EXHIBIT 10.1
AGREEMENT OF LEASE
BETWEEN
FV OFFICE PARTNERS, L.P.
AND
INTERNET CAPITAL GROUP OPERATIONS, INC.
A PORTION OF THE THIRD FLOOR
690 XXX ROAD
CHESTERBROOK CORPORATE CENTER(R)
TREDYFFRIN TOWNSHIP
XXXXXXX COUNTY
PENNSYLVANIA
TABLE OF CONTENTS
PAGE
1. Parties.................................................................... 1
2. Demise..................................................................... 1
3. Term....................................................................... 1
4. Fixed Rent; Tenant Energy Costs; Annual Operating Costs; Lease Taxes....... 3
5. Covenant to Pay Rent and Additional Rent; Late Charge...................... 8
6. Use........................................................................ 8
7. Assignment and Subletting.................................................. 9
8. Improvement of the Premises................................................ 11
9. Alterations................................................................ 12
10. Rules and Regulations...................................................... 13
11. Fire or Other Casualty..................................................... 13
12. Landlord's Right to Enter.................................................. 14
13. Insurance.................................................................. 14
14. Repairs and Condition of Premises.......................................... 15
15. Compliance with Law........................................................ 15
16. Services................................................................... 15
17. Notice of Breakage, Fire, Theft............................................ 18
18. Release of Landlord........................................................ 18
19. Mechanics' and Other Liens................................................. 18
20. Relocation of Tenant. [Intentionally Omitted].............................. 19
21. Defaults - Remedies........................................................ 20
22. Remedies Cumulative........................................................ 23
23. Excepted from Premises..................................................... 23
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PAGE
24. Lease Subordinated......................................................... 23
25. Condemnation............................................................... 24
26. Paramount Lease............................................................ 25
27. Notices.................................................................... 25
28. Definition of "the Landlord"............................................... 26
29. Definition of "the Tenant"................................................. 26
30. Estoppel Certificate; Mortgagee Lease Comments............................. 27
31. Severability............................................................... 28
32. Miscellaneous.............................................................. 28
33. Brokers.................................................................... 29
34. Security Deposit........................................................... 29
35. Quiet Enjoyment............................................................ 29
36. Rights of Mortgage Holder.................................................. 29
37. Extension Option........................................................... 29
38. Whole Agreement............................................................ 30
Exhibits
"A" - Floor Plan
"B" - Description of the Land
"C" - MEMORANDUM OF COMMENCEMENT DATE
"D" - Space Plan
"E" - Standard Tenant Work
"F" - Cleaning Specifications
"G" - RULES AND REGULATIONS
"H" - FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
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AGREEMENT OF LEASE
1. PARTIES.
This Lease is made this 30th day of June, 2003, by and between
FV OFFICE PARTNERS, L.P., a limited partnership organized and existing under the
laws of Delaware, whose address is Xxxxx 000, 000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx,
XX 00000 (hereafter called "Landlord"), and INTERNET CAPITAL GROUP OPERATIONS,
INC., a corporation organized and existing under the laws of the state of
Delaware whose present address is 000 Xxxxx Xxxx Xxxxx, Xxxxxxxx 000, Xxxxx, XX
00000 (hereinafter referred to as "Tenant").
It is hereby agreed by and between Landlord and Tenant, intending to be legally
bound, for themselves and for their respective successors and assigns, in the
manner following, it being understood that the Premises are demised under and
subject to the following covenants, all of which are also to be regarded as
strict legal conditions:
2. DEMISE.
Landlord does hereby lease and demise to Tenant and Tenant
does hereby hire and take from Landlord, for the term and subject to the
provisions hereof, the Premises (the "Premises") shown cross-hatched on the
floor plan(s) (the "Floor Plans") attached hereto as Exhibit "A," on the third
floor of the building (hereinafter referred to as the "Building") known as 000
Xxx Xxxx, Xxxxxxxxxxxx, XX 00000, occupying or to occupy the parcel of land
bounded as described on Exhibit "B" attached hereto (the "Land"). The Building
and Land are sometimes collectively referred to in this Lease as the "Property".
3. TERM.
(a) This demise shall be for the term (hereinafter
referred to as "the Term") beginning on the "Commencement Date" of the Term as
defined in Article 3(b) of this Lease and ending, without the necessity of
notice from either party to the other, five (5) years and eight (8) months from
and after the Commencement Date if the Commencement Date shall be the first day
of a month, if the Commencement Date shall be other than the first day of the
month, then from and after the first day of the month next following the
Commencement Date. The date upon which the Term expires is hereinafter referred
to as the "Expiration Date".
(b) The Term shall commence on the earlier of
(i) the date the Premises are ready for
occupancy;
(ii) the date Tenant or anyone claiming under or
through Tenant first occupies any part of the Premises (the "Commencement
Date"); or
(iii) November 1, 2003.
The Premises shall be deemed ready for occupancy on
the date the work to be performed by Landlord in the Premises in accordance with
this Lease shall have been substantially completed upon the issuance of a
permanent certificate of occupancy for the
Premises notwithstanding that insubstantial details of construction, mechanical
adjustment, or decoration remain to be performed, the non-completion of which
would not materially interfere with Tenant's use of the Premises; and
(c) Landlord shall give Tenant thirty (30) days prior
notice of the date the Premises will be ready for occupancy. Landlord agrees to
give Tenant periodic progress reports with respect to the improvement of the
Premises and a good faith estimate of the date the Premises will be ready for
occupancy.
(d) For purposes of determining the date when the
Premises are ready for occupancy (and, correspondingly, the Commencement Date
and the date from which rent shall commence to accrue), there shall not be
considered the duration of any delay which is caused by:
(i) changes in the work to be performed by
Landlord in readying the Premises for Tenant's occupancy, which changes shall
have been requested by Tenant after the approval by Landlord and Tenant of
Tenant Construction Plans (as defined in Article 8(f) of this Lease);
(ii) delays, not caused by Landlord, in
furnishing materials or procuring labor required by Tenant for installations or
work in the Premises which are not encompassed within Standard Tenant Work (as
that term is defined in Article 8(g) of this Lease);
(iii) any failure by Tenant, without regard to any
grace period applicable thereto, to furnish any required plan, information,
approval or consent (including, without limit, Tenant Construction Plans) within
the required period of time; or
(iv) the performance of any work or activity in
the Premises by Tenant or any of its employees, agents or contractors. The
Premises shall be deemed ready for occupancy (and rent shall commence to accrue)
on the date the Premises would have been ready but for the causes described in
this subparagraph (d).
(e) When the Commencement Date is established, Landlord
and Tenant shall promptly execute and acknowledge a memorandum, the form
attached hereto as Exhibit "C" of the Commencement Date and the date of
expiration of the Term.
(f) If the Tenant or any person claiming through the
Tenant shall have continued to occupy the Premises after the expiration or
earlier termination of the Term or any renewal thereof, and if the Landlord
shall have consented in writing to such continuation of occupancy, such
occupancy (unless the parties hereto shall have otherwise agreed in writing)
shall be deemed to be under a month-to-month tenancy. The month-to-month tenancy
shall continue until either party shall have notified the other in writing, at
least ninety (90) days prior to the end of any calendar month, that the party
giving such notice elects to terminate the month-to-month tenancy at the end of
that calendar month, in which event, such tenancy shall so terminate. If such
occupancy shall have continued without Landlord's written consent, then such
occupancy shall be in violation of this Lease, in which event, Tenant (i) shall
be liable for any and all losses, claims, reasonable costs, reasonable expenses
and damages suffered or incurred by Landlord (including, without limit thereto,
court costs and counsel fee), whether direct or consequential, whether foreseen
or unforeseen as a result of such continued occupancy, and
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Landlord shall have all of the rights and remedies available under this Lease,
or at law or in equity, for such violation and, without limitation of the
foregoing clause (i), (ii) will indemnify and hold harmless Landlord from and
against all claims and demands made by succeeding tenants against Landlord,
founded upon delay by Landlord in delivering possession of the Premises to such
succeeding tenant. The rental payable with respect to each monthly period of any
month-to-month tenancy (and to each monthly period of continued occupancy which
may occur without Landlord's consent) shall equal one hundred fifty percent
(150%) of the minimum fixed monthly rent payable under Articles 4(b), which
would have been payable had this Lease been renewed for a period of twelve (12)
full calendar months following the expiration or termination of the Term in the
absence of this subparagraph (f). Any month-to-month tenancy arising with
Landlord's consent shall be upon the same terms and subject to the same
conditions as those which are set forth in this Lease, except as otherwise set
forth in this subparagraph (f), provided that if the Landlord shall have given
to the Tenant, at least thirty (30) days prior to the expiration or earlier
termination of the Term or any renewal thereof or prior to the end of any month
of a month-to-month tenancy, written notice that the Tenant's occupancy
following such month or expiration or termination (as the case may be) shall be
subject to such modifications of the terms and conditions of this Lease
(including any provision relating to the amount and payment of rent) as are
specified in such notice, the Tenant's occupancy following such month or
expiration or termination (as the case may be) shall be subject to the
provisions of this Lease as so modified.
4. FIXED RENT; TENANT ENERGY COSTS; ANNUAL OPERATING COSTS; LEASE
TAXES.
(a) Tenant shall pay to Landlord as rent under this Lease
the aggregate of:
(i) Fixed Rent (as defined in Article 4(b) of
this Lease);
(ii) Tenant's share of Tenant Energy Costs (as
defined in Article 4(d) of this Lease);
(iii) Tenant's proportionate share of increases in
Annual Operating Costs (as defined in Articles 4(c) and 4(e) of this Lease) over
Base Operating Costs (as defined in Article 4(e)(i)(C) of this Lease); and
(iv) All other sums payable by Tenant to Landlord
pursuant to the provisions of this Lease.
(b) Fixed Rent.
(i) The minimum fixed annual rent during each
lease year of the Term shall be payable in lawful money of the United States of
America and payable in equal monthly installments in advance and without prior
demand, notice, set-off or deduction on the first day of each and every month
during the Term (the "Fixed Rent") in accordance with the schedule set forth
below:
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Lease Year Annual Fixed Rent Monthly Fixed Rent
---------- ----------------- ------------------
Months 1 - 8 $ 0.00 $ 0.00
Months 9 - 20 $ 148,512.00 $ 12,376.00
Months 21 - 32 $ 152,048.00 $ 12,670.67
Months 33 - 44 $ 155,584.00 $ 12,965.33
Months 45 - 56 $ 159,120.00 $ 13,260.00
Months 57 - 68 $ 162,656.00 $ 13,554.67
(ii) The Fixed Rent and all other sums payable to
Landlord pursuant to or by reason of this Lease shall be payable to Landlord at
the office of Landlord, c/o Fox Realty Co., 000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxxxxxxxx, XX 00000, or to such other person and at such other place as
Landlord may from time to time designate in writing.
(iii) The first monthly installment of Fixed Rent
shall be paid at the time of the signing of this Lease.
(iv) If the Term begins on a day other than the
first day of a month, Fixed Rent from the Commencement Date until the first day
of the following month shall be prorated and shall be payable in advance on the
first day of the Term and, in such event, the installment of Fixed Rent paid at
the signing of this Lease shall be applied to the Fixed Rent due for the first
full calendar month of the Term.
(c) Tenant's Proportionate Share. As used in this Lease,
"the square foot area of the Premises" shall be deemed to be Seven Thousand
Seventy Two (7,072) square feet, "the total square foot area of the Building"
shall be deemed to be Seventy Three Thousand One Hundred Forty Nine (73,149)
square feet and "Tenant's proportionate share" shall refer to the percentage
relationship between the foregoing, namely 9.67%. Tenant recognizes that, as
used in this Lease, the total square foot area of the Premises includes a share
of the common areas of the Building.
(d) Tenant Energy Costs.
(i) The term "Tenant Energy Costs" shall mean
the costs to Landlord of furnishing to the respective areas of the Property
electric energy or other utility services, except water and sewer (including
taxes or fuel adjustment or transfer charges and other like charges regularly
passed on to the consumer by the public utility furnishing electric energy to
the Property).
(ii) For and with respect to each calendar year
of the Term (and any renewals or extensions thereof) including, without limit,
the first calendar year during which the Term of this Lease shall have
commenced, there shall accrue, as additional rent under this Lease
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and be paid within fifteen (15) days after Landlord shall have given to Tenant a
statement or statements of the amount due, Landlord's costs in such calendar
year of supplying such quantity of electric energy as is; (A) consumed by Tenant
in the Premises, including, without limitation, such electric energy as is
consumed by Tenant in connection with the operation of the heating, ventilating
and air-conditioning systems serving only the Premises, if any, as such
consumption shall have been shown on the meters referred to in Article
16(a)(viii) of this Lease, together with any administrative costs incurred by
Landlord by reason thereof, and (B) Tenant's proportionate share, as defined in
Article 4(c) of this Lease, of Landlord's costs in such calendar year of
supplying electric energy and other utility service (excluding water and sewer),
as is supplied to all non-tenanted areas of the Property in connection with the
operation of the Property together with any administrative costs incurred by
Landlord by reason thereof.
(iii) The method and timing (but not more
frequently than monthly) of billing such costs of Landlord shall be determined
by Landlord, using reasonable accounting principles, it being understood that it
is not intended that Landlord derive any profit from the supplying of electric
energy or other utility service.
(iv) If Tenant shall fail to pay when due any
amounts payable by Tenant under this Article 4(d), and such failure shall
continue for ten (10) days after written notice from Landlord, then in addition
to any other rights and remedies available to Landlord under this Lease, or at
law or in equity, Landlord may terminate any utility services to the Premises
furnished by Landlord for which payment is overdue, without any liability to
Tenant, whether for interruption of Tenant's business or otherwise.
(e) Annual Operating Cost.
(i) The term "Annual Operating Costs" shall mean
the actual costs to Landlord of operating and maintaining the Property
(including, without limit, all improvements thereto and fixtures and equipment
therein or thereon) during each calendar year of the Term (and any renewals or
extensions thereof) including, without limit, the first calendar year during
which the Term of this Lease shall have commenced, excluding Tenant Energy Costs
(as hereinbefore defined). Such costs shall include, by way of example rather
than of limitation, (1) charges or fees for, and taxes on, the furnishing to the
Property of water and sewer service, electric energy (excluding the supply of
electric energy included in Tenant Energy Costs) and, if the Building systems
should be converted to receive the same, steam or fuel and other utility
services; (2) costs of elevator service and charges or fees for maintenance of
the Property, planting, replanting and janitorial service, trash removal,
policing, cleaning, restriping, resurfacing, maintaining and repairing all
walkways, roadways, parking areas forming part of the Property, maintaining all
landscaped areas of the Property; (3) charges or fees for any necessary
governmental permits; (4) wages, salaries and benefits of employees of Landlord
or any management company engaged by Landlord in connection with the Building,
management fees, overhead and expenses; (5) the cost of premiums for hazard,
rent, liability, workmen's compensation and other insurance upon the Property or
portions thereof; (6) costs arising under service contracts with independent
contractors; (7) professional and consulting fees including, without limit,
legal and auditing fees; (8) repairs, replacements and improvements to the
Property which are appropriate for the continued operation of the Building as a
first class office building; (9) all real estate taxes and assessments, general
or special, ordinary or extraordinary,
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foreseen or unforeseen, (other than "Lease Taxes" as defined in Article 4(i) of
this Lease) assessed or imposed upon the Property (collectively, "Taxes"); if,
due to a future change in the method of taxation, any franchise, income, profit
or other tax, however designated, shall be levied or imposed in substitution, in
whole or in part, for (or in lieu of) any tax or addition or increase in any tax
which would otherwise be included within the definition of Taxes, such other tax
shall be deemed to be included within Taxes as defined in this Lease; and (10)
the cost of all other items which, under standard accounting practices,
constitute operating or maintenance costs which are attributable to the Property
or any portion thereof. The term "Annual Operating Costs" shall not include:
depreciation on the Building or equipment; interest on mortgage encumbrances;
ground rents; income taxes; salaries of executive officers of Landlord;
commissions payable to leasing brokers; and expenditures for capital
improvements, except (1) those which under generally applied real estate
practice are expensed or regarded as deferred expenses and (2) capital
expenditures required by law, in either of which cases the cost thereof shall be
included in Annual Operating Costs for the calendar year in which the cost shall
have been incurred and subsequent calendar years, on a straight line basis, to
the extent that such items are amortized over an appropriate period, but not
more than ten (10) years, with an interest factor equal to two percent (2%) plus
the prime rate at the time Landlord shall have incurred said costs. The prime
rate shall mean the rate of interest per annum announced from time to time by
First Union Bank, N.A. or its successor as its prime lending rate (or if such
prime lending rate is discontinued, such comparable rate as Landlord reasonably
designates by notice to Tenant).
(ii) If Landlord shall have purchased any item of
capital equipment or shall have made any capital expenditure designed to result
in savings or reductions in Annual Operating Costs or Tenant Energy Costs
applicable to leased space generally, then the costs of having purchased such
equipment and such capital expenditures shall be included in Annual Operating
Costs for the calendar year in which the costs shall have been incurred and
subsequent calendar years, on a straight line basis, to the extent that such
items are amortized over such period of time as reasonably can be estimated as
the time in which such savings or reductions in Annual Operating Costs are
expected to equal Landlord's costs for such capital equipment or capital
expenditure, with an interest factor equal to the prime rate at the time of
Landlord's having incurred said costs. If Landlord shall have leased any such
items of capital equipment designed to result in savings or reductions in Annual
Operating Costs, then the rental and other costs paid pursuant to such leasing
shall be included in Annual Operating Costs for the calendar year in which they
shall have been incurred.
(iii) The term "Base Operating Costs" shall mean
the sum of Four Hundred Forty Four Thousand Fourteen Dollars and Forty Three
Cents ($444,014.43).
(iv) For and with respect to each calendar year
of the Term (and any renewals or extensions thereof) including, however, the
first calendar year during which the Term of this Lease shall have commenced,
there shall accrue, as additional rent hereunder, and be paid within fifteen
(15) days after Landlord shall have given to Tenant a statement or statements of
the amount due, Tenant's proportionate share of the increase, if any, of Annual
Operating Costs over Base Operating Costs.
(v) Anything contained in the foregoing
provisions of this Article 4 to the contrary notwithstanding, in any instance in
which the Tenant shall have agreed in this Lease
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or otherwise to provide any item or items of Annual Operating Costs partially or
entirely at its own expense, in calculating and allocating increases in Annual
Operating Costs over Base Operating Costs pursuant to the foregoing provisions
of this subsection, Landlord shall make appropriate adjustments, using
reasonable accounting principles, so as to avoid allocating to the Tenant the
same such item or items of the Base Operating Costs and Annual Operating Costs
(partially or entirely, as aforesaid) being provided to other tenants by
Landlord at Landlord's expense. Subject to the preceding sentence, if during all
or part of any calendar year, Landlord shall not furnish any item or items of
Annual Operating Costs to any portions of the Building because such portions are
not occupied or because such item is not required or desired by the tenant of
such portion or such tenant is itself obtaining and providing such item or for
other reasons, then, for the purposes of computing the additional rent payable
hereunder, the amount of Annual Operating Costs for such period shall be deemed
to be increased by an amount equal to the additional costs which would normally
have been incurred during such period by Landlord if it had at its own expense
furnished such item to such portion of the Building.
(f) Partial Year. If only part of any calendar year shall
fall within the Term, the amount computed as additional rent with respect to
such calendar year under the provisions of subsection (c) of this Article shall
be prorated in proportion to the portion of such calendar year falling within
the Term (but the expiration or termination of the Term prior to the end of such
calendar year shall not impair the Tenant's obligation under this Lease to pay
such prorated portion of such additional rent with respect to that portion of
such year falling within the Term, which shall be paid on demand, as aforesaid).
(g) Payment of Estimated Increase. Anything in this Lease
to the contrary notwithstanding, the Landlord shall be entitled to make from
time to time during the Term, a reasonable estimate of the amount of additional
rent which may become due under this Lease with respect to any calendar year and
to require the Tenant to pay to the Landlord, at the time and in the manner in
which the Tenant is required under this Lease to pay the monthly installment of
the Fixed Rent with respect to such month, with respect to each calendar month
during any such calendar year, one-twelfth (1/12) of the amount which Landlord
shall have estimated will become payable on account of increases in Annual
Operating Costs. In such event, Landlord shall cause the actual amount of the
additional rent to be computed and a statement thereof sent to the Tenant within
one hundred twenty (120) days following the end of the calendar year; the Tenant
or the Landlord, as the case may be, shall, within fifteen (15) days after such
statement is sent to Tenant, pay to the other the amount of any deficiency or
overpayment, respectively, therein.
(h) Disputes. Any statement furnished to Tenant by
Landlord under the preceding paragraph or other provisions of this Article shall
constitute a final determination as between Landlord and Tenant of the
additional rent due from Tenant for the period represented thereby unless
Tenant, within thirty (30) days after a statement is furnished, shall have given
a notice to Landlord that Tenant disputes the correctness of the statement,
specifying in detail the basis for such assertion. Pending resolution of such a
dispute, Tenant shall pay the additional rent in accordance with the statement
furnished by Landlord. Landlord agrees, upon prior written request, during
normal business hours to make available for Tenant's inspection, at Landlord's
offices, Landlord's books and records which are relevant to any items in
dispute.
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(i) Lease Tax. If federal, state or local law now or
hereafter imposes any tax, assessment, levy or other charge (other than any
income tax) directly or indirectly upon the Landlord with respect to this Lease
or the value thereof, or upon the Tenant's use or occupancy of the Premises, or
upon the rent, additional rent or any other sums payable under this Lease or
upon this transaction, except if and to the extent that the same are included in
the Annual Operating Costs (all of which are herein called "Lease Taxes") the
Tenant shall pay to the Landlord, as additional rent hereunder and upon demand,
the amount of such tax, assessment, levy or other charge, unless the Tenant
shall be prohibited by law from paying such tax, assessment levy or other
charge, in which event the Landlord shall be entitled, at its election, to
terminate this Lease upon ninety (90) days written notice to the Tenant.
5. COVENANT TO PAY RENT AND ADDITIONAL RENT; LATE CHARGE.
Tenant shall, without prior demand, notice, setoff or
deduction, pay the Fixed Rent and all other sums which may become due by Tenant
under this Lease, at the times, at the places and in the manner provided in this
Lease. All such other sums shall be payable as additional rent for all purposes
whether or not they would otherwise be considered rent. If any payment or any
part thereof to be made by Tenant to Landlord pursuant to the terms of this
Lease shall have become overdue for a period in excess of ten (10) days such
overdue amount shall accrue interest from the date when such payment or part
thereof was due at the Lease Interest Rate (defined below) or such lesser amount
or rate, if any, as represents the maximum amount or rate Landlord lawfully may
charge in respect of Tenant in such circumstances. Nothing herein shall be
construed as waiving any rights of Landlord arising out of any defaults of
Tenant by reason of Landlord's assessing or accepting any such late payment, the
late charge and interest provided herein is separate and apart from any rights
relating to remedies of the Landlord after default by Tenant in the performance
or observance of the terms of this Lease. Without limiting the generality of the
foregoing, if Tenant shall be in default in the performance of any of its
obligations under this Lease, Landlord may (but shall not be obligated to do
so), in addition to any other rights it may have in law or equity, cure such
default on behalf of Tenant and Tenant shall reimburse Landlord upon demand for
any reasonable sums paid or costs incurred by Landlord in curing such default,
including interest thereon at the Lease Interest Rate or such lesser rate as
represents the maximum rate Landlord lawfully may charge in respect of Tenant in
such circumstances, reasonable attorney's fees and other legal expenses,
including also the said late charge and interest on all reasonable sums paid and
costs incurred by Landlord as aforesaid, which sums and costs together with late
charge and interest thereon shall be deemed additional rent hereunder. As used
in this Lease, the "Lease Interest Rate" shall mean four percent (4%) plus the
prime rate.
6. USE.
The Premises are to be used only by Tenant for general office
purposes and for no other purpose. Tenant shall not use or occupy the Premises
or any part thereof, or permit the Premises or any part thereof to be used or
occupied, other than as specified in the sentence immediately preceding. Tenant
shall permit its employees, invitees and guests to park only automobiles, or
similarly sized vehicles, on the Property. Such parking shall be unreserved and
be limited to Tenant's proportionate share of the Premises.
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7. ASSIGNMENT AND SUBLETTING.
(a) The Tenant shall not mortgage, pledge or encumber
this Lease. The Tenant shall not assign this Lease to a non-affiliate or sublet
or underlet the Premises or any part thereof to a non-affiliate, or permit any
other person or entity other than a non-affiliate to occupy the Premises or any
part thereof, without on each occasion first obtaining the written consent
thereto of the Landlord, which consent shall not be unreasonably withheld. An
assignment within the meaning of this Lease is intended to comprehend not only
the voluntary action of Tenant, but also any levy or sale on execution or other
legal process against Tenant's goods or other property of the leasehold, and
every assignment of assets for the benefit of creditors, and the filing of any
petition or order or any adjudication in bankruptcy or under any insolvency,
reorganization or other voluntary or compulsory procedure, and the calling of a
meeting of creditors, and the filing by or against Tenant of any petition or
notice for a composition with creditors, and any assignment by operation of law.
For purposes of the foregoing, a transfer, by any person or persons controlling
the Tenant on the date hereof, of such control to a person or persons not
controlling the Tenant on the date hereof shall be deemed to be an assignment of
this Lease. In the event of such a change in control Landlord shall not
unreasonably withhold its approval of the applicable transferee provided,
however, Landlord shall be entitled to condition to its approval upon receipt of
evidence as to the continuing financial capacity and viability of the transferee
in a manner and to a degree reasonably satisfactory to Landlord. As used herein
the term "affiliate" shall mean and refer to an entity under common control with
Tenant but shall not include any entity in which Internet Capital Group or its
constituent companies may invest from time to time.
(b) If Tenant proposes to assign this Lease or sublet all
or any portion of the Premises to a non-affiliate, Tenant shall, prior to the
proposed effective date thereof (the "Effective Date"), deliver to Landlord a
copy of the proposed agreement and all ancillary agreements with the proposed
assignee or subtenant, as applicable. Landlord shall then have all the following
rights, any of which Landlord may exercise by written notice to Tenant given
within thirty (30) days after Landlord receives the foregoing documents:
(i) With respect to a proposed assignment of
this Lease, the right to terminate this Lease on the Effective Date as if it
were the scheduled expiration date of the Term (the "Expiration Date");
(ii) With respect to a proposed subletting of the
entire Premises, the right to terminate this Lease on the Effective Date as if
it were the Expiration Date;
(iii) With respect to a proposed subletting of
less than the entire Premises, the right to terminate this Lease as to the
portion of the Premises affected by such subletting on the Effective Date, as if
it were the Expiration Date, in which case Tenant shall promptly execute and
deliver to Landlord an appropriate modification of this Lease in form
satisfactory to Landlord in all respects; or
(iv) Landlord may consent to the proposed
assignment or sublease on such terms and conditions as Landlord may reasonably
require, including without limitation, the execution and delivery to Landlord by
the assignee of an assumption of liability agreement in
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form satisfactory to Landlord, including an assumption by the assignee of all of
the obligations of Tenant and the assignee's ratification of an agreement to be
bound by all of the provisions of this Lease or, in the case of a sublease, the
execution and delivery by the subtenant of a written agreement with Landlord, in
such form and with such terms, covenants and conditions as may be required by
Landlord; or
(v) Landlord may withhold its consent to the
proposed assignment or sublease, provided, however, that if Landlord declines to
exercise one of the options set forth in items (i) through (iii) above, Landlord
will not unreasonably withhold its consent so long as the identity, reputation
and financial strength of the proposed assignee or subtenant, and the proposed
use of the Premises, are reasonably acceptable to Landlord; provided further,
however, that Landlord shall in no event be required to consent to any sublease
of space for rent and other charges less than those that the sublessor is
required to pay or any assignment or subletting to a proposed assignee or
subtenant that is (w) a government or any subdivision, agency or instrumentality
thereof, (x) a school, college, university or educational institution of any
type (whether for profit or non-profit), (y) an employment, recruitment or
temporary help, service or agency or (z) another tenant of Landlord in the
Building.
(vi) In the event that Landlord does consent to
the assignment or subletting, Tenant shall have ninety (90) days from its
receipt of Landlord's notice thereof to enter into the proposed sublease or
assignment with the prospective subtenant or assignee described in Tenant's
notice to Landlord. If such sublease or assignment has not been executed within
such time period and with such identified assignee or subtenant, the consent
given by Landlord shall be considered to have been withdrawn.
(c) No assignment or sublease, whether with or without
the Landlord's consent, and whether or not to an affiliate, shall in any way
relieve or release the Tenant from liability for the performance of all terms,
covenants and conditions of this Lease.
(d) In the event of any sublease or assignment by Tenant
of its interest in the Premises or this Lease or any portion thereof, whether or
not consented to by Landlord, each monthly installment of Fixed Rent payable
hereunder with respect to the Premises or the portion thereof subject to such
subletting or assignment shall be increased by an amount equal to (i) in the
case of any subletting, the Excess Rent (defined below) for such portion; and,
in the case of any assignment, the Excess Rent payable by the assignee as
amortized on a monthly basis over the remaining Term of this Lease with interest
at the Lease Interest Rate (defined at Article 5 hereof). As used herein,
"Excess Rent" shall mean a sum equal to fifty percent (50%) of the amount by
which the rent and other charges or other consideration paid by Tenant by any
subtenant or assignee exceeds the pro rata portion, for each month of such
subletting or assignment, of the Fixed Rent and additional rent for such space
then payable for such month by Tenant to Landlord pursuant to the provisions of
this Lease in the absence of this subsection (d), less the portion applicable to
such month, when amortized from the dates incurred over the remaining term of
the sublease or assignment, of Tenant's cost of improvements made or paid for by
Tenant to satisfy the needs of the subtenant, and legal fees, leasing
commissions and similar capital costs incurred by Tenant in connection with the
assignment or subletting.
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(e) If, pursuant to the exercise of the Landlord's option
in 7(b)(iii) above, this Lease terminates as to only a portion of the Premises,
the Fixed Rent and Tenant's Proportionate Share for the additional rent shall be
adjusted in proportion to the portion of the Premises affected by such
termination, as determined by Landlord; and Tenant, within ten (10) days after
demand, shall pay to Landlord Landlord's cost of any alterations necessary to
separate such portion of the Premises from the remainder of the Premises, plus
ten percent (10%) for Landlord's overhead.
(f) If Landlord exercises any of its options under
section 7(b)(i), (ii) or (iii), Landlord may then lease the Premises or any
portion thereof to Tenant's proposed assignee or subtenant, as the case may be,
without liability whatsoever to Tenant.
(g) In addition to, and not in lieu of, any other rights
and remedies available to Landlord therefor, Landlord shall have the right to
terminate this Lease if Tenant seeks to assign, or underlet the Premises without
first obtaining Landlord's written consent. In the event that Landlord exercises
said right to terminate, said termination shall become effective on the date set
forth in Landlord's written notice.
(h) Tenant agrees, in the event that (i) all or any part
of the Premises are to be sublet by Tenant, or (ii) this Lease is to be assigned
by Tenant, that Fox Realty Co. whether agent or otherwise, shall (A) have the
exclusive right to act as agent of the Tenant in any such subletting or
assignment, and (B) be entitled to collect from Tenant the customary commissions
for such services; provided, however, that in no such event shall Landlord be
liable for the payment of any such commissions.
8. IMPROVEMENT OF THE PREMISES.
(a) Completion by Landlord; Changes. Landlord shall, in a
good and workmanlike manner, cause the Premises to be improved and completed in
accordance with the Xxxxx Xxxxxxxx Sketch Plan SK-2 dated June 6, 2003 ("Tenant
Construction Plan"). Landlord reserves the right however:
(i) to make substitutions of material of
equivalent grade and quality when and if any specified material shall not be
readily and reasonably available and
(ii) to make changes necessitated by conditions
met in the course of construction, provided that Tenant's approval of any
substantial change shall first be obtained (which approval shall not be
unreasonably withheld or delayed so long as there shall be general conformity
with Tenant's Layout Plans).
(b) Standard Tenant Work; Special Tenant Work. In the
completion and preparation of the Premises in accordance with the Tenant
Construction Plans, Landlord agrees to perform at its own expense those items of
the work set forth on the schedule attached hereto as Exhibit "E" (herein
referred to as "Standard Tenant Work"), to the extent required by the Tenant
Construction Plans. All work to be performed by Landlord in addition to or in
substitution for Standard Tenant Work is hereinafter referred to as "Special
Tenant Work." All Special Tenant Work shall be furnished, installed and
performed by Landlord, utilizing a general contractor or construction manager
("Landlord's Contractor") selected by Landlord (which may be an affiliate
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of Landlord or a partner in Landlord or an affiliate of a partner in Landlord)
for and on behalf of Tenant and at Tenant's sole expense, based on "Landlord's
Cost." "Landlord's Cost" shall be deemed to mean Landlord's out-of-pocket
contract or purchase price for materials, labor and services (including, without
limit, any reasonable contractor's fee for the contractor's overhead and profit
and charges for cutting, patching, cleaning up and removal of waste and debris),
plus architects' and engineers' fees, plus the product obtained by multiplying
all of the foregoing (as reduced by appropriate credits for substituted Standard
Tenant Work) by ten percent (10%) for Landlord's expenses and profit in handling
the substitution. Notwithstanding anything herein, Tenant's telephone and data
wiring and cabling (hereinafter called the "Direct Tenant Work") shall be
installed in accordance with the Tenant Construction Plans by contractors
contracting with Tenant and not with Landlord.
(c) Payment for Work. Tenant shall pay Landlord for all
Special Tenant Work performed by Landlord from time to time during the progress
of the work, within fifteen (15) days after Landlord shall have given Tenant an
invoice or invoices therefor, in amounts representing Landlord's Cost of such
Special Tenant Work theretofore performed (including, for this purpose, material
for Special Tenant Work purchased and delivered to the Building to the date of
the invoice), less the amounts theretofore paid by Tenant on account. Upon
presentation of the final invoice, the total amount of the Landlord's Cost shall
be subject to verification by Tenant, and Tenant shall have reasonable access to
Landlord's cost records relative thereto.
(d) Access; Acceptance of Work. Landlord shall afford
Tenant and its employees, agents and contractors access to the Premises, at
reasonable times prior to the Commencement Date and at Tenant's sole risk and
expense, for the purposes of inspecting and verifying the performance of Tenant
Work, and shall advise Landlord promptly of any objection to the performance of
such work. Access for such purposes shall not be deemed to constitute possession
or occupancy. Landlord shall promptly undertake and diligently prosecute the
correction of any defective work of which it is notified as aforesaid. On the
Commencement Date, it shall be conclusively deemed that all work theretofore
performed by or on behalf of Landlord and not objected to by Tenant as aforesaid
was satisfactorily performed in accordance with and meeting the requirements of
this Lease. The foregoing presumption shall not apply, however, to latent
defects in such work which could not reasonably have been discovered
theretofore, provided Tenant notifies Landlord thereof within thirty (30) days
after occupancy.
9. ALTERATIONS.
No alterations, additions or improvements shall be made to the Premises or any
part thereof by or on behalf of Tenant without first submitting a detailed
description thereof to Landlord and obtaining Landlord's written approval. All
alterations, additions or improvements made by Tenant and all fixtures attached
to the Premises shall become the property of Landlord and remain at the Premises
or, at Landlord's option, after written notice to Tenant, any or all of the
foregoing which may be designated by Landlord shall be removed at the cost of
Tenant before the expiration or sooner termination of this Lease and in such
event Tenant shall repair all damage to the Premises caused by the installation
or removal. Notwithstanding anything in this Lease, unless otherwise requested
by Landlord in writing, Tenant shall remove all Direct Tenant Work (defined at
Article 8(g) hereof) and shall repair all damage to the Premises caused by the
installation or removal of such Direct Tenant Work. Tenant shall not erect or
place, or cause or
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allow to be erected or placed, any sign, advertising matter, lettering, stand,
booth, showcase or other article or matter in or upon the Premises and/or the
premises of which the Premises are a part, without the prior written consent of
Landlord. Tenant shall not place weights anywhere beyond the safe carrying
capacity of the structure.
10. RULES AND REGULATIONS.
The rules and regulations attached to this Lease, and such additions or
modifications thereof as may from time to time be made by Landlord upon written
notice to Tenant, shall be deemed a part of this Lease, as conditions, with the
same effect as though written herein, and Tenant also covenants that said rules
and regulations will be faithfully observed by Tenant, Tenant's employees, and
all those visiting the Premises or claiming under Tenant provided that such
rules and regulations are uniformly enforced by Landlord.
11. FIRE OR OTHER CASUALTY.
If, during the term of this Lease, or any renewal or extension thereof, the
Building is so damaged by fire or other casualty that the Premises are rendered
unfit for occupancy (whether or not the Premises are damaged), then, at
Landlord's option, the Term of this Lease upon written notice from Landlord
given with thirty (30) days after the occurrence of such damage, shall terminate
as of the date of the occurrence of such damage. In such case, Tenant shall pay
the rent apportioned to the time of such termination and Landlord may enter upon
and repossess the Premises without further notice. If Landlord does not elect to
terminate the Term of this Lease, Landlord, subject to reasonable delays for
insurance adjustments and to delays caused by matters beyond Landlord's
reasonable control, will repair whatever portion, if any, of the Premises or of
the Building serving the Premises which may have been damaged and Landlord may
enter and possess the Premises for that purpose; while the Tenant is deprived of
the Premises, the Fixed Rent shall be suspended in proportion to the number of
square feet of the Premises rendered untenantable. If the Premises or the
Building shall be damaged so that such damage does not render the Premises unfit
for occupancy, Landlord will repair whatever portion, if any, of the Premises or
of the Building serving the Premises which may have been damaged and Tenant will
continue in possession and rent will not be apportioned or suspended.
Notwithstanding any other provisions of this Article 11, (a) if any damage is
caused by or results from the negligence of Tenant, those claiming under Tenant,
or their employees or invitees, respectively, rent shall not be suspended or
apportioned and Tenant shall pay, as additional rent upon demand, the cost of
any repairs, made or to be made, of such damage and of any restorations, made or
to be made, as a result of such damage, (b) Landlord shall have no duty to
repair or replace any personal property, or any of Tenant's fixtures or
equipment or any alterations, improvements or decorations made by Tenant, or any
Direct Tenant Work (defined at Article 8(h) hereof), (c) Landlord shall have no
liability to Tenant for, and Tenant shall not be entitled to terminate this
Lease by virtue of, any delays in completion of repairs and (d) Landlord shall
have the right to terminate this Lease upon giving written notice to Tenant at
any time within thirty (30) days after the date of the damage if the Premises is
damaged by fire or other casualty during the last six (6) months of the Term
unless Tenant, having the right to renew the Term pursuant to an express
provision contained in this Lease, has effectively extended the Term for a term
in excess of one (1) year following the occurrence of the fire or other
casualty.
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12. LANDLORD'S RIGHT TO ENTER.
Tenant will permit Landlord, Landlord's agents or employees or
any other person or persons authorized in writing by Landlord:
(a) to inspect the Premises at any time,
(b) to enter the Premises if Landlord shall so elect for
making alterations, improvements or repairs to the Building or for any purpose
in connection with the operation or maintenance of the Building, and
(c) to enter and exhibit the Premises to be let.
No such entry shall be treated as a deprivation or
interference with Tenant's use and possession of the Premises.
13. INSURANCE.
(a) Tenant will not do or commit any act or thing, or
suffer or permit any act or thing to be done or committed, as a result of which
either
(i) any policy of insurance of any kind on or in
connection with the Property shall become void or suspended, or the insurance
risk on the building or any other portion of the Property shall (in the opinion
of the insuring companies) be rendered more hazardous. Tenant shall pay as
additional rent the amount of any increase of premiums for such insurance,
resulting from any breach of this covenant.
(b) Tenant shall maintain throughout the Term, at
Tenant's expense, insurance against loss or liability in connection with bodily
injury, death, property damage and destruction, in or upon the Premises or the
remainder of the Property, and arising out of the use of all or any portion of
the same by Tenant or its agents, employees, officers, invitees, visitors and
guests, under policies of general public liability or commercial general
liability insurance having such limits as to each as may be reasonably required
by Landlord from time to time, but in any event of not less than Three Million
Dollars ($3,000,000.00) per occurrence and Three Million Dollars ($3,000,000.00)
annual aggregate for the Premises alone; and, without limitation of the
foregoing, within thirty (30) days after Landlord's request, Tenant shall have
such annual aggregate increased (by the same or different policies) to such
amount as Landlord may reasonably request by reason of occurrences during any
policy year. All liability policies shall name as additional insureds Landlord
and Landlord's mortgagees and (at Landlord's or any such mortgagee's request)
any landlord of or installment seller to Landlord, and any other person or
entity designated by Landlord or such mortgagee, shall provide that they shall
not be modified or canceled without at least thirty (30) days prior written
notice to Landlord and any other party designated as aforesaid and shall be
issued by insurers of recognized responsibility licensed to do business in
Pennsylvania. Copies of all such policies certified by the insurers to be true
and complete shall be supplied to Landlord and such mortgagees, paramount
lessors and installment sellers at all times.
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(c) Landlord shall maintain throughout the Term so-called
all-risk or fire and extended coverage insurance upon the Building. The cost of
the premiums for such insurance and of any endorsements thereto shall be deemed,
for purposes of Article 4 of this Lease, to be part of the costs of operating
and maintaining the Property.
(d) Notwithstanding anything in this Lease to the
contrary, each party hereto hereby releases the other party, its agents and
employees to the extent of the releasing party's actual recovery under its
insurance policies, from any and all liability for any loss or damage which may
be inflicted upon the property of such party, notwithstanding that such loss or
damage shall have arisen out of the negligent or intentionally tortious act or
omission of the other party, its agents or employees, provided, however, that
this release shall be effective only with respect to loss or damage occurring
during such times as the appropriate policy of insurance of the party so
releasing shall contain a clause to the effect that such release shall not
affect the said policy or the right of the insured to recover thereunder; each
party hereto shall use reasonable efforts to have such a clause included in its
said policies.
14. REPAIRS AND CONDITION OF PREMISES.
At the expiration or other termination of this Lease, Tenant
shall leave the Premises, and during the Term will keep the same, in good order
and condition, ordinary wear and tear, damage by fire or other casualty (which
fire or other casualty has not occurred through the negligence of Tenant or
those claiming under Tenant or their employees or invitees respectively) and
repairs to be performed by Landlord under Article 16(a)(v) of this Lease alone
excepted; for that purpose and, except as stated in this Lease, Tenant will make
all necessary repairs and replacements. Tenant will use every reasonable
precaution against fire and will give Landlord prompt notice of any damage to or
accident upon the Premises. Tenant will also at all times, subject to Article
16(a)(iii) of this Lease, remove all dirt, rubbish, waste and refuse from the
Premises and at the expiration or sooner termination of the Term will also have
had removed all its property therefrom, to the end that Landlord may again have
and repossess the Premises. Any of Tenant's property remaining on the Premises
on the date of the expiration or termination of the Term shall be deemed
abandoned by Tenant and may be removed and disposed of in such manner as
Landlord may, at its sole discretion, determine, and Tenant shall reimburse
Landlord, upon demand, for the cost of such removal and disposal, plus ten
percent (10%) for overhead.
15. COMPLIANCE WITH LAW.
Tenant shall comply promptly with all laws and ordinances,
including, without limitation, the Americans With Disabilities Act, and all
notices, requirements, orders, regulations and recommendations (whatever the
nature thereof may be) of any and all the federal, state, county or municipal
authorities or of the Board of Fire Underwriters or any insurance organizations,
associations or companies, with respect to the Premises and any property
appurtenant thereto and any use thereof; Tenant also agrees that it shall not
knowingly do or commit any act or thing, or suffer to be done or committed any
act or thing anywhere on the Property contrary to any of the laws, ordinances,
notices, requirements, orders, regulations and recommendations hereinabove
referred to in this Article.
16. SERVICES.
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(a) Landlord agrees that it shall:
(i) HVAC. Furnish heat, ventilation and air
conditioning to the Premises, Monday through Friday from 8:00 AM to 6:00 PM,
holidays excepted; holidays, as such term is used in this Lease, shall mean days
observed as holidays by the United States government, the Commonwealth of
Pennsylvania, the County of Xxxxxxx or the Township of Tredyffrin, as well as
days declared as holidays in any union contract affecting the operations of the
Building; heat, ventilation and air conditioning required by Tenant at other
times shall be supplied upon reasonable prior notice and shall be paid for by
Tenant, promptly upon billing, at such rates as Landlord shall establish
therefor; the air conditioning and heating systems intended to service the
Premises have been designed to maintain the inside temperatures set forth in
Paragraph C of Exhibit "E" hereto; Landlord shall not be responsible for the
failure of the air conditioning system to meet the aforesaid performance
specifications if such failure results from the occupancy of the Premises in
excess of that set forth in Paragraph C of Exhibit "E" or if Tenant installs and
operates machines and appliances, the installed electrical load of which, when
combined with the load of all lighting fixtures, exceeds the number of xxxxx per
square foot of floor area set forth in said Paragraph C; if the Premises are
used in a manner exceeding the aforementioned occupancy and electric load
criteria, Tenant shall pay to Landlord, promptly upon billing, Landlord's costs
of supplying air conditioning resulting from such excess, at such rates as
Landlord shall establish therefor; if due to use of the Premises in a manner
exceeding the aforementioned occupancy and electrical load criteria, or due to
rearrangement of partitioning after the initial preparation of the Premises,
interference with normal operation of the heating, ventilating or air
conditioning in the Premises results, necessitating changes in the system
servicing the Premises, such changes may be made by Landlord upon request by
Tenant at Tenant's sole cost and expense, subject to the provisions of section
(b) of this Article 16. Tenant agrees at all times to cooperate fully with
Landlord and to abide by all of the regulations and requirements which Landlord
may prescribe for the proper functioning and protection of the said heating,
ventilating and air conditioning system; the foregoing heating, ventilating and
air conditioning services shall be subject to any statute, ordinance, rule,
regulation, resolution or recommendation for energy conservation which may be
promulgated by any governmental agency or organization and which Landlord in
good faith may elect to abide by or shall be required to abide by;
(ii) Elevators. Provide passenger elevator
service to the Premises during all working days (Saturday, Sunday and holidays
excepted) from 8:00 AM to 6:00 PM, with one (1) elevator subject to call at all
other times;
(iii) Access. Furnish to Tenant's employees and
agents access to the Premises at all times, subject to compliance with such
security measures as shall be in effect for the Building;
(iv) Janitorial. Provide to the Premises
janitorial service in accordance with the schedule annexed hereto as Exhibit
"F"; any and all additional or specialized janitorial service desired by Tenant
shall be contracted for by Tenant directly with Landlord's janitorial agent and
the cost and payment thereof shall be and remain the sole responsibility of
Tenant; no trash removal services will be provided by Landlord for the removal
of trash or refuse of a
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character or quantity not customary for normal office users, unless Tenant shall
first agree to the payment of Landlord's cost thereof;
(v) Repairs. Make all structural repairs to the
Building, all repairs which may be needed to the mechanical, HVAC, electrical
and plumbing systems in and servicing the Premises (excluding repairs to any
non-building standard fixtures or other improvements installed or made by or at
the request of Tenant requiring maintenance of a type or nature not customarily
provided by Landlord to office lessees of the Building), and all repairs to
exterior windows and glass (including caulking and weatherstripping); in the
event that any repair is required by reason of the negligence or abuse of Tenant
or its agents, employees, invitees or of any other person using the Premises
with Tenant's consent, express or implied, Landlord may make such repair and the
cost thereof, plus ten percent (10%) of such cost for Landlord's overhead, shall
be paid by Tenant to Landlord within fifteen (15) days after demand, unless
Landlord shall have actually recovered or has the right to recover such cost
through insurance proceeds;
(vi) Water. Provide hot and cold water, for
drinking, lavatory, toilet and ordinary cleaning purposes, at each floor;
(vii) Public Areas. Keep and maintain the public
areas and facilities of the Building clean and in good working order, and the
sidewalks and parking areas adjoining the Building in good repair and free from
accumulations of snow and ice;
(viii) Electricity. Furnish to Tenant electric
energy as required by Tenant but in no event exceeding the number of xxxxx per
square foot set forth in Paragraph B 1 of Exhibit "E" hereto for the use of
Tenant in the Premises; Landlord shall install and maintain such meters as
Landlord shall deem necessary to measure, respectively, the consumption by
Tenant and each other tenant of the Building of electric energy in the
respective areas of the Building leased to tenants; Landlord shall not be liable
in any way to Tenant for failure or defect in the supply or character of
electric energy furnished to the Premises or to the Building by reason of any
requirement, act or omission of the public utility serving the Building with
electricity or for any other reason whatsoever not attributable to Landlord;
Tenant agrees, to the extent, if any, in the future required by the Pennsylvania
Public Utility Commission or federal or state law as a necessary condition to
the supply of electric energy to the Premises, to become an individually metered
customer of such public utility, in which event, upon receipt of each xxxx to
Tenant from such public utility for electric service to the Premises, Tenant
shall pay directly to the public utility company the amount of such xxxx;
Landlord shall furnish and install all replacement tubes, lamps, bulbs and
ballasts required in the Premises, at Tenant's expense; Tenant's use of electric
energy in the Premises shall not at any time exceed the capacity of any of the
electrical conductors and equipment in or otherwise serving the Premises.
(b) Special Equipment. Tenant shall not install any
equipment of any kind or nature whatsoever which would or might necessitate any
changes, replacements or additions to any of the heating, ventilating, air
conditioning, electric, sanitary, elevator or other systems serving the Premises
or any other portion of the Building; or to any of the services required of
Landlord under this Lease, without the prior written consent of the Landlord. In
the event that such consent is granted, such replacements, changes or additions
shall be paid for by Tenant. At
-17-
the expiration or earlier termination of the Term, Tenant shall pay to Landlord
Landlord's cost of restoring such systems to their condition prior to such
replacements, changes or additions.
(c) Interruption of Service. In case of accident,
strikes, inability to obtain supplies, breakdowns, repairs, renewals or
improvements to the Building or replacement of machinery therein, or for other
cause pertaining to the Building deemed sufficient by Landlord, the operation of
any of the elevators or other machinery or apparatus may be changed or
suspended. As to heat, ventilation, air conditioning, cleaning service,
electricity and elevator service, and any other services, Landlord shall not be
responsible or liable in any way for any failure, interruption or inadequacy in
the quantity or quality of the same where caused by war, civil commotion,
governmental restrictions, prohibitions or other regulations, strikes, labor
disturbances, inability to obtain adequate supplies or materials, casualties,
repairs, replacements, or causes beyond Landlord's reasonable control whether
similar or dissimilar to the foregoing.
17. NOTICE OF BREAKAGE, FIRE, THEFT.
Tenant shall give to Landlord prompt written notice, but in
any event no longer than forty-eight (48) hours, of any
(a) accident or breakage or defects in the window glass,
wires, plumbing or heating ventilating or cooling apparatus, elevators or other
apparatus, walls or ceiling tiles,
(b) fire or other casualty, or
(c) theft.
18. RELEASE OF LANDLORD.
Landlord shall not be held responsible for and is hereby
expressly relieved from any and all liability by reason of any injury, loss, or
damage to any person or property in or about the Premises or the Property due to
any cause whatsoever and whether the loss, injury or damage be to the person or
property of Tenant or any other person, and whether or not due to any oversight,
neglect or negligence of Landlord occurring before or after the execution of
this Lease; provided, however, that Landlord shall not be relieved from such
liability if such injury, loss or damage arises from or relates to the gross
negligence of Landlord. Tenant further agrees to indemnify, defend and save
Landlord harmless from and against all claims by any employee or invitee of
Tenant made on account of such injury, loss or damage, including but not limited
to reasonable attorneys' fees and other legal expenses; provided, however, that
Tenant shall have no obligation to indemnify, defend and save Landlord harmless
if such injury, loss or damage arises from or relates to the gross negligence of
Landlord.
19. MECHANICS' AND OTHER LIENS.
(a) Tenant covenants that it shall not (and has no
authority to) create or allow any encumbrance against the Premises, the
Property, the Building or any part of any of any of them or Landlord's interest
therein.
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(b) Tenant covenants that it shall not suffer or permit
to be created, or to remain, any lien or claim thereof (arising out of any work
done or services, material, equipment or supplies furnished for or at the
request of Tenant or by or for any contractor or subcontractor of Tenant) which
is or may become a lien upon the Premises, the Property, the Building or any
part of any of any of them or the income therefrom or any fixture, equipment or
similar property therein.
(c) If any lien or claim shall be filed, Tenant, within
ten (10) days after the filing thereof, shall cause the same to be discharged of
record by payment, deposit, bond or otherwise. If Tenant shall fail to cause
such lien or claim to be discharged and removed from record within that period,
then, without obligation to investigate the validity thereof and in addition to
any other right or remedy Landlord may have, Landlord may, but shall not be
obligated to, contest the lien or claim or discharge it by payment, deposit,
bond or otherwise; and Landlord shall be entitled, if Landlord so decides, to
compel the prosecution of an action for the foreclosure of such lien by the
lienor and to pay the amount of the judgment in favor of the lienor with
interest and costs. Any amounts so paid by Landlord and all costs and expenses,
including attorneys' fees, incurred by Landlord in connection therewith,
together with interest at the Lease Interest Rate from the respective dates of
Landlord's making of the payment or incurring of the cost or expense, shall
constitute additional rent payable by Tenant under this Lease and shall be paid
by Tenant to Landlord within fifteen (15) days after demand.
(d) Notwithstanding anything to the contrary in this
Lease or in any other writing signed by Landlord, neither this Lease nor any
other writing signed by Landlord shall be construed as evidencing, indicating,
or causing an appearance that any erection, construction, alteration or repair
to be done, or caused to be done, by Tenant is or was in fact for the immediate
use and benefit of Landlord. Further, notwithstanding anything contained herein
to the contrary, nothing contained in or contemplated by this Lease shall be
deemed or construed in any way to constitute the consent or request on the part
of Landlord for the performance of any work or services or the furnishing of any
materials for which any lien could be filed against the Premises or the Building
or the Property or any part of any thereof, nor as giving Tenant any right,
power, or authority to contract for or permit the performance of any work or
services or the furnishing of any materials for which any lien could be filed
against the Premises, the Building, the Property or any part of any thereof.
(e) Prior to commencement of any work or the delivery of
any material to the Premises by any contractor, subcontractor or materialman
engaged by Tenant, Tenant shall deliver to the Landlord a waiver of liens
(herein called "Waiver of Liens") from each such contractor in form satisfactory
to Landlord, bearing a stamp from the Prothonotary's Office in Xxxxxxx County
indicating the timely filing of the Waiver of Liens under the Mechanics Lien Law
of Pennsylvania, 49 P.S.A. '14.02. The Waiver of Liens shall provide, among
other things, that the contractor, for itself and all subcontractors,
materialmen and other persons providing labor, services, material or work under
Tenant, waives any and all lien rights that it or any of them may have against
Landlord's interest in the Property or any part thereof. Tenant shall file the
Waivers of Liens at Tenant's sole cost and expense.
20. RELOCATION OF TENANT. [INTENTIONALLY OMITTED]
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21. DEFAULTS - REMEDIES.
If any of the following shall occur:
(a) Tenant does not pay in full when due any and all
installments of rent (whether Fixed Rent or additional rent) or any other charge
or payment whether or not herein included as rent within ten (10) days of such
amount becoming due;
(b) Tenant violates or fails to perform or comply with
any covenant, agreement or condition herein contained;
(c) Tenant abandons the Premises or removes or attempts
to remove Tenant's property therefrom other than in the ordinary course of
business without having first paid to Landlord in full all rent and charges that
may have become due as well as all which will become due thereafter; or
(d) An involuntary case under the federal bankruptcy law
as now or hereafter constituted is commenced against Tenant or any guarantor or
surety of Tenant's obligations under this Lease ("Guarantor"), or under any
other applicable federal or state bankruptcy, insolvency, reorganization, or
other similar law, or there is filed against Tenant or a Guarantor a petition
seeking the appointment of a receiver, liquidator or assignee, custodian,
trustee, sequestrator (or similar official) of Tenant or a Guarantor of any
substantial part of Tenant's or a Guarantor's property, or seeking the
winding-up or liquidation of Tenant's or a Guarantor's affairs and such
involuntary case or petition is not dismissed within sixty (60) days after the
filing thereof, of if Tenant or a Guarantor commences a voluntary case or
institutes proceedings to be adjudicated as bankrupt or insolvent or consents to
the entry of an order for relief under the federal bankruptcy laws as now or
hereafter constituted, or any other applicable federal or state bankruptcy or
insolvency or other similar law, or consents to the appointment of or taking
possession by a receiver or liquidator or assignee, trustee, custodian,
sequestrator (or other similar official) of Tenant or a Guarantor of any
substantial part of Tenant's or a Guarantor's property, or if Tenant or any
Guarantor makes any assignment for the benefit of creditors or admits in writing
its inability to pay its debts generally as they become due or fails to
generally pay its debts as they become due or if Tenant is levied upon and is
about to be sold out upon the Premises by any sheriff, xxxxxxxx or constable or
Tenant or its stockholders or Board of Directors or any committee thereof takes
any action in contemplation, preparation or furtherance of or for any of the
foregoing, or, if Tenant or any Guarantor is a corporation and is dissolved or
liquidated,
Then, and in any such event, at the sole option of Landlord,
(i) The whole balance of rent and all other sums
payable hereunder for the entire balance of the term of this Lease, herein
reserved or agreed to be paid by Tenant, or any part of such rent, charges and
other sums, shall be taken to be due and payable from Tenant and in arrears as
if by the terms of this Lease said balance of rent, charges and other sums and
expenses were on that date payable in advance; and/or
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(ii) Landlord may terminate this Lease by written
notice to Tenant. If Landlord elects to terminate this Lease, Landlord, in
addition to Landlord's other remedies, may recover from Tenant a judgment for
damages equal to the sum of the following:
(A) the unpaid rent and other sums
which became due up to the time of such termination plus interest from the dates
such rent and other sums were due to the date of the judgment at the Lease
Interest Rate; plus
(B) the present value at the time of
judgment of the amount by which the unpaid rent and other sums which would have
become due (had this Lease not been terminated) after termination until the date
of the judgment exceeds the amount of loss of such rental and other sums Tenant
proves could have been reasonably avoided; plus
(C) the amount (as discounted at the
rate of four percent (4%) per annum) by which the unpaid rent and other sums
which would have become due (had this Lease not been terminated) for the balance
of the term after the date of judgment exceeds the amount of loss of such rental
and other sums that Tenant proves could have been reasonably avoided; plus
(D) any other amount necessary to
compensate Landlord for all the detriment proximately caused by Tenant's failure
to perform its obligations under this Lease or which in the ordinary course
would be likely to result therefrom including, without limitation, the cost of
repairing the Premises and reasonable attorneys fees; plus
(E) at Landlord's election, such other
amounts in addition to or in lieu of the foregoing as may be permitted by
applicable law.
As used in the foregoing clause
(B), the "present value at the time of judgment" shall be computed by adding to
the rent past due or which would have become due interest at the Lease Interest
Rate from the dates such rent was or would have become due to the date of the
judgment; and/or
(iii) Landlord may terminate Tenant's right of
possession and may reenter and repossess the Premises by legal proceedings,
force or otherwise, without terminating this Lease. After reentry or retaking or
recovering of the Premises, whether by termination of this Lease or not,
Landlord may, but shall be under no obligation to, make such alterations and
repairs, as Landlord may deem then necessary or advisable and relet the Premises
or any part or parts thereof, either in Landlord's name or otherwise, for a term
or terms which may at Landlord's option be less than or exceed the period which
otherwise would have constituted the balance of the term of this Lease and at
such rent or rents and upon such other terms and conditions as in Landlord's
sole discretion may seem advisable and to such person or persons as may in
Landlord's sole discretion seem best; and whether or not the Premises are relet,
Tenant shall be liable for any loss, for such period as is or would have been
the balance of the term of the Lease, of rent and all other sums payable under
this lease, plus the reasonable cost and expenses of reletting and of
redecorating, remodeling or making repairs and alterations to the Premises for
the purpose or reletting, the amount of such liability to be computed monthly
and to be paid by Tenant to Landlord from time to time upon demand. Landlord
shall in no event be
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liable for, nor shall any damages or other sums to be paid by Tenant to Landlord
be reduced by, failure to relet the Premises provided, however, Landlord shall
apply the rent or other sums received from a reletting against the sums due from
Tenant under this Article 21. Tenant shall not be entitled to any rents or other
sums received by Landlord in excess of those provided for in this Lease. Tenant
agrees that Landlord may file suit to recover any rent and other sums falling
due under the terms of this Article from time to time and that no suit or
recovery of any amount due hereunder to Landlord shall be any defense to any
subsequent action brought for any other amount due hereunder to Landlord.
Tenant, for Tenant and Tenant's successors and assigns, hereby irrevocably
constitutes and appoints Landlord, Tenant's and their agent to collect the rents
due or to become due under all subleases of the Premises or any parts thereof
without in any way affecting Tenant's obligation to pay any unpaid balance of
rent or any other sum due or to become due hereunder. Notwithstanding any
reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for Tenant's previous breach.
Whenever Landlord shall have the right to
reenter the Premises, it shall have the right to remove all persons and property
from the Premises and either treat such property as abandoned or at Landlord's
option store it in a public warehouse or elsewhere at the cost of and for the
account of Tenant, all without service of notice or resort to legal process and
without being deemed guilty of trespass, or becoming liable for any loss or
damage which may be occasioned thereby.
Tenant waives the right to any notice to
remove as may be specified in the Landlord and Tenant Act of Pennsylvania, Act
of April 6, 1951, as amended, or any similar or successor provision of law.
For the purposes of computing "the whole
balance of rent and all other sums payable hereunder for the entire balance of
the term of this Lease," "the unpaid rent and other sums which would have become
due (had this Lease not been terminated) after termination until the date of the
judgment" and "the unpaid rent and other sums which would have become due (had
this Lease not been terminated) for the balance of the term after the date of
judgment," as such quoted or any similar phrases are used in this Article 21,
the amounts of additional rents which would have been due per year under this
Lease shall be such amounts as Landlord shall reasonably estimate to be the per
annum rates of additional rent for the calendar year during which this Lease was
terminated or during which rent was accelerated, increasing annually on the
first day of each calendar year thereafter at the rate of seven percent per
annum compounded.
The parties recognize that no adequate
remedy at law may exist for a breach of Articles 6, 7 and 10 hereof.
Accordingly, Landlord may obtain specific performance of any provision of
Articles 6, 7 and 10 hereof. Neither such right nor its exercise shall limit any
other remedies which Landlord may have against Tenant for a breach of such
Articles, including, without limitation, all remedies available under this
Article 21. The reference herein to specific performance in connection with
Articles 6, 7 and 10 shall not preclude the availability of specific
performance, in any appropriate case, for the breach or threatened breach of any
other provision of this Lease.
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In addition to other remedies available to
Landlord herein, Landlord may (but shall not be obligated to do so), cure any
default on behalf of Tenant, and Tenant shall reimburse Landlord upon demand for
all reasonable costs incurred by Landlord in curing such default, including,
without limitation, reasonable attorneys' fees and other legal expenses,
together with interest thereon at the Lease Interest Rate, which costs and
interest thereon shall be deemed additional rent hereunder.
As used in this Article 21, the "term" shall include the Term
of this Lease and any renewals or extensions thereof to which Tenant shall have
become bound.
22. REMEDIES CUMULATIVE.
All remedies available to Landlord under this Lease and at law
and in equity shall be cumulative and concurrent. No termination of this Lease
or taking or recovering possession of the Premises shall deprive Landlord of any
remedies or actions against Tenant for rent, for charges or for damages for the
breach of any covenant or condition herein contained, nor shall the bringing of
any such action for rent, charges or breach of covenant or condition, nor the
resort to any other remedy or right for the recovery of rent, charges or demands
for such breach be construed as a waiver or release of the right to insist upon
the forfeiture and to obtain possession. No reentering or taking possession of
the Premises, or making of repairs, alterations or improvements thereto, or
reletting thereof, shall be construed as an election on the part of Landlord to
terminate this Lease unless written notice of such intention be given by
Landlord to Tenant. The failure of Landlord to insist upon strict and/or prompt
performance of the terms, agreements, covenants and conditions of this Lease or
any of them, and/or the acceptance of such performance thereafter shall not
constitute or be construed as a waiver of Landlord's right to thereafter enforce
the same strictly according to the tenor thereof in the event of a continuing or
subsequent default.
23. EXCEPTED FROM PREMISES.
In the event that Exhibits "A" or "D" show as being within the
Premises, hallways, passageways, stairways, elevators, or other means of access
to and from the Premises or the upper and lower portions of the Building, the
space occupied by the said hallways, passageways, stairways, elevators and other
means of access, although within the Premises as described hereinabove, shall be
taken to be excepted therefrom and reserved to Landlord or to the other lessees
of the Building and the same shall not be considered a portion of the Premises.
All ducts, pipes, wires or other equipment used in the operation of the
Building, or any part thereof, and any space occupied thereby, whether or not
within the Premises as described hereinabove, shall likewise be excepted and
reserved from the Premises, and Tenant shall not remove or tamper with or use
the same and will permit Landlord to enter the Premises to service, replace,
remove or repair the same.
24. LEASE SUBORDINATED.
(a) This Lease shall be subject and subordinate at all
times to the lien of any mortgage, deed of trust, ground lease, installment sale
agreement and/or other instrument or encumbrance heretofore or hereafter placed
upon any or all of Landlord's interest or estate in the
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Premises or the remainder of the Property and of all renewals, modifications,
consolidations, replacements and extensions thereof (all of which are
hereinafter referred to collectively as a "mortgage"), all automatically and
without the necessity of any further action on the part of the Tenant to
effectuate such subordination provided that at Tenant's request Landlord have
the mortgagee deliver a subordination, non-disturbance and attornment agreement
to Tenant in the form attached hereto as Exhibit "H". The Tenant shall, at the
request of the holder of any such mortgage, attorn to such holder, and shall
execute, enseal, acknowledge and deliver, upon demand by the Landlord or such
holder, such further instrument or instruments evidencing such subordination of
the Tenant's right, title and interest under this Lease to the lien of any such
mortgage, and such further instrument or instruments evidencing and elaborating
such attornment, as shall be desired by such holder.
(b) Anything contained in the foregoing provisions of
this Article to the contrary notwithstanding, any such holder may at any time
subordinate its mortgage to the operation and effect of this Lease, without the
necessity of obtaining the Tenant's consent thereto, by giving notice of the
same in writing to the Tenant, and thereupon this Lease shall be deemed to be
prior to such mortgage without regard to their respective dates of execution,
delivery and/or recordation, and in that event such holder shall have the same
rights with respect to this Lease as though this Lease shall have been executed,
delivered and recorded prior to the execution and delivery of such mortgage.
25. CONDEMNATION.
(a) If the whole or a substantial part of the Building
shall be taken or condemned for a public or quasi-public use under any statute
or by right of eminent domain or private purchase in lieu thereof by any
competent authority, Tenant shall have no claim against Landlord and shall not
have any claim or right to any portion of the amount that may be awarded as
damages or paid as a result of any such condemnation or purchase including,
without limit, any right of Tenant to damages for loss of its leasehold; all
right of Tenant to damages therefor are hereby assigned by Tenant to Landlord.
The foregoing shall not, however, deprive Tenant of any separate award for
moving expenses, business dislocation damages or for any other award which would
not reduce the award payable to Landlord. Upon the date the right to possession
shall vest in the condemning authority, this Lease shall cease and terminate
with rent adjusted to such date and Tenant shall have no claim against Landlord
for the value of any unexpired term of this Lease.
(b) In the event of any temporary eminent domain taking
of the Premises or any part thereof for temporary use, this Lease shall not be
affected in any manner, the Term shall not be reduced, and the Tenant shall
continue to pay in full the Fixed Rent, additional rent and all other sums of
money and charges in this Lease reserved and provided to be paid by Tenant.
Tenant shall be entitled to receive for itself such portion of any eminent
domain award made for such temporary use with respect to the period of the
taking which is within the Term; provided that if such temporary taking shall
remain in full force at the expiration or earlier termination of this Lease, the
award shall be apportioned between Landlord and Tenant in proportion to the
respective portions of the period of temporary taking which falls within the
Term and which falls outside the Term.
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26. PARAMOUNT LEASE.
If Landlord is or becomes lessee or installment purchaser of
the Premises or of the premises of which the Premises are a part, then Tenant
agrees that Tenant takes possession subordinate to the interest of Landlord's
lessor or installment seller, its successors and assigns, but notwithstanding
the foregoing, in case Landlord's tenancy or interest as installment purchaser
shall terminate either by expiration, forfeiture or otherwise, then Landlord's
lessor or installment seller, its heirs, administrators, executors, successors
and assigns, shall have all the rights of Landlord under this Lease, following
such termination. In the event of any such termination of Landlord's tenancy or
interest as installment purchaser, Tenant hereby agrees to attorn to Landlord's
lessor, its heirs, administrators, executors, successors and assigns, and to
recognize such lessor or installment seller, its heirs, administrators,
executors, successors and assigns, as Tenant's Landlord for the balance of the
term of this Lease and any extensions or renewals of this Lease. Tenant shall
execute, enseal, acknowledge and deliver, upon demand by Landlord or Landlord's
lessor or installment seller, such further instrument or instruments evidencing
such subordination of Tenant's right, title and interest under this Lease to the
interests of such lessor or installment seller and such further instrument or
instruments of attornment, as shall be desired by such lessor or installment
seller.
27. NOTICES.
(a) Each notice, demand, request or other communication
required or permitted under the terms of this Lease shall be in writing and,
unless and until otherwise specified in a written notice by the party to receive
it, shall be sent to the parties at the following respective addresses:
If intended for Tenant:
Internet Capital Group Operations, Inc.
000 Xxxxx Xxxx Xxxxx
Xxxxxxxx 000
Xxxxx, XX 00000
Attn: General Counsel
If intended for Landlord:
FV Office Partners, L.P.
c/o Fox Realty Co.
000 Xxxxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000-0000
with a copy to:
FV Office Partners, L.P.
c/o Wolf, Block, Xxxxxx & Xxxxx-Xxxxx
0000 Xxxx Xxxxxx
00xx Xxxxx
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Xxxxxxxxxxxx, XX 00000
Notices may be given on behalf of any party by its legal
counsel.
(b) Each such notice, demand, request or other
communication shall be deemed to have been properly given for all purposes if
(i) hand delivered, or (ii) mailed by registered or certified mail of the United
States Postal Service, return receipt requested, postage prepaid, or (iii)
delivered to a nationally recognized overnight courier service for next business
day (or sooner) delivery, or
(c) Each such notice, demand, request or other
communication shall be deemed to have been received by its addressee, and to
have been effectively given, upon the earlier of (i) actual delivery, (ii)
refusal of acceptance at the proper address, or (iii) three (3) business days
after deposit thereof at any main or branch United States post office, if sent,
in accordance with clause (ii) of subsection (b) of this Article and (iv) one
(1) business day after delivery to the courier, if sent pursuant to clause (iii)
of subsection (b) of this Article; provided that in the case of delivery by
telecopier or facsimile, "actual delivery" shall mean receipt of the telecopier
or facsimile transmission between the hours of 9:00 AM and 5:00 PM on a business
day or if not received within such hours on a business day, the next business
day after receipt.
28. DEFINITION OF "THE LANDLORD".
The word "Landlord" is used herein to include the Landlord
named above and any subsequent owner of such Landlord's interest in the Building
in which the Premises are located, as well as their respective heirs, personal
representatives, successors and assigns, each of whom shall have the same
rights, remedies, powers, authorities and privileges as it would have had had it
originally signed this Lease as Landlord, including the right to proceed in its
own name to enter judgment, but any such person, whether or not named herein,
shall have no liability hereunder after it ceases to hold such interest. Neither
Landlord nor any principal of or partner in Landlord, whether disclosed or
undisclosed, shall be under any personal liability with respect to any of the
provisions of this Lease and if Landlord shall default in the performance of
Landlord's obligations under this Lease or otherwise, Tenant shall look solely
to the equity of Landlord in its interest in the Property for the satisfaction
of Tenant's remedies. It is expressly understood and agreed that Landlord's
liability under the terms, covenants, conditions, warranties and obligations of
this Lease shall in no event exceed the loss of Landlord's equity in its
interest in the Property.
29. DEFINITION OF "THE TENANT".
As used herein, the term "Tenant" shall be deemed to refer to
each and every person and/or entity hereinabove named as such and to such
persons' and/or entities' respective heirs, personal representatives, successors
and assigns, each of whom shall have the same obligations, liabilities, rights
and privileges as it would have possessed had it originally executed this Lease
as the Tenant. However, no such rights, privileges or powers shall inure to the
benefit of any assignee of the Tenant, immediate or remote, unless the
assignment to such assignee has been approved in writing by Landlord pursuant to
the provisions of this Lease and such assignee shall have executed and delivered
to Landlord the written documents required by Landlord
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referred to hereinbefore. Each and every person hereinabove named as the Tenant
shall be bound jointly and severally by the terms, covenants and agreements
contained herein.
30. ESTOPPEL CERTIFICATE; MORTGAGEE LEASE COMMENTS.
(a) Tenant shall from time to time, within ten (10) days
after Landlord shall have requested in writing the same of Tenant, execute,
enseal, acknowledge and deliver to Landlord a written instrument in recordable
form.
(i) certifying that
(A) this Lease is in full force and
effect and has not been modified, supplemented or amended in any way (or, if
there have been modifications, supplements or amendments thereto, that it is in
full force and effect as modified, supplemented or amended and stating such
modifications, supplements and amendments) and that the Lease (as modified,
supplemented or amended, as aforesaid) represents the entire agreement among
Landlord and Tenant as to the Premises and the leasehold;
(B) the dates to which the Fixed Rent,
additional rent and other charges arising under this Lease have been paid, if
any;
(C) the amount of any prepaid rents or
credits due to Tenant, if any; and
(D) if applicable, Tenant has accepted
the possession of the Premises and has entered into occupancy of the Premises
and the date on which the Term shall have commenced and the corresponding
expiration date;
(ii) stating whether or not to the best knowledge
of the signer of such certificate all conditions under the Lease to be performed
by Landlord prior thereto have been satisfied and whether or not Landlord is
then in default in the performance of any covenant, agreement or condition
contained in this Lease and specifying, if any, each such unsatisfied condition
and each such default of which the signer may have knowledge; and
(iii) stating any other fact or certifying any
other condition reasonably requested by Landlord or requested by any mortgagee
or prospective mortgagee or purchaser of the Property or of any interest
therein. It is intended that any statement delivered pursuant to the provisions
of this Article be relied upon by any such purchaser or mortgagee.
31. SEVERABILITY.
No determination or adjudication by any court, governmental or
administrative body or agency or otherwise that any provision of this Lease or
of any amendment hereto or modification hereof is invalid or unenforceable in
any instance shall affect the validity or the enforceability
(a) of any other provision of this Lease, of such
amendment or modification, or any other such amendment or modification, or
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(b) of such provision in any other instance or
circumstance which is not within the jurisdiction of such court, body or agency
or controlled by its said determination or adjudication. Each and every
provision hereof and of each such amendment or modification shall be and remain
valid and enforceable to the fullest extent allowed by law, and shall be
construed wherever possible as being consistent with applicable law.
32. MISCELLANEOUS.
(a) The Building may be designated and known by any name
Landlord may choose and such name may be changed from time to time at Landlord's
sole discretion. The Titles appearing in connection with various sections of
this Lease are for convenience only. They are not intended to indicate all of
the subject matter in the text and they are not to be used in interpreting this
Lease nor for any other purpose in the event of any controversy.
(b) the term "person" shall be deemed to mean a natural
person, a trustee, a corporation, a partnership and any other form of legal
entity;
(c) all references in the singular or plural number shall
be deemed to have been made, respectively, in the plural or singular number as
well. Each and every document or other writing which is referred to herein as
being attached hereto or is otherwise designated herein as an exhibit hereto is
hereby made a part hereof.
(d) Tenant shall pay upon demand all of Landlord's
reasonable costs, charges and expenses, including the reasonable fees and
out-of-pocket expenses of counsel, agents and others retained by Landlord,
incurred in enforcing Tenant's obligations hereunder or incurred by Landlord in
any litigation, negotiation or transaction in which Tenant causes Landlord
without Landlord's fault to become involved or concerned.
(e) Landlord shall have the right at any time, and from
time to time, during the Term of this Lease, to unilaterally amend the
provisions of this Lease if Landlord is advised by its counsel that all or any
portion of the monies paid by Tenant to Landlord hereunder are, or may be deemed
to be, unrelated business income within the meaning of the United States
Internal Revenue Code or regulations issued thereunder, and Tenant agrees that
it will execute all documents or instruments necessary to effect such amendment
or amendments, provided that no such amendment shall result in Tenant having to
pay in the aggregate a larger sum of money on account of its occupancy of the
Premises under the terms of this Lease as so amended, and provided further that
no such amendment or amendments shall result in Tenant receiving under the
provisions of this Lease less services than it is entitled to receive, nor
services of a lesser quality.
(f) No waiver of any provision of this Lease shall be
implied by any failure of Landlord to enforce any remedy allowed for the
violation of such provision, even if such violation is continued or repeated,
and no express waiver shall affect any provision other than the one(s) specified
in such waiver and only then for the time and in the manner specifically stated.
No receipt of monies by Landlord from Tenant after the termination of this Lease
shall in any way alter the length of the Term or of Tenant's right of possession
hereunder or after the giving of any notice shall reinstate, continue or extend
the Term or affect any notice given to Tenant
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prior to the receipt of such moneys, it being agreed that after the service of
notice or the commencement of a suit or after final judgment for possession of
the Premises, Landlord may receive and collect any rent due, and the payment of
said rent shall not waive or affect said notice, suit or judgment.
(g) It is mutually agreed by and between Landlord and
Tenant that they hereby waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other on any
matter whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises
or claim of injury or damage.
(h) Tenant acknowledges and agrees that Landlord and
Landlord's agents have made no representation, agreements, conditions,
warranties, understandings, or promises, either oral or written, other than as
herein set forth, with respect to this Lease, the Building, the Property, the
Premises, or otherwise.
33. BROKERS.
Tenant represents and warrants that it did not deal with any
broker, finder or other intermediary to whom a fee or commission is or will
become payable in connection with this Lease except Fox Realty Co. and Xxxxx &
Xxxxx Company.
34. SECURITY DEPOSIT. NO SECURITY DEPOSIT SHALL BE REQUIRED.
35. QUIET ENJOYMENT.
Tenant, upon paying the Fixed Rent, additional rent and all
other charges herein provided for and observing and keeping all covenants,
agreements and conditions of this Lease on its part to be kept, shall quietly
have and enjoy the Premises during the term of this Lease without hindrance or
molestation by anyone claiming by or through Landlord, subject, however, to the
exceptions, reservations and conditions of this Lease.
36. RIGHTS OF MORTGAGE HOLDER.
If the holder of a mortgage covering the Premises shall have
given prior written notice to Tenant that it is the holder of such mortgage and
such notice includes the address at which notices to such mortgagee are to be
sent, then Tenant agrees to give to such holder notice simultaneously with any
notice given to Landlord to correct any default of Landlord as hereinabove
provided and agrees that the holder of record of such mortgage shall have the
right, within the greater of thirty (30) days thereafter or the same period of
time accorded Landlord under this Lease after receipt of said notice, to correct
or remedy such default before Tenant may take any action under this Lease by
reason of such default.
37. EXTENSION OPTION.
Tenant shall have the right to extend the Term (the "Renewal
Option") for one additional period of five (5) years commencing on the day
following the Expiration Date and ending on the fifth anniversary of the
Expiration Date (such period, the "Renewal Term"). The
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Renewal Option must be exercised, if at all, by written notice given by Tenant
to Landlord (the "Renewal Notice") not later than twelve (12) months prior to
the Expiration Date. Notwithstanding the foregoing, the Renewal Option shall be
null and void and Tenant shall have no right to extend the Term if on the date
Tenant exercises the Renewal Option or on the date immediately preceding the
commencement date of the Renewal Term: (a) Tenant is in default under this
Lease; or (b) Tenant shall not be creditworthy in the judgment of the Landlord,
or (c) Tenant shall have previously assigned this Lease or sublet all or any
portion of the Premises unless such assignment or sublet was to an affiliate of
Tenant and permitted under the terms and conditions of this Lease. During the
Renewal Term all of the terms and conditions set forth in this Lease applicable
to the Premises during the initial Term shall apply except that: (i) the Fixed
Rent payable by the Tenant for the Premises during the Renewal Term shall be the
then Current Market Rent (as hereinafter defined). For purposes of this Article
37 the term "Current Market Rent" shall be the then rental rate for comparable
space in Chesterbrook Corporate Center(R) provided, however, notwithstanding
anything contained in this Article 37 to the contrary, in no event shall the
Fixed Rent during the Renewal Term be less than the Fixed Rent in effect during
the final lease year of the initial Term. Landlord and Tenant shall endeavor to
mutually agree upon the Current Market Rate within forty-five (45) days after
Landlord's receipt of the Renewal Notice. If Landlord and Tenant are unable to
agree upon the Current Market Rent within such forty-five (45) day period, the
Term shall expire on the Expiration Date and the terms and conditions of this
Article 37 shall be of no further force and effect.
38. WHOLE AGREEMENT.
It is expressly understood and agreed by and between all the
parties hereto that this Lease and any riders attached hereto and forming part
hereof set forth all the promises, agreements, warranties, representations and
understandings between Landlord and Tenant relative to the Premises and this
leasehold, and that there are no promises, agreements, conditions, warranties,
representations or understandings, either oral or written, between them other
than as herein set forth. It is further understood and agreed that, except as
herein otherwise provided, no subsequent alteration, amendment, understanding or
addition to this Lease shall be binding upon Landlord or Tenant unless reduced
to writing and signed by them.
IN WITNESS WHEREOF, the parties hereto have executed this
Lease the day and year aforesaid.
LANDLORD: . TENANT:
FV OFFICE PARTNERS, L.P. INTERNET CAPITAL GROUP
a Delaware limited partnership OPERATIONS, INC.
By: FVGP, L.L.C., a Pennsylvania limited By: Xxxxxxx X. Xxxxxxxx
liability company, General Partner --------------------------
Name: /s/ Xxxxxxx X. Xxxxxxxx
------------------------
By: /s/ Xxxxxx X. Xxx Title: CFO
----------------------
Xxxxxx X. Xxx
a Member
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EXHIBIT "A"
FLOOR PLAN
Layout of Floor Plan for Third Floor of 000 Xxx Xxxx, Xxxxx, XX 00000
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EXHIBIT "B"
DESCRIPTION OF THE LAND
PREMISES "A":
ALL THAT CERTAIN parcel of land situate in the Township of Tredyffrin, County of
Xxxxxxx and Commonwealth of Pennsylvania, bounded and described in accordance
with a Land Title Survey, prepared for Parcel 6-4 Associates, dated March 3,
1997, last revised September 10, 1998 as prepared by Xxxxxx Associates, Inc.,
Consulting Engineers and Suveyors more particularly described as follows:
BEGINNING at a point on the southerly side of Xxx Road (60 feet wide) also being
a common corner of Parcel 6-5 as shown on said plan, said point being measured
from a point of radius round corner connecting the southeasterly side of said
Xxx Road: (1) along the arc of a circle of a radius round corner curving to the
right in an easterly direction having a radius of 25 feet the arc distance of
39.27 feet to a point of tangency; (2) South 44 degrees 27 minutes East 190.26
feet to a point of curve; (3) along the arc of a circle curving to the left in
an easterly direction having a radius of 430 feet the arc distance of 486.76
feet to a point of tangency; (4) North 70 degrees 41 minutes 30 seconds East
110.00 feet to the beginning point; thence extending from the beginning point
along the southerly side of Xxx Road, North 70 degrees 41 minutes 30 seconds
East 255.63 feet to a point of curve; thence still by same along the arc of a
circle curving to the right in a southeasterly direction having a radius of 60
feet the arc distance of 43.36 feet to a point of reverse curve; thence
extending along a portion of the perimeter of Xxx Road cul-de-sac along the arc
of a circle curving to the left in an easterly direction having a radius of 60
feet the arc distance of 43.36 feet to a point; thence leaving said Xxx Road,
extending along Parcel 6-3 shown on said Plan, South 19 degrees 18 minutes 30
seconds East 672.91 feet to a point in line of LR 1042 (Route 202) Exit Ramp
Right of Way; thence extending along said right of way, the following courses
and distances: (1) North 79 degrees 34 minutes 46 seconds West 31.20 feet to a
point; (2) South 10 degrees 25 minutes 14 seconds West 20.00 feet to a point of
curve; (3) along the arc of a circle curving to the left in a westerly direction
having a radius of 528.34 feet the arc distance of 310.16 feet to a point;
thence leaving said right of way extending along Parcel 6-5 as shown on said
Plan, North 19 degrees 18 minutes 30 seconds West 636.50 feet to the first
mentioned point and place of beginning.
BEING PARCEL No. 43-5-26.33
PREMISES "B":
ALL THAT CERTAIN parcel of land situate in the Township of Tredyffrin, County of
Xxxxxxx and Commonwealth of Pennsylvania, bounded and described in accordance
with a Land Title Survey, prepared for Parcel 6-4 Associates, dated March 3,
1997, last revised September 10, 1998 as prepared by Xxxxxx Associates, Inc.,
Consulting Engineers and Surveyors more particularly described as follows:
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BEGINNING at a point on the southerly side of Xxx Road (60 feet wide), also
being a common corner of Parcel 19-2 as shown on said plan, said point being
measure the three following courses and distances along the southerly side of
Xxx Road from a point of radius round corner connecting the southeasterly side
of Chesterbrook Boulevard (70 feet wide) with the southwesterly side of said Xxx
Road; (1) along the arc of a circle of a radius round corner curving to the
right in an easterly direction having a radius of 25 feet, the arc distance of
39.27 feet to a point of tangency; (2) South 44 degrees 27 minutes East 190.26
feet to a point of curve; (3) along the arc of a circle curving to the left in
an easterly direction having a radius of 430 feet, the arc distance of 297.32
feet to the beginning point; thence extending from the beginning point, along
the southerly side of said Xxx Road along the arc of a circle curving to the
left in an easterly direction having a radius of 430.00 feet the arc distance of
189.44 feet to a point of tangency; thence still by the same, North 70 degrees
41 minutes 30 seconds East 110.00 feet to a point; thence leaving said Xxx Road
extending along Parcel 6-4, as shown on said Plan, South 19 degrees 18 minutes
30 seconds East 636.50 feet to a point on curve in line of L.R. 1042 (Route 202)
Exit Ramp Right of Way; thence extending along said right of way, the four
following courses and distances: (1) along the arc of a circle curving to the
left in a southwesterly direction having a radius of 528.34 feet, the arc
distance of 175.59 feet to a point; (2) extending radially, North 42 degrees 15
minutes 23 seconds West 20.00 feet to a point of curve; (3) along the arc of a
circle curving to the left in a southwesterly direction having a radius of
548.34 feet the arc distance of 106.00 feet to a point of tangency; (4) South 36
degrees 40 minutes 03 seconds West 49.54 feet to a point; thence leaving said
right of way extending along Parcel 19-2 as shown on said plan, the two
following courses and distances: (1) North 24 degrees 30 minutes West 345.31
feet to a point; thence (2) North 12 degrees 46 minutes West 436.87 feet to the
first mentioned point and place of beginning.
PREMISES "C":
ALL THAT CERTAIN parcel of land situate in the Township of Tredyffrin, County of
Xxxxxxx and Commonwealth of Pennsylvania, bounded and described in accordance
with a Land Title Survey, prepared for Parcel 6-4 Associates, dated March 3,
1997, last revised September 10, 1998 as prepared by Xxxxxx Associates, Inc.,
Consulting Engineers and Surveyors more particularly described as follows:
BEGINNING at a point on the southeasterly side of Chesterbrook Boulevard (70
feet wide), said point being the distance of 35 feet measure South 44 degrees 27
minutes East from a point on the centerline of said Chesterbrook Boulevard, said
last mentioned point being the distance of 259.75 feet measure North 45 degrees
33 minutes East from a point marking the intersection of the centerline of said
Chesterbrook Boulevard with the centerline of Duportail Road (60 feet wide);
thence extending from the beginning point along the southeasterly side of said
Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 00 degrees 33 minutes East 109.47 feet to a point
of curve of a radius corner connecting the aforesaid southeasterly side of
Chesterbrook Boulevard with the southerly side of Xxx Road (60 feet wide);
thence extending along said radius round corner along the arc of a circle
curving to the right in a southeasterly direction having a radius of 25 feet,
the arc distance of 39.27 feet to a point of tangency; thence extending along
the southerly side of said Xxx Road, the two following courses and distances:
(1) South 44 degrees 27 minutes East 190.26 feet to a point of curve; (2) along
the arc of a circle curving to the left in an easterly
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direction having a radius of 430.00 feet, the arc distance of 297.32 feet to a
point, thence leaving said Xxx Road extending along Parcel 6-5 as shown on said
plan, the two following courses and distances: (1) South 12 degrees 46 minutes
East 436.87 feet to a point; (2) South 24 degrees 30 minutes East 345.31 feet to
a point on curve in line of the northerly right of way of LR 1042 (U.S. Route
202); thence extending along said right of way along the arc of a circle curving
to the right in a westerly direction having a radius of 7,514.49 feet, the arc
distance of 385.00 feet to a point; thence leaving said right of way extending
along Parcel 7 as shown on said Plan, the three following courses and distances:
(1) North 30 degrees 00 minutes West 615.08 feet to a point; (2) North 02
degrees 08 minutes East 352.39 feet to a point; (3) North 44 degrees 27 minutes
West 101.14 feet to the first mentioned point and place beginning.
BEING PARCEL No. 43-5-26.30
BEING as to Premises "A", Premises "B" and Premises "C", the same premises which
Parcel 6-4 Associates, L.P., by Deed dated 9/24/1998 and recorded 10/15/1998 in
the Office of the Recorder of Deeds of Xxxxxxx County in Deed Book 4437 page
995, granted and conveyed unto FV Office Partners, L.P., a Delaware Limited
Partnership, in fee
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EXHIBIT "C"
MEMORANDUM OF COMMENCEMENT DATE
THIS MEMORANDUM OF COMMENCEMENT DATE made this _____ day of __________________,
200___.
FV OFFICE PARTNERS, L.P. ("Landlord") and INTERNET CAPITAL GROUP OPERATIONS,
INC. ("Tenant") are parties to a certain Agreement of Lease ("Lease") dated
________________________, 200___ with respect to Premises identified as Suite
____, 000 Xxx Xxxx, Xxxxxxxxxxxx, XX 00000.
Pursuant of the Lease, Landlord and Tenant do hereby confirm that the Term of
the Lease commenced _____________________, 2003 and, subject to such rights of
renewal or extension, if any, as are expressly provided therein, shall expire
_________________________, _________.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum the day
and year first above written.
LANDLORD: TENANT:
FV OFFICE PARTNERS, L.P. INTERNET CAPITAL GROUP
a Delaware limited partnership OPERATIONS, INC.
By: FVGP, L.L.C., a Pennsylvania limited By:___________________________
liability company, General Partner
Name:_________________________
By:___________________________ Title:________________________
Xxxxxx X. Xxx
a Member
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EXHIBIT "D"
LANDLORD'S PRELIMINARY PLANS
Landlord's Preliminary Floor Plan Layout for Third Floor of
000 Xxx Xxxx, Xxxxx, XX 00000
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EXHIBIT "E"
STANDARD TENANT WORK
A. GENERAL CONSTRUCTION
Landlord shall furnish at no additional cost to Tenant the
following standards of construction:
1. Floors: Floors will be finished in Xxxx'x "Bayhill" 42 oz. cut
pile specification carpet in building standard colors. 28
ounce loop is available as an alternative.
2. Ceilings: As-is
3. Partitions: As-is per Xxxxx Xxxxxxxx Sketch Plan SK-2, dated
June 6, 2003
4. Doors and Frames: As-is per Xxxxx Xxxxxxxx Sketch Plan SK-2,
dated June 6, 2003
5. Hardware: As-is per Xxxxx Xxxxxxxx Sketch Plan SK-2, dated
June 6, 2003
6. Windows: As-is per Xxxxx Xxxxxxxx Sketch Plan SK-2, dated June
6, 2003
B. ELECTRICAL CONSTRUCTION
1. Wiring: Facilities sufficient for 2 xxxxx per sq. ft. of
rentable area connected load at 110 - 120 V single phase for
general use and facilities sufficient for 3 xxxxx per square
foot of rentable area connected load at 277/480 V, 3 phase 4
wire for fluorescent lighting. All wiring above ceilings,
including CRT wiring, must be either Teflon coated or run in
conduit.
2. Lighting: As-is per Xxxxx Xxxxxxxx Sketch Plan SK-2, dated
June 6, 2003. Cost of lamps and ballast beyond initial
installation not included.
3. Electrical Outlets and Switches: As-is per Xxxxx Xxxxxxxx
Sketch Plan SK-2, dated June 6, 2003.
4. Telephone Outlets: Tenant shall make arrangements with and pay
for installation to the Telephone Company for its required
installation within the demised premises and will cause
Telephone Company work to be performed at a time compatible
with Landlord's work. At the expiration or earlier termination
of this Lease, Tenant, at its sole cost and expense, shall
remove all telephone and data wiring and shall repair all
damage to the Premises caused by the installation or removal
of such wiring.
C. HEATING, VENTILATING AND AIR-CONDITIONING
Furnish and install a complete year-round heating, ventilating, and air
conditioning system to provide interior conditions to 78 degrees F. dry
bulb and 50% relative humidity when outside conditions are 93 degrees
F. dry bulb and 75 degrees F. wet bulb, and 68
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degrees F. inside when outside temperatures are 10 degrees F., provided
that in any given room or area of Tenant's demised premises, the
occupancy does not exceed one person for each 150 square feet, and
total electric load does not exceed 5 xxxxx per sq. ft. for all
purposes, including lighting and power. The air conditioning system
will include a reasonable amount of duct work and shall provide not
less than .13 cubic feet of fresh air per minute per square foot of
rentable floor area.
D. TENANT'S FINISH WORK
1. Landlord further agrees to approve or perform, at Tenant's
request, upon submission by Tenant of acceptable plans and
specifications any additional or non-standard work over and
above that specified in Paragraphs A, B, and C of this Exhibit
"E". Such work shall be performed by Landlord, at Tenant's
sole expense, as a Tenant extra, or Tenant's contractors as
herein below provided. Prior to commencing any such work
requested by Tenant, Landlord will submit to Tenant written
estimates of the cost of any such work. If Tenant shall fail
to approve in writing any such estimate within five (5)
working days the same shall be deemed disapproved in all
respects by Tenant and Landlord shall not be authorized or
obligated to proceed thereon. Tenant agrees to pay Landlord,
promptly upon being billed therefor. Tenant agrees that the
same shall be collectible as additional rent pursuant to the
Lease and in default of payment thereof, Landlord shall (in
addition to all other remedies) have the same rights as in the
event of default of payment of rent.
2. Tenant may, at its option after occupancy of premises, employ
its own subcontractors finishing trade work; such as,
carpentry, millwork, cabinet work, carpeting and draperies as
may be initially furnished and installed by Tenant in the
demised premises, provided such subcontractors work in harmony
with, and do not interfere with the labor employed by the
Landlord, its contractors or any other tenant or their
contractors, and otherwise comply with the provisions of the
Lease, and provided Tenant's subcontractors accept the
administrative supervision of Landlord's representative.
Workmen's Compensation, public liability insurance and
property damage insurance, with a Hold Harmless provision, all
in amounts and with companies reasonably satisfactory to
Landlord, shall be maintained by such finish trades
subcontractors; certificates of such insurance and waivers of
liens shall be furnished to Landlord prior to commencement of
work.
3. No credit is intended nor shall be allowed for any unused
portion of work allowed by the Landlord.
E. SCHEDULE OF DELIVERY OF TENANT'S DRAWINGS
1. Tenant shall furnish Landlord the following complete
descriptive information, on or before the dates listed below:
a. On or before July 8, 2003:
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1. The location and extent of floor loading and
floor opening in excess of building
standard.
2. The special air-conditioning needs by
location and general description of need.
3. Location and description of special plumbing
requirements.
4. Estimated total electrical load including
lighting for entire space.
b. On or before July 8, 2003:
1. Partition locations, and type.
2. Door locations, size and type.
3. Location of electrical outlets and telephone
outlets.
4. Any structural installations.
5. Air-conditioning loads.
6. Specific plumbing requirements, including
plans and specifications.
7. Cabinet work and any other information
affecting other trades.
c. On or before July 8, 2003:
1. Decorative plans including paint schedule,
floor coverings, draperies, wall coverings.
2. Architectural detailing.
If Tenant fails to furnish such information within the time
prescribed (or any further information within five (5) days
after written demand), Landlord may complete the demised
premises in a manner satisfactory to Landlord.
2. Filing of Plans: Landlord shall without delay file all
necessary plans and obtain all necessary approvals and permits
in connection with the Standard Tenant Work and Special Tenant
Work.
3. Substitutions: All finish work shall require the installation
of new materials at least comparable to the quality installed
in the building.
Tenant may substitute material, equipment, and fixtures for
those specified for in the Standard Tenant Work with written
consent of Landlord. Tenant shall pay Landlord the cost to
Landlord for such substitute items which is in excess of such
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items included in Standard Tenant Work. The cost to Tenant for
such substitution shall be Landlord's cost for the substitute
item plus 10% of Landlord's cost for Landlord's expenses and
profit in the handling of the substitution. Tenant may also
request Landlord to omit the installations of any item not
therefore installed and, provided such omission shall not
delay Landlord's work, Landlord shall not be obligated to
install the same. Tenant shall not be entitled to any credit
for any such item omitted against any additional item or any
item of a different kind of character.
F. WORK PERFORMED BY TENANT PRIOR TO COMMENCEMENT OF LEASE
Landlord may elect to permit Tenant and its agents to enter
the demised premises prior to the date specified for the
commencement of the term of said Lease in order that Tenant
may perform through its own contractors such other work and
decorations as Tenant may desire at the same time that
Landlord's contractors are working in the space. The foregoing
approval to enter prior to commencement of the term, however,
is conditioned upon Tenant's workmen and mechanics working in
harmony and not interfering with the labor employed by
Landlord, Landlord's mechanics or contractors or by any other
Tenant or their contractors and compliance with the terms of
the Lease. If at any time, such entry shall cause disharmony
or interference therewith, this license may be withdrawn by
Landlord upon twenty-four (24) hours written notice to Tenant
and further provided that Workmen's Compensation and Public
Liability Insurance and Property Damage Insurance, with Hold
Harmless provision, all in amounts and with companies and on
forms satisfactory to us, shall be provided and at all times
maintained by Tenant's contractors engaged in the performance
of the work, and before proceeding with work, certificates of
such insurance shall be furnished to Landlord.
Such entry shall be deemed to be under all of the terms,
covenants, provisions and conditions of the said Lease except
as to the covenant to pay rent. Landlord shall not be liable
in any way for any injury, loss or damage which may occur to
any of Tenant's decorations or installations so made prior to
the commencement of the term of the Lease, the same being
solely at Tenant's risk.
The provisions of this Exhibit "E" are specifically subject to
the provisions of the Lease.
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EXHIBIT "F"
CLEANING SPECIFICATIONS
General cleaning: five nights per week, Monday through Friday.
DAILY:
1. Empty waste receptacles and remove to designated area for pick
up.
2. Empty, wipe clean all ash trays. Where sand urns are used,
empty all debris, smooth sand and replace when needed.
3. Dust and/or damp wipe clean the following:
Desk
Doors
Chairs
Pushplates
Window xxxxx
Tables and Lamps
Picture and Frames
File and Storage Cabinets
Counter, ledges, shelves & ventilation louvers under
six feet
4. Spot vacuum all areas as needed.
5. Special attention will be given to the Executive areas and
Conference rooms.
6. Wash, clean and disinfect all water fountains and/or coolers.
7. Wash front door glass, as well as the adjacent architectural
metal trim, to remove fingerprints, smudges, etc. caused
during the day.
8. Special attention will be given to the lobby, reception and
other public areas. All furniture will be hand wiped and
carpets thoroughly vacuumed.
9. Sweep all resilient tile floor coverings with
chemically-treated dry mop. Spot mop to remove soilage.
10. Extinguish all interior lights unless otherwise notified.
Night and safety lights will be operated as instructed. All
doors will be locked and secured and any doors that are not
functioning will be reported by the night supervisor.
11. Lavatories:
a. Sweep and wet mop floors
b. Polish all mirrors, bright work and enameled
surfaces
c. Wash and disinfect all basins, bowls and
urinals
d. Hand dust and clean all partitions, tops of
tile ledges, all towel, paper and sanitary
napkin dispensers.
e. Refill all toilet tissue, soap, sanitary napkin and towel dispensers
(towels, tissues, napkins, hand soap, etc. to be supplied by Landlord).
WEEKLY:
1. Spot clean doors, glass partitions and electric switch plates.
Glass doors will be washed.
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2. High dust all horizontal surfaces above the reach of the
average person (such as door frames, partitions, ledges, etc.)
3. All carpeted areas will be thoroughly vacuumed.
4. Remove fingerprints and scuff marks from all vertical surfaces
within the reach of the average person.
5. Sweep or vacuum stairs, spot mop when required; dust handrails and
riser. Polish trim where required.
MONTHLY:
1. Spray buff all resilient tile floors.
QUARTERLY:
1. Dust venetian blinds.
SEMI-ANNUALLY:
1. Wash windows inside and outside.
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EXHIBIT "G"
RULES AND REGULATIONS
1. The walkways, roadways, driveways, entrances, lobbies,
passages, and stairways shall not be obstructed by Tenant or used by Tenant for
any purposes other than ingress and egress from and to the Building and Tenant's
offices. The parking areas shall be used only for the parking of automobiles of
Tenant, its agents, employees and invitees while actually present in the
Premises. Landlord shall in all cases retain the right to control or prevent
access to all of the aforesaid areas of all persons whose presence, in the
judgment of Landlord, shall be prejudicial to the safety, peace, character, or
reputation of the Building, the property located therein or of any of the
tenants.
2. The toilet rooms, water closets, sinks, faucets, plumbing or
other service apparatus of any kind shall not be used by Tenant for any purposes
other than those of which they were installed, and no sweepings, rubbish, rags,
ashes, chemicals or other refuse or injurious substances shall be placed therein
or used in connection therewith by Tenant or left by Tenant in the lobbies,
passages, elevators or stairways. Nothing shall be thrown by Tenant or Tenant's
employees nor be allowed by them to drop out of the windows or doors, or down
the passages of the Building.
3. Nothing shall be placed by Tenant on the outside of the
Building or on its window xxxxx or projections. Skylights, windows, doors and
transoms shall not be covered or obstructed by Tenant, and no window shades,
blinds, curtains, screens, storm windows, awnings or other materials shall be
installed or placed on any of the windows or in any of the window spaces, except
as approved in writing by Landlord.
4. No sign, lettering, insignia, advertisement, notice shall be
inscribed, painted, installed or placed on any windows or in any window spaces
or any other part of the outside or inside of the Building, unless first
approved in writing by Landlord. Names on or beside suite entrance doors shall
be provided for Tenant by Landlord and not otherwise, and at Tenant's expense;
in all instances, such names shall be of design and form first approved by
Landlord.
5. Tenant shall not place additional locks upon any doors. The
janitor and the manager of the Building may at all times keep a pass key, and he
and other agents of the Landlord shall at all times be allowed admittance to the
leased Premises for purposes permitted in Tenant's lease. Upon surrendering
possession of the Premises at the termination of this Lease, Tenant shall
deliver to Landlord all keys for the Premises.
6. The delivery of towels, ice, water, food, beverages,
newspapers and other supplies will be permitted only under the direction,
control and supervision of Landlord. No bicycles or similar vehicles will be
allowed in the Building.
7. Tenant shall not do or commit, or suffer to be done or
committed, any act or thing whereby, or in consequence whereof, the rights of
other tenants will be obstructed or interfered with, or other tenants will in
any other way be injured or annoyed, or whereby the Building will be damaged.
Tenant shall not suffer or permit the Premises or any part thereof to be used in
any
-1-
manner or anything to be done therein or suffer or permit anything to be brought
into or kept in the Premises which, in the judgment of Landlord, shall in any
way impair or tend to impair the character, reputation or appearance of the
Building as a first-class office building. Tenant shall not use or keep or
permit to be used or kept in the Building any matter having an offensive odor,
nor any ether, naphtha, phosphorous, benzole, kerosene, gasoline, benzine,
camphene, fuel or other explosive or highly flammable material. Tenant shall
neither bring, keep or use in the Building any chemical reagent except as the
same may be components of commercial products normally used or consumed by
occupants of office buildings. No birds, fish or other animals shall be brought
into or kept in or about the Premises.
8. In order that the Premises may be kept in a good state of
preservation and cleanliness, Tenant shall during the continuance of its
possession permit Landlord's employees and contractors and no one else to clean
the Premises. Landlord shall be in no way responsible to Tenant for any damage
done to furniture or other effects of Tenant or others by any of Landlord's
employees, or any other person, or for any loss of Tenant's employees, or for
any loss of property of any kind in or from the Premises, however occurring.
Tenant shall see each day that the windows are closed, lights are turned off,
and the doors securely locked before leaving the Premises.
9. If Tenant desires to introduce signaling, telegraphic,
telephonic, protective alarm or other wires, cables, apparatus or devices,
Landlord shall direct where and how the same are to be placed, and except as so
directed, no installation, boring or cutting shall be permitted. Landlord shall
have the right to prevent and to cut off the transmission of excessive or
dangerous current of electricity or annoyances into or through the Building or
Premises and to require the changing of wiring connections or layout at Tenant's
expense, to the extent that Landlord may deem necessary, and further to require
compliance with such reasonable rules as Landlord may establish relating
thereto, and in the event of non-compliance with the requirements or rules,
Landlord shall have the right immediately to cut wiring or to do what it
considers necessary to remove the danger, annoyance or electrical interference
with apparatus in any part of the Building. All wires and cables installed by
Tenant must be clearly tagged at the distributing boards and junction boxes and
elsewhere required by Landlord, with the number of the office to which said
wires and cables lead, and the purpose for which the wires and cables
respectively are used, together with the name of the concern, if any, operating
same.
10. A directory on a bulletin board on the ground floor may be
provided by Landlord, on which the name of Tenant may be placed.
11. No furniture, packages, equipment, supplies or merchandise of
Tenant will be received in the Building, or carried up or down in the elevators
or stairways, except during such hours as shall be designated by Landlord, and
Landlord in all cases shall also have the exclusive right to prescribe the
method and manner in which the same shall be brought in or taken out of the
Building. Landlord shall in all cases have the right to exclude from the
Building heavy furniture, safes and other articles which may be hazardous or to
require them to be located at designated places in the Premises. The cost of
repairing any damage to the Building caused by taking in or out furniture, safes
or any articles or any damage caused while the same shall be in the Premises,
shall be paid by Tenant.
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12. Without Landlord's written consent, nothing shall be fastened
to, nor shall holes be drilled or nails or screws driven into walls or
partitions; nor shall walls or partitions be painted, papered or otherwise
covered or moved in any way or marked or broken; nor shall any connection be
made to electric wires for running fans or motors or other apparatus, devices or
equipment; nor shall machinery of any kind other than customary small business
machines be allowed in the Premises; nor shall Tenant use any other method of
heating, ventilating, air conditioning or air cooling than that provided by
Landlord. Telephones, switchboards and telephone wiring and equipment shall be
placed only where designated by Landlord. No mechanics shall be allowed to work
in or about the Building other than those employed by Landlord without the
written consent of Landlord first having been obtained.
13. Landlord shall, in no case, be liable or responsible for the
admission or exclusion of any person to or from the Building or access to the
Premises. In case of invasion, hostile attack, insurrection, mob violence, riot,
public excitement or other commotion, explosion, fire or any casualty, Landlord
reserves the right to bar or limit access to the Building for the safety of
occupants or protection of property.
14. Landlord reserves the right to rescind, suspend or modify any
rules or regulations and to make such other rules or regulations as, in
Landlord's judgment, may from time to time be needful for the safety, care,
maintenance, operation and cleanliness of the Building as a first class office
building, or for the preservation of good order therein. Notice of any action by
Landlord referred to in this paragraph, given to Tenant, shall have the same
force and effect as if originally made a part of the foregoing Lease. New rules
or regulations will not, however, be unreasonably inconsistent with the proper
use and enjoyment of the Premises by Tenant under the Lease.
15. The use of rooms as sleeping quarters is prohibited at all
times.
16. Tenant shall keep the windows and doors of the Premises,
including those openings on corridors and all doors between rooms or spaces
entitled to receive heating, ventilating or air conditioning service and rooms
and spaces not entitled to receive such service, closed during the respective
times that the heating, ventilating or air conditioning system is operating, in
order to conserve the service and effectiveness of the heating, ventilating or
air conditioning system as the case may be. Tenant shall comply with all
reasonable rules and regulations from time to time promulgated by Landlord to
conserve such services.
17. Landlord reserves the right to require that the Premises or
any portion thereof shall not be used by Tenant or others for an employment
agency, or for securing employees other than those to be employed on the
Premises, or for the payment of salaries or wages to employees or persons who
are not actually employed in the Building, nor for any other purpose except that
specified in this Lease.
18. Landlord shall have the right to enter the Premises to put a
"To Let" or similar notice upon the Premises, which notice shall not be removed
or obliterated by the Tenant, during the six months previous to the expiration
of the then current Term of this Lease, and any such entering shall not be
treated as a deprivation of Tenant's use of the Premises or work an eviction of
Tenant or a recession of this Lease.
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19. No smoking of any kind shall be permitted on the Property
except in the Premises or within enclosed automobiles or similar vehicles.
20. These rules and regulations are not intended to give Tenant
any rights or claims in the event the Landlord does not enforce any of them
against any other tenants or if Landlord does not have the right to enforce them
against any other tenants and such non-enforcement will not constitute a waiver
as to Tenant.
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EXHIBIT "H"
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT is entered into as of ________________, 200_, between
__________________________________, a corporation organized and existing under
the laws of the state of ________________ whose present address is
_________________________ ____________________ ("Tenant"), FV OFFICE PARTNERS,
L.P., a limited partnership organized and existing under the laws of Delaware,
whose address is Xxxxx 000, 000 Xxxxxxxxx Xxxx, Xxxxx, XX 00000 (hereafter
called "Borrower"), and THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a
Wisconsin corporation ("Lender"), whose address for notices is 000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attention: Real Estate Investment
Department, Reference Loan No. .
RECITALS
A. Tenant is the lessee or successor to the lessee, and the
Borrower is the lessor or successor to the lessor under a certain lease dated
________________, 200_, (the "Lease").
B. Lender has made a mortgage loan secured by a mortgage, deed to
secure a debt or deed of trust from Borrower for the benefit of Lender (the
"Lien Instrument") encumbering the fee title to the land described in Exhibit A
attached hereto and the improvements thereon (collectively, the "Property"),
wherein the premises covered by the Lease (the "Demised Premises") are located.
C. Borrower and Lender have executed an Absolute Assignment of
Leases and Rents (the "Absolute Assignment"), pursuant to which (i) the Lease is
assigned to Lender and (ii) Lender grants a license back to Borrower permitting
Borrower to collect all Rents, income and other sums payable under the Lease
until the revocation by Lender of such license, at which time all rents, income
and other sums payable under the Lease are to be paid to Lender.
D. Lender has required the execution of this Agreement by
Borrower and Tenant as a condition to Lender making the requested mortgage loan
or consenting to the Lease. Tenant has requested execution of this Agreement by
Borrower and Lender as condition to entering into the Lease.
E. Tenant acknowledges that, as its consideration for entering
into this Agreement, Tenant will benefit by entering into an agreement with
Lender concerning Tenant's relationship with any purchaser or transferee of the
Property (including Lender) in the event of foreclosure of the Lien Instrument
of a transfer of the Property by deed in lieu of foreclosure (any such purchaser
or transferee and each of their respective successors or assigns, including
Lender or its designee, in hereinafter referred to as "Successor Landlord").
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Tenant, Borrower and
Lender agree as follows:
1. Tenant and Borrower agree for the benefit of Lender that:
(a) Tenant shall not pay, and Borrower shall not accept,
any rent or additional rent more than one month in
advance except to the extent Tenant has pre-paid as a
result of Landlord's estimates being in excess of
actual additional rent;
(b) Except as specifically provided in the Lease, Tenant
and Borrower will not enter into any agreement for
the cancellation of the Lease or the surrender of the
Demised Premises without Lender's prior written
consent;
(c) Tenant and Borrower will not enter into any agreement
amending or modifying the Lease without Lender's
prior written consent, except for amendments or
modifications specifically contemplated in the Lease
for confirming the lease commencement date, the rent
commencement date, the term, the square footage
leased, the renewal or extension of the Lease, or the
leasing of additional space at the Property;
(d) Tenant will not terminate the Lease because of a
default thereunder by Borrower unless Tenant shall
have first given Lender written notice and a
reasonable opportunity to cure such default as
specified in Article 36 of the Lease; and
(e) Tenant, upon receipt of notice from Lender that it
has exercised its rights under the Absolute
Assignment and revoked the license granted to
Borrower to collect all rents, income and other sums
payable under the Lease, shall pay to Lender all rent
and other payments then or thereafter due under the
Lease, and any such payments to Lender shall be
credited against the rent or other obligations due
under the Lease as if made to Borrower.
2. The Lease is hereby subordinated in all respects to the Lien
Instrument and to all renewals, modifications and extensions thereof, subject to
and conditioned upon the terms and conditions hereinafter set forth in this
Agreement, but Tenant waives, to the fullest extent it may lawfully do so, the
provisions of any statute or rule of law now or hereafter in effect that may
give or purport to give it any right or election to terminate or otherwise
adversely affect the Lease or the obligations of Tenant thereunder by reason of
any foreclosure proceeding.
3. Borrower, Tenant and Lender agree that, unless Lender shall
otherwise consent in writing, the fee title to, or any leasehold interest in,
the Property and the leasehold estate created by the Lease shall not merge but
shall remain separate and distinct, notwithstanding, the union of
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said estates either in Borrower or Tenant or any third party by purchase,
assignment or otherwise.
4. If the interests of Borrower in the Property are acquired by a
Successor Landlord, Landlord and Tenant agree:
(a) If an Event of Default has not occurred in the payment of rent
or other sums due under the Lease or an Event of Default under
the Lease, the Lease shall not terminate or be terminated and
the rights of Tenant thereunder shall continue in full force
and effect except as provided in this Agreement and Tenant
shall not be disturbed;
(b) Tenant agrees to attorn to Successor Landlord as lessor;
Tenant shall be bound under all of the terms, covenants and
conditions of the Lease for the balance of the term thereof,
including any renewal options which are exercised in
accordance with the terms of the Lease;
(c) The interests so acquired shall not merge with any other
interests of Successor Landlord in the Property if such merger
would result in the termination of the Lease;
(d) If, notwithstanding any other provisions of this Agreement,
the acquisition by Successor Landlord of the interests of
Borrower in the Property results, in whole or part, in the
termination of the Lease, there shall be deemed to have been
created a lease between Successor Landlord and Tenant on the
same terms and conditions as the Lease for the remainder of
the term of the Lease, with renewal options, if any; and
(e) Successor Landlord shall be bound to Tenant under all of the
terms, covenants and conditions of the Lease, and Tenant
shall, from and after Successors Landlord's acquisition of the
interests of Borrower in the real estate, have the same
remedies against Successor Landlord for the breach of the
Lease that Tenant would have had under the Lease against
Borrower if the Successor Landlord had not succeeded to the
interests of Borrower; provided, however, that Successor
Landlord shall not be:
(i) Liable for the breach of any representations
or warranties set forth in the Lease or for
any act, omission or obligation of any
landlord (including Borrower) occurring or
accruing prior to the date of Successor
Landlord's acquisition of the interests of
Borrower in the Demised Premises, except for
any repair and maintenance obligations of a
continuing nature as of the date of such
acquisitions;
(ii) Subject to any offsets or defenses which
Tenant might have against any landlord
(including Borrower) prior to the date of
Successor Landlord's acquisition of the
interests of Borrower in the Demised
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Premises, except with respect to obligations
Successor Landlord has assumed in clause (i)
above;
(iii) Liable for the return of any security
deposit under the Lease unless such security
deposit shall have been actually deposited
with Successor Landlord;
(iv) Bound to Tenant subsequent to the date upon
which Successor Landlord transfers its
interest in the Demised Premises to any
third party;
(v) Liable to Tenant under any indemnification
provisions set forth in the Lease or for any
act of, or failure to act by any party other
than Successor Landlord and its agents,
officers and employees; or
(vi) Liable for any damages in excess of
Successor Landlord's equity in the Property.
The provisions of this paragraph shall be effective and self-operative
immediately upon Successor Landlord succeeding to the interests of Borrower
without the execution of any other instrument.
5. This agreement may not be modified orally or in any other
manner except by am agreement in writing signed by the parties hereto or their
respective successors in interest. In the event of any conflict between the
terms of this Agreement and the terms of the Lease, the terms of this Agreement
shall prevail. This Agreement shall inure to the benefit of and be binding upon
the parties hereto, their respective heirs, successors and assigns. Upon
recorded satisfaction of the Lien Instrument, this Agreement shall become null
and void and be of no further effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
TENANT:
____________________________________
a _________________ corporation
By:_________________________________
Name:_______________________________
Title:______________________________
Attest:_____________________________
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BORROWER:
FV OFFICE PARTNERS, L.P.
a Delaware limited partnership
By:__FVGP, L.L.C., a Pennsylvania limited
liability company, General Partner
By:______________________________________
Xxxxxx X. Xxx
a Member
Attest:__________________________________
LENDER:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
a Wisconsin corporation
By: Northwestern Investment Management
Company, a Wisconsin corporation, its
wholly owned subsidiary and
authorized representative
By:______________________________________
Attest:__________________________________
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