EXHIBIT 10.17
LEASE AGREEMENT
BETWEEN
RODIN PARTNERS, L.P.,
a Pennsylvania partnership, Landlord
AND
AVAX TECHNOLOGIES, INC,
a Delaware corporation, Tenant
Copy No. 4
Dated: December 1, 1997
INDEX TO LEASE AGREEMENT
Page
----
ARTICLE I TERM
Section 1.01 Confirmation of the Term................................ 1
Section 1.02 Inability to Deliver Possession......................... 1
Section 1.03 Failure of Tenant to Open and to
Operate ................................................ 1
Section 1.04 Lease Year.............................................. 1
ARTICLE II CONDUCT OF BUSINESS BY TENANT
Section 2.01 Use of Premises......................................... 2
Section 2.03 Licenses, Permits and
Certificates of Occupancy............................... 3
Section 2.03 Rules and Regulations................................... 3
ARTICLE III FIXED MINIMUM RENT; SECURITY DEPOSIT
Section 3.01 Fixed Minimum Rent...................................... 3
Section 3.02 Time and Place of Payment; Late
Charges ................................................ 3
Section 3.03 Security Deposit ....................................... 4
ARTICLE IV CONDITION OF PREMISES; CHANGES TO BUILDING
Section 4.01 Construction by Landlord ............................... 4
Section 4.02 Tenant's Improvements................................... 5
Section 4.03 Roof, Walls, Changes and Additions to Building.......... 5
Section 4.04 Condition of Premises .................................. 6
ARTICLE V COMMON AREAS; OPERATING COSTS
Section 5.01 Control of Common Areas................................. 6
Section 5.02 Operating Costs......................................... 6
Section 5.03 Payments on Account of Operating Costs.................. 7
Section 5.04 Landlord's Statement of Operating Costs ......... 8
Section 5.05 Payment of Balance of Operating Costs................... 8
Section 5.06 Accounting Period; Proration of Operating Expenses...... 8
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ARTICLE VI TAXES
Section 6.01 Definition of Taxes..................................... 8
Section 6.02 Payments on Account of Tax Rent......................... 9
Section 6.03 Payment of Balance of Tax Rent.......................... 9
Section 6.04 Taxes on Leasehold ..................................... 9
ARTICLE VII UTILITIES
Section 7.01 Utilities............................................... 9
Section 7.02 Application for Utilities............................... 10
ARTICLE VIII REPAIRS AND ALTERATIONS
Section 8.01 Landlord's Repairs...................................... 10
Section 8.02 Tenant's Repairs........................................ 10
Section 8.03 Tenant's Right to Make Alterations...................... 10
ARTICLE IX MECHANICS' LIENS
Section 9.01 Tenant Shall Discharge All Liens........................ 11
ARTICLE X SIGNS
Section 10.01 Landlord's Approval..................................... 11
Section 10.02 Permits ................................................
ARTICLE XI INSPECTION OF PREMISES AND ACCESS THERETO
Section 11.01 Inspection of Premises; Repairs......................... 12
Section 11.02 Displaying "For Sale" and "For Rent" Signs.............. 12
ARTICLE XII INDEMNIFICATION
Section 12.01 Indemnification......................................... 12
Section 12.02 Occupancy at Tenant's Risk.............................. 13
Section 12.03 Release of Liability.................................... 13
Section 12.04 Litigation Involving Landlord........................... 13
ARTICLE XIII INSURANCE
Section 13.01 Required Coverages...................................... 13
Section 13.02 Designated Insureds; Endorsements;
Evidence of Insurance................................... 14
Section 13.03 No Injurious Acts....................................... 14
Section 13.04 Failure to Maintain Required
Coverage................................................ 15
ARTICLE XIV TRADE FIXTURES
Section 14.01 Title to Property and Removal........................... 15
Section 14.02 Failure to Remove....................................... 15
ARTICLE XV ASSIGNMENT AND SUBLETTING
Section 15.01 Landlord's Consent ..................................... 16
Section 15.02 Transfer of Corporate and Partnership Interests......... 16
ARTICLE XVI SUBORDINATION AND ATTORNMENT
Section 16.01 Mortgages............................................... 17
Section 16.02 Execution of Documents.................................. 17
ARTICLE XVII SURRENDER AND HOLDOVER
Section 17.01 Tenant's Obligation to Surrender Premises............... 17
Section 17.02 Consensual Holdover..................................... 17
Section 17.03 Tenant's Liability for Failure to Surrender............. 18
ARTICLE XVIII DAMAGE OR DESTRUCTION OF PREMISES
Section 18.01 Total or Partial Destruction............................ 18
Section 18.02 Partial Destruction of Building......................... 19
Section 18.03 Notice by Tenant........................................ 19
ARTICLE XIX EMINENT DOMAIN
Section 19.01 Total Condemnation...................................... 19
Section 19.02 Partial Condemnation.................................... 19
Section 19.03 Partial Condemnation of Building........................ 20
Section 19.04 Landlord's Damages...................................... 20
Section 19.05 Tenant's Damages........................................ 20
ARTICLE XX TENANT'S DEFAULT
Section 20.01 Events of Default....................................... 20
ARTICLE XXI REMEDIES OF LANDLORD UPON TENANT'S DEFAULT
Section 21.01 Acceleration of Rent.................................... 22
Section 21.02 Right to Reenter........................................ 22
Section 21.03 Right to Relet; Damages for Breach...................... 22
Section 21.04 Right to Terminate...................................... 23
Section 21.05 Confession of Judgment.................................. 23
Section 21.06 Recovery of Legal Expenses.............................. 25
Section 21.07 Injunctive Relief; All Remedies
Cumulative.............................................. 26
ARTICLE XXII ESTOPPEL STATEMENT
Section 22.01 Duty of Tenant to Furnish............................... 25
ARTICLE XXIII NOTICES
Section 23.01 Manner and Place of Service............................. 25
ARTICLE XXIV BROKERS
Section 24.01 Tenant's Warranty....................................... 26
Section 24.01 Landlord's Warranty .................................. 26
ARTICLE XXV MISCELLANEOUS
Section 25.01 Binding Effect.......................................... 26
Section 25.02 Quiet Enjoyment......................................... 26
Section 25.03 Waiver ................................................
Section 25.04 Custom and Usage........................................ 27
Section 25.05 Accord and Satisfaction................................. 27
Section 25.06 Entire Agreement........................................ 27
Section 25.07 Captions and Index...................................... 27
Section 25.08 Negation of Personal Liability.......................... 27
Section 25.09 Partial Invalidity; Separate Covenants.................. 28
Section 25.10 Recording............................................... 28
Section 25.11 Controlling Law......................................... 28
Section 25.12 Time of the Essence .................................... 28
Section 25.13 PIDC Assistance .................................... 28
Section 25.14 Acknowledgment ..................................... 29
EXHIBITS
--------
SCHEDULE 5.02 Exceptions to Operating Costs
EXHIBIT A Legal Description
EXHIBIT B Floor Plan of Premises
EXHIBIT C Rules and Regulations
EXHIBIT D Landlord's Work
EXHIBIT E Parking Regulations
EXHIBIT F Trash Removal Specifications
EXHIBIT G Amortization Table for LC
SCHEDULE I Letter of Credit Calculation
LEASE SUMMARY
THIS LEASE SUMMARY is made on the 1 day of December, 1997, by and
between:
RODIN PARTNERS, L.P., a Pennsylvania partnership with an office at 00 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000 (hereinafter called "Landlord"), and --------
AVAX TECHNOLOGIES, INC., a Delaware corporation, with an address at 0000 Xxxx
Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, XX 00000 (hereinafter called "Tenant").
WITNESSETH:
LEASED PREMISES Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord, in the building
(hereinafter called the "Building") known as "Rodin Place", located at 0000
Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, and being more particularly
described in Exhibit A attached hereto and made a part hereof, the space
(hereinafter called the "Premises") designated on Exhibit B attached hereto and
made a part hereof, as follows:
SUITE NUMBERS: 200 AND 204.
The Premises are outlined on the Plan attached hereto as Exhibit B, containing
approximately 9,224 square feet for Suite 200 and 2,651 square feet for Suite
204 square feet (subject to confirmation as set forth below) together with the
right to the nonexclusive use, in common with others entitled to use same, of
all such driveways, malls, courts, corridors and footways, loading facilities
and other facilities as may be designated by Landlord, subject however to the
terms and conditions of this Lease Summary and the Lease Agreement attached
hereto and made a part hereof (hereinafter collectively referred to as the
"Lease"), and to reasonable rules and regulations for the use thereof as
prescribed from time to time by Landlord.
SQUARE FOOTAGE The Premises shall be measured from the center line of interior
walls and from the glass line of exterior walls, deducting any vertical shafts
and columns, and the resulting square footage grossed up by fifteen percent
(15%) to yield the "Final Square Footage." Such measurement shall be undertaken
by Landlord's architect and approved by Tenant's architect.
LENGTH OF TERM The term of this Lease shall be for ten (10) years, plus the
period, if any, between the Commencement Date set forth below, if it falls on a
day other than the first day of a month, and the first day of the next month
("Initial Term"). Upon Landlord's request, Tenant shall execute and deliver to
Landlord an agreement confirming the commencement and expiration dates of the
term of this Lease, the Fixed Minimum Rent, and the initial monthly payments on
account of Tenant's Pro Rata Share of Operating Costs and Tenant's Tax Rent.
COMMENCEMENT The Initial Term of this Lease shall commence
DATE ("Commencement Date") on the later to occur of (a) sixty (60)
days after the date hereof, or (b) Landlord completing the Landlord's Work (as
defined in Exhibit D), provided that the Commencement Date shall automatically
occur sixty (60) days after the date hereof if Tenant does not, within fifteen
(15) days after the date hereof, provide to Landlord all design information
required by Landlord to permit Landlord to complete Landlord's Work.
FIXED MINIMUM RENT The Fixed Minimum Rent for each Lease Year (as defined in
Section 1.04 of the Lease Agreement) of the Initial Term of this Lease shall be
as follows:
Lease Years Annual Rent Per Square Foot of Final Square Footage
----------- ---------------------------------------------------
1-3 $10.50
4-6 $12.00
7-10 $14.00
Tenant shall pay to Landlord the Fixed Minimum Rent for the first month of the
term hereof upon Tenant's execution of this Lease. All Fixed Minimum Rent shall
be payable in accordance with the terms and conditions of this Lease, including,
without limitation, Article III of the Lease Agreement.
TAXES In accordance with Article VI of the Lease Agreement, Tenant
shall pay to Landlord Tenant's Pro Rata Share of any Taxes, as defined in
Article VI, in excess of the Taxes for calendar year 1998 ("Base Tax Year")..
TENANT'S SHARE OF In accordance with Article V of the Lease Agreement, Tenant
OPERATING COSTS shall pay to Landlord Tenant's Pro Rata share of Operating
Costs, as defined in Section 5.02 of the Lease Agreement, in excess of Operating
Costs for the fiscal year ending September 30, 1998 ("Operating Costs Base
Year").
TENANT'S PRO RATA Tenant's "Pro Rata Share" will equal a fraction, the numerator
SHARE which is the Final Square Footage (less the gross-up factor),
and the denominator of which is 201,000, the stipulated and agreed number of
square feet of leasable floor area of the Building as of the date hereof.
USE OF PREMISES Tenant shall use the Premises, subject to the provisions of
this Lease, solely for the purpose of biopharmaceutical research for clinical
trials, and commercialization, and related activities (including, without
limitation, the use of tumor cells and cancer cells in the development of
vaccines), subject, however, to compliance with applicable laws and ordinances
including, without limitation, the Philadelphia Zoning Code.
SECURITY DEPOSIT Tenant, contemporaneously with the execution of this Lease
Summary, has deposited with Landlord (a) the sum of Twenty
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Thousand Six Hundred Seventy Eight Dollars and Forty Cents ($20,678.40),
representing two (2) months Fixed Minimum Rent, receipt of which is hereby
acknowledged by Landlord, and (b) an irrevocable, unconditional and evergreen
letter of credit in the amount set forth on Schedule 1 attached hereto, being
Landlord's best estimate of Landlord's out of pocket costs of the transaction
(including, without limitation, construction costs and leasing commissions). The
cash deposit and letter of credit are to be held as security for the faithful
performance by Tenant of all of the terms, covenants and conditions of this
Lease by Tenant to be kept and performed during the term hereof, subject to
Section 3.03 of the Lease Agreement.
LEASE DOCUMENTS In addition to this Lease Summary and the Lease Agreement, the
following are attached to this Lease and are incorporated in and made part of
this Lease:
EXHIBITS A THROUGH F, INCLUSIVE, AND SCHEDULE 1
BROKERS The following brokers and/or finders participated in this Lease
transaction: Glaze Commercial Real Estate Advisors and Corporate National
Realty, Inc., on behalf of Tenant, and Xxxxx Xxxx & Company on behalf of
Landlord, for whose respective commissions Landlord shall be responsible. If
Landlord has not paid such commissions within sixty (60) days, Tenant may, after
five days' notice to Landlord, pay the commissions and deduct the amount thereof
from the next installment(s) of Fixed Minimum Rent.
SPECIAL PROVISIONS
1. Renewal Terms. Provided that no Event of Default has occurred
hereunder and is continuing, Tenant shall have the option to renew the term of
this Lease for up to two (2) additional terms of five (5) years each ("Renewal
Terms"), at a Fixed Minimum Rent per annum, to remain constant throughout the
five-year Renewal Term, equal to the lesser of (a) one hundred twenty percent
(120%) of the average Fixed Minimum Rent per annum in effect over the expiring
Term, or (b) ninety-five percent (95%) of the fair market value (including
applicable concessions, if any) for comparable leases in comparable buildings,
as determined by Landlord ("Fair Market Rent"). Tenant must notify Landlord of
Tenant's interest in renewing this Lease at least nine (9) months prior to the
expiration of the Initial Term, or the first Renewal Term, as the case may be (
failing which notice, Tenant's right to renew this Lease shall terminate and
expire), and Landlord shall, within thirty (30) days after receipt of such
notice, provide Tenant with the Fair Market Rent for the applicable Renewal
Term. Tenant must then notify Landlord of Tenant's renewal of this Lease at
least six (6) months prior to the expiration of the Initial Term, or the first
Renewal Term, as the case may be, failing which notice, Tenant's right to renew
this Lease shall terminate and expire. All terms and conditions of this Lease
other than the Fixed Minimum Rent shall apply to the Renewal Terms. The Initial
Term and Renewal Terms are hereafter collectively called the "Term".
2. Parking. Landlord shall supply Tenant with three (3) free parking
spaces in the Building garage as part of the Fixed Minimum Rent, and all parking
in the garage shall be
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subject to the requirements of Exhibit E, which shall be strictly observed by
Tenant. In addition, if, as and when Landlord obtains control of additional
outdoor parking across 20th Street, Tenant shall have the right, at Tenant's
expense, to purchase monthly parking spaces from Landlord at the same price as
is offered to the public.
3. Option to Terminate. Tenant shall have the one-time option to
terminate this Lease, effective as of the last day of the fifth (5th) Lease
Year, by giving Landlord written notice no later than nine (9) months before
such effective date, accompanied by a termination payment equal to the
unamortized portion, calculated as of the effective date of such termination, of
all expenses incurred by Landlord directly related to the transaction recorded
herein, based upon a ten (10) year amortization period of such expenses,
assuming that the amount of such expenses has accrued interest at ten percent
(10%) per annum, all as shown on Schedule 2. Landlord shall provide Tenant with
the amount of such termination payment within ten (10) business days after
request therefor,
4. Expansion Option. Tenant shall have the right of first offer to
lease all space in the Building immediately adjacent to the Premises, if, as and
when such space becomes vacant during the Term hereof ("Option Space"). To
exercise such right, Tenant must give Landlord notice at least nine (9) months
before the expiration of each of the following leases for Option Space:
Suite Tenant Square Feet Lease Expiration
----- ------ ----------- ----------------
210 WGBS UPN-9 22,420 September 30, 2000
Subject to one five-year renewal option
000 XXX 5,817 May 31, 2002
205-6 MCC/ECP 6,160 August, 1999
Landlord shall promptly give Tenant notice of any extensions or renewals of any
of the foregoing leases. All of the terms of this Lease (including, without
limitation, the then-effective Fixed Minimum Rent per square foot and any future
increases, and all parking ratios) shall apply to the Option Space, and Tenant's
lease of the Option Space shall be co-terminus with the expiration of the Term
hereof. Tenant shall not be entitled to exercise its option to add any Option
Space to the Premises if the remaining Term of this Lease on the effective date
of such option is less than three (3) years, unless Tenant exercises any
remaining Renewal Term at the same time as exercising its option to lease the
Option Space. Tenant shall be conclusively deemed to have waived its right to
lease any particular portion of the Option Space if Tenant fails to give timely
notice of the exercise of such option as set forth above.
5. Storage Space. Landlord will make available to Tenant storage space
in the Building if, as and when such space is available from time to time, at
the rate of $4.00 per square foot. Any particular storage space must be vacated
by Tenant on 30 days' notice if such space is
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required by Landlord for other non-storage uses. The Self-Service Storage
business located in the Building will not be available for such storage use by
Tenant.
6. Availability of Premises. Tenant shall have 24 hour, 7 day per week
access to the Premises. Building services will be provided from 6:00 a.m. to
7:00 p.m. weekdays and 7:00 a.m. to 2:00 p.m. on weekends and holidays, with
after-hours access requiring use of an access card.
7. Cleaning. Landlord shall include basic office cleaning services for
the Premises each weekday, but shall not clean lab space or remove any hazardous
materials. Landlord shall only remove regular office trash, which Tenant shall
collect for Landlord separately from other refuse; all other refuse shall be
removed by tenant at Tenant's expense. Attached hereto as Exhibit F are
Landlord's cleaning specifications.
8. Condition Precedent. As a condition precedent to Tenant's
obligations hereunder, Landlord has represented to Tenant that the use described
above is permitted under applicable provisions of the Zoning Code. If Tenant is
unable to obtain written confirmation of Tenant's right to occupy the Premises
for such use within fifteen (15) days after the date hereof, Tenant shall so
inform Landlord and Landlord shall make or complete the zoning use application
on behalf of Tenant. If Landlord does not deliver a zoning use permit within
forty-five (45) days thereafter, Tenant, as Tenant's sole remedy, may either
waive such condition or terminate this Lease and have the security deposit
refunded and the letter of credit returned (such right to terminate to expire if
Tenant does not terminate this Lease within sixty-five (65) days after the date
hereof).
9. Subordination. Tenant may terminate this Lease without liability if
Tenant does not receive a nondisturbance agreement within thirty (30) days after
the date hereof.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have hereunto set their hands and seals the day and year first above
written.
AVAX TECHNOLOGIES, INC. (Tenant)
By: /s/ Xxxx X. Xxxxxxx
---------------------
Xxxx X. Xxxxxxx, Ph.D,
Director of Operations
Attest:____________________
RODIN PARTNERS, L.P. (Landlord)
By: Rodin Acquisition Corp.,
a Pennsylvania corporation
By: /s/ Not Legible
---------------------------
President
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LEASE AGREEMENT
ARTICLE I
TERM
SECTION 1.01 Confirmation of the Term. The term of this Lease shall commence on
the Commencement Date, as defined in the Lease Summary, and shall terminate at
the end of the term without the necessity of any notice from either Landlord or
Tenant.
SECTION 1.02 Inability to Deliver Possession. If Landlord is unable to deliver
to Tenant possession of the Premises, as herein provided, by reason of any cause
beyond the reasonable control of Landlord, including, without limitation, the
holding over of a prior tenant, Landlord shall have no liability to Tenant
therefor, and during the period that Landlord is unable to deliver possession,
all rights and remedies of both parties hereunder shall be suspended. However,
if Landlord can deliver possession of Suite 200, Tenant shall accept occupancy
of such portion and the Fixed Minimum Rent shall be pro rated accordingly, based
on the square footage of the portion being delivered, until the full Premises
becomes available. In the event that Landlord is unable to deliver to Tenant
possession of the Premises within 120 days after the date hereof (for reasons
not within Tenant's control), Tenant shall receive a credit against the Fixed
Minimum Rent in the amount of one-half day's rent for each day after 120 that
delivery of possession is so delayed.
SECTION 1.03 Failure of Tenant to Open and to Operate. Tenant agrees that upon
receiving possession of the Premises from Landlord, Tenant shall with due
diligence proceed to install such fixtures and equipment and to perform such
other work as shall be necessary or appropriate in order to prepare the Premises
for the opening of business. If Tenant fails to open the Premises for the
conduct of its business or vacates the Premises prior to the expiration of the
term hereof, Landlord, in addition to all other remedies hereunder, shall have
the option of terminating this Lease by giving Tenant written notice of such
termination, whereupon this Lease shall be terminated.
SECTION 1.04 Lease Year. The term "Lease Year" as used in this Lease shall mean
the twelve (12) month period beginning with the Commencement Date and ending on
the next anniversary of the Commencement Date and each successive twelve (12)
month period thereafter during the term of this Lease.
ARTICLE II
CONDUCT OF BUSINESS BY TENANT
SECTION 2.01 Use of Premises.
(a) Tenant shall use and occupy the Premises solely for the
conduct of the business set forth in the Lease Summary. Tenant shall not use or
permit or suffer the use of the Premises for any other business or purpose.
(b) Tenant shall not use the Premises for the generation,
manufacture, refining, transportation, treatment, storage or disposal of any
hazardous substance or waste or for any purpose which poses a substantial risk
of damage to the environment and shall not engage in any activity which would
subject Tenant to the provisions of the Federal Comprehensive Environmental
Response, Liability and Cleanup Act (42 U.S.C. Section 9601 et seq.), the
Federal Water Pollution Control Act (33 U.S.C.A. Section 1151 et seq.), the
Clean Water Act of 1977 (33 U.S.C.A. Section 1251 et seq.), the Pennsylvania
Hazardous Sites Clean-up Act (35 P.S. Sec. 6020.101 et seq.), and the
Pennsylvania Solid Waste Management Act (35 P.S. Sec. 6018 et seq.), or any
other federal, state or local environmental law, regulation or ordinance
(collectively, "Environmental Laws"), provided that Tenant may: (i) in
accordance with all applicable law, temporarily accumulate for up to 90 days
those hazardous materials and wastes used or generated on the Premises by Tenant
and which are necessary and incidental to the use and operation of the Premises
as permitted under this Lease; (ii) in accordance with applicable law, process
special handling waste that is generated in the Premises, and (iii) in
accordance with all applicable law, handle, store and process materials or
products generated or manufactured in the development and manufacture of
vaccines in the ordinary course of Tenant's business. Upon written request,
Tenant shall deliver to Landlord and any mortgagee of Landlord a certificate
expressly stipulating whether Tenant is engaged in or has been engaged in the
treatment of any hazardous substance or waste in or affecting the Premises, and
whether Tenant has caused a spill, contamination, discharge, leakage, release or
escape (collectively, "Spill") of any such substance or waste in or affecting
the Premises, and whether, to the best of Tenant's knowledge, such a Spill has
otherwise occurred at or affecting the Premises.
(c) Tenant shall be responsible for the immediate cleanup and
removal, to the extent required under EPA and PADEP standards and the standards
of any other Federal or state or local agency having jurisdiction, and to the
extent required to return the Premises to its previous condition, of any and all
spills, discharges, emissions, disposals or other releases of hazardous
materials or wastes occurring after to the Commencement Date and not expressly
permitted or allowed in accordance with applicable law (hereinafter,
collectively referred to as "Unpermitted Releases"), and Tenant shall be
responsible for all costs, expenses, liabilities and damages associated
therewith.
(d) Upon request, Tenant shall provide to Landlord copies of
(i) all applications or other documents submitted to any governmental agency by
Tenant with respect to all Environmental Laws, (ii) any notification or
correspondence submitted to any person pursuant
-2-
to Environmental Laws, (iii) any permit, license, approval, identification
number, or amendment or modification thereto, granted pursuant to Environmental
Laws; and (iv) any record or manifest required to be maintained pursuant to
Environmental Laws.
(e) Upon receipt, Tenant or its agent shall submit to Landlord
copies of any and all documents pertaining to non-compliance with Environmental
Laws, such as notices of violation, summons, orders, complaints, penalty
assessments, judgments, injunctions and warnings.
(f) Upon request by Landlord or any mortgagee, Tenant shall
deliver to the requesting party such affidavits, reports or responses to
questions and certifications of compliance or non-applicability from the
appropriate governmental authorities as have been delivered by Tenant to such
authorities or received by Tenant from such authorities. Tenant shall provide
access to the Premises, upon request of Landlord or any mortgagee, for
inspections and/or testing for compliance with the requirements set forth in
this Section.
(g) The authorization of the use of the Premises for the
business purpose set forth herein shall not constitute a representation by
Landlord that such use of the Premises is now or shall continue to be permitted
or lawful under applicable laws or regulations.
SECTION 2.02 Licenses, Permits and Certificates of Occupancy. Tenant, at
Tenant's sole expense, shall obtain and maintain at all times during the term of
this Lease all licenses, permits and certificates of occupancy which may be
required by any governmental agency or authority.
SECTION 2.03 Rules and Regulations. Tenant shall comply with the rules and
regulations set forth in Exhibit C, attached hereto and made a part hereof, and
such additional reasonable non-discriminatory rules and regulations as shall
hereafter be promulgated by Landlord.
ARTICLE III
FIXED MINIMUM RENT; SECURITY DEPOSIT
SECTION 3.01 Fixed Minimum Rent. Tenant shall pay to Landlord the Fixed Minimum
Rent set forth in the Lease Summary, payable in advance in equal monthly
installments without any prior demand therefor and without deduction or set off
whatsoever, on the first day of each calendar month during the term hereof,
commencing as set forth in the Lease Summary. In the event that the Commencement
Date shall be a day other than the first day of a month, Tenant shall pay the
Fixed Minimum Rent in advance for the fractional month on a per diem basis
calculated on the basis of a thirty (30) day month. Tenant shall pay to Landlord
the Fixed Minimum Rent for the sixth full calendar month of the term hereof upon
Tenant's execution of this Lease.
SECTION 3.02 Time and Place of Payment; Late Charges. Tenant shall promptly pay
all rent and other charges and render all statements herein prescribed at the
management office of
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Landlord located in the Building or at such other office as Landlord shall
notify Tenant. All sums of money required to be paid by Tenant under this Lease,
whether or not the same are designated "additional rent", shall for all purposes
hereunder be deemed and shall be paid by Tenant as rent. In the event that
Tenant shall fail to pay any installment of Fixed Minimum Rent or any other
money or charges required to be paid by Tenant within ten (10) days after the
date the same is due and payable, then Landlord shall have, in addition to all
other remedies to which Landlord may otherwise be entitled, the right to receive
from Tenant, in addition to such amount due and owing, (i) a late charge equal
to five percent (5%) of the overdue amount, and (ii) interest at the rate of 18%
per annum, beginning ten (10) days after the date any such payment is due, as
and for a late charge to defray Landlord's costs and expenses in collecting such
delinquent rental. Such late charge and interest shall be due and payable as set
forth above without regard to any notice requirements set forth in Section 20.01
hereof.
SECTION 3.03 Security Deposit. The security deposit shall be held as collateral
security for the payment by Tenant of all rents and other charges under this
Lease, and for the faithful performance of all other covenants and agreements of
Tenant hereunder; the cash portion of the security deposit, with interest at
five percent (5%) per annum, shall be repaid to Tenant, and the letter of credit
will be returned to Tenant, within thirty (30) days after the termination of
this Lease or any renewal or extension thereof, provided Tenant shall have made
all such payments and performed all such covenants and agreements. Upon any
Event of Default by Tenant hereunder, all or part of the deposit (including,
without limitation, the proceeds of the letter of credit) may, at Landlord's
option, be applied on account of such default, and thereafter Tenant shall
restore the resulting deficiency in the deposit upon Landlord's demand. Landlord
may deliver the deposit to any purchaser of Landlord's interest in the Premises
and, thereupon, Landlord shall be discharged from any further liability with
respect to the deposit, and Tenant shall look solely to such purchaser for the
return of the deposit. Landlord may also draw down the proceeds of the letter of
credit if Landlord fails to receive a substitute letter of credit at least
thirty (30) days before the expiration or termination of the letter of credit.
. ARTICLE IV
CONDITION OF PREMISES; CHANGES TO BUILDING
SECTION 4.01 Construction by Landlord. Landlord, at Landlord's sole expense,
shall perform the work required to be performed by Landlord in Exhibit D,
attached hereto and made a part hereof ("Landlord's Work"). Landlord shall
complete Landlord's Work within sixty (60) days after receipt of any required
permits, which permits shall be based on drawings prepared by Tenant at Tenant's
expense, and shall deliver possession of the Premises to Tenant in broom clean
condition. Landlord shall have the exclusive right to determine the
architectural design and the structural, mechanical and other details and
specifications of Landlord's Work, including, but not limited to, the type of
materials and the manufacturer and supplier thereof. Landlord's Work shall
consist solely of the installation (but not the connection) of rooftop air
conditioning units, with a capacity equal to one ton per 300 feet of floor area
in the portion of the Premises designated as Suite 200 ("Rooftop Units"),
sufficient to supply normal office air conditioning to the Premises and in
locations appropriate for Tenant's design of the Premises. Landlord agrees
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that at the time Landlord completes Landlord's Work, the sprinkler system in the
Premises and the mechanical systems in Suite 204 will be in good working order.
Tenant shall have thirty (30) days after occupancy to report any deficiencies in
Landlord's Work to Landlord, and Landlord shall have thirty (30) days thereafter
to repair or complete such items.
SECTION 4.02 Tenant's Improvements.
(a) Landlord shall also contribute an amount (the "Allowance")
not to exceed Twenty-Five Dollars ($25.00) per rentable square foot (including
the gross-up factor) in Suite 200 and not to exceed Ten Dollars ($10.00) per
rentable square foot (including the gross-up factor) in the remainder of the
Premises, plus the sum of $51,696 ("Additional Allowance") (representing the
equivalent of five (5) months' Fixed Minimum Rent), all of which funds may be
drawn upon by Tenant for improvements to the Premises (but not furniture,
furnishings or equipment) at any time or from time to time during the first
Lease Year, provided that the Allowance will be drawn first. If the Additional
Allowance is not fully drawn within five (5) months after the date hereof, the
remaining Additional Allowance will be disbursed by Landlord to Tenant on the
fifth (5th) business day of the sixth (6th) month, without any right of setoff.
Landlord hereby acknowledges that costs associated with the construction of
Tenant's clean room (but not costs for furniture, furnishings or equipment)
shall be eligible for reimbursement from the Allowance. Any portion of the
Allowance unused after the first Lease Year shall no longer be available. Tenant
may make draws against the Allowance once each month for work in place, and each
draw shall be accompanied by invoices from Tenant's contractors in an amount
equal to at least the amount requested in such draw, and shall specify in which
Suite the work was done. All draws shall be subject to receipt by Landlord of
lien waivers, releases of liens and other similar requirements imposed by
Landlord's lender.
(b) Upon receipt of Landlord's prior written approval of
Tenant's plans and specifications, such approval not to be unreasonably
withheld, and receipt of necessary permits, Tenant shall commence and thereafter
promptly complete all the work required to prepare the Premises for the
operation of Tenant's business ("Tenant's Work"). All costs of the Tenant's Work
in excess of the Allowance shall be Tenant's sole responsibility.
SECTION 4.03 Roof, Walls, Changes and Additions to Building. Landlord reserves
the exclusive right at any time and from time to time to use all or any part of
the roof, exterior walls and air space above the finished ceiling of the
Premises to install or affix equipment, signs, antennae or other objects or
structures, to erect scaffolds, protective barriers or other aids to
construction and for other purposes, provided Landlord does not unreasonably
interfere with Tenant's operations; and to enter the Premises to shore the
foundations and walls thereof and to install, maintain and repair pipes, ducts,
conduits and wires in and adjacent to the Premises and serving other parts of
the Building, provided Landlord does not unreasonably interfere with Tenant's
operations. Landlord reserves the right at any time and from time to time to
make alterations or additions to, and to build additional stories on the
Building, and to build adjoining the same, and to construct other buildings and
improvements in the Building, provided Landlord does not unreasonably interfere
with Tenant's operations. Landlord reserves the right to reduce, enlarge and
change the area, level, location and arrangement of the Common Areas, as herein
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defined, and the Building, provided Landlord does not unreasonably interfere
with Tenant's operations or prevent Tenant from operating its business.
SECTION 4.04 Condition of Premises. Tenant acknowledges that Tenant has
inspected the Premises, is fully familiar with the physical condition thereof
and has agreed to lease the Premises as a result of such inspection and not in
reliance upon any representation made by Landlord or any of its officers,
employees, salespeople or agents. Except for such work as Landlord is required
to perform pursuant to Exhibit D, Tenant shall lease the Premises in "as is"
condition as of the date hereof.
ARTICLE V
COMMON AREAS; OPERATING COSTS
SECTION 5.01 Control of Common Areas. All areas, facilities, signs and equipment
to the extent made available by Landlord for the common and joint use and
benefit of Landlord, Tenant and other tenants and occupants of the Building, and
their respective employees, agents, subtenants, concessionaires, licensees,
customers and other invitees, are collectively referred to as "Common Areas". If
and to the extent made available by Landlord, Common Areas shall include, but
not be limited to, parking areas, streets, sidewalks, canopies, roadways,
loading platforms, washrooms, shelters, ramps, landscaped areas and other
facilities. All Common Areas shall be subject to the exclusive control and
management of Landlord, and Landlord shall have the right from time to restrict
parking by tenants and their employees to employee parking areas; to construct,
maintain and operate lighting facilities therefor; to police the same; to
enforce parking charges; to close all or any portion of the Common Areas to such
extent as may, in the opinion of Landlord's counsel, be legally sufficient to
prevent a dedication thereof or the accrual of any rights to any person or the
public therein; to close temporarily all or any portion of the Common Areas and
do or perform such other acts in and to Common Areas as Landlord shall determine
to be advisable; and to make all rules and regulations pertaining to and
necessary for the proper operation and maintenance of the Common Areas. Landlord
shall operate and maintain such Common Areas in such manner as Landlord, in its
sole discretion, shall determine from time to time. Subject to Section 4.03 and
this Section 5.01, Tenant is hereby given the license in common with all others
to whom Landlord has or may hereafter grant rights to use the Common Areas as
they may from time to time exist. Landlord may discontinue all facilities
furnished and services rendered by Landlord to the extent such facilities and
services are not expressly covenanted for herein and are not reasonably required
for Tenant's use of the Premises.
SECTION 5.02 Operating Costs. Subject to reimbursement as herein set forth,
Landlord shall operate and maintain or cause to be operated and maintained the
Common Areas and the Building. For each Accounting Period (as defined in Section
5.06) during the term of this Lease, Tenant shall pay to Landlord, as Tenant's
Pro Rata Share of Operating Costs (as defined below), the amount obtained by
multiplying (a) the total of all Operating Costs for such Accounting Period, to
the extent such Operating Costs exceed the Operating Costs for the Operating
Costs Base Year, by (b) Tenant's Pro Rata Share. "Operating Costs" are defined
as all actual costs incurred by Landlord in operating, managing, equipping,
lighting, repairing, replacing and
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maintaining the Building, including, without limitation, gardening, landscaping,
sanitary control, cleaning, lighting, preventive maintenance, snow, ice,
rubbish, debris, garbage and waste collection, removal and disposal,
resurfacing, painting, fire protection, insurance (including, but not limited to
liability insurance, fire insurance with extended coverage, workmen's
compensation insurance, plate glass insurance, boiler and machinery vandalism
and malicious mischief insurance, rent insurance and fidelity bonds),
maintenance of signs and awnings, repairs, security and policing, traffic
control, rental and depreciation of machinery, equipment and other assets used
in the operation and maintenance of the Building, parking charges imposed by any
governmental authority, interest expense in connection therewith, building
supplies, repairs and replacements to the roof, the structure and the
electrical, plumbing, heating, air conditioning and mechanical systems of the
Building, utilities not separately charged to individual tenants, loudspeakers,
public address and musical broadcasting systems, the cost of personnel to
implement such services and maintain the Building (including, without
limitation, the salaries of the management staff and all other personnel
employed to operate the Building and to carry out the maintenance and promotion
of the Building and all contributions toward fringe benefits, unemployment
insurance, pension plan contributions and similar contributions therefor), plus
fifteen percent (15%) of all of the foregoing costs to cover administrative and
overhead costs. Operating Costs shall not include depreciation other than as
specifically referred to above, replacements of capital items or capital
improvements or the items listed on Schedule 5.02. Tenant shall have the right
to have Landlord's Operating Costs audited at Tenant's expense as set forth
below, provided that an audit shall not delay or postpone payment of Tenant's
Pro Rata Share of Operating Costs or any deficiency as set fort in Section 5.05.
In the event of any dispute as to the floor area in the Building or any portion
thereof, the determination of Landlord shall be binding upon the parties absent
manifest error. Tenant will have the right to audit books and records detailing
Operating Costs and Taxes. If Tenant desires to audit Landlord's books and
records with respect to a calendar year, Tenant shall notify Landlord within
ninety (90) days after Tenant's receipt of a statement of Operating Costs with
respect to such calendar year. Tenant will then have sixty (60) days after the
giving of such notice within which to conduct such audit, and, if required, to
notify Landlord of Tenant's complaint. If any such audit should disclose that
Tenant's Pro Rata Share of Operating Costs or of Taxes have been overstated by
more than five percent (5%), then Landlord will immediately pay Tenant the full
amount of overpayment by Tenant together with interest on such overpayment the
rate of ten percent (10%) per year. In addition, if any such audit should
disclose that Tenant's Pro Rata Share of Operating Costs and Taxes have been
overstated by more than ten percent (10%), then Landlord will immediately pay
Tenant's reasonable out of pocket expenses, including, without limitation, all
accounting fees, incurred by Tenant in such audit.
SECTION 5.03 Payments on Account of Operating Costs. On the first day of each
calendar month after receipt of notice from Landlord that Taxes have increased
above the Base Tax Year or projected Operating Costs have increased above the
Operating Costs Base Year, Tenant shall pay to Landlord, in advance, without
demand and without any set off or deduction, as a payment on account of Tenant's
Pro Rata Share of Operating Costs, the amount equal to one twelfth (1/12) of the
annual amount estimated by Landlord from time to time to be Tenant's Pro Rata
Share of Operating Costs. If the Commencement Date shall not be the first day of
a calendar month, Tenant's payment of its share of Operating Costs for the
fractional month
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between the Commencement Date and the first day of the first full calendar month
in the term shall be prorated on a per diem basis (calculated on a thirty (30)
day month) and shall be paid together with the first payment of fixed minimum
rent. Landlord may at any time and from time to time adjust the monthly payments
on account on the basis of Landlord's revised estimate of Operating Costs, and
Tenant shall pay such adjusted amount upon notice from Landlord.
SECTION 5.04 Landlord's Statement of Operating Costs. Following the end of each
Accounting Period, Landlord shall furnish to Tenant a written statement covering
the Accounting Period just expired showing the total Operating Costs for such
Accounting Period (with reasonable back-up), the amount of Tenant's Pro Rata
Share thereof and payments made by Tenant with respect thereto.
SECTION 5.05 Payment of Balance of Operating Costs. If Tenant's Pro Rata Share
of Operating Costs exceeds Tenant's payments with respect to any Accounting
Period, Tenant shall pay to Landlord the deficiency within thirty (30) days
after the date of the furnishing of the statement from Landlord; if Tenant's
payments exceed Tenant's Pro Rata Share of the Operating Costs, Landlord shall
apply such excess to future payments on account of Operating Costs; provided, if
such overpayment is for the last Accounting Period, Landlord shall not be
obligated to refund to Tenant the amount of such overpayment until Tenant has
fully performed all of its obligations under this Lease. In the event Tenant is
indebted to Landlord for any reason whatsoever, Landlord may deduct such amount
owed from such overpayment.
SECTION 5.06 Accounting Period; Prorations of Operating Expenses. The words
"Accounting Period" mean the period consisting of twelve (12) consecutive
calendar months, commencing on a date determined by Landlord from time to time
(the initial Accounting Period shall run from October 1 to September 30) and
each succeeding twelve (12) calendar month period thereafter commencing in the
term of this Lease. If the term of this Lease commences other than on the first
day of an Accounting Period or terminates (other than by reason of Tenant's
default) prior to the last day of any Accounting Period, Tenant's obligations
for Tenant's share of Operating Costs for such Accounting Period shall be
prorated on a per diem basis (calculated on a 360 day year).
ARTICLE VI
TAXES
SECTION 6.01 Definition of Taxes. The word "Taxes" shall include all taxes
(excluding taxes for any period prior to the date hereof) attributable to land
or improvements now or hereafter made to the Building, all real estate taxes,
assessments, water and sewer fees, rents or charges not based on usage, and
other governmental impositions and charges of any kind whatsoever, nonrecurring
as well as recurring, special or extraordinary as well as ordinary, foreseen and
unforeseen. The word "Taxes" shall not include any charge, such as a water meter
charge and sewer rent based thereon, which is measured by the consumption by the
actual user of the item or service for which the charge is made.
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SECTION 6.02 Payments on Account of Tax Rent. For each Lease Year, Tenant shall
pay to Landlord the amount (hereinafter called "Tax Rent") obtained by
multiplying the total of all Taxes payable during such Lease Year, to the extent
such Taxes exceed the Taxes for the Base Tax Year, by Tenant's Pro Rata Share.
On account of Tax Rent, Tenant shall pay monthly, in advance, together with each
monthly installment of fixed minimum rent, without demand, set off or
counterclaim, an amount equal to one twelfth (1/12) of the annual amount
estimated by Landlord from time to time to be Tenant's Pro Rata Share of all
Taxes. Such amount may be adjusted by Landlord at any time and from time to time
during the term hereof on the basis of Landlord's revised estimate of Taxes, and
Tenant shall pay such adjusted amount upon notice from Landlord. If Tenant's
total payments on account of Tax Rent for any Lease Year exceed the actual
amount payable by Tenant as Tax Rent for such Lease Year, Landlord shall retain
such excess on account of future Tax Rent. In the event Tenant is indebted to
Landlord for any reason whatsoever, Landlord may deduct such amount owed from
such overpayment. At the termination of the Lease, Landlord may retain any
overpayment until Tenant has performed all of its obligations under the Lease.
SECTION 6.03 Payment of Balance of Tax Rent. Landlord shall have the right to
xxxx Tenant for Tax Rent at any time after each receipt by Landlord of a xxxx
for taxes ("Tax Xxxx"). Tenant shall pay the balance of its Tax Rent within
twenty (20) days after receipt from Landlord of a written statement setting
forth the taxes for which Landlord has received a Tax Xxxx, Tenant's share of
taxes, and Tenant's payments theretofore made on account of such Tax Rent.
SECTION 6.04 Taxes on Leasehold. Tenant shall pay prior to delinquency all taxes
assessed against any leasehold interest or personal property owned by Tenant or
placed in or about the Premises by Tenant. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, TENANT SHALL PAY ITS USE AND OCCUPANCY TAX TO LANDLORD, AS
REQUIRED BY LAW, AND LANDLORD SHALL REMIT ANY AMOUNTS SO PAID TO THE APPROPRIATE
GOVERNMENTAL AUTHORITY.
ARTICLE VII
UTILITIES
SECTION 7.01 Utilities. Commencing on the Commencement Date, Tenant shall pay
all charges for electricity (including air conditioning), gas, heat, water,
sewer and all other utilities used or consumed in or upon the Premises and
separately metered to Tenant, as and when the charges therefor shall become due
and payable. Tenant acknowledges that Landlord intends to furnish electricity to
the Building and the Premises, and Tenant agrees to pay Landlord promptly upon
billing Tenant's electricity usage based on the local utility company's general
service rate and upon Tenant's usage as determined by a separate demand register
KW/KWH to be installed by Landlord at Landlord's expense. Landlord shall be
entitled to terminate electric service in the event that Tenant fails to pay any
electric xxxx for a period of forty-five (45) days. In the event any utility is
furnished by the local utility company, and the Building is billed as a single
entity therefor, Landlord shall have the right to determine Tenant's share of
such charges and xxxx Tenant therefor, which xxxx Tenant shall pay promptly upon
receipt. Landlord shall not be liable
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to Tenant for damages or otherwise for any interruption, curtailment or
suspension of any or all utility services in the event of a default by Tenant
under this Lease, or due to repairs, action of public authority, strikes, acts
of God or public enemy, or any other cause, whether similar or dissimilar to the
foregoing.
SECTION 7.02 Application for Utilities. If Landlord shall elect not to supply or
shall elect to discontinue supplying Tenant with any utilities, Tenant, at
Tenant's sole expense, shall promptly make all appropriate arrangements with the
local utility companies for the hookup and supply of such utilities to the
Premises, including, without limitation, any metering expense and installation
costs. Landlord shall supply water to the Premises and Tenant shall pay for its
usage on a monthly basis based on a separate meter.
ARTICLE VIII
REPAIRS AND ALTERATIONS
SECTION 8.01 Landlord's Repairs. Subject to reimbursement as set forth in
Article V, Landlord shall keep the roof and the exterior walls of the Premises
in proper repair; provided, however, if Landlord is required to make such
repairs by reason of Tenant's negligence or breach of this Lease, Landlord may
collect the cost of such repairs from Tenant upon demand. If, without Landlord's
consent, Tenant performs any alterations or improvements which affect the roof
or exterior walls, such action by Tenant shall release Landlord from its repair
obligation and Tenant shall thereafter be responsible for the maintenance of the
roof and exterior walls so affected, provided, however, nothing herein contained
shall be construed to grant Tenant the right to perform any alterations or
improvements which affect the roof or exterior walls. Except as herein provided,
Landlord shall have no obligation to repair or maintain the Premises, including,
without limitation, any plumbing, heating, electrical, air conditioning or other
mechanical installation therein.
SECTION 8.02 Tenant's Repairs. Tenant, at Tenant's sole expense, shall maintain,
repair and replace all portions of the Premises not required to be maintained by
Landlord pursuant to Section 8.01 hereof in the same condition as on the
Commencement Date, normal wear and tear excepted, including, without limitation,
all partitions, fixtures, signs, doors, glass, equipment and all electrical,
plumbing, heating, air conditioning and other mechanical installations therein,
in good order and repair, using materials and labor of kind and quality equal to
the original work. Tenant shall repair promptly at Tenant's sole expense any
damage to the Premises caused by any construction or alterations performed by
Tenant, or by the delivery, installation or removal of Tenant's property, or by
Tenant's negligence.
SECTION 8.03 Tenant's Right to Make Alterations. Tenant shall not make any
alterations, improvements or additions to the Premises without the prior written
consent of Landlord, which Landlord will not unreasonably withhold. Tenant shall
supply Landlord with plans and specifications for all such alterations,
improvements and additions prior to requesting such consent. All alterations,
improvements and additions made by Tenant shall remain upon the
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Premises at the expiration or earlier termination of this Lease and shall become
the property of Landlord unless Landlord shall, prior to the commencement of
work on such alterations, improvements or additions, have given written notice
to Tenant to remove same, in which event Tenant shall remove such alterations,
improvements and additions and restore the Premises to the same good order and
condition in which it was on the date of this Lease except for any Landlord's
Work. Should Tenant fail so to do, Landlord may do so, and Tenant shall
reimburse Landlord for Landlord's expenses, on demand. All of such alterations,
improvements or additions shall be made solely at Tenant's expense; and Tenant
agrees to indemnify and save harmless Landlord (a) on account of any injury to
third persons or property by reason of any such changes, additions or
alterations and (b) from the payment of any claim on account of bills for labor
or materials furnished or claimed to have been furnished in connection
therewith. Tenant agrees to procure all necessary permits before undertaking
such work and to do all such work in a good and workmanlike manner, employing
materials of first quality and complying with all applicable governmental
requirements.
ARTICLE IX
MECHANICS' LIENS
SECTION 9.01 Tenant Shall Discharge All Liens. Tenant shall promptly pay all
contractors and materialmen retained by Tenant so as to minimize the possibility
of a mechanic's or materialman's lien attaching to the Premises or the Building.
Should any such lien be made or filed, Tenant shall bond against or discharge
the same within ten (10) days after written request by Landlord and, in the
event that Tenant shall fail to do so, Landlord, in addition to its other
remedies, may discharge the lien by payment of the amount secured thereby, or
otherwise as provided by law, and any amount so paid by Landlord, together with
any attorney's fees or other costs relating to the discharge of such lien, shall
be immediately payable by Tenant to Landlord. Prior to the commencement of any
work or the delivery of any material to the Premises by any contractor,
subcontractor or materialman ("Contractor"), Tenant shall deliver to Landlord a
recordable waiver of liens from each such Contractor in form and content
reasonably acceptable to Landlord. Prior to opening the Premises for business
with the public, Tenant shall deliver to Landlord a release of liens from each
such Contractor in form and content reasonably acceptable to Landlord.
ARTICLE X
SIGNS
SECTION 10.01 Landlord's Approval. Tenant shall not erect or maintain any sign,
awning, canopy, advertisement, notice, lettering or decoration ("Sign") on any
part of the outside of the Premises or of the Building, or inside the Premises
if visible from the outside, without first submitting to Landlord a plan or
sketch of the proposed Sign and without first obtaining Landlord's written
approval thereof, such approval not to be granted unless, inter alia, the
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proposed Sign conforms with the general regulations regarding Signs which may be
promulgated from time to time by Landlord for the Building as to size, style,
location and design. Tenant may erect interior signs, including, without
limitation, signs on the doors to the Premises. Landlord will, at Landlord's
expense, add Tenant's name to the Building directory in the office lobby; any
additional signs or changes in the directory shall be at Tenant's expense.
SECTION 10.02 Permits. Tenant, at Tenant's sole expense, shall obtain all
permits required in connection with such Signs, and shall comply with all laws,
orders, rules and regulations of governmental authorities relative to the
erection, maintenance and repair of such Signs.
ARTICLE XI
INSPECTION OF PREMISES AND ACCESS THERETO
SECTION 11.01 Inspection of Premises; Repairs. Landlord reserves the right at
all reasonable times, after one day's notice, by itself or its duly authorized
agents, to go upon and inspect the Premises and, at Landlord's option, to make
repairs, alterations and additions to the Premises or the Building, provided,
however, that nothing herein contained shall be deemed or construed as an
obligation of Landlord to undertake or effect any such repairs, alterations or
additions other than as herein specifically set forth, and any performance
thereof by Landlord shall not constitute a waiver of Tenant's default in failing
to perform the same.
SECTION 11.02 Displaying "For Sale" and "For Rent" Signs. Landlord reserves the
right to display a "For Sale" sign at any time, and, after notice from either
party of intention to terminate this Lease, or at any time within six (6) months
prior to the expiration of this Lease, a "For Rent" sign, or both "For Rent" and
"For Sale" signs, and all of said signs shall be placed upon said part of the
Premises as Landlord shall require, except on door or doors leading into the
Premises. Prospective purchasers or tenants authorized by Landlord may inspect
the Premises at reasonable hours at any time during business hours upon
reasonable prior notice, Landlord acknowledging that access to the Premises may
be restricted due to the nature of Tenant's operations.
ARTICLE XII
INDEMNIFICATION
SECTION 12.01 Indemnification. Tenant shall indemnify and save harmless Landlord
from suits, actions, damages, liabilities and expenses (including court costs
and reasonable attorney's fees) arising out of any occurrence in or at the
Premises or the occupancy or use by Tenant of the Premises, or occasioned wholly
or in part by any act or omission of Tenant, its agents, contractors, employees,
servants, invitees, licensees or concessionaires.
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SECTION 12.02 Occupancy at Tenant's Risk. Tenant shall store its property in,
and shall occupy, the Premises and all other portions of the Building at its own
risk, and hereby releases Landlord from all claims of every kind relating to
loss of life, personal or bodily injury or property damage. Landlord shall not
be responsible or liable at any time for any loss or damage to Tenant's
merchandise, equipment, fixtures or other personal property of Tenant or to
Tenant's business. Landlord shall not be responsible or liable to Tenant or to
those claiming by, through or under Tenant for any loss or damage that may be
occasioned by the acts or omissions of persons occupying adjacent, connecting or
adjoining premises. Landlord shall not be responsible or liable for any defect,
latent or otherwise, in the Premises or in the Building or in any of the
equipment, machinery, utilities, appliances or apparatus therein.
SECTION 12.03 Release of Liability. Landlord shall not be liable for, and Tenant
waives all claims for, loss or damage to Tenant's business or damage to person
or property sustained by Tenant or any person claiming through Tenant resulting
from any accident or occurrence in or upon the Premises, or any other part of
the Building, including, but not limited to, claims for damage resulting from:
(i) any equipment or appurtenances being out of repair; (ii) any defect in or
failure of plumbing, heating or air conditioning equipment, electric wiring or
the installation thereof, gas, water and steam pipes, stairs, porches, railings
or walks; (iii) fire, explosion, collapse or broken glass; (iv) the backing up
of any sewer pipe or downspout; (v) the bursting, leaking or running of any
tank, tub, washstand, water closet, waste pipe, drain or any other pipe or tank
in, upon or about the Premises or the Building; (vi) the escape of steam or hot
water; (vii) water, snow, or ice being upon or coming through the roof,
skylight, trap door, stairs, doorways, show windows, walks or any other place
upon or near the Premises or the Building or otherwise; (viii) the falling of
any fixture, plaster, tile or stucco; and (ix) any act, omission or negligence
of other tenants, licensees or of any other persons or occupants of the
Building, or of owners of adjacent or contiguous property, or the public, unless
such damage arises from Landlord's negligence or willful misconduct or
Landlord's breach of this Lease.
SECTION 12.04 Litigation Involving Landlord. In the event that Landlord shall be
made a party to any litigation commenced against Tenant by a third party not
arising from Landlord's negligence or misconduct, Tenant shall indemnify and
hold harmless Landlord from and against any liability arising therefrom, and
shall pay all costs, expenses and reasonable attorneys' fees.
ARTICLE XIII
INSURANCE
SECTION 13.01 Required Coverages. Tenant, at Tenant's sole expense, shall obtain
and maintain in full force and effect during the term of this Lease, the
following policies of insurance:
(a) Fire and extended coverage insurance covering all of
Tenant's stock in trade, fixtures, furniture, furnishings, and all other
improvements and decorations placed
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by Tenant in or upon the Premises, to the extent of 100% of their full insurable
value and replacement cost without deduction for depreciation;
(b) Comprehensive general public liability insurance on
an occurrence basis with minimum limits of liability in an amount of not less
than $1,000,000.00 for bodily, personal injury or death to any one person, not
less than $1,000,000.00 for bodily, personal injury or death to more than one
person and not less than $500,000.00 with respect to damage to property
including water damage and sprinkler leakage legal liability;
(c) Plate glass insurance covering all plate glass in
the Premises.
SECTION 13.02 Designated Insureds; Endorsements; Evidence of Insurance. All
insurance policies to be obtained by Tenant hereunder shall be in the names of
both Landlord and Tenant, as their respective interests may appear, together
with such other party or parties as may be designated by Landlord, including,
without limitation, Landlord's mortgagees, as their interests may appear. All
such policies of insurance shall be issued by financially responsible companies
licensed to do business in Pennsylvania, and shall contain endorsements
providing as follows: (a) that any such insurance shall not be subject to
cancellation, termination or change except after ten (10) days' prior written
notice by registered or certified mail to Landlord and such party or parties as
may be designated by Landlord (collectively "Landlord's Group") by the insurance
company; and (b) that Landlord's Group shall not be liable for any damage by
fire or other casualty covered by such insurance, it being understood that
Tenant shall look solely to its insurer or insurers for reimbursement. Tenant
waives its right to recover damages against Landlord's Group for any reason
whatsoever to the extent the damage or destruction is covered by such insurance.
Any insurance policy procured by Tenant which does not name all the members of
Landlord's Group as additional insureds shall contain an express waiver of any
right of subrogation by the insurance company against Landlord's Group. All
public liability and property damage policies shall contain an endorsement that
the members of Landlord's Group, although named as insureds, shall nevertheless
be entitled to recover under said policies for any loss or damage occasioned to
them, their servants, agents and employees by reason of the negligence of
Tenant. All policies of fire and/or extended coverage or other insurance
covering the Premises or its contents shall contain a clause or endorsement
providing in substance that the insurance shall not be prejudiced if the
insureds have waived right of recovery from any person or persons prior to the
date and time of loss or damage, if any. All policies shall contain a provision
substantially as follows: "The insurance afforded by this policy for more than
one named insured shall not operate to increase the limits of the company's
liability, but otherwise, shall not operate to limit or void the coverage of any
one named insured as respects claims against the same insured by any other named
insured or the employees of such other named insured". The original policy or
policies, or duly executed certificates for the same, together with satisfactory
evidence of payment of the premium thereof shall be delivered to Landlord's
Group upon the execution of this Lease, and upon renewals of such policies, not
less than fifteen (15) days prior to the expiration of the term of any such
coverage.
SECTION 13.03 No Injurious Acts. Tenant shall not do or keep anything in or
about the Premises which will violate the provisions of Landlord's insurance
policies, or which will
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adversely affect Landlord's fire or liability insurance premium rating or which
will prevent Landlord from procuring and maintaining such policies with
insurance companies acceptable to Landlord. If anything is done, omitted to be
done or kept by Tenant in or about the Premises which causes the rate of any
insurance on the Premises or other property of Landlord in companies acceptable
to Landlord to be increased, Tenant will pay the amount of such increase
promptly upon Landlord's demand (provided that any other tenant of the Building
whose acts or omissions increase the insurance premiums of the Building shall
likewise be solely responsible for such increases).
SECTION 13.04 Failure to Maintain Required Coverage. In the event that Tenant
shall fail to obtain or maintain in full force and effect the insurance policies
and coverages required of it hereunder, Landlord may obtain such insurance or
coverage, pay the premiums thereon, and take such other steps as may be
necessary to meet the requirements of this Article and upon demand, obtain
reimbursement of the costs so expended (including service charges in the amount
of 1-1/2% per month upon all such costs paid by Landlord) from Tenant.
ARTICLE XIV
TRADE FIXTURES
SECTION 14.01 Title to Property and Removal. All trade fixtures (including,
without limitation, hoods, equipment, tanks and other items to be placed in the
"clean room" and designated as trade fixtures by Tenant) installed by Tenant in
the Premises shall remain the property of Tenant and shall be removable at the
expiration or earlier termination of this Lease, provided Tenant shall not at
such time be in default under this Lease; and provided further, that in the
event of such removal, Tenant shall repair any damage caused by such removal,
and Tenant shall promptly restore the Premises to its original order and
condition, normal wear and tear excepted. Any such trade fixture not removed at
or prior to such termination shall be and become the property of Landlord.
Subject to the foregoing, lighting fixtures and air conditioning equipment,
whether or not installed by Tenant, shall not be removable at the expiration or
earlier termination of this Lease and shall become the property of Landlord.
SECTION 14.02 Failure to Remove. In the event, at the expiration or earlier
termination of this Lease, Tenant fails to remove any trade fixtures installed
by Tenant, then Landlord may remove such fixtures and recover all costs
incidental to such removal from Tenant, and Landlord may dispose of such
fixtures in any manner Landlord deems fit without the necessity of accounting to
Tenant for the proceeds of same.
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ARTICLE XV
ASSIGNMENT AND SUBLETTING
SECTION 15.01 Landlord's Consent. Tenant shall not voluntarily, involuntarily or
by operation of law assign, mortgage, pledge or encumber (collectively
"Assignment") this Lease, in whole or in part, or sublet the whole or any part
of the Premises, or permit the use or occupancy of the whole or any part of the
Premises by others, including, without limitation, the operation of all or any
part of the Premises by a licensee or concessionaire, without first obtaining in
each and every instance the prior written consent of Landlord, which Landlord
will not unreasonably withhold. Such consent shall be based on, inter alia, the
net worth of the proposed assignee/subtenant, the proposed use and the rent to
be paid. Landlord will consent to a sublease or assignment to an affiliate or
subsidiary of Tenant so long as the overall lease credit is not impaired. Any
consent by Landlord to an Assignment or subletting or use or occupancy by others
shall be held to apply only to the specific transaction thereby authorized and
shall not constitute a waiver of the necessity for such consent to any
subsequent assignment or subletting or use or occupancy by others. If this Lease
or any interest herein be assigned or if the Premises or any part thereof be
sublet or used or occupied by anyone other than Tenant with Landlord's prior
written consent, Tenant shall pay to Landlord monthly the excess of the
consideration received or to be received during such month for such Assignment,
sublease, or occupancy (whether or not denoted as rent) over the rent reserved
for such month in this Lease applicable to such portion of the Premises so
assigned, sublet or occupied, after deduction of Tenant's reasonable expenses.
If this Lease or any interest of Tenant herein be assigned or if the whole or
any part of the Premises be sublet or used or occupied by others (including,
without limitation, an affiliate or subsidiary of Tenant), after having obtained
Landlord's prior written consent thereto, Tenant shall nevertheless remain fully
liable for the full performance of all obligations under this Lease to be
performed by Tenant and Tenant shall not be released therefrom in any manner.
SECTION 15.02 Transfers of Corporate and Partnership Interests. If Tenant is a
corporation, the transfer at any time during the term of this Lease of part or
all of the corporate shares of Tenant, or of a parent corporation of which
Tenant is a direct or indirect subsidiary, which results, either individually or
cumulatively, in a change in the effective voting control of Tenant or of such
parent corporation shall constitute a prohibited assignment of this Lease;
provided however that (i) Landlord shall not unreasonably withhold its consent
to such a transfer if the transferee demonstrates to Landlord's satisfaction a
net worth greater than the net worth of the transferor on the date of this
Lease, and (ii) this provision shall not apply in the event that over fifty
percent (50%) of the voting power of the Tenant corporation or of such parent
corporation is held by fifty (50) or more unrelated shareholders. If Tenant is a
partnership, and if at any time during the term of this Lease any person who at
the time of the execution of this Lease owns a general partner's interest ceases
to own such general partner's interest, such cessation of ownership shall
constitute a prohibited Assignment of this Lease.
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ARTICLE XVI
SUBORDINATION AND ATTORNMENT
SECTION 16.01 Mortgages. This Lease and the Tenant's interest hereunder shall be
subject and subordinate at all times to any and all mortgages, deeds of trust,
and other security instruments, including all renewals, extensions,
consolidations, assignments and refinancings of the same (collectively
"Mortgage") as well as all advances made upon the security thereof, which now or
hereafter become liens upon the Landlord's interest in the Premises and/or the
Building. Notwithstanding the foregoing, so long as no Event of Default has
occurred hereunder, Tenant shall not be disturbed in its quiet enjoyment of the
Premises. In case Landlord's interest under the Mortgage shall terminate for any
reason and if the holder of any such Mortgage ("Mortgagee") or if the grantee of
a deed in lieu of foreclosure, or if the purchaser at any foreclosure sale or at
any sale under a power of sale contained in any such Mortgage shall at its sole
option so request, Tenant shall attorn to, and recognize such Mortgagee, grantee
or purchaser, as the case may be, as Landlord under this Lease for the balance
then remaining of the term of this Lease, subject to all terms of this Lease.
The aforesaid provisions shall be self-operative and no further instrument or
document shall be necessary unless required by any such Mortgagee, grantee or
purchaser. Notwithstanding anything to the contrary set forth above, any
Mortgagee may at any time subordinate its Mortgage to this Lease, without
Tenant's consent, by execution of a written document subordinating such Mortgage
to this Lease, and thereupon this Lease shall be deemed prior to such Mortgage.
SECTION 16.02 Execution of Documents. Tenant agrees to execute such documents as
may be required by any such Mortgagee, grantee or purchaser for the purpose of
confirming such subordination or attornment. In the event Tenant fails to
execute such documents within ten (10) days after a written request therefor
shall have been forwarded to Tenant by Landlord, then Tenant shall be deemed to
have appointed Landlord, and Landlord shall thereupon be regarded as the
irrevocable attorney-in-fact of the Tenant, duly authorized to execute and
deliver the required documents for and on behalf of Tenant.
ARTICLE XVII
SURRENDER AND HOLDOVER
SECTION 17.01 Tenant's Obligation to Surrender Premises. Tenant, upon expiration
or earlier termination of this Lease, shall peaceably surrender to Landlord the
Premises in broom-clean condition and in good repair as required by the terms of
this Lease subject to reasonable wear and tear. Tenant shall surrender all keys
for the Premises to Landlord. Tenant shall remove all trade fixtures before
surrendering the Premises as aforesaid and shall repair any damage to the
Premises caused thereby.
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SECTION 17.02 Consensual Holdover. In the event Tenant shall remain in
possession of the Premises with Landlord's consent but without having executed a
new lease or an extension or renewal of this Lease, then Tenant shall be deemed
to be in occupancy and possession of the Premises as a tenant from month to
month, subject to all the other terms and conditions of this Lease insofar as
the same are applicable to a month-to-month tenancy. In the event that there
occurs such a consensual holdover, either party may terminate said occupancy at
the end of any one month period following the expiration date of the term of
this Lease upon at least thirty (30) days' written notice to the other party.
SECTION 17.03 Tenant's Liability for Failure to Surrender. If Tenant fails to so
surrender the Premises upon the expiration or earlier termination of this Lease,
Tenant shall pay, for the period Tenant retains possession of the Premises, an
amount equal to 150% of the Fixed Minimum Rent and other charges payable
immediately prior to the expiration or earlier termination of this Lease, and
Tenant shall indemnify and hold harmless Landlord from loss or liability
resulting from such failure including, without limitation, any claims made by
any succeeding tenant founded on such failure. Nothing contained in this section
shall be deemed or construed as conferring upon Tenant a right to remain in
possession of the Premises beyond the expiration or termination of this Lease or
any extension or renewal hereof.
ARTICLE XVIII
DAMAGE OR DESTRUCTION OF PREMISES
SECTION 18.01 Total or Partial Destruction. If the Premises shall be damaged by
fire or other casualty covered by Landlord's policies of fire and broad form
extended coverage insurance but are not thereby rendered untenantable in whole
or in part, Landlord shall at its own expense cause such damage to be repaired,
and the rent shall not be abated. If by reason of such occurrence, the Premises
shall be rendered untenantable in whole or in part and such damage can, in
Landlord's reasonable judgment, be repaired within 180 days, Landlord shall at
its own expense cause the damage to be repaired and the Fixed Minimum Rent and
other charges due hereunder meanwhile shall be abated proportionately as to the
portion of the Premises rendered untenantable until Landlord has restored the
Premises. If the Premises shall be damaged or destroyed by a fire or casualty
not covered by Landlord's policies of fire and broad form extended coverage
insurance and Landlord decides not to repair and restore the Premises, Landlord
shall have the right, to be exercised by notice in writing delivered to Tenant
within ninety (90) days from and after the occurrence of such damage or
destruction, to elect to terminate this Lease. Landlord shall have the right, to
be exercised by notice in writing, delivered to Tenant within thirty (30) days
after any occurrence which renders the Premises wholly untenantable to terminate
this Lease if said destruction of the Premises occurs within the last three (3)
years of the original term or the last three (3) years of any renewal term
hereof. In any of said events, the termination shall take effect thirty (30)
days after the receipt of such notice by Tenant and the rent and other charges
shall be payable through such date, subject to proportional abatement. In no
event shall Landlord be obligated to expend for any repairs or reconstruction an
amount in excess of the insurance proceeds recovered by it and allocable to the
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damage of the Premises after deduction therefrom of any amounts required to be
paid to any Mortgagee. Landlord shall not be liable for delays occasioned by
adjustment of losses with insurance carriers or by any other cause so long as
Landlord shall proceed in good faith. If Landlord is required to repair or
reconstruct the Premises pursuant to the provisions of this section, Landlord's
obligation shall be limited to the construction of the Building shell. Tenant,
at Tenant's expense, shall submit to Landlord for Landlord's approval plans and
specifications for all other work not required to be done by Landlord and, upon
approval of such plans and specifications and within fifteen (15) days after
Tenant has been notified that Landlord has completed its work on the Premises,
Tenant shall reenter the Premises and therein diligently pursue to completion
such work at Tenant's expense and thereafter commence doing business all in
accordance with the provisions of this Lease within forty-five (45) days after
said notice.
SECTION 18.02 Partial Destruction of Building. In the event that more than one
third (1/3) of the gross leasable area of the Building shall be damaged or
destroyed by fire or other cause, notwithstanding that the Premises may be
unaffected by such fire or other cause, Landlord shall have the right, to be
exercised by notice in writing delivered to Tenant within sixty (60) days after
said occurrence, to terminate this Lease. Upon the giving of such notice, the
term of this Lease shall expire fifteen (15) days after such notice is given,
the rent and other charges shall be payable through such date, subject to
proportional abatement, and Tenant shall vacate the Premises and surrender the
same to Landlord.
SECTION 18.03 Notice by Tenant. Tenant shall immediately notify Landlord of any
damage by fire or other casualty to the Premises or to the Building.
ARTICLE XIX
EMINENT DOMAIN
SECTION 19.01 Total Condemnation. If the whole of the Premises shall be taken by
any public or quasi-public authority under the power of eminent domain,
condemnation or expropriation or in the event of a conveyance in lieu thereof,
then the term of this Lease shall terminate as of the date on which possession
of the Premises is required to be surrendered to the condemning authority, all
rent and other charges shall be paid up to that date, and Tenant shall have no
claim against Landlord for the value of any unexpired term of this Lease.
SECTION 19.02 Partial Condemnation. If any part of the Premises shall be so
taken or conveyed, and in the event that such partial taking or conveyance shall
render the Premises unsuitable for the business of Tenant in Tenant's , then the
term of this Lease shall terminate as of the date on which possession of the
Premises is required to be surrendered to the condemning authority, all rent and
other charges shall be paid up to that date, and Tenant shall have no claim
against Landlord for the value of any unexpired term of this Lease. In the event
of a partial taking or conveyance which is not extensive enough to render the
Premises unsuitable for the business of Tenant, then Landlord shall promptly
restore the Premises to the extent of condemnation proceeds available for such
purpose to a condition comparable to their condition at
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the time of such condemnation less the portion lost in the taking, Tenant shall
promptly make all necessary repairs, restoration and alterations of Tenant's
fixtures, equipment and furnishings and shall promptly reenter the Premises and
commence doing business in accordance with the provisions of this Lease and this
Lease shall continue in full force and effect. In such event, the Fixed Minimum
Rent shall be reduced in the same proportion that the floor area of the Premises
so taken or conveyed bears to the floor area of the Premises immediately prior
to such taking or conveyance, such reduction commencing as of the date Tenant is
required to surrender possession of such portion. For purposes of determining
the amount of funds available for restoration of the Premises from the
condemnation award, said amount shall be deemed to be that part of the award
which remains after payment of Landlord's reasonable expenses incurred in
recovering same and any amounts due to any Mortgagee, and which represents a
portion of the total sum so available (excluding any award or other compensation
for land) which is equitably allocable to the Premises.
SECTION 19.03 Partial Condemnation of Building. If (a) more than one third (1/3)
of the floor area of the Building or more than one third (1/3) of the Common
Areas shall be so taken or conveyed, or (b) any part of the parking area in the
Building shall be so taken or conveyed and if, as the result of such partial
taking or conveyance of the parking area, the size, layout or location of the
remaining parking facilities shall violate the requirements of the applicable
zoning or similar laws, then Landlord shall have the right to terminate this
Lease as of the date on which possession of the property is required to be
surrendered to the condemning authority, and all rent and other charges shall be
paid up to that date. Tenant shall have no claim against Landlord for the value
of any unexpired term of this Lease.
SECTION 19.04 Landlord's Damages. In the event of any taking or conveyance as
herein provided, Tenant shall not be entitled to any part of the award for such
taking or conveyance, and Landlord and any Mortgagee shall receive the full
amount of such award as their respective interests may appear. Tenant expressly
waives any right or claim to any part thereof and assigns to Landlord any such
right or claim to which Tenant might become entitled.
SECTION 19.05 Tenant's Damages. Although all damages in the event of any
condemnation shall belong to Landlord and any Mortgagee, Tenant shall have the
right, to the extent that same shall not diminish Landlord's or such Mortgagee's
award, to claim and recover from the condemning authority, but not from Landlord
or such Mortgagee, such compensation as may be separately awarded or recoverable
by Tenant in Tenant's own right for or on account of, and limited solely to, any
cost to which Tenant might be put in removing Tenant's merchandise, furniture,
fixtures, leasehold improvements and equipment.
ARTICLE XX
TENANT'S DEFAULT
SECTION 20.01 Events of Default. Each of the following shall constitute an Event
of Default ("Event of Default"):
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(a) Tenant defaults in the payment of any installment of Fixed
Minimum Rent for a period of ten (10) days after such payment is due. Landlord
shall give Tenant three days' notice of such default before any exercising any
remedy, but shall not be obligated to give such notice more than twice in any
12-month period and thereafter may exercise Landlord's remedies without any
notice; or
(b) Tenant defaults in the payment of any installment of, or
on account of, Tax Rent, Tenant's Pro Rata Share of Operating Costs or any other
charge or payment due or payable by Tenant under this Lease on any day upon
which the same shall be due and payable and such default continues for ten (10)
days after the date on which the same was due and payable; or
(c) Tenant defaults in the performance of any obligation,
covenant or agreement of Tenant to be performed or observed under this Lease,
other than those specifically set forth elsewhere in this Section 20.01, and
such default continues and is not cured by Tenant within thirty (30) days after
Landlord has given to Tenant a notice specifying the same, or, in the case of a
default which cannot with due diligence be cured within a period of thirty (30)
days and the continuance of which for the period required for cure will not
subject Landlord to the risk of criminal liability or termination of any
superior lease or foreclosure of any Mortgage, if Tenant does not in good faith
duly institute within such thirty (30) day period all steps necessary to cure
the same and promptly and diligently prosecute to completion such cure within
ninety (90) days after said Landlord's notice, provided however that, in the
event there are defaults under this Section 20.01(c) on two occasions within any
twelve (12) month period, then regardless of whether said defaults shall have
been cured within the applicable period set forth above, any further default
under this Section 20.01(c) shall be deemed a "Deliberate Event of Default". In
the event of a Deliberate Event of Default, Landlord, without giving Tenant any
notice or opportunity to cure such default, may exercise all of Landlord's
rights under this Lease, at law, in equity or otherwise; or
(d) Tenant abandons the Premises, whether the Premises are
vacant or not, or Tenant permits the Premises to be vacant; or
(e) Tenant removes, attempts to remove or expresses or
displays any intention to remove any of the goods or property in the Premises
other than in the ordinary and usual course of business; or
(f) Any execution or attachment is issued against Tenant or
any of Tenant's property and is not discharged or vacated within thirty (30)
days after the issuance thereof; or
(g) Tenant is in breach of the terms of Article XV of this
Lease; or
(h) Tenant or any guarantor of Tenant makes an assignment for
the benefit of creditors or becomes a party or subject to any liquidation or
dissolution action or proceeding, or the institution of any bankruptcy,
reorganization, insolvency or other proceeding for the relief of financially
distressed debtors with respect to Tenant or said guarantor, or the appointment
of a receiver, liquidator, custodian or trustee for Tenant or said guarantor or
a substantial part of
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Tenant's or said guarantor's assets and, if any of the same shall occur
involuntarily, the same is not dismissed or discharged within sixty (60) days;
or the entry of an order for relief against Tenant or said guarantor under Title
II of the United States Code entitled "Bankruptcy"; or Tenant or said guarantor
taking any action to effect, or which indicates Tenant's or said guarantor's
acquiescence in, any of the foregoing.
ARTICLE XXI
REMEDIES OF LANDLORD UPON TENANT'S DEFAULT
SECTION 21.01 Acceleration of Rent. Upon the occurrence of an Event of Default,
the entire rent and all other sums payable hereunder for the balance of the term
shall immediately become due and payable as if by the terms of this Lease they
were payable in advance, and Landlord may immediately proceed to distrain,
collect, confess judgment or bring action for said rent and other sums, as being
in arrears, or may file a proof of claim in any bankruptcy or insolvency
proceedings for such rent and other sums, or Landlord may institute any other
proceedings to enforce payment thereof.
For the purposes of this Section 21.01, the rent and all other sums
payable hereunder for the balance of the term shall be deemed to be the sum of
(a) the aggregate of the Fixed Minimum Rent reserved for the balance of the term
of this Lease and (b) the annual average of the Tax Rent, Tenant's Pro Rata
Share of Operating Costs, Tenant's utility charges and other charges payable in
the Lease Year immediately preceding the Event of Default (collectively "Annual
Lease Payments") multiplied by the number of years and fraction of a year then
constituting the unexpired term of this Lease (in each case exclusive of
unexercised renewal periods).
SECTION 21.02 Right to Reenter. Upon the occurrence of an Event of Default,
Landlord may terminate all services (including, without limitation, the
furnishing of utilities) and may reenter the Premises, either by summary
proceeding or otherwise, and may remove all persons and property from the
Premises, and such property may be removed and stored in public warehouse at the
cost of and for the account of Tenant. Landlord, without further demand or
notice, may proceed to distress and sell the goods there found and to levy the
rent and all other charges herein, and Tenant shall pay all costs and officers'
commissions, including watchmen's wage, and further including a sum equal to
five percent (5%) of the amount of the levy chargeable as commissions to the
constable or other person making the levy and, in such cases, all costs,
officers' commissions and other charges shall immediately attach and become a
part of the claim of Landlord for rent, and any tender of rent without said
costs, commissions and charges made after the issue of a warrant of distress
shall not be sufficient to satisfy the claim of Landlord.
SECTION 21.03 Right to Relet; Damages for Breach. Should Landlord elect to
reenter the Premises as herein provided, or should Landlord take possession
pursuant to legal proceedings or pursuant to any notice provided for by law,
Landlord may relet the Premises or any part thereof for such term or terms
(which may be for a term extending beyond the term of this Lease) and at
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such rental or rentals and upon such other terms and conditions as Landlord in
its sole discretion may deem advisable; Landlord may make such alterations and
repairs as Landlord deems necessary in order to relet the Premises; upon each
such reletting all rentals received by Landlord from such reletting shall be
applied, first, to the payment of any costs and expenses of such reletting,
including brokerage fees, attorneys' fees and costs of such alterations and
repairs; second, to the payment of any indebtedness other than rent due
hereunder from Tenant to Landlord; third, to the payment of rent due and unpaid
hereunder; and the residue, if any, shall be held by Landlord and applied in
payment of future rent as the same may become due and payable hereunder. If such
rents received from such reletting during any month are less than that to be
paid during that month by Tenant hereunder, Tenant shall pay any such deficiency
to Landlord. Such deficiency shall be calculated and paid monthly. No such
reentry or taking possession of the Premises by Landlord shall be construed as
an election on its part to terminate this Lease unless a written notice of such
intention be given to Tenant or unless the termination thereof be decreed by a
court of competent jurisdiction. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such previous breach.
SECTION 21.04 Right to Terminate; Right to Discontinue Services. Upon the
occurrence of an Event of Default, Landlord may give Tenant a notice of
intention to end the term of this Lease at the expiration of five (5) days from
the service of such notice of intention, and upon the expiration of said five
(5) day period, this Lease (whether or not the term hereof shall theretofore
have commenced), as well as all of the right, title and interest of Tenant
hereunder, shall wholly cease and expire and become void (except as to Tenant's
liability) in the same manner and with the same force and effect as if the date
fixed in such notice were the date herein originally specified for the
expiration of the term hereof; and Tenant shall then immediately quit and
surrender to Landlord the Premises, and Landlord may enter into and repossess
the Premises by summary proceedings, detainer, ejectment or otherwise and remove
all occupants thereof and, at Landlord's option, any property thereon, without
being liable to indictment, prosecution or damage therefor. Tenant shall not
have the right to prevent said termination by payment of any sum due or the
performance of any other obligations under this Lease.
SECTION 21.05 Confession of Judgment. THE FOLLOWING PARAGRAPHS SET FORTH
WARRANTS OF AUTHORITY FOR AN ATTORNEY TO CONFESS JUDGMENTS AGAINST TENANT. IN
GRANTING THESE WARRANTS OF ATTORNEY TO CONFESS JUDGMENTS AGAINST TENANT, TENANT
HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND, ON THE ADVICE OF THE
SEPARATE COUNSEL OF TENANT, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS TENANT HAS
OR MAY HAVE WITH RESPECT TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER
THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH
OF PENNSYLVANIA.
21.05.1 Upon the occurrence of an Event of Default, Tenant
hereby empowers any Prothonotary or attorney of any court of record to appear
for Tenant in any and all actions which may be brought for rent and/or any other
sums due hereunder by Tenant, and to
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confess judgment against Tenant for all or any part of the rent and/or such
other sums, including, at Landlord's option, the rent and/or such other sums for
the entire unexpired balance of the term of this Lease, and for interest and
costs, together with an attorneys' commission of five percent (5%), but without
deduction therefrom for the fair rental value of the Premises. Such authority
shall not be exhausted by one exercise thereof, but judgment may be confessed as
aforesaid from time to time and as often as there is an occurrence of an Event
of Default, and such powers may be exercised during the original term, any
extension or renewal term, and after the expiration of any such term.
21.05.2 Upon (a) the occurrence of an Event of Default, or (b)
the termination of this Lease during the original term hereof or any renewal or
extension thereof on account of any default by Tenant hereunder, or (c) upon the
expiration of the original term of this Lease or any renewal or extension
thereof, it shall be lawful for any Prothonotary or attorney of any court of
record to appear for Tenant as well as for all persons claiming by, through or
under Tenant, to confess judgment in ejectment, without any stay of execution or
appeal, against Tenant and all persons claiming by, through or under Tenant for
the recovery by Landlord of possession of the Premises, without any liability on
the part of the such attorney, for which this Lease or a true and correct copy
thereof shall be a sufficient warrant; whereupon, if Landlord so desires, a writ
of possession may issue forthwith, without any prior writ or proceedings
whatsoever. If for any reason after such action has been commenced, the same
shall be determined and the possession of the Premises remain in or be restored
to Tenant, Landlord shall have the right upon any subsequent Event(s) of
Default, or upon the termination or expiration of this Lease or of Tenant's
right of possession as herein set forth, to confess judgment from time to time
in the manner and form herein set forth to recover possession of the Premises.
No such determination of this Lease, no taking, nor recovering possession of the
Premises shall deprive Landlord of any remedies or action against Tenant for
rent or for damages due or to become due for Tenant's breach of this Lease, nor
shall the bringing of any such action for rent, or breach of covenant or
condition nor the resort to any other remedy herein provided for the recovery of
rent or damages for such breach be construed as a waiver of the right to insist
upon the forfeiture and to obtain possession in the manner herein provided.
21.05.3 In any action of ejectment or for rent in arrears,
Landlord shall first cause to be filed in such action an affidavit made by it or
someone acting for it setting forth the facts necessary to authorize the entry
of judgment, of which facts such affidavit shall be conclusive evidence, and, if
a true copy of this Lease be filed in such action, it shall not be necessary to
file the original as a warrant of attorney, any rule of court, custom or
practice to the contrary notwithstanding.
21.05.4 The right to enter judgment against Tenant by
confession and to enforce all of the other provisions of this Lease herein
provided for may, at the option of any assignee of this Lease, be exercised by
any assignee of Landlord's right, title and interest in this Lease in said
assignee's name, any statute, rule of court, custom or practice to the contrary
notwithstanding.
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SECTION 21.06 Recovery of Legal Expenses. In the event Landlord shall engage the
services of an attorney for recovery of possession of the Premises, for the
recovery of rent or any other amount due under this Lease, or because of
Tenant's breach of any of the terms hereof, regardless of whether suit shall be
brought, and a breach shall be established, Tenant shall pay to Landlord all
reasonable expenses incurred therefor, including all court costs and reasonable
attorneys' fees.
SECTION 21.07 Injunctive Relief; All Remedies Cumulative. In the event of a
breach by Tenant of any of the terms hereof, Landlord shall have the right to
injunctive relief to restrain Tenant and the right to invoke any remedy allowed
by law or in equity whether or not other remedies are herein provided. Each
right and remedy of Landlord provided for in this Lease shall be cumulative and
shall be in addition to every other right or remedy provided for in this Lease
or now or hereafter existing at law, in equity, by statute or otherwise, and the
exercise of any one or more of such rights and remedies shall not preclude the
simultaneous or later exercise of any or all other such rights and remedies.
ARTICLE XXII
ESTOPPEL STATEMENT
SECTION 22.01 Duty of Tenant to Furnish. At any time and from time to time,
within ten (10) days after request therefor by Landlord, Landlord's Mortgagee or
purchaser ("Requesting Party"), Tenant shall execute and deliver to Requesting
Party, without charge and in a form provided by the Requesting Party, a written
statement in recordable form, certifying that this Lease is in full force and
effect and has not been amended except by such writings as shall be stated;
certifying that to Tenant's knowledge, Landlord is not in default under this
Lease and there are no defenses or offsets thereto or else stating those claimed
by Tenant; certifying the commencement and expiration dates of the term of this
Lease; certifying that Tenant is in occupancy of the Premises; certifying the
advance rent and security paid to or deposited with Landlord and the date to
which rent and other charges have been paid; and certifying such additional
information as may be reasonably requested by Requesting Party.
ARTICLE XXIII
NOTICES
SECTION 23.01 Manner and Place of Service. Wherever in this Lease it shall be
required or permitted that notice, demand or consent be given or served by
either party to this Lease to or on the other, such notice, demand or consent
shall not be deemed to have been duly given or served unless in writing and
either personally delivered, sent by certified mail, return receipt requested,
postage prepaid, or by private delivery service guaranteeing overnight delivery
(such as Federal Express), addressed to Landlord at Landlord's address set forth
in the Lease Summary, and addressed to Tenant at Tenant's address set forth in
the Lease Summary, before the
-25-
Commencement Date, and at the Premises, after the Commencement Date. Each party
hereto may change its address for receipt of notices upon notification to the
other parties in conformance herewith. All notices shall be deemed given on the
date personally delivered, five (5) days after deposited in the United States
mail, or one (1) business day after deposited with said private delivery
service.
ARTICLE XXIV
BROKERS
SECTION 24.01 Tenant's Warranty. Tenant represents and warrants to Landlord that
Tenant has had no dealing, negotiations or consultations with respect to the
Premises, the Building or this transaction with any broker or finder except as
disclosed in the Lease Summary and that no other broker or finder called the
Premises or any other space in the Building to Tenant's attention. In the event
that any broker or finder (other than those listed in the Lease Summary) claims
to have submitted the Premises or any other space in the Building to Tenant, to
have induced Tenant to lease the Premises or to have taken part in any dealings,
negotiations or consultations with respect to the Premises, the Building or this
transaction, Tenant shall be responsible for and shall defend, indemnify and
save Landlord harmless from and against all costs, fees (including, without
limitation, reasonable attorney's fees), expenses, liabilities and claims
incurred or suffered by Landlord as a result thereof.
SECTION 24.02 Landlord's Warranty. In the event that any broker or finder (other
than those listed in the Lease Summary) claims to have submitted the Premises or
any other space in the Building to Landlord, to have induced Landlord to lease
the Premises or to have taken part in any dealings, negotiations or
consultations with respect to the Premises, the Building or this transaction,
Landlord shall be responsible for and shall defend, indemnify and save Tenant
harmless from and against all costs, fees (including, without limitation,
reasonable attorney's fees), expenses, liabilities and claims incurred or
suffered by Tenant as a result thereof. Landlord shall be solely responsible for
the fees payable to the Brokers listed in the Lease Summary.
ARTICLE XXV
MISCELLANEOUS
SECTION 25.01 Binding Effect. All rights, obligations and liabilities herein
given to or imposed upon the respective parties hereto shall extend to and bind
the several respective heirs, personal representatives, successors and assigns
of the said parties; and if there shall be more than one Tenant, they shall all
be bound jointly and severally by the terms, covenants and agreements herein.
SECTION 25.02 Quiet Enjoyment. So long as no Event of Default occurs hereunder,
Tenant shall peaceably and quietly hold and enjoy the Premises for the term of
this Lease without
-26-
hindrance or interruption by Landlord or any other person or persons lawfully
claiming by, through or under Landlord, subject, nevertheless, to the terms and
conditions of this Lease.
SECTION 25.03 Waiver. The waiver by Landlord of any breach of any term, covenant
or condition herein contained shall not be deemed to be a waiver of any
subsequent breach of the same or a waiver of any other term, covenant or
condition herein contained. No covenant, term or condition of this Lease shall
be deemed to have been waived by Landlord, unless such waiver be in writing and
executed by Landlord.
SECTION 25.04 Custom and Usage. Landlord shall have the right at all times to
enforce the covenants and conditions of this Lease in strict accordance with the
terms hereof, notwithstanding any conduct or custom on the part of Landlord in
refraining from so doing at any time or times with respect to Tenant hereunder
or with respect to other tenants of the Building. The failure of Landlord at any
time or times to enforce its rights under said covenants and provisions strictly
in accordance with the same shall not be construed as having created a custom in
any way or manner contrary to the specific terms, provisions and covenants of
this Lease or as having in any way or manner modified the same.
SECTION 25.05 Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lesser amount than any payment of rent or other charges herein
stipulated shall be deemed to be other than on account of the earliest
stipulated rent or other charges then due and payable. Landlord shall not be
bound by any endorsement or statement on any check or any letter accompanying
any check or payment and no such endorsement, statement or letter shall be
deemed an accord and satisfaction. Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such rent or
other charges or pursue any other remedy.
SECTION 25.06 Entire Agreement. The Lease Summary, this Lease Agreement and the
Exhibits, set forth all the agreements and understandings between Landlord and
Tenant concerning the Premises and there are no agreements or understandings,
either oral or written, between them other than as herein set forth. All prior
arrangements and understandings, whether oral or written, between the parties
hereto are merged herein and extinguished, this Lease superseding and canceling
the same. No amendment to this Lease shall be binding upon Landlord or Tenant
unless reduced to writing and executed by the party against which such amendment
is to be enforced.
SECTION 25.07 Captions and Index. The captions and index appearing in this Lease
are inserted only as a matter of convenience and in no way define, limit,
construe or describe the scope or intent of this Lease nor in any way affect
this Lease.
SECTION 25.08 Negation of Personal Liability. Notwithstanding anything contained
herein to the contrary, Tenant agrees that Landlord shall have no personal
liability with respect to this Lease and Tenant shall look solely to the estate
and property of Landlord in the Building for the satisfaction of Tenant's
remedies. No other assets of Landlord or any principal of Landlord shall be
subject to levy, execution or other judicial process for the satisfaction of
Tenant's claim
-27-
and, in the event Tenant obtains a judgment against Landlord, the judgment
docket shall be so noted. In the event of any sale of the Premises or the
Building, Landlord shall be and hereby is entirely freed and relieved of all
obligations of Landlord hereunder. This section shall inure to the benefit of
Landlord and Landlord's successors and assigns and their respective principals.
SECTION 25.09 Partial Invalidity; Separate Covenants. If any portion of this
Lease or the application thereof to any person or circumstances shall be invalid
or unenforceable, the remainder of this Lease and the application of such
portion to persons or circumstances other than those as to which it is held
invalid or unenforceable shall not be affected thereby, and each term, covenant
and condition of this Lease shall be valid and be enforced to the fullest extent
permitted by law. Furthermore, each covenant, agreement, obligation and other
provision contained in this Lease is, and shall be deemed and construed as, a
separate and independent covenant of the party bound by, undertaking or making
the same, and not dependent on any other provision of this Lease.
SECTION 25.10 Recording. This Lease shall not be recorded. If Landlord requests,
the parties shall execute and acknowledge a short form of lease for recording
purposes which shall be recorded at Landlord's expense.
SECTION 25.11 Controlling Law. This Lease shall be interpreted and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
SECTION 25.12 Time of the Essence. Time shall be of the essence of all of
Tenant's obligations hereunder.
SECTION 25.13 PIDC Assistance. Landlord acknowledges that Tenant may receive
certain economic assistance from the Philadelphia Industrial Development
Corporation in connection with Tenant's decision to operate in the City of
Philadelphia, and Landlord further acknowledges that Landlord has no claim to
such assistance.
-28-
SECTION 25.14 Acknowledgment. TENANT ACKNOWLEDGES THAT THIS LEASE INCLUDES
WARRANTS OF AUTHORITY FOR AN ATTORNEY TO CONFESS JUDGMENTS AGAINST TENANT. IN
GRANTING THESE WARRANTS OF ATTORNEY TO CONFESS JUDGMENTS AGAINST TENANT, TENANT
HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND, ON THE ADVICE OF THE
SEPARATE COUNSEL OF TENANT, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS TENANT HAS
OR MAY HAVE WITH RESPECT TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER
THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH
OF PENNSYLVANIA.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have hereunto set their hands and seals the day and year set forth in
the Lease Summary.
AVAX TECHNOLOGIES, INC.
(Tenant)
By: /s/ Illegible Signature
-----------------------
RODIN PARTNERS, L.P., a
Pennsylvania partnership
(Landlord)
By: Rodin Acquisition Corp.,
a Pennsylvania corporation
By: /s/ Illegible Signature
-----------------------------
President
-29-
SCHEDULE 5.02
EXCEPTIONS TO OPERATING COSTS
Operating Costs shall not include:
Promotional, advertising and marketing costs for specific tenants
Leasing fees including commissions
Gifts to tenants, receptions and subscriptions
Tenant improvements
Late charges on xxxxxxxx
Expenses caused by the negligence of other tenants
Expenses to be billed directly by Landlord to another tenant(s) or paid
directly to another tenant(s) including repairs, janitorial cost, separately
metered utilities and after-hours HVAC service
Back taxes caused by Landlord's default
Payment of revenue bonds for capital items
Costs not directly attributable to the Building or the costs that are
properly allocated among other properties or accounts
Interest or amortization payments on any mortgage
Expenses for repair or other work occasioned by fire or other casualty
which is covered under a standard fire policy with extended coverage
Bad debt expenses
Costs to correct defects in the design, construction or equipment
of the Building
Rental under any ground lease or other underlying lease
Depreciation (except as expressly set forth in Section 5.02)
The costs of any item for which Landlord will be reimbursed by
insurance or otherwise
-1-
The cost(s) of installing, operating and maintaining any specialty
service, such as any observatory, broadcasting facilities, luncheon club,
athletic or recreation club
-2-
EXHIBIT A
DEED DESCRIPTION
RODIN PLACE
PARCEL 'A' (0000 Xxxxxxxx Xxxxxx)
All that certain lot or piece of ground together with the improvements thereon
situate in the 8th Xxxx of the City of Philadelphia and described in
accordance with the subdivision plan prepared by Xxxxxx and Xxxxxx Engineers
dated August 7, 1995, last revised November 5, 1997.
Beginning at the point of intersection of the Easterly side of the 00xx Xxxxxx
(54 feet 7 inches wide) with the Southerly side of Xxxxxxxx Street (66 feet
wide); thence from said point of beginning, extending South 78 degrees 59
minutes 00 seconds East along the said Southerly side of Xxxxxxxx Street 490
feet 7 3/4 inches to a point on the Westerly side of 00xx Xxxxxx (50 feet wide);
thence extending South 11 degrees 21 minutes 00 seconds West along the said
Westerly side of 00xx Xxxxxx 199 feet 9 inches to a point thence extending North
78 degrees 59 minutes 00 seconds West 117 feet 10 inches to a point; thence
extending North 74 degrees 11 minutes 46 seconds West 91 feet 2 7/8 inches to a
point; thence extending North 33 degrees 59 minutes 00 seconds West 12 feet 11
1/2 inches to a point; thence extending North 11 degrees 01 minute 00 seconds
East 12 feet 0 inches to a point; thence extending North 78 degrees 59 minutes
00 seconds West approximately along the face of a building 28 feet 1 1/2 inches
to a point; thence extending North 73 degrees 40 minutes 15 seconds West
approximately along the face of a building 66 feet 1 inch to a point; thence
extending North 62 degrees 22 minutes 00 seconds West approximately along the
face of a building 60 feet 3 7/8 inches to a point; thence extending North 79
degrees 03 minutes 40 seconds West partially along the face of a building 38
feet 1 1/2 inches to a point; thence extending North 56 degrees 20 minutes 30
seconds West approximately along the face of a building 89 feet 7 inches to a
point on the Easterly side of 00xx Xxxxxx; thence extending North 11 degrees 30
minutes 21 seconds East along the to the point and place of beginning.
Containing in Area 84,428 square feet.
EXHIBIT B
[ILLUSTRATED FLOOR PLAN OF PREMISES]
EXHIBIT C
RULES AND REGULATIONS
1. Compliance with Laws. Tenant, at Tenant's sole expense, shall comply
with all of the laws, ordinances, regulations and other requirements of all
municipal, county, state, federal and other governmental authorities and all
recommendations of the Association of Fire Underwriters, Factory Mutual
Insurance Companies, The Insurance Services Organization of Pennsylvania and
other similar bodies establishing standards for fire insurance ratings which are
applicable to Tenant or its use of the Premises, and shall save Landlord
harmless from penalties, fines, costs, expenses or damages resulting from the
failure to do so.
2. Loading and Unloading. Tenant agrees that all loading and unloading
of goods shall be done only at such times, in the areas and through such
entrances as may be designated for such purposes by Landlord. Trailers or trucks
shall not be permitted to remain parked overnight in any part of the Building,
whether loaded or unloaded. Tenant's delivery trucks and private buses traveling
to and from the Building shall be directed to take such routes and to travel to
and from the Building at reasonable times so as to reduce the impact upon the
neighborhoods surrounding the Building.
3. Refuse. Tenant agrees to keep all garbage and refuse in accordance
with municipal regulations; not to burn, place or permit any trash, garbage,
rubbish, obstructions or merchandise in common areas; and to keep the Premises
clean, orderly, sanitary and free from objectionable odors and from insects,
vermin and other pests. Tenant shall cooperate with Landlord's recycling program
or legal regulations. In no event shall Landlord remove any construction debris,
office furniture or equipment or any other debris whatsoever from Tenant at
Landlord's expense. If items are placed by Tenant in any Landlord trash removal
receptacle, Tenant shall pay for the charges for the removal of such waste at
Landlord's prevailing rate. Tenant shall segregate recyclable items as directed
by Landlord in accordance with applicable law and regulations.
4. Heat. Tenant agrees to keep the Premises sufficiently heated to
prevent freezing of water and pipes and fixtures.
5. Parking. Tenant agrees for itself and its employees, customers and
invitees to park their cars only in those portions of the garage as may be
designated for that purpose by Landlord. Tenant shall furnish Landlord with the
automobile license numbers of Tenant's and Tenant's employees' cars within five
(5) days after a request therefor and shall thereafter notify Landlord of any
changes within five (5) days after such changes occur. In the event that Tenant
or Tenant's employees park their cars in areas other than such designated
parking areas, then Landlord, after giving notice to Tenant of such violation,
shall have the right to charge Tenant Ten Dollars ($10.00) per day per car
parked in any areas other than those designated.
6. Operations. Tenant agrees to conduct its business in the Premises in
all respects in a dignified manner and in accordance with high standards of
operation.
7. Hazardous Material and Equipment. Tenant shall not keep any
flammable, combustible or explosive material, high pressure steam generating
equipment or other hazardous or toxic material and equipment on the Premises.
8. Machinery; Loud Speakers. Tenant shall not, without the prior
written consent of Landlord, use or operate any machinery which, in Landlord's
opinion, is harmful to the Building or disturbing to other tenants in the
Building; nor shall Tenant use any loud speakers, televisions, phonographs,
radios or other devices in a manner so as to be heard or seen outside of the
Premises, nor display merchandise on the exterior of the Premises nor on the
walkways or sidewalks appurtenant thereto either for sale or for promotion
purposes.
9. Awnings. Tenant shall not, without the prior written consent of
Landlord, attach any awning, canopy, antenna or other projection to the roof or
the outside walls of the Premises or the Building.
10. Auctions. Tenant shall not, without the prior written consent of
Landlord, conduct any auction, fire, bankruptcy, or selling out sale on or about
the Premises.
11. Glass. Tenant shall promptly replace at Tenant's own expense with
glass of like kind and quality any plate glass, door or window glass of the
Premises which may become cracked or broken.
12. Plumbing Facilities. Tenant shall not use the plumbing facilities
for any other purpose than that for which they were constructed and shall not
permit any foreign substance of any kind to be thrown therein, and the expense
of repairing any breakage, stoppage, seepage or damage whether occurring on or
off the Premises resulting from a violation of this provision by Tenant or
Tenant's employees, agents or invitees shall be borne by Tenant. All grease
traps and other plumbing traps in the Premises shall be kept clean and operable
by Tenant at Tenant's sole expense.
13. Burglary. Tenant shall, notwithstanding anything in this Lease to
the contrary, be responsible for all repairs and replacements to the Premises
necessitated by a burglary or attempted burglary, or any illegal or forcible
entry into the Premises.
14. Solicitation of Business. Tenant and Tenant's employees and agents
shall not solicit business or distribute handbills or other advertising matter
in the parking or other common areas of the Building.
15. Conduct of Business. Tenant shall not operate or maintain the
Premises in a manner which emits noxious or offensive odors, emanates unpleasant
noises or loud noise levels, is not consistent with the conduct and management
of a first class retail area in the vicinity of the Building, transmits
vibrations, transmits flashing lights or search lights, is inconsistent with the
rights of any other tenants of the Building or causes the overburdening of any
pipes or other utilities in the Building serving the Premises. Tenant shall not
place any weight in the Premises beyond the safe carrying capacity of the
structure of the Building.
-2-
16. Further Rules and Regulations. Tenant shall comply with all further
rules and regulations from time to time promulgated by Landlord, which Landlord
in its sole discretion shall deem necessary in connection with the Premises and
the Building including, without limitation, the installation of such fire
extinguishers, water buckets and other safety equipment as Landlord may
reasonably require.
-3-
EXHIBIT D
LANDLORD WORK
Scope of Work and Outline Specifications September 19, 1995
AVAX TECHNOLOGIES, Inc. - Tenant
Rodin Partners, L.P. - Landlord
Landlord agrees, at its sole cost and expense and without charge to Tenant, to
do the following work, all of which shall be of material, manufacture, design,
capacity and finish selected by the Landlord as Standard of the Building. The
following shall define the scope of work.
1. HVAC
-------
Landlord shall purchase and set in place new roof-top package heating,
ventilating and air-conditioning equipment for suite 200. For example, if the
final rentable square footage is determined to be 9,000 square feet then the
Landlord shall provide 30 tons of equipment. The equipment will be provided
in sizes and locations as determined by Tenant provided that Landlord
undertakes no extraordinary expense for the installation thereof. Tenant
shall provide Landlord with the locations and respective sizes on a
dimensioned architectural roof-plan within fifteen days* of the date of the
Lease execution. Landlord shall perform any roofing changes and any
structural changes necessary to support to the HVAC equipment. Tenant shall
perform any utility connections and ductwork distribution to or from the
units under the Tenant Improvement allowance. The units shall be 480volt, 3
phase units unless the particular units are not available in that voltage.
The HVAC equipment for suite 204 is as existing.
2. ELECTRIC
-----------
Landlord shall install a 480volt 3 phase electric meter and a main-disconnect
breaker to service the Premises at the common electric room located on the
second floor in the Building. Tenant shall connect its service for all
electric connections within the premises to the metered service at the
electric room under the Tenant Improvement allowances.
2. As Is
--------
Except for the foregoing, the premises shall be delivered "as is" with
respect to the existing conditions and improvements. Tenant has not relied on
Landlord, Landlord's architect or Landlord's agents for consultation as to
the suitability of the premises for Tenant's use. Tenant has consulted with
its own professionals and relies on its own knowledge of its requirements and
outside consultants to understand the outline specifications described
herein. Landlord warrants that its work will be constructed in accordance
with all applicable building, fire and life safety codes.
----------
* A delay in Tenant's later submission of Air-conditioning plans and
specifications shall be limited to removing Landlord's completion of Landlord
Work timetable (60 days) as specified in the Commencement Date section on
page ii of the Lease Summary.
EXHIBIT E - RODIN PLACE GARAGE RULES AND PROCEDURES
Xxxxx Xxxxx Xxxxxx *0000 Xxxxxxxx Xxxxxx * Xxxxxxxxxxxx, XX 00000
AGREEMENT BY AND BETWEEN RODIN PARTNERS, L.P. "OPERATOR" AND VEHICLE OWNER
"OWNER"
--------------------------------------------------------------------------------
Lessee of parking access in Garage, Owner of Automobile, hereafter called
Owner" _________________________________________________________________________
Owner's Home Address: ____________________________ City ________________________
State ________________ Zip Code _______________ Home Phone #: ________________
Business Address:_______________________________________________________________
Business Phone#: ____________________
Auto Make/Model: ________________________ Year ________ Color: _________________
To Be Billed To (if other than Owner): ____________________ Address: ___________
Billing Authorization required if other than Owner ______________ Title: _______
Name of Authorizing Party: _______________________ Date Signed: ________________
Date Parking is to begin: ___________________ Pass Card Number: ________________
Owner must put Sticker # _______________ on Vehicle for which the access plate
is issued. Vehicle Plate # ________________
TERMS AND CONDITIONS
--------------------
1. This is a Lease parking place only, and no bailment is intended to be
created. Operator reserves the right to have a garage attendant to take
Owner's keys and accept the possession and control of the Owner's
automobile. [In the case of accepting control of the vehicle by taking the
keys, Operator's liability is limited to $15,000 per vehicle.] If Operator
does not take possession of the vehicle and vehicle is parked by the Owner
then Operator is not responsible for any loss, damage or theft to Owner's
car or its contents while in or about the garage. Owner agrees to carry any
necessary insurance in case of damage to persons or property while Owner's
vehicle is in the garage for loss, theft, damage or other casualty.
2. Owner is not entitled to the use of a specified or assigned space. Monthly
Use is defined as the right of the Owner to park a vehicle in the Garage.
3. All monthly Owners must park in designated month area and, when appropriate
direct visitors to park in Daily area.
4. No allowance is made for time parking space is not used.
5. Contract is terminable immediately without notice if terminated for cause.
6. Owner and all persons is Owner's vehicle must act in lawful, reasonable, and
proper manner at all times in and about the facility and must obey all
posted regulations. Owner reserves the right to change any rules without
notice at any time for any reason uniformly applied to all vehicle owners.
7. Intentionally Deleted.
8. Vehicle owner must put sticker on the vehicle for which the access pass is
issued. No vehicle substitution is allowed except with advance notice to
Operator. This rule shall not apply if Municipal regulations no longer
requires monthly stickers be pre-assigned to individual vehicles under its
public parking lot license regulations. No multiple stickers or passes will
be issued for any parking user. One sticker and pass, per space.
9. Any misuse of parking equipment or garage, absence of display of sticker or
unauthorized entry by swipe cardholder will cause revocation of parking
privileges.
10. Intentionally Deleted.
11. If Owner's use of the parking is pursuant to a tenant lease for space in the
building, Operator reserves the right to immediately terminate the parking
without notice if the underlying lease rent obligations are not met,
including, but not limited to, Tenant's payment of rent.
12. The garage may be operated as either a self-park or attendant-park
arrangement. The garage size, use, and access ramps may be charged without
notice at Operator's election.
13. A $15 dollar fee is due together with this application for the issuance of
each access card. A $15 fee will be charged for each lost, broken, bent or
multiplied card that requires replacement. The $15 fee will not be refunded
at the time of the parking term expiration.
SIGNATURE:___________________________ DATE SIGNED/SUBMITTED: ___________________
SOCIAL SECURITY #: _______________________ Operator Approval __________
December 1, 1997
EXHIBIT F
---------
AVAX TECHNOLOGIES, Inc. Lease Trash Removal Specifications
1. Landlord will provide the following office cleaning services with visits to
the office areas in the premises after normal business hours (6PM to 11PM)
on weekdays excluding national or union holidays at the frequencies
indicated below.
DAILY
-----
a) Vacuum or sweep floor surfaces, as needed but no less than twice weekly.
b) Empty all wastebaskets no less than daily except recyclable material
baskets which shall be emptied when full.
c) Provide lavatory paper supplies and clean toilet rooms no less
frequently that three times weekly.
d) Clean interior glass surfaces as needed.
e) Dust exposed horizontal surfaces on all desks, tables, filing cabinets,
bookcases, shelves and telephones.
f) Clean drinking fountains.
g) Spot clean reception lobby glass, including front door, if applicable.
h) Dust or damp mop resilient and hard floors.
WEEKLY
------
Remove fingerprints from front door, door frame, light switches, kick plates
and handles on doors.
MONTHLY
-------
High dust above hand height all horizontal surfaces, including shelves,
moldings, ledges and heating diffusers.
QUARTERLY
---------
Wash wastebaskets
Spot clean carpet of stains.
ANNUALLY
--------
Clean of all exterior windows (wash interior and exterior).
2. Landlord's cleaning services shall exclude any special medical or
laboratory areas which may expose the cleaning personal to extraordinary
risk or contamination.
3. Tenant Containers. Tenant agrees to keep all refuse in the kind of (tenant
supplied) container specified by Landlord.
[DEED BLUEPRINT APPEARS HERE]
Initial Data EXHIBIT G
-------------- ------------------------------------------------
LOAN DATA TABLE DATA
----------------------------- ---------------------------------------------
Loan amount $378,630 Table starts at data:
Annual interest rate: 10.00000% or at payment number: 1
Term in years: 10
Payment per year: 12
First payment due: 01/01/97 per year cost $80,180.20
PERIODIC PAYMENT
-------------------------------------------------------------------------------
Entered payment THE TABLE USES THE CALCULATED PERIODIC PAYMENT AMOUNT
Calculated payment $8,015.02 unless you enter a value for "Entered Payment"
-------------------------------------------------------------------------------
Uses payment of:$6,018.82 $7,588.50 Beginning balance at payment 1: 378,530.00
1st payment in table 1 $80,820.80 Cumulative interest prior to payment 1: 0.00
TABLE
-----------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
Payment Beginning Ending Cumulative
No. Date Balance Interest Principal Balance Interest
----------------------------------------------------------------------------------------------------
1 1/1/97 379,530.00 3,162.75 1,652.77 377,677.23 3,162,75
----------------------------------------------------------------------------------------------------
2 2/1/97 377,877.23 3,147.31 1,968.21 375,609.03 6,310,08
3 3/1/97 378,809.03 3,131.74 1,983.78 373,925.25 9,441.80
4 4/1/97 373,825.26 3,116.04 1,899.47 372,025.78 12.957.85
5 5/1/97 372,025.78 3,100.21 1,915.30 370,110.48 15,650.06
6 6/1/97 370,110.48 3,084.26 1,931.26 368,179.21 15,742.31
7 7/1/97 368,179.21 3,068.18 1,947.36 365,231.86 21,810.47
8 8/1/97 366,231.86 3,051.93 1,963.55 354,266.27 24,802.41
9 9/1/97 364,288.27 3,035.57 1,979.45 382,288.32 27,897.95
10 10/1/97 362,288.32 3,019.07 1,998.45 380,291.88 30,817.05
11 11/1/97 360,291.88 3,002.43 2,013.08 358,278.79 30,917.05
12 12/1/97 358,278.79 2,955.66 2,029.66 358,248.93 38,905.13
13 1/1/98 368,248.93 2,966.74 2,048.76 354,202.18 38,673.88
-----------------------------------------------------------------------------------------------------
14 2/1/98 354,202.16 2,951.88 2,083.83 352,138.32 42,825,56
15 3/1/98 352,158.32 2,934.49 2,081.93 350,057.29 45,780.05
16 4/1/98 350,057.29 2,917.14 2,098.37 347,958.92 48,677.19
17 5/1/98 347,958.92 2,899.68 2,115.88 345,843.08 51,576.85
18 6/1/98 345,543.06 2,882.03 2,133.49 343,709.57 54,458.87
19 7/1/98 343,709.57 2,884.28 2,151.27 341,558.30 57,323.12
20 8/1/98 341,568.30 2,848.32 2,108.20 339,389.10 60,169.44
21 9/1/98 358,359.10 2,828.24 2,187.27 337,201.83 62,997.66
22 10/1/98 337,201.83 2,610.02 2,205.50 334,996.02 65,807.70
23 11/1/98 334,998.32 2,791.64 2,223.55 332,772.44 66,399.33
24 12/1/98 332,772.44 2,773.10 2,242.41 330,530.03 71,372.44
25 1/1/99 330,630.03 2,754.42 2,261.10 328,268.93 74,128.85
-----------------------------------------------------------------------------------------------------
26 2/1/99 328,268.93 2,735.57 2,279.94 325,968.99 76,862.43
27 3/1/99 325,988.99 2,716.57 2,718.94 323,690.05 79,579.00
28 4/1/99 323,690.05 2,697.42 2,318.10 321,371.95 82,270.42
29 5/1/99 321,371.85 2,678.10 2,337.42 319,034.53 84,954.52
30 6/1/99 318,034.53 2,658.62 2,358.80 318,877.83 87,513.14
31 7/1/99 316,677.83 2,638.98 2,378.64 314,301.10 90,282.12
32 8/1/99 314,301.10 2,619.18 2,396.34 311,904.75 92,671.30
33 9/1/99 311,904.75 2,599.21 2,418.31 308,488.44 95,470.50
34 10/1/99 309,488.44 2,578.07 2,438.45 307,052.00 96,049.67
35 11/1/99 307,052.00 2,558.77 2,456.75 304,596.26 100,808.34
36 12/1/99 304,585.25 2,538.28 2,477.55 302,118.02 103,148.63
37 1/1/00 302,118.02 2,517.66 2,407.87 299,820.18 105,664.28
-----------------------------------------------------------------------------------------------------
38 2/1/00 299,620.16 2,496.83 2,518.08 298,101.48 108,181.12
39 3/1/00 297,101.48 2,478.85 2,539.67 294,561.80 110,838.96
40 4/1/00 294,561.80 2,454.68 2,560.84 292,000.97 113,091.65
41 5/1/00 292,000.97 2,433.34 2,582.18 289,418.79 115,524,99
42 6/1/00 289,415.79 2,411.62 2,603.68 288,815,10 117,938.81
43 7/1/00 288,815.10 2,390.13 2,625.39 254,189.71 120,328.94
44 8/1/00 264,169.71 2,338.25 2,647.27 281.542.44 122,695.18
45 9/1/00 281,542.44 2,346.19 2,669.33 278,873.11 125,041.37
46 10/1/00 278,873.11 2,323.94 2,691.57 278,181,53 127,385.31
47 11/1/00 278,181.53 2,301.51 2,714.00 273,487.53 128,666.83
48 12/1/00 273,487.53 2,278.80 2,736.62 270,730.91 131,948.72
49 1/1/01 270,730.91 2,256.08 2,758.43 267,971.48 134,201.81
-----------------------------------------------------------------------------------------------------
50 2/1/01 267,971.48 2,233.10 2,782.42 285,189.08 138,434.81
51 3/1/01 265,189.08 2,209.91 2,805.61 262,383.45 138,644.82
52 4/1/01 262,383.45 2,198.63 2,828.99 250,554.47 140,831.35
53 5/1/01 259,554.47 2,182.85 2,852.56 258,701.90 142,994.30
54 6/1/01 256,701.90 2,150.18 2,676.33 253,826.57 148,133.48
55 7/1/01 253,825.57 2,115.21 2,900.30 250,928.27 147,248.70
56 8/1/01 250,925.27 2,091.04 2,924.47 248,000.79 149,339.74
57 9/1/01 248,000.79 2,948.84 2,948.84 245,061.95 151,408.41
-----------------------------------------------------------------------------------------------------
58 10/1/01 245,051.95 2,042.10 2,973.42 242,078.55 153,448.51
59 11/1/01 242,078.53 2,017.32 2,998.20 238,080.34 155,465.93
60 12/1/01 239,080.34 1,882.54 3,023.18 236,057.15 157,458.17
VALHAL CORP. Schedule 1
12/4/97 Letter of Credit Calculation
AVAX TECHNOLOGIES, INC.
SQUARE FEET*
LESS SHAFTS/COLUMNS 15% GU
Suite 200 8,021.00 9,224.15
Xxxxx 000 2,305.00 2,650.75
------------
11,874.90
Xxxxxxxxxx*
Xxxxx 000 $25/RSF $230,604
Suite 204 $10/RSF $26,508
-----------
$257,111
-------------------------------------------------------------------------------
Rent 200 204 200/204 200/204
rate Rent/year Rent/year Rent/year multi yrs.
--------- ----------- ----------- -----------
yr 1-3 $10.50 $96,853.58 $27,217.05 $124,070.63 $372,212
yr 4-6 $12.00 $110,689.80 $31,105.20 $141,795.00 $425,385
yr 7-10 $14.00 $129,138.10 $36,289.40 $165,427.50 $661,710
---------
$1,459,307
-------------------------------------------------------------------------------
----------------------------------------------
Commission
4.00% $58,372.28
less abatement $2,068
-----------
CNR/Glaze $56,304.43
1.50% $21,889.60
less abatement $775
------
$21,114
--------
Totals $77,418.59
---------------------------------------------
AIR CONDITIONING* tons a/c 30 $45,000
----------
Total Letter of Credit (Tenant Improvement + Commission + A/C)** $379,530
*Note: Squate Footage and A/C cost is subject to final cost verification and
amount will be adjusted accordingly. After the first lease year if the Tenant
has not fully used the Workletter allowance (above) the Letter of Credit
may, at Tenant's election, be adjusted to reflect the actual draw of the
Workletter Allowance.
**The Total Letter of Credit amount will be reduced upon each Lease anniversary
to the amount indicated in Exhibit G to the Lease reflecting the amortized
reduction of the landlord investment. (For example, the LC amount in the second
Lease year shall be $356,248.93.)
