an additional period (not
to exceed an additional one hundred twenty (120) days following the expiration
of such sixty (60) day period) to cure such non-monetary default so long as
Lender shall diligently commence to cure such non-monetary default within such
one hundred twenty (120) day period and shall thereafter diligently pursue any
action necessary to cure such default during such additional one hundred twenty
(120) day period. Notwithstanding the foregoing, (i) Lender shall have no
obligation to cure any such default, and (ii) the cure period extended to Lender
pursuant to this Section 5 shall be nullified in the event Lender fails to
notify Tenant of Lender's intention to
H-4
cure any Landlord default within thirty (30) days of Lender's receipt of notice
from Tenant of Landlord default.
6. Notices. All notices or other written communications hereunder shall be
deemed to have been properly given (i) upon delivery, if delivered in person or
by facsimile transmission with receipt acknowledged by the recipient thereof and
confirmed by telephone by sender, (ii) one (1) Business Day (hereinafter
defined) after having been deposited for overnight delivery with any reputable
overnight courier service, or (iii) three (3) Business Days after having been
deposited in any post office or mail depository regularly maintained by the U.S.
Postal Service and sent by registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
If to Tenant: Philadelphia Consolidated Holding Corp.
Xxx Xxxx Xxxxx - Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attention: Chief Financial Officer
If to Lender: LaSalle Ban, National Association, as
Trustee and Lead Lender
c/o Wachovia Bank, National Association, as
Administrative Agent
NC 1075
0000 Xxxxxxxx Xxxxx XXX0
Xxxxxxxxx, XX 00000-0000
Reference: LBUBS 2004-C1; Loan No. M343005076
with a copy to: LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Reference: LBUBS 2004-C1; Loan No. M343005076
or addressed as such party may from time to time designate by written notice to
the other parties. For purposes of this Section 6, the term "Business Day" shall
mean a day on which commercial banks are not authorized or required by law to
close in the state where the Property is located. Either party by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
7. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of Lender, Tenant and Purchaser and their respective successors
and assigns, including without limitation, the holder of any note secured by the
Security Instrument.
8. Governing Law. This Agreement shall be deemed to be a contract entered
into pursuant to the laws of the State where the Property is located and shall
in all respects be governed, construed, applied and enforced in accordance with
the laws of the State where the Property is located.
9. Miscellaneous. This Agreement may not be modified in any manner or
terminated except by an instrument in writing executed by the parties hereto. If
any term,
H-5
covenant or condition of this Agreement is held to be invalid, illegal or
unenforceable in any respect, this Agreement shall be construed without such
provision. This Agreement may be executed in any number of duplicate originals
and each duplicate original shall be deemed to be an original. This Agreement
may be executed in several counterparts, each of which counterparts shall be
deemed an original instrument and all of which together shall constitute a
single Agreement. The failure of any party hereto to execute this Agreement, or
any counterpart hereof, shall not relieve the other signatories from their
obligations hereunder. Whenever the context may require, any pronouns used
herein shall include the corresponding masculine, feminine or neuter forms, and
the singular form of nouns and pronouns shall include the plural and vice versa.
10. Execution. This Agreement shall only be effective if executed by, and
notarized on behalf of, all parties, and a fully executed original is delivered
to Tenant and Lender.
H-6
IN WITNESS WHEREOF, Lender and Tenant have duly executed this Agreement as
of the date first above written.
LENDER:
LaSALLE BANK NATIONAL ASSOCIATION, IN ITS CAPACITY AS
TRUSTEE FOR THE REGISTERED HOLDERS OF LB-UBS COMMERCIAL
MORTGAGE TRUST 2004-C1, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2004-C1, AND IN ITS CAPACITY AS
LEAD LENDER ON BEHALF OF (I) LUBS, INC. AS TO NOTE A-1B;
(II) XXXXXX XXXXXXX CAPITAL CAPITAL I INC., COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-TOP13,
AS TO NOTE A-2A; (III) XXXXXX XXXXXXX MORTGAGE CAPITAL
INC., AS TO NOTE A-2B; (IV) XXXXXX XXXXXXX MORTGAGE
CAPITAL INC., AS TO NOTE A-2C; (V) XXXXXX XXXXXXX
MORTGAGE CAPITAL INC., AS TO NOTE A-2D; (VI) TEACHERS
INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, AS TO NOTE
B
By: LNR Partners, Inc., a Florida corporation
Its: Special Servicer
By: ________________________________________
Name:
Title:
TENANT:
PHILADELPHIA CONSOLIDATED HOLDING CORP., a Pennsylvania
corporation
By: ________________________________________
Name:
Title:
The undersigned accepts and agrees to the provisions
of Section 4 hereof:
LANDLORD:
BALA PLAZA PROPERTY, INC.,
a Delaware corporation
By:____________________________________________
Name:
Title:
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ACKNOWLEDGMENTS
By a corporation
State of __________________ )
)
County __________________ )
On this, the __________ day of ________ , 20__ , before me
_______________________ , the undersigned officer, personally appeared
___________________ who acknowledged himself to be the _____________ of
PHILADELPHIA CONSOLIDATED HOLDING CORP., a Pennsylvania corporation, and that
he/she as such, being authorized to do so, executed, the foregoing instrument
for the purposes therein contained by signing the name of the corporation by
himself/herself as ______________________ .
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
(NOTARIAL SEAL)
_________________________
Notary Public
My Commission Expires:
X-0
XXXXX XX XXXXXXX )
)
COUNTY OF MIAMI-DADE )
BEFORE ME, a Notary Public in and for said County and State, on the date
below, personally appeared __________________, as ____________ of LNR Partners,
Inc., a Florida corporation, Special Servicer of LaSALLE BANK NATIONAL
ASSOCIATION, IN ITS CAPACITY AS TRUSTEE FOR THE REGISTERED HOLDERS OF LB-UBS
COMMERCIAL MORTGAGE TRUST 2004-C1, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2004-C1, AND IN ITS CAPACITY AS LEAD LENDER ON BEHALF OF
(I) LUBS, INC. AS TO NOTE A-1B; (II) XXXXXX XXXXXXX CAPITAL CAPITAL I INC.,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-TOP13, AS TO NOTE
A-2A; (III) XXXXXX XXXXXXX MORTGAGE CAPITAL INC., AS TO NOTE A-2B; (IV) XXXXXX
XXXXXXX MORTGAGE CAPITAL INC., AS TO NOTE A-2C; (V) XXXXXX XXXXXXX MORTGAGE
CAPITAL INC., AS TO NOTE A-2D; (VI) TEACHERS INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA, AS TO NOTE B, acting on behalf of the corporation and acknowledged
that he/she executed the foregoing instrument on behalf of said corporation.
Said person ( ) is personally known to me or ( ) has produced a driver's
license issued by _____________, a State of the United States, which is either
current or has been issued within the past five (5) years and bears a serial or
other identifying number.
IN WITNESS WHEREOF, I have affixed my notary seal this _____ day of
________, 20__.
_______________________________________
Signature of Notary Public
_______________________________________
Printed Name of Notary Public
[Notary Seal]
_______________________________________
My Commission expires:
H-9
By a corporation
State of __________________ )
)
County __________________ )
On this, the __________ day of ________ , 20__ , before me
_______________________ , the undersigned officer, personally appeared
___________________ who acknowledged himself/herself to be the _____________ of
BALA PLAZA PROPERTY, INC., a Delaware corporation, and that he/she as such,
being authorized to do so, executed, the foregoing instrument for the purposes
therein contained by signing the name of the corporation by himself/herself as
______________________ .
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
(NOTARIAL SEAL)
_______________________________________
Notary Public
My Commission Expires:
H-10
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
ONE BALA PLAZA
Block/Unit IDS: 1H/36
Parcel Numbers: 40-00-57132-00-5
The One Bala Plaza site is located at the northeast corner of St. Asaphs Road
and Belmont Avenue. The site is irregular in shape and contains a total of 18.74
gross acres (with 2.12 acres in rights-of-ways, net area is 16.62 acres).
The site has +/- 1,150 feet of frontage along the north side of St. Asaphs Road,
+/- 1,000 feet along the east side of Belmont Avenue and +/- 275 feet along the
south side of Righters Ferry Road. The average site depth off St. Asaphs Road is
400-500 feet, with about 500 feet off Belmont Avenue.
Topography is generally level, and visibility is good along St. Asaphs Road.
Visibility along Belmont Avenue and Righters Ferry Road is somewhat restricted
due to the heavily wooded nature of the frontages.
Access to the site is provided by one 50 foot wide macadam paved driveway
opposite Kings Grant Drive, at the southeast portion of the site's St. Asaphs
Road frontage. This entrance is controlled by a traffic signal, with separate
turn lanes into the site. There is no access from either Belmont Avenue or
Righters Ferry Road. Overall access is considered adequate. Kings Grant Drive
extends from the site +/- 750 feet to City Line Avenue (U.S. Route 1).
H-11
EXHIBIT I
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT - EXISTING GROUND LEASE
BALA PLAZA, INC.
(Ground Lessor)
- and -
PHILADELPHIA CONSOLIDATED HOLDING CORP.
(Tenant)
___________________________________
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
___________________________________
Dated: March 16, 2006
Location: One Bala Plaza
Bala Cynwyd, PA
County: Xxxxxxxxxx
I-1
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the
"Agreement") is made as of this 16th day of March, 2006 by and between BALA
PLAZA, INC., a Delaware corporation, having an address at Xxx Xxxx Xxxxx, Xxxxx
000, Xxxx Xxxxxx, XX 00000 ("Ground Lessor") and PHILADELPHIA CONSOLIDATED
HOLDING CORP., a Pennsylvania corporation, having an address at Xxx Xxxx Xxxxx,
Xxxxx 000, Xxxx Xxxxxx, Xxxxxxxxxxxx 00000 ("Tenant").
RECITALS:
A. Ground Lessor is the fee owner of the Property and the landlord under
that certain Ground Lease dated December 10, 2003 between Ground Lessor, as
landlord, and Landlord (as defined below), as tenant, pursuant to which Ground
Lessor leased certain property as described in Exhibit A attached hereto (the
"Property") to Landlord (together with any and all extensions, renewals,
substitutions, replacements, amendments, modifications and/or restatements
thereof, the "Ground Lease") which encumbers the leasehold estate of Landlord
(as defined below);
B. Tenant is the holder of a leasehold estate in a portion of the Property
under and pursuant to the provisions of a certain Lease dated as of March 1,
2006 between Bala Plaza Property, Inc., as landlord ("Landlord") and Tenant, as
tenant, (such Lease, as amended as set forth herein being hereinafter referred
to as the "Lease"); and
C. Tenant has agreed to subordinate the Lease to the Ground Lease and
Ground Lessor has agreed to grant non-disturbance to Tenant under the Lease on
the terms and conditions hereinafter set forth.
AGREEMENT:
For good and valuable consideration, Tenant and Ground Lessor agree as
follows:
1. Subordination. The Lease and all of the terms, covenants and provisions
thereof and all rights, remedies and options of Tenant thereunder are and shall
at all times continue to be subject and subordinate in all respects to the
leasehold estate established by the the Ground Lease, including without
limitation, all renewals, modifications, and extensions thereof; provided,
however, that nothing contained herein shall be deemed to modify or increase
Tenant's obligations under the Lease. Consent by the Landlord to any matter
requiring Landlord's consent shall be deemed the consent by Ground Lessor and no
further consents or approvals of Ground Lessor shall be required
2. Non-Disturbance. If any action or proceeding is commenced by Ground
Lessor for the termination of the Ground Lease, Tenant shall not be named as a
party therein unless such joinder shall be required by law, provided, however,
such joinder shall not (i) result in the termination of the Lease or disturb the
Tenant's possession or use of the premises demised thereunder or (ii) diminish
or affect any privileges or rights of Tenant under the Lease, including, without
limitation, any extension or renewal rights in accordance with the terms of the
Lease; provided that at the time of the termination of the Ground Lease (a) the
Lease shall be in full force and effect and (b) Tenant shall not be in default
beyond any applicable notice, grace or cure
I-2
periods under any of the terms, covenants or conditions of the Lease or of this
Agreement on Tenant's part to be observed or performed;.
3. Attornment. If Ground Lessor terminates the Ground Lease, and the
conditions set forth in Section 2 above have been met at the time Ground Lessor
terminates the Ground Lease, the Lease shall not be terminated or affected
thereby but shall continue in full force and effect as a direct lease between
Ground Lessor and Tenant upon all of the terms, covenants and conditions set
forth in the Lease and in that event, Tenant agrees to attorn to Ground Lessor
and Ground Lessor by virtue of such termination of the Ground Lease shall be
deemed to have agreed to accept such attornment, provided, however, that if
Ground Lessor is not in an affiliate of Landlord, Ground Lessor shall not be (a)
liable for the failure of any prior landlord (any such prior landlord, including
Landlord, being hereinafter referred to as a "Prior Landlord") to perform any
obligations of Prior Landlord under the Lease which have accrued prior to the
date on which Ground Lessor shall terminate the Ground Lease, however, nothing
contained herein shall excuse Ground Lessor from its obligations to remedy a
continuing problem that existed prior to the time it terminated the Ground
lease; (b) liable for the return of rental security deposits, if any, paid by
Tenant to any Prior Landlord in accordance with the Lease unless such sums are
actually received by Ground Lessor, (d) bound by any payment of rents,
additional rents or other sums which Tenant may have paid more than one (1)
month in advance to any Prior Landlord unless such sums are actually received by
Ground Lessor. In the event that any liability of Ground Lessor does arise
pursuant to this Agreement or the Lease, such liability shall be limited and
restricted to Ground Lessor's interest (such interest to include rental income,
proceeds from sale, and insurance and condemnation proceeds received because of
damage or destruction or condemnation to or of the Property) in the Property and
shall in no event exceed such interest.
4. Notice to Tenant. After written notice is given to Tenant by Ground
Lessor that the Landlord is in default under the Ground Lease and that the
rentals under the Lease should be paid to Ground Lessor pursuant to the terms of
the assignment of leases and rents executed and delivered by Landlord to Ground
Lessor in connection therewith, Tenant shall thereafter pay to Ground Lessor or
as directed by the Ground Lessor, all rentals and all other monies due or to
become due to Landlord under the Lease, and Landlord hereby expressly authorizes
Tenant to make such payments to Ground Lessor without any obligation to inquire
further as to whether or not a default exists under the Ground Lease (provided
Tenant has a reasonable belief that such written notice is genuine and given by
Ground Lessor) and hereby releases and discharges Tenant from any liability to
Landlord on account of any such payments.
5. Notices. All notices or other written communications hereunder shall be
deemed to have been properly given (i) upon delivery, if delivered in person
with receipt acknowledged by the recipient thereof, (ii) one (1) Business Day
(hereinafter defined) after having been deposited for overnight delivery with
any reputable overnight courier service, or (iii) three (3) Business Days after
having been deposited in any post office or mail depository regularly maintained
by the U.S. Postal Service and sent by registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
I-3
If to Tenant: Philadelphia Consolidated Holding Corp.
Xxx Xxxx Xxxxx - Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attention: Chief Financial Officer
If to Ground Lessor: Bala Plaza, Inc.
c/o Tishman Speyer Properties, L.P.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
with copies to: Bala Plaza, Inc.
c/o Tishman Speyer Properties, L.P.
Xxx Xxxx Xxxxx - Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attention: Property Manager
and
Tishman Speyer Properties, L.P.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Legal Officer
or addressed as such party may from time to time designate by written notice to
the other parties. For purposes of this Section 5, the term "Business Day" shall
mean a day on which commercial banks are not authorized or required by law to
close in the state where the Property is located. Either party by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
6. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of Ground Lessor and Tenant and their respective successors and
assigns, including without limitation, the holder of any note secured by the
Ground Lease.
7. Governing Law. This Agreement shall be deemed to be a contract entered
into pursuant to the laws of the State where the Property is located and shall
in all respects be governed, construed, applied and enforced in accordance with
the laws of the State where the Property is located.
8. Miscellaneous. This Agreement may not be modified in any manner or
terminated except by an instrument in writing executed by the parties hereto. If
any term, covenant or condition of this Agreement is held to be invalid, illegal
or unenforceable in any respect, this Agreement shall be construed without such
provision. This Agreement may be executed in any number of duplicate originals
and each duplicate original shall be deemed to be an original. This Agreement
may be executed in several counterparts, each of which counterparts shall be
deemed an original instrument and all of which together shall constitute a
single Agreement. Whenever the context may require, any pronouns used herein
shall include
I-4
the corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice versa.
9. Execution. This Agreement shall only be effective if executed by all
parties, and a fully executed original is delivered to Tenant.
IN WITNESS WHEREOF, Ground Lessor and Tenant have duly executed this
Agreement as of the date first above written.
GROUND LESSOR:
BALA PLAZA, INC.,
a Delaware corporation
By: XXXXX XXXXXXXX
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice President
TENANT:
PHILADELPHIA CONSOLIDATED HOLDING CORP.,
a Pennsylvania corporation
By: XXXXX X. XXXXXXX, XX.
____________________________________
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Pres./CEO
The undersigned accepts and agrees
to the provisions of Section 4 hereof:
LANDLORD:
BALA PLAZA PROPERTY, INC.,
a Delaware corporation
By: XXXXX XXXXXXXX
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice President
I-5
ACKNOWLEDGMENTS
[FORM OF CORPORATION ACKNOWLEDGMENT - NEED ONE FOR EACH PARTY]
STATE OF PA :
: SS
COUNTY OF XXXXXXXXXX:
On this 15 day of March, 2006, before me, a notary public, the undersigned
officer, personally appeared Xxxxx X. Xxxxxxx, Xx., who acknowledged himself
(herself) to be the President & CEO of Philadelphia Consolidated, a corporation,
and that he (she), as such President & CEO, being authorized to do so, executed
the foregoing instrument for the purposes therein contained, by signing the name
of the corporation.
In witness whereof, I hereunto set my hand and official seal.
(NOTARIAL SEAL)
Xxx X. Xxxxx
_________________________________
Notary Public
My Commission Expires: October 13, 2007
I-6
ACKNOWLEDGMENTS
[FORM OF CORPORATION ACKNOWLEDGMENT -- NEED ONE FOR EACH PARTY]
STATE OF New York :
: SS
COUNTY OF New York :
On this 16 day of March, 2006, before me, a notary public, the undersigned
officer, personally appeared Xxxxx Xxxxxxxx, who acknowledged himself (herself)
to be the Vice President of Bala Plaza Property, Inc., a corporation, and that
he (she), as such VP, being authorized to do so, executed the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation.
In witness whereof, I hereunto set my hand and official seal.
(NOTARIAL SEAL)
Xxxxx X.Xxxxxxx
Notary Public
My Commission Expires: March 22, 2007
ACKNOWLEDGMENTS
[FORM OF CORPORATION ACKNOWLEDGMENT -- NEED ONE FOR EACH PARTY]
STATE OF New York :
: SS
COUNTY OF New York :
On this 16 day of March, 2006, before me, a notary public, the undersigned
officer, personally appeared Xxxxx Xxxxxxxx, who acknowledged himself (herself)
to be the Vice President of Bala Plaza, Inc., a corporation, and that he (she),
as such VP, being authorized to do so, executed the foregoing instrument for the
purposes therein contained, by signing the name of the corporation.
In witness whereof, I hereunto set my hand and official seal.
(NOTARIAL SEAL)
Xxxxx X.Xxxxxxx
Notary Public
My Commission Expires: March 22, 2007
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
One Bala Plaza
Block/Unit IDS: 1H/36
Parcel Numbers: 40-00-57132-00-5
The One Bala Plaza site is located at the northeast corner of St. Asaphs Road
and Belmont Avenue. The site is irregular in shape and contains a total of 18.74
gross acres (with 2.12 acres in rights-of-ways, net area is 16.62 acres).
The site has +/- 1,150 feet of frontage along the north side of St. Asaphs Road,
+/- 1,000 feet along the east side of Belmont Avenue and +/- 275 feet along the
south side of Righters Ferry Road. The average site depth off St. Asaphs Road is
400-500 feet, with about 500 feet off Belmont Avenue.
Topography is generally level, and visibility is good along St. Asaphs Road.
Visibility along Belmont Avenue and Righters Ferry Road is somewhat restricted
due to the heavily wooded nature of the frontages.
Access to the site is provided by one 50 foot wide macadam paved driveway
opposite Kings Grant Drive, at the southeast portion of the site's St. Asaphs
Road frontage. This entrance is controlled by a traffic signal, with separate
turn lanes into the site. There is no access from either Belmont Avenue or
Righters Ferry Road. Overall access is considered adequate. Kings Grant Drive
extends from the site +/- 750 feet to City Line Avenue (U.S. Route 1).
I-7
RIDER ONE
ADDITIONAL PROVISIONS
R1-A EXISTING LEASE
Effective as of 11:59 p.m. on February 28, 2006, Tenant and Landlord
hereby terminate the Lease dated as of August, 1995 (as amended, most recently
pursuant to the Seventh Amendment to Lease dated March 3, 2005, the "EXISTING
LEASE") between Landlord and Tenant and covering the Premises. Landlord and
Tenant hereby expressly agree that the provisions of Article 5 of the Existing
Lease, governing post expiration or termination adjustments for additional rent
payable by Tenant on account of increases in "Real Estate Taxes" and "Operation
and Maintenance Costs" for each "Comparison Year" (as each such term is defined
in the Existing Lease), shall apply with respect to the period from January 1,
2006 through February 28, 2006.
R1-B IMPROVEMENTS TO THE PREMISES
(A) Improvements to the Existing Premises. At Landlord's expense, subject
to the payment by Tenant of Tenant's Contribution in accordance with the
provisions of Section (F) of this Rider R1-B, Landlord agrees to make
improvements ("LANDLORD'S EXISTING PREMISES IMPROVEMENTS") in and to the
Existing Premises in accordance with (i) Landlord's detailed budget drawings
dated March 3, 2006, copies of which are attached hereto as Exhibit A-6
("DETAILED BUDGET DRAWINGS") which were prepared by Landlord's architect (the
"ARCHITECT") and approved by Landlord and Tenant, (ii) final plans and
specifications (the "EXISTING PREMISES PLANS AND SPECIFICATIONS") based upon and
conforming to the Detailed Budget Drawings, which shall be prepared by the
Architect and subject to approval by Landlord and Tenant, which shall not be
unreasonably withheld, conditioned or delayed by either of them, and (iii)
mechanical, electrical and plumbing plans to be prepared based upon the Existing
Premises Plans and Specifications and subject to approval by Landlord and
Tenant, which shall not be unreasonably withheld, conditioned or delayed by
either of them ("EXISTING PREMISES MEP PLANS").
(B) Improvements to the Additional Second Floor Space. At Landlord's
expense, subject to the payment by Tenant of Tenant's Contribution in accordance
with the provisions of Section (F) of this Rider R1-B, Landlord agrees to make
improvements ("LANDLORD'S ADDITIONAL SECOND FLOOR SPACE IMPROVEMENTS") in and to
the Additional Second Floor Space in accordance with (i) the Detailed Budget
Drawings, (ii) final plans and specifications (the "ADDITIONAL SECOND FLOOR
SPACE PLANS AND SPECIFICATIONS") based upon and conforming to the Detailed
Budget Drawings, which shall be prepared by the Architect and subject to
approval by Landlord and Tenant, which shall not be unreasonably withheld,
conditioned or delayed by either of them, and (iii) mechanical, electrical and
plumbing plans to be prepared based upon the Additional Second Floor Space Plans
and Specifications and subject to approval by Landlord and Tenant, which shall
not be unreasonably withheld, conditioned or delayed by either of them
("ADDITIONAL SECOND FLOOR SPACE MEP PLANS").
(C) Improvements to the Additional Third Floor Space. At Landlord's
expense, subject to the payment by Tenant of Tenant's Contribution in accordance
with the provisions of
Rider R1 - 1
Section (F) of this Rider R1-B, Landlord agrees to make improvements
("LANDLORD'S ADDITIONAL THIRD FLOOR SPACE IMPROVEMENTS") in and to the
Additional Third Floor Space in accordance with (i) the Detailed Budget
Drawings, (ii) final plans and specifications (the "ADDITIONAL THIRD FLOOR SPACE
PLANS AND SPECIFICATIONS") based upon and conforming to the Detailed Budget
Drawings, which shall be prepared by the Architect and subject to approval by
Landlord and Tenant, which shall not be unreasonably withheld, conditioned or
delayed by either of them, and (iii) mechanical, electrical and plumbing plans
to be prepared based upon the Additional Third Floor Space Plans and
Specifications and subject to approval by Landlord and Tenant, which shall not
be unreasonably withheld, conditioned or delayed by either of them ("ADDITIONAL
THIRD FLOOR SPACE MEP PLANS").
(D) Certain Defined Terms. As used herein, the following terms shall have
the respective meanings assigned to them below:
(i) "IMPROVEMENTS" shall mean the Existing Premises Improvements,
the Additional Second Floor Space Improvements or the Additional Third
Floor Space Improvements, as applicable.
(ii) "PLANS AND SPECIFICATIONS" shall mean the Existing Premises
Plans and Specifications, the Additional Second Floor Space Plans and
Specifications or the Additional Third Floor Space Plans and
Specifications, as applicable.
(iii) "MEP PLANS" shall mean Existing Premises MEP Plans, Additional
Second Floor Space MEP Plans or Additional Third Floor Space MEP Plans, as
applicable.
(E) No Funding of Work by Tenant. No portion of Tenant's Contribution
shall be used to pay for any costs or expenses related to any work performed by
Tenant in any portion of the Existing Premises, Additional Second Floor Space or
Additional Third Floor Space.
(F) Payment of Tenant's Contribution. Tenant shall pay Tenant's
Contribution to Landlord in nine (9) equal monthly installments during the
construction of the Improvements. Each such installment shall be payable within
thirty (30) days after Tenant's receipt of an invoice therefor from Landlord.
The first installment shall be invoiced by Landlord upon its commencement of any
of the Improvements.
(G) Preparation, Review or Approval by Landlord or Tenant Not a
Representation or Warranty. Neither the preparation of the Plans and
Specifications by the Architect, nor the review or approval of the Plans and
Specifications and/or MEP Plans by Landlord or Tenant constitutes a
representation or warranty by Landlord or Tenant that such plans either (i) are
complete or suitable for their intended purpose, or (ii) comply with applicable
laws, rules, regulations, code or ordinances; it being expressly agreed by
Landlord and Tenant that neither Landlord nor Tenant assume any responsibility
or liability whatsoever to the other party or to any other person or entity for
such completeness or suitability. The foregoing shall not be deemed to modify or
override any of the respective obligations of Landlord and Tenant set forth
elsewhere in this Lease including, without limitation, those set forth in
Article 8.
Rider R1 - 2
(H) Changes. If Tenant requests any changes to the Plans and
Specifications, Landlord shall not unreasonably withhold its consent to any such
changes, provided the changes do not adversely affect the Building's structure,
Building systems, equipment, appearance or value, but, if such changes increase
the cost of constructing the Improvements shown on the Plans and Specifications,
Tenant shall bear such costs and shall pay such estimated increased costs to
Landlord within 10 days of receipt of an invoice therefor at such time as the
request is approved by Landlord. If the actual increased costs are greater than
the estimated increased costs, Tenant shall pay the difference in increased
costs to Landlord within 30 days of an invoice promptly upon demand therefor.
The costs charged by Landlord to Tenant caused by Tenant's requesting changes to
Improvements or the Plans and Specifications shall be equal to the sum of (i)
the amount of money Landlord has to pay to cause Improvements, as reflected by
revised Plans and Specifications, to be constructed above the costs that
Landlord would have had to pay to cause Improvements to be constructed if no
changes had been made to the Plans and Specifications ("DIFFERENTIAL"), (ii) any
cancellation fees, reshipping charges or any other similar costs incurred by
Landlord in connection therewith, and (iii) an amount equal to 1.25% of the
Differential to compensate Landlord for its time and effort in connection with
such changes. If such changes delay Landlord's completion of Improvements shown
on the Plans and Specifications, then such delay shall constitute a Tenant
Delay. Any other actions of Tenant, or inaction by Tenant, which delays Landlord
in completing Improvements shown on such Plans and Specifications shall also
constitute a Tenant Delay. Whenever possible and practical, Landlord will
utilize, for the construction of Improvements, the items and materials
designated in the Plans and Specifications; provided, however, that whenever
Landlord reasonably determines in its judgment that it is not practical or
efficient to use such materials, Landlord shall have the right to substitute
comparable items and materials (or of better quality if no such comparable item
exists or is readily obtainable; at no time shall Tenant be required to accept
an inferior substitute because of the unavailability of the item specified). If
Tenant refuses to grant such consent, and Landlord is reasonably delayed in
causing the applicable portion of the Existing Premises, Additional Second Floor
Space or Additional Third Floor Space, or any part thereof, to be Substantially
Complete because of Tenant's failure to permit the substitution of comparable
items and materials (or of better quality if no such comparable item exists or
is readily available), such delay shall constitute a Tenant Delay.
(I) Tenant's Construction Agent. Tenant hereby designates Xxxxxx Xxxxxx as
its authorized agent ("TENANT'S CONSTRUCTION AGENT") for the purpose of
submitting to Landlord and authorizing any change orders and for the purpose of
consulting with Landlord as to any and all aspects of Improvements. Tenant's
Construction Agent shall have the right to inspect the Existing Premises,
Additional Second Floor Space and Additional Third Floor Space during the course
of Improvements provided Tenant's Construction Agent shall make a prior
appointment with Landlord and/or its contractor at a mutually convenient time.
(J) [Intentionally Omitted].
(K) No Entrance During Construction. Neither Tenant, nor any of its
employees, consultants, agents, contractors, representatives or invitees shall
enter the Additional Second Floor Space or Additional Third Floor Space, as
applicable, during the performance of Improvements in such space. If Tenant or
any of its employees, consultants, agents, contractors, representatives or
invitees enters upon the Additional Second Floor Space or Additional Third
Rider R1 - 3
Floor Space, as applicable, prior to the completion of Improvements in such
space, Tenant shall indemnify and save Landlord harmless from and against any
and all losses, liabilities, damages, claims, judgments, fines, suits, demands,
costs, interest and expenses of any kind or nature (including reasonable
attorneys' fees and disbursements) arising from or claimed to arise as a result
of (i) any act, neglect or failure to act of Tenant or anyone entering such
space with Tenant's permission, or (ii) any other reason whatsoever arising out
of Tenant's entry upon such space.
(L) Tenant's Possession of Existing Premises During Construction. Because
Tenant will be in possession of the Existing Premises during the construction of
any Improvements in the Existing Premises, Tenant agrees that (i) Tenant shall
not interfere with the execution and performance of any such Improvements, and
(ii) Tenant will take all reasonable steps requested by Landlord or its
contractor(s) to provide working areas within the Existing Premises required by
Landlord or its contractors, so the construction of the Improvements thereto
will not be delayed or made more costly by the presence of Tenant's personnel in
the Existing Premises. Notwithstanding anything to the contrary contained in the
Lease, in no event shall Landlord's entry upon the Existing Premises for the
purposes of performing Improvements be deemed to be an eviction, actual or
constructive, of Tenant from the Existing Premises or any portion thereof, nor
shall anything contained in this Rider R1-B or any action of Landlord in
accordance herewith relieve or excuse Tenant from its obligations and duties
under this Lease, including without limitation Tenant's obligation to pay Rent
pursuant to this Lease.
(M) Tenant's Personal Property. Tenant hereby assumes all risk to Tenant's
furniture, fixtures, furnishings, fittings apparatus, appliances, machinery,
equipment, supplies, inventory and personal property of any kind and nature
whatsoever (collectively, "TENANT'S PERSONAL PROPERTY") arising in connection
with the performance of any Improvements, except to the extent caused by the
gross negligence or willful misconduct of Landlord, its agents, employees or
contractors. Tenant hereby releases Landlord, its agents, employees and
contractors, from and against any claim, loss, cost or liability for damage to
Tenant's Personal Property or for injury to any persons resulting or claimed to
have resulted in connection with the performance of any Improvements, except to
the extent caused by the gross negligence or willful misconduct of Landlord, its
agents, employees or contractors. In accordance with the foregoing, Tenant shall
(i) obtain property and liability insurance, or confirm that its current
insurance policies are effective, against such risks in the amounts required
under the Lease, and Tenant shall provide Landlord with evidence of such
insurance prior to the commencement of any Improvements, which insurance
policies shall include a waiver of subrogation in favor of Landlord whereby
Tenant and its insurer(s) each waive any right of recovery against Landlord for
any loss or damage suffered in connection with the performance of Improvements,
whether or not such loss or damage is caused by the fault or negligence of
Landlord, and (ii) indemnify and hold harmless Landlord, its agents, employees
and contractors from any claim, loss cost or liability for damage to Tenant's
Personal Property or for injury to any persons resulting or claimed to have
resulted in connection with the performance of any Improvements.
R1-C OPTION TO EXTEND TERM
Provided and upon the condition that at the time Tenant exercises its
right and option (described below) to extend the Term and immediately prior to
the commencement date of the
Rider R1 - 4
extension term, the Lease shall be in full force and effect and no "Event of
Default" as defined in Section 15.1 shall have occurred and be continuing,
Tenant shall have the right and option, exercisable by giving Landlord prior
written notice thereof on or before the date which is 18 months prior to the
scheduled Expiration Date, to extend the Term of this Lease for one extension
term of five years, commencing on the day immediately following the scheduled
Expiration Date and expiring on the fifth anniversary of the scheduled
Expiration Date, at an annual Fixed Rent (expressed as an annual amount per
square foot of the total rentable square feet of the Premises) equal to the
current Fair Market Rent (defined below) as of the commencement date of the
extension term, but otherwise upon the same terms, conditions and provisions
contained in this Lease, including without limitation the obligation of Tenant
to pay Additional Rent in respect of Taxes and Operating Expenses under Articles
1 and 7 of this Lease (except that (A) Landlord shall have no obligation to
perform any improvements to the Premises or provide any contribution therefor,
(B) there shall be no waiver or abatement of Rent, and (C) there shall be no
further right and option to extend). The Fair Market Rent shall mean the annual
base rent, per square foot (with a tenant to pay additional rent of the same
types described in Articles 1 and 7 of this Lease), for a lease term equivalent
to the extension term, at which landlords are leasing comparable office space in
Comparable Buildings (with appropriate adjustments to take account of variations
in location, size and tenant fit-up costs undertaken by such landlords).
R1-D REIMBURSEMENT ALLOWANCE
(A) Pursuant to the Sixth Amendment to Lease dated October 23, 2004
("Sixth Amendment") between Landlord and Tenant, which amended the Existing
Lease, Landlord agreed to reimburse Tenant for the actual amount of "Improvement
Costs" (as defined in the Sixth Amendment) paid by Tenant in excess of
"Landlord's Contribution" (as defined in the Sixth Amendment) up to a maximum
amount of $243,540 if Landlord and Tenant entered into an extension of the
Existing Lease of at least six years at mutually acceptable rents. Landlord and
Tenant agree that this Lease satisfies the conditions to Landlord's
reimbursement obligation under the Sixth Amendment and that Landlord's
reimbursement obligation under the Sixth Amendment is $243,540. However, in
consideration of Landlord's agreement under Rider R1-B to perform the
Improvements at Landlord's expense (subject to the payment by Tenant of Tenant's
Contribution in accordance with the provisions of Section (F) of Rider R1-B),
Tenant hereby releases Landlord from its obligation to pay Tenant the aforesaid
$243,540.
(B) Pursuant to the Seventh Amendment to Lease dated May 3, 2005 ("Seventh
Amendment") between Landlord and Tenant, which amended the Existing Lease,
Landlord agreed to reimburse Tenant for the actual amount of "Improvement Costs"
(as defined in the Seventh Amendment) paid by Tenant in excess of "Landlord's
Contribution" (as defined in the Seventh Amendment) up to a maximum amount of
$107,385 if Landlord and Tenant entered into an extension of the Existing Lease
of at least six years at mutually acceptable rents. Landlord and Tenant agree
that this Lease satisfies the conditions to Landlord's reimbursement obligation
under the Seventh Amendment and that Landlord's reimbursement obligation under
the Seventh Amendment is $107,385. However, in consideration of Landlord's
agreement under Rider R1-B to perform the Improvements at Landlord's expense
(subject to the payment by Tenant of Tenant's Contribution in accordance with
the provisions of Section (F) of Rider R1-B), Tenant hereby releases Landlord
from its obligation to pay Tenant the aforesaid $107,385.
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R1-E LANDLORD HVAC
At its sole cost and expense, Landlord shall engineer and make
modifications to the existing heating, ventilating and air conditioning systems
serving the Premises (excluding the Surrender Space, if Tenant exercises its
right to surrender and vacate the Surrender Space, but including the Surrender
Space if Tenant does not exercise such right) that are required to maintain the
temperature in the Premises: (a) between 72 to 75 degrees F during the cooling
season when outdoor temperatures are at 92 degrees F dry bulb and 75 degrees F
wet bulb per ASHRAE Standards and based upon the following conditions in the
Premises: one person per 125 rentable square feet and a lighting and equipment
load of 4 xxxxx per square foot, with window blinds drawn down to block direct
sun light; and (b) between 70 to 73 degrees F during the heating season when
outdoor temperature is at 10 degrees F per ASHRAE Standards. Such engineering
and modification work is referred to herein as "LANDLORD'S HVAC WORK." Landlord
shall complete Landlord's HVAC Work on or before June 30, 2007 with respect to
the Existing Premises (excluding the Surrender Space, if Tenant exercises its
right to surrender and vacate the Surrender Space, but including the Surrender
Space if Tenant does not exercise such right), on or before the Additional
Second Floor Space Commencement Date with respect to Additional Second Floor
Space and on or before the Additional Third Floor Space Commencement Date with
respect to Additional Third Floor Space.
Landlord's HVAC Work may include such items as: reducing the larger zones
and larger reheats into smaller zones with smaller reheats as to obtain more
localized control, improving duct work layout for better air flow, calibrating
or replacing thermostats, enhancing of the Building Management System as to read
more data points for quicker equipment response, address distressed duct
insulation and turning vanes, address induction units by cleaning coils and
nozzles and calibrating thermostats, balance air flow at the air handling unit
on to the floor and to the Premises.
In its performance of Landlord's HVAC Work, Landlord shall use
commercially reasonable efforts to minimize any interference with Tenant's use
and occupancy of the Existing Premises, it being understood and agreed that
(without limiting the foregoing) such work shall be performed outside of
Tenant's customary business hours of 9:00 a.m. to 5:00 p.m., Philadelphia time
on Mondays through Fridays (excluding holidays).
Because Tenant will be in possession of the Existing Premises during the
execution and performance of Landlord's HVAC Work but subject to Landlord's
obligation to perform the HVAC Work in accordance with the preceding paragraph,
Tenant agrees that (i) Tenant shall use commercially reasonable efforts not to
interfere with the execution and performance of Landlord's HVAC Work, and (ii)
Tenant shall take all reasonable steps requested by Landlord or its
contractor(s) to provide working areas within the Existing Premises required by
Landlord or its contractors, so the execution and performance of Landlord's HVAC
Work will not be delayed or made more costly by the presence of Tenant's
personnel in the Existing Premises.
R1-F IMPROVEMENTS TO THIRD FLOOR RESTROOMS
During the calendar year 2006, Landlord shall, at its sole cost and
expense, renovate the Men's and Ladies Restrooms located on the third floor in
the east lobby of the Building,
Rider R1 - 6
provided that such renovations do not trigger ADA compliance issues that require
Landlord to reduce the number of toilet stalls located in, or expand the size
of, such restrooms. Such renovation work shall be under the control of Landlord
and shall be limited to the installation of new ceramic tile on the floors, new
wallcovering on the walls, new toilet partitions, new sinks and countertops, new
toilets and urinals, new lighting fixtures and painting.
R1-G BUILDING SIGN; FUTURE MONUMENT SIGN
Landlord shall at its sole cost and expense install a sign bearing
Tenant's name at a location on the Building that is reasonably acceptable to
Landlord and Tenant. The design of such sign (including size, shape, type, font
and color) shall be subject to Tenant's approval, which shall not be
unreasonably withheld. Reasonably promptly after Landlord and Tenant agree upon
the location, and design of the new sign, Landlord will apply for all necessary
governmental and other approvals for the installation and maintenance of the new
sign. Landlord will install the new sign reasonably promptly after Landlord
obtains such governmental and other approvals.
If at any time after the Effective Date Landlord erects a monument sign
for the Building (and Landlord shall be under no obligation to do so), Landlord
shall offer to Tenant the right to be the exclusive tenant named on the monument
sign. Tenant shall exercise such right within 30 days after Landlord gives
written notice to Tenant. Landlord shall have the right to determine the design
of the sign in its reasonable discretion (including size, shape, type, font and
color).
Tenant's rights under this Rider R1-G shall continue until the earlier to
occur of (a) the date that Tenant ceases to occupy at least 90,000 rentable
square feet in the Building for the conduct of its business, (b) the date that
this Lease is terminated, or (c) the Expiration Date, as the same may be
extended under Rider R1-C.
R1-H FITNESS CENTER
During the Term of this Lease, Landlord shall use commercially reasonable
efforts to maintain a fitness center in the Building that is available to
employees of Tenant for a fee.
During the 2006 calendar year, Landlord shall use commercially reasonable
efforts to plan and design, obtain consents and approvals for, and construct and
complete, at Landlord's cost and expense, the following renovations to the
existing fitness center in the Building: (a) redesign and replace the existing
interconnecting spiral staircase, (b) renovation of existing bathrooms and
locker rooms and (c) miscellaneous aesthetic design upgrade. The consent and
approval of the tenant of the Building that operates such fitness center and of
each subtenant of such tenant, are conditions to Landlord's obligations under
this Rider R1-H.
R1-I DELICATESSEN
During the Term of this Lease, Landlord shall use commercially reasonable
efforts to maintain a delicatessen in the Building that is open to the public.
R1-J CONDITIONS TO EFFECTIVENESS
Rider R1 - 7
(A) Landlord and Tenant expressly agree that their respective rights and
obligations under this Lease with respect to that portion of the Additional
Second Floor Space that is comprised of 1,699 rentable square feet of space that
is known as Suite 215 and currently leased by Landlord to and occupied by
Synerfac are subject to and conditioned upon Synerfac and all persons claiming
any rights by or through Synerfac vacating and surrendering such portion of the
Additional Second Floor Space to Landlord before, on or after June 18, 2006, the
scheduled expiration date of Synerfac's lease covering such space.
(B) Landlord and Tenant expressly agree that their respective rights and
obligations under this Lease with respect to the Additional Third Floor Space,
which is currently leased by Landlord to United States Postal Service ("USPS"),
are subject to and conditioned upon USPS and all persons claiming any rights by
or through USPS vacating and surrendering the Additional Third Floor Space to
Landlord before, on or after March 31, 2006, the current scheduled date for
USPS's move from such space.
(C) Landlord shall use commercially reasonable efforts to cause the
conditions described in this Rider R1-J to be satisfied as soon as reasonably
practicable.
R1-K RIGHT OF FIRST OFFER
Landlord hereby grants to Tenant the right of first offer to add to the
Premises the First Offer Space (defined below) upon the terms, conditions and
provisions ("Right of First Offer") set forth below in this Rider R1-K. As used
herein, the "First Offer Space" shall mean, as applicable, any of the following
space in the Building which shall become available for lease during the Term:
(i) 10,642 rentable square feet of space on the third floor of the Building that
is currently occupied by Greater Philadelphia Radio and is shown outlined and
hatched in black on the Floor Plan attached to and made a part of this Lease as
Exhibit A-5, (ii) 12,494 rentable square feet of space on the fourth floor of
the Building that is currently occupied by Greater Philadelphia Radio and is
shown outlined and hatched in black on the Floor Plan attached to and made a
part of this Lease as Exhibit A-5, and (iii) 7,264 rentable square feet of space
on the fourth floor of the Building that is currently occupied by Greater Boston
Radio and is shown outlined and hatched in black on the Floor Plan attached to
and made a part of this Lease as Exhibit A-5. Notwithstanding the foregoing, the
First Offer Space shall not be available for lease for this purpose if (x) a
tenant occupying such space wishes to renew or extend its lease for such space,
or to enter into a new lease for such space, whether or not pursuant to a right
to do so, (y) such space is subject to an expansion option, right of first
refusal or right of first offer or similar right as of the Effective Date (but
in such case such space shall be "available for lease" if such prior right
expires unexercised) or (z) such space is subject to an expansion option, right
of first refusal or right of first offer hereafter given in a lease provided the
space leased pursuant to such lease was offered to Tenant with the attendant
right of expansion, first refusal or first offer and Tenant did not timely
exercise its right of first offer.
(a) Landlord shall give Tenant written notice when Landlord is about
to begin negotiations to lease all or any one or more of the three portions of
the First Offer Space described in clauses (i) through (iii) in the preceding
paragraph (the entire First Offer Space or such portion(s) of the First Offer
Space, as applicable, is referred to below in this Rider R1-K as the "First
Offer Space" for ease of reference); and in order to validly exercise the Right
of First
Rider R1 - 8
offer, Landlord must receive written notice of exercise from Tenant within 20
days after the date of Landlord's notice;
(b) Subject to the conditions set forth in this Rider R1-K,
effective on the 30th day after the date that Landlord tenders possession of the
First Offer Space to Tenant (the "First Offer Space Commencement Date"):
(i) Landlord shall lease, demise and let unto Tenant the First
Offer Space and Tenant shall take and hire the First Offer Space for the period
commencing on the First Offer Space Commencement Date and terminating on the
Expiration Date, pursuant to an amendment to this Lease, in form mutually
acceptable to Landlord and Tenant and to be executed and delivered by Landlord
and Tenant prior to the First Offer Space Commencement Date, containing terms,
conditions and provisions consistent with those set forth in this Rider R1-K
(the "First Offer Space Amendment");
(ii) Landlord shall, at Landlord's sole cost and expense, up
to a maximum equal to the product determined by multiplying (1) $.26 per
rentable square foot by (2) the number of full calendar months between the First
Offer Space Commencement Date and the Expiration Date (the "Landlord's First
Offer Space Contribution"), construct and complete such improvements to the
First Offer Space that are mutually agreed upon by Landlord and Tenant. Such
improvements to be constructed by Landlord shall be described in plans and
specifications to be prepared by Tenant and approved by Landlord (such approval
not to be unreasonably withheld). Landlord's First Offer Space Contribution
shall cover (A) construction, design and engineering costs and fees (other than
any such costs or fees related to wiring or cabling), including without
limitation, the cost of preparing the plans and specifications and the
mechanical and engineering drawings, (B) labor and materials, (C) construction
permits, (D) the cost of installing the suite numbers and identification sign(s)
for Tenant on the exterior of the doors to the First Offer Space, (E) reasonable
overhead and (F) a 1.25% construction management fee on all of the foregoing
(collectively "First Offer Space Improvement Costs"). Any part of Landlord's
First Offer Space Contribution not spent by the expiration date of the
three-month period commencing on the First Offer Space Commencement Date shall
be forfeited and Tenant shall have no right to such unused Landlord's First
Offer Space Contribution. In the event the improvements made to the First Offer
Space exceed the sum of Landlord's First Offer Space Contribution, Tenant shall
pay to Landlord an amount equal to the entire amount of the excess, in a lump
sum, within thirty (30) days after Landlord's billing therefor. In the event the
First Offer Space Improvement Costs are less than the sum of Landlord's First
Offer Space Contribution, Tenant shall not be entitled to any credit or payment
of any type whatsoever. No portion of Landlord's First Offer Space Contribution
shall be used to pay for any costs or expenses related to any work performed by
Tenant in any portion of the Premises;
(iii) Except as set forth in the preceding clause (ii), Tenant
shall accept the First Offer Space in its AS-IS condition as of the First Offer
Space Commencement Date, and Landlord shall have no obligation to make any
alterations or improvements to the First Offer Space for or during the period
commencing on the First Offer Space Commencement Date and ending on the
Expiration Date;
Rider R1 - 9
(iv) The First Offer Space shall be (A) added to the Premises
and (B) governed by all of the provisions of this Lease, as amended pursuant to
the First Offer Space Amendment;
(v) Tenant shall pay Landlord annual Fixed Rent for the First
Offer Space (expressed as an annual amount per square foot of the total rentable
square feet of the First Offer Space) equal to the amount stated by Landlord in
Landlord's offer notice as the annual Fixed Rent;
(vi) Tenant shall pay Additional Rent with respect to the
First Offer Space in the amounts and on the basis set forth in Landlord's offer
notice as the Additional Rent;
(c) If the First Offer Space is not ready for Tenant's occupancy on
the date anticipated by the parties because of the failure or refusal of the
then present occupant of the First Offer Space to vacate and surrender up the
same, or because of any restrictions, limitations or delays caused by
Governmental Authority, Tenant shall not be entitled to make any claim for or
receive any damages whatsoever from Landlord;
(d) The Right of First Offer afforded to Tenant by this Rider R1-K
shall not be exercisable by or available to Tenant, nor shall Landlord be
obligated to give Tenant the offer notice described in paragraph (a) of this
Rider R1-K before leasing all or part of the First Offer Space to a third party,
if at any time during the Term of this Lease when such right would otherwise be
exercised by or available to Tenant, or the offer notice be required to be made
by Landlord, an "Event of Default" as defined in Section 15.1 shall have
occurred and be continuing; and
(e) If Tenant does not exercise its rights to lease the First Offer
Space in accordance with the provisions of this Rider R1-K, then Landlord shall
be released of any obligation to offer to Tenant the right to lease the First
Offer Space and Landlord shall have the unrestricted right to lease the First
Offer Space to any person or entity for such rent and upon such other terms as
Landlord shall determine in its sole discretion, except that (i) if Landlord
shall wish to enter into any lease of such First Offer Space for Fixed Rent
which is less than 90% of the Fixed Rent last offered to Tenant, or for
Additional Rent materially less than that last offered to Tenant, then Landlord
shall first offer such First Offer Space to Tenant on these more favorable
terms, and Tenant shall be entitled to accept such offer by written notice given
within five (5) Business Days following Tenant's receipt of such offer, and (ii)
if Landlord shall not have entered into a lease with a third party within twelve
(12) months after last offering the space in question to Tenant, then Landlord
shall have an obligation to offer to Tenant the right to lease such First Offer
Space one more time. If Landlord does so and Tenant does not exercise its rights
to lease such First Offer Space in accordance with the provisions of this Rider
R1-K, then Landlord shall be released of any obligation to offer to Tenant the
right to lease such First Offer Space and Landlord shall have the unrestricted
right to lease such First Offer Space to any person or entity for such rent and
upon such other terms as Landlord shall determine in its sole discretion,
subject only to Tenant's rights under clause (i) of the first sentence in this
subsection (e) (and not subject to clause (ii) of such sentence). The first time
that Landlord leases any of the First Offer Space to a third party, Tenant's
rights under this Rider R1-K with respect to such
Rider R1 - 10
First Offer Space shall terminate and Landlord shall be released of any
obligation to offer to Tenant the right to lease such First Offer Space under
this Rider R1-X.
Xxxxx R1 - 11
